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DECISION
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Ottawa, 14 January 1997
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DecisionCRTC 97-3
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Rogers Cablesystems Limited
Part of Toronto, Downsview; Newmarket; Part of Toronto/ Mississauga, Peel; Oshawa/Pine Ridge; Kitchener; and Part of Toronto/York, Ontario - 951371400 - 951372200 - 951373000 - 951374800 - 951375500 - 951376300
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Rogers Cablesystems Ontario Limited
Ajax; Part of Toronto, Etobicoke/Parkdale; and Peterborough; Ontario - 951377100 - 951379700 - 951378900
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The Partners of Rogers Cablesystems Niagara, a Partnership (formerly Rogers Cablesystems Niagara Partnership)
St. Catharines, Ontario - 951380500
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Addition of WNEQ-TV (PBS) Buffalo, New York - Approved
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Following Public Notice CRTC 1995-182 dated 25 October 1995, the Commission approves the applications by Rogers Cablesystems Limited, Rogers Cablesystems Ontario Limited and Rogers Cablesystems Niagara Partnership (collectively referred to as Rogers) for authority to distribute, pursuant to paragraph 10(1)(I) of the Cable Television Regulations, 1986 (the regulations), at the licensees’ option, the programming service of WNEQ-TV (PBS) Buffalo, New York, on a discretionary tier of the cable distribution undertakings serving the communities noted above. The Commission notes Rogers’ commitment to distribute WNEQ-TV on the second discretionary tier of each of these cable undertakings.
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Background
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Currently, Rogers distributes one PBS station, namely WNED-TV Buffalo, as part of the basic service of its cable undertakings serving the communities noted above. Rogers is requesting authority to distribute WNEQ-TV as a duplicate PBS station, on the second discretionary tier of these cable undertakings.
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WNEQ-TV began operation in May 1987. In Public Notice CRTC 1986-182 dated 1 August 1986 announcing the enactment of the regulations, the Commission stated that the carriage of non-Canadian television stations that commenced operation later than 1 January 1985 would not be authorized through the regulations. Instead, cable licensees wishing to carry such stations were directed to apply to the Commission for specific authorization on a case-by-case basis.
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Subsequently, in Public Notice CRTC 1993-74 dated 3 June 1993 entitled "Structural Public Hearing", the Commission stated that in provinces served by a provincial educational broadcaster, it would generally be prepared to authorize the carriage, on a discretionary basis only, of a duplicate PBS network service received over the air at the local head end of cable undertakings.
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The Commission denied three previous requests by Rogers Cable TV Limited to add WNEQ-TV as a second PBS signal on some of its cable undertakings serving communities in southwestern Ontario (Decisions CRTC 90-794, 93-81 and 94-345) as well as similar proposals by Trillium Cable Communications Limited (Decision CRTC 95-241). In denying these applications, the Commission expressed concern that the addition of WNEQ-TV as a second PBS signal at that time could have a negative impact on Canadian television broadcasters and, in some cases, particularly on TVOntario (TVO), Ontario’s provincial educational broadcaster.
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The applications
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In support of these current applications, Rogers argued that, because WNEQ-TV is received over the air at the head end of each of these cable undertakings and is listed in the schedules of local television guides in these communities, there is substantial and persistent subscriber demand for this service. Noting that subscribers to neighbouring cable undertakings in Hamilton, Burlington and Oakville receive WNEQ-TV as part of their cable service, Rogers contended that their customers should also be able to receive this PBS signal on cable. In addition, Rogers claimed that WNEQ-TV would give "much needed support" to the new tier of Canadian specialty services (approved on 4 September 1996) and would facilitate "increased penetration rates" for these new Canadian services.
