ARCHIVED -  Decision CRTC 97-362

Decision

Ottawa, 29 July 1997

Decision CRTC 97-362

Canadian Broadcasting Corporation

Toronto, Crystal Beach, Paris/Kitchener and Orillia, Ontario - 950258400- 950259200 - 950260000 - 950737700Toronto, Ontario - 199613956Toronto, Ontario - 199614152Toronto, Ontario - 199613568Toronto, Ontario - 199613782Toronto, Ontario - 199613600Toronto, Ontario - 199614144Ajax and Toronto, Ontario - 199613584Toronto, Ontario - 199613534Brampton, Ontario - 199613790

Approval of applications by the Canadian Broadcasting Corporation to convert AM station CBL Toronto to the FM band on frequency 99.1 MHz and to make other related changes; denial of eight other applications competing for use of this frequency; denial of a related application.

BACKGROUND

1. At a Public Hearing held in Toronto beginning on 14 April 1997, the Commission considered applications by the Canadian Broadcasting Corporation (CBC, the Corporation) and eight private broadcasters. Five of the applications requested a broadcasting licence for a new English-language FM radio programming undertaking at Toronto, utilizing the frequency 99.1 MHz. The remaining applicants proposed to use the 99.1 MHz frequency for existing undertakings.

2. The frequency 99.1 MHz appears to be the last commercial, high-power FM channel allotment in the Metropolitan Toronto area. It had originally been assigned to the CKO Radio Partnership (CKO Radio) for the operation of its broadcasting undertaking CKO-FM-2 in Toronto, one of the anchors of the CKO all-news radio programming service that ceased operations in 1990. All of the licences held by CKO Radio were revoked by the Commission at the request of the licensee, in Decision CRTC 90-745 dated 15 August 1990.

3. In Public Notice CRTC 1991-75, Potential Uses of the Former CKO Radio Frequencies, dated 23 July 1991, the Commission stated that applications for the future use of the frequencies would be assessed on their own merits.

4. At a public hearing held in Toronto in 1992, the Commission considered three competing applications for the use of 99.1 MHz. In Decision CRTC 92-543 dated 6 August 1992, the Commission denied all three applications, because the Commission was not satisfied that any of the applications represented the best possible use of the 99.1 MHz frequency.

5. In 1995, the CBC filed four applications related to the proposed replacement of its Toronto English-language AM station, CBL, with FM transmitters. The CBC proposed to establish three new FM transmitters which would utilize the FM frequencies 99.1 MHz in Toronto, 89.1 MHz in Paris, 100.3 MHz in Crystal Beach and to increase the effective radiated power of CBCO-FM Orillia. Those applications triggered a call by the Commission for competing applications.

THE PRIVATE APPLICANTS

6. The Commission received eight applications from private broadcasters in response to its call, all proposing the use of the same frequency, 99.1 MHz. Thus, all of the applications, including that by the CBC, were technically mutually exclusive.

7. Rawlco Communications Ltd. (Rawlco), licensee of CISS-FM Toronto, which currently uses the frequency 92.5 MHz, requested an amendment to the broadcasting licence for CISS-FM, in order to utilize the 99.1 MHz frequency. Rawlco's application contemplated the continuation of CISS-FM's "New Country" musical format on the new frequency.

8. Similarly, Durham Radio Inc. (Durham), licensee of CJKX-FM Ajax, proposed to use the 99.1 MHz frequency, and to relocate CJKX-FM's transmitter from Whitby to Toronto. Durham also proposed to continue its exisiting "New Country" musical format.

9. Dufferin Communications Inc. (Dufferin), licensee of CIDC-FM Orangeville, proposed amendments to the broadcasting licence for CIDC-FM to use the former CKO frequency and to relocate the transmitter to Toronto. Dufferin proposed to continue CIDC-FM's "Dance/Contemporary Hits Radio" format on the new frequency.

10. 1210361 Ontario Inc., licensee of CHWO Oakville, proposed to operate a new English-language FM radio programming undertaking at Toronto, providing, on 99.1 MHz, CHWO's "Middle of the Road/Nostalgia" music format.

11. Radio One Broadcasting Corporation filed an application for a new English-language FM radio programming undertaking at Toronto, to provide an "Adult Pop/World Music" format.

12. Douglas Bingley, J. Robert Wood, and B. Denham Jolly all filed applications on behalf of companies to be incorporated, proposing new English-language FM undertakings. The Douglas Bingley application contemplated a new station that would provide a "Rhythmic Contemporary Hits Radio" music format, the application by J. Robert Wood proposed a "Dance" music format, and the application by B. Denham Jolly was for a format featuring "World Urban Contemporary" music.

13. At the Toronto hearing, the Commission also considered an application by CKMW Radio Ltd., licensee of AM station CIAO Brampton, for a licence to carry on a specialty FM (ethnic radio) programming undertaking. This application involved the conversion of CIAO to the FM frequency currently used by CIDC-FM Orangeville, and was contingent upon the approval of the above-noted application by Dufferin.

THE COMMISSION'S DECISION

14. The Commission notes that the eight private applicants for 99.1 MHz presented interesting proposals, each offering various potential advantages for the Toronto market. While several of the private applicants provided attractive alternatives with sound business plans, the nine applications were, as noted above, technically mutually exclusive. Since the competing applications heard were from both the public and private sectors, the Commission had to reconcile the interests of all parties involved, in the public interest, in accordance with the general mandate conferred on the Commission by the Broadcasting Act (the Act) to regulate all aspects of the Canadian broadcasting system, and in light of the particular mandate conferred on the CBC by the Act. The Commission's decision also had to be made in the specific context of the Toronto market, the largest in Canada. It is a market where a significant population lives and works in a congested urban core, where AM signals can be subject to particularly severe limitations. It is also a market which is already served by a number of diverse radio voices, including ten FM and ten AM commercial radio stations.

15. By majority vote, the Commission approves the four inter-related applications submitted by the CBC to improve the delivery of its AM radio service throughout the Toronto area by, among other things, converting CBL to the FM band. The four CBC applications are discussed in greater detail later in this decision.

16. In approving the CBC applications, the Commission has considered, among other matters, the reception difficulties faced by CBL listeners in the Toronto area, the increasing migration of listeners to stations on the FM band, and the requirements of the Act with relation to the CBC's mandate. These matters are discussed in detail below.

17. The eight competing applications noted above are denied. The application by CKMW Radio Ltd., which was contingent upon approval of the Dufferin application, is also denied.

Technical matters

18. The Commission examined the CBC application in the context of the guidelines set out for the first time in 1983 and reiterated in Public Notice CRTC 1991-102 entitled Review of CBC Long Range Radio Plan. In that notice, the Commission indicated that, while it concluded that the Corporation's basic radio service should continue to be delivered on the AM band wherever possible, it would be prepared to consider applications for the replacement of CBC AM transmitters by FM, on a case-by-case basis, and it set out the criteria it would use to assess such applications. The criteria are the existence of poor night-time coverage where replacement would result in a significant improvement in service, and the existence of a situation where coverage deficiencies could not be corrected by other means. In this regard, the Commission notes the CBC's comments at the hearing that, while the situation in Toronto warrants the replacement of the AM transmitter with FM, in some other Canadian cities the Corporation has "invested considerable amounts of money in relocating AM transmitters in order to continue to remain on AM in those centres... We are only looking for FM solutions when we have exhausted AM solutions."

19. Altough the CBC applications do not meet the criteria discussed above, the Commission is satisfied that the reception difficulties experienced by CBL listeners, combined with other factors discussed below, have resulted in a situation that warrants an exception to the 1983 guidelines that the basic service of the CBC should generally be provided on the AM band.

20. In support of its application, the CBC presented the results of a study undertaken by BBM/Comquest in May 1994. The study found that, among those who listen to CBL at home, 18% of all respondents, and 23% of urban core respondents said they "often" or "occasionally" have difficulty receiving CBL there. Among those who listen to CBL in their cars, 32% of all respondents, and 39% of urban core respondents, said they "often" or "occasionally" have difficulty receiving CBL.

21. The study also found that, of those who have difficulty receiving CBL at home, 39%, and 43% of those living in the urban core, said that those reception problems reduce the amount of time they devote to listening to CBL. Similarly, the study found that of all those who have difficulty with reception of CBL in their cars, 49%, and 56% of those living in the urban core, said that these reception problems reduce the amount of time they spend listening to CBL.

22. At the hearing, the CBC also presented the results of signal reception tests it conducted at 189 locations in Toronto. It stated that the test area included all of Toronto, most of York, East York and southern parts of North York, an area with a total population of approximately 830,000.