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Interventions
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In its evaluation of these applications, the Commission has taken into consideration the opposing interventions submitted by The Globe and Mail, a division of Thomson Canada Limited, Canadian Learning Television, Torstar Corporation (Torstar), and Bravo!, a division of CHUM Limited (CHUM). These interveners opposed the addition of WNEQ-TV, at this time, on the grounds that cable operators themselves claim that they have limited channel capacity on their undertakings. According to the interveners, available channels should not be given to foreign programming services, but rather should be reserved for Canadian programming services. In addition, the interveners argued that cable operators should not be allowed to add foreign services to their channel lineups until access rules for both programming and non-programming services are in place. CHUM and Torstar also expressed concern regarding the impact that approval of these applications might have on Canadian applicants intending to apply for educational specialty television formats in January 1996. (See Public Notices CRTC 1995-29 and 1995-205).
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In response, Rogers stated that, as part of its access policy filed with the Commission in June 1995 to be considered at the public hearing held in February 1996, it had made a commitment that, without qualification as to channel capacity, it would carry all licensed Canadian programming services, with the exception of minority language or ethnic services.
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While neither supporting nor opposing these applications, TVO reiterated the concerns expressed in its previous interventions to similar applications, that increasing WNEQ-TV’s presence in southwestern Ontario could potentially harm TVO, particularly if WNEQ-TV engaged in fund raising drives or increased its level of children’s programming. TVO proposed a compromise whereby, if these applications were approved, the Commission would attach a condition of licence requiring a public review by the Commission if WNEQ-TV should undertake over-the-air fund raising drives, or increase the amount of children’s programming broadcast on its station beyond the current level.
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In response, Rogers acknowledged TVO’s concerns and agreed to the "compromise position" proposed by the intervener. However, in view of its findings discussed below, the Commission does not consider that it is necessary to impose the condition of licence proposed in TVO’s intervention.
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The Commission has also noted the concerns expressed in the two opposing interventions submitted by individual subscribers. In addition, the Commission notes that some 130 interventions were filed in support of these applications.
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The Commission’s findings
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The Commission notes that many changes have taken place in the Canadian broadcasting environment since these applications were filed. Following a two-stage written process and an oral public hearing conducted in February 1996, the Commission, in Public Notice CRTC 1996-60 dated 26 April 1996, announced the Access Rules for broadcasting distribution undertakings. Subsequently, on 4 September 1996, the Commission announced the licensing of new specialty and pay television undertakings.
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In Public Notice CRTC 1996-120 which introduced the decisions licensing these new services, the Commission stated that programming services distributed as of 6 May 1996 are protected from possible removal to accommodate new Canadian specialty services on analog channels. The Commission also stated that the Access Rules will apply to the services that form the second group of new English-language specialty services licensed in September 1996, by the earlier of: the deployment of digital technology by the distributor, or by 1 September 1999. Distributors that have not implemented digital technology by 1 September 1999 must provide, at that time, access to analog channels to these services, subject to the definition of "available channel capacity", as set out in Public Notice CRTC 1996-60.
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The Commission notes that WNEQ-TV was not distributed on these cable systems before 6 May 1996 and will, therefore, not be protected from removal to free up channel capacity. The channel that WNEQ-TV will occupy will still be considered as "available channel capacity", as defined in Public Notice CRTC 1996-60. Unlike the 13 new Canadian specialty services noted above, in cases where there is a lack of channel capacity, WNEQ-TV will not be guaranteed carriage on cable undertakings as of 1 September 1999.
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The Commission further notes that Rogers’ previous applications proposed to carry WNEQ-TV on the one discretionary tier that existed at that time, thereby making WNEQ-TV available to 90% of its subscribers. In its current applications, Rogers made a commitment to distribute WNEQ-TV on the newer, second discretionary tier, which has a penetration rate of 59%. Accordingly, the Commission is satisfied that the addition of WNEQ-TV on the second discretionary tier will have significantly less impact on Canadian broadcasters than it would have had, if it had been placed on the first discretionary tier.
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In view of the foregoing, the Commission is satisfied that approval of these applications will not have a serious negative impact on Canadian broadcasters.
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This decision is to be appended to the licence.
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Allan J. Darling
Secretary General
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