23. The report of the listening tests, which were conducted inside the homes of listeners, concluded that when a receiver provided by the CBC was used, the audio quality, using the five-point CCIR scale, was either poor, with annoying impairment, or bad, with very annoying impairment at 22.1% of locations. When the listeners' personal receivers were used, the audio quality at 43.5% of locations was either poor or bad.

24. The CBC also conducted mobile listening tests on six routes criss-crossing the Toronto downtown area. Again using the CCIR scale, it found the reception of CBL to be unacceptable 54% of the time, compared to between 38% and 41% of the time for three other Toronto AM stations.

25. An intervention in opposition to the CBC applications was submitted jointly by six of the private applicants competing for the 99.1 MHz frequency. The intervention put forward an alternative solution to the CBC's technical difficulties with the reception of CBL. Under this proposal, developed by the broadcast engineering firm of Stacey, Lawson Associates Ltd. (Stacey), CBL's current 740 kHz AM frequency would be retained; the CBC, however, would use concurrently the FM frequency of 93.5 MHz to duplicate the CBL service in the urban core area of Toronto to provide a clear alternative signal in most of the area with documented reception difficulties. The intervention noted that the 93.5 MHz frequency is currently used by the CBC transmitter CBCP-FM Peterborough. Implementation of the proposal would therefore require a change in frequency for the Peterborough transmitter. The Stacey proposal also acknowledged that the plan would need to be carefully engineered for any loss of service to be avoided.

26. The CBC stated at the hearing that the Stacey proposal would be only a partial solution to CBL's problems: while it would solve the reception problems within the area it would cover, it would not address any technical difficulties or the issue of tuning shift from AM to FM in the rest of CBL's coverage area. With regard to car radio reception, of particular concern to the CBC was that listeners driving between areas covered by CBL and those covered by the 93.5 MHz transmitter would have to tune their radios back and forth between AM 740 and FM 93.5 to ensure continuous quality reception.

27. While the Commission recognizes that the Stacey proposal may have offered a partial solution, it is not convinced that, in all the circumstances, it could be a complete solution to CBL's difficulties. In particular, the Commission is of the view that, with regard to car radio reception, the inconvenience to thousands of listeners commuting daily between downtown Toronto and outlying areas, of having to switch between bands to find CBL's signal, presents a serious handicap to maintaining, and more importantly, to augmenting listenership.

28. The CBC further submitted that, while digital radio is expected eventully to replace existing analog radio services, it will not be available to the public at large for another 10 to 20 years. It argued that it must, therefore, continue to deliver its programming via analog broadcast during the transition period.

29. The Commission is satisfied that implementation of the approvals granted in this decision will substantially improve the reception of CBL and will make it possible for the CBC to maintain, renew and augment its Toronto audience. The Commission notes the CBC's statements at the hearing, that its proposals would ensure the same coverage that the frequency 740 kHz AM currently provides, thereby enabling the Corporation to provide a good quality, consistent FM signal to all CBL listeners throughout the current CBL coverage area.

Migration from AM

30. In support of its applications, the CBC also argued that the strong trend in tuning away from the AM band by the Toronto radio audience has resulted in the CBC's failure to reach many potential listeners, especially younger ones who listen almost exclusively to FM.

31. The Commission notes that there has been an overall shift from AM to FM listening throughout Canada, and particularly in Toronto. According to the Bureau of Broadcast Measurement (BBM), all AM tuning in the Toronto market has declined from 43% in 1992 to 30% in 1996. Over this same period, FM tuning in Toronto has increased from 53% in 1992 to 67% in 1996. In addition, BBM reports that 46% of Toronto radio listeners 18 years and older do not tune to the AM band during the average week. It is expected that this trend will continue.

32. In approving these applications, the Commission has considered carefully the negative effects upon CBL's audience of recent listening trends, and expects that, with the use of the 99.1 MHz frequency to deliver its diverse blend of talk programming, the CBC will attract a larger audience.

The CBC's mandate and the public interest

33. As the national public broadcaster, the CBC is required under the Act to provide to all Canadians a service that includes a broad range of programming likely to meet the needs and interests of all regions of the country, and that reflects the various realities of Canadian society and contributes to the exchange of cultural expression.

34. The Corporation stated that its request to convert CBL to the FM band was to ensure that the CBC would continue to be able to discharge its mandate under the Act to reach all Canadians by the best available means. In its application, the CBC noted in particular that subparagraph 3(1)(m)(vii) of the Act requires that "the programming provided by the Corporation should be made available throughout Canada by the most appropriate and efficient means and as resources become available for the purpose." The CBC argued essentially that, given the technical difficulties and listening trends discussed above, use of the AM band is no longer the most appropriate or efficient means of delivering its public broadcasting service to Toronto, and that, especially in the most populous and competitive radio market in the country, it was increasingly difficult for the CBC's AM service to compete for listeners.

35. In arriving at its decision to approve the CBC's proposal to serve Toronto, a majority of the Commission has concluded that, in the particular circumstances of this case, the use of the frequency 99.1 MHz by the CBC to broadcast the programming of CBL in Toronto is the most appropriate and efficient solution to CBL's difficulties and represents the best possible use of the 99.1 MHz frequency.

36. For all of the reasons noted above, the Commission, by majority vote, approves the application by the CBC for a broadcasting licence for an English-language FM radio programming undertaking at Toronto on the frequency 99.1 MHz, channel 256C1, with an effective radiated power of 35,200 watts. The Commission notes that the Promise of Performance for the new FM station will be identical in all respects to that of CBL.

37. The Commission also approves the applications by the CBC to operate a transmitter at Paris/Kitchener to rebroadcast the new undertaking on the frequency 89.1 MHz, channel 206B, with an effective radiated power of 5,000 watts; and to amend the FM licence of CBCO-FM Orillia, by increasing the effective radiated power of the transmitter from 3,100 to 5,200 watts.

38. The CBC also requested approval of an application to operate a rebroadcasting transmitter of its proposed Toronto FM undertaking at Crystal Beach, proposing to operate it on the commercial frequency 100.3 MHz, channel 262A, with an effective radiated power of 319 watts.

39. The licensee of CKRZ-FM Ohsweken, which operates on the frequency 100.3 MHz, channel 262A1, submitted an intervention in opposition to the proposed use of 100.3 MHz by the CBC at Crystal Beach on the grounds that it could cause co-channel interference to CKRZ-FM, and that it could preclude any future power increase or coverage extension for that native radio service.

40. It is a longstanding Commission policy that the CBC should use non-commercial, educational frequencies rather than commercial frequencies, wherever possible. While there is a non-commercial, educational frequency (90.5 MHz, channel 213A) allotted to Crystal Beach, the CBC stated at the hearing that its preference was specifically not to use it due to the potential for future interference involving an unused FM allotment in Paris. In addition, the CBC's plan for the Crystal Beach transmitter was to locate it at the same site as a CIII-TV (Global) transmitter at Fort Erie. The CBC stated that the use of 90.5 MHz at that site would not be acceptable to Global, and therefore another site would have to be found for such use.

41. The Commission has considered the views of the CBC and the intervener in this matter, as well as the standard practice in the broadcasting regulatory environment to give priority to the protection of existing stations from interference. It considers that, should the CBC be required to select a different site for the operation of a Crystal Beach transmitter, it should not encounter major difficulties in finding a suitable location with a modest tower for a Class A operation.

42. In view of the above, the Commission approves the CBC's request to add a transmitter at Crystal Beach to rebroadcast the programming of the Toronto undertaking, but requires the Corporation to use a different frequency for that purpose, rather than 100.3 MHz, and notes the availability of the non-commercial, educational frequency 90.5 MHz.

43. Subject to the requirements of this decision, the Commission will issue a licence expiring 31 August 2001. This licence will be subject to the conditions specified in this decision and in the licence to be issued.

44. The licence term granted herein, while less than the maximum of seven years permitted under the Act, will enable the Commission to consider the renewal of this licence in accordance with the Commission's regional plan for CBC radio programming undertakings.

45. The Commission notes that the new FM radio programming undertaking licensed herein will replace CBL Toronto, and that the CBC intends to cease operating its AM transmitter within six months of the implementation of the new service. The Commission expects the CBC to inform listeners during the transitional period of simulcasting of the changes approved in this decision. At the end of that period, the CBC is expected to surrender the current licence for CBL.

46. It is a condition of licence that the Corporation not broadcast any commercial message of Category 5 (Advertising) except:

a) during programs that are available to the licensee only on a sponsored basis, or

b) as required to fulfil the requirements of the legislation of the Parliament of Canada pertaining to elections, or

c) in communities where there is no other programming undertaking broadcasting in the same language.

47. It is a condition of licence that 50% or more of the category 2 music selections broadcast each broadcast week be Canadian and that these selections be scheduled in a reasonable manner throughout the broadcast day.

48. It is a condition of licence that 20% or more of the category 3 music selections broadcast each broadcast week be Canadian.

49. It is a condition of licence that the applicant adhere to its Revised CBC Guidelines on Sex-Role Portrayal dated 12 August 1991 as amended from time to time and accepted by the Commission and, as a minimum, to the Canadian Association of Broadcasters' Sex-Role Portrayal Code for Television and Radio Programming, as amended from time to time and accepted by the Commission.

50. The Commission notes that this licensee is subject to the Employment Equity Act that came into effect on 24 October 1996 (1996 EEA), and therefore files reports concerning employment equity with Human Resources Development Canada. As a result of a consequential amendment to the Act, the Commission no longer has the authority to apply its employment equity policy to any undertaking that is subject to the 1996 EEA.

51. This authority will only be effective and the licence will only be issued at such time as the construction of the undertaking is completed and it is prepared to commence operation. If the construction is not completed within twelve months of the date of this decision or, where the applicant applies to the Commission within this period and satisfies the Commission that it cannot complete construction and commence operation before the expiry of this period, and that an extension of time is in the public interest, within such further periods of time as are approved in writing by the Commis-sion, the licence will not be issued. The applicant is required to advise the Commis-sion (before the expiry of the twelve-month period or any extension thereof) in writing, once it has completed construction and is prepared to commence operation.

52. The Commission acknowledges and has considered all of the interventions submitted with respect to all of the applications discussed herein.

This decision is to be appended to the licence.

Laura M. Talbot-Allan
Secretary General

This document is available in alternative format upon request.

Dissenting opinion of Commissioner William Callahan

Commissioner Callahan, while acknowledging the preeminent place and mandate of the Canadian Broadcasting Corporation, nonetheless argues that the public interest and the desires of the Corporation's Board of Directors are not necessarily or always identical. Otherwise both the public call for applications, and the public hearing process respecting this matter have been a waste of time and of substantial public and private resources.

The Commissioner dissents from the majority decision of the Commission on the following grounds:

a) The CBC has not made a compelling case, within the appropriateness and efficiency requirements of the Broadcasting Act, for awarding the frequency 99.1 MHz to the Corporation to improve reception for some of its listeners in the Toronto area. Its applications included requests for three FM frequencies and a power increase on a rebroadcaster to increase its listenership to a 6.0 share. This objective has already been achieved by CBL AM 740, according to the Spring 1997 BBM survey;

b) A solution that is more in keeping with the nature and extent of the CBC's problem is attainable in the so-called "nesting alternative", which well compliments the Corporation's own declaration that it "welcomes any technical proposal that meets its coverage objectives while accommodating another broadcaster whom the Commission might wish to license" (Transcript of Toronto hearing, I. Alexander, p. 12, lines 12-15); and

c) An appropriate and efficient use of the frequency 99.1 MHz in the sense of the Broadcasting Act is proposed in the application of B. Denham Jolly, OBCI (the Milestone group). It would provide the opportunity for members of a large and diverse segment of the Toronto multicultural community to reflect their cultures on their own terms and in their own way, and a particular voice for Toronto's black music, artistic and business communities.

Commissioner Callahan notes that during the proceeding, speaking for the Canadian Broadcasting Corporation, Mr. H. Redekopp (Vice President of CBC English Radio) stated, "[W]e would work with the Commission, with any party, to try to find a win/win situation for more than one applicant." (Transcript of Toronto hearing, H. Redekopp, p. 103, lines 3-5).

In this Commissioner's opinion, the awarding of the frequency 99.1 MHz to the Milestone group, with the CBC relying on the "nesting alternative" to correct deficiencies in its Toronto coverage would best serve the public interest in Canada's largest city.

Dissenting opinion of Commissioner Gail Scott

I concur with the dissent of my colleague William R. Callahan in all the aspects noted above.

The CBC was given ample opportunity to make its case for being awarded the 99.1 MHz frequency on technical, legal, business, and other grounds. In my opinion, it failed to do so.

Simply put, the CBC's argument is badly flawed. Using the frequency 99.1 MHz as a "replacement frequency'' for its existing English language AM radio service in the Toronto region is not the best use of this frequency in my view.

It is my opinion that several applications heard during this proceeding offered a superior "use'' for this frequency, particularly as it relates to meeting the needs of the multicultural and aboriginal markets in this unique and diverse community.

I concur with Commissioner Callahan that the application from the Milestone Group would best serve the public interest in Canada's largest city.

DEC97-362_0