ARCHIVED -  Public Notice CRTC 1998-132

Public Notice

Ottawa, 17 December 1998

Public Notice CRTC 1998-132

Regulations Amending the Radio Regulations, 1986 - Commercial Radio Programming

Summary

1. The Commission announces that it has adopted the amendments to the Radio Regulations, 1986 (the regulations) which are attached to this Public Notice. These amendments, which will come into effect on 3 January 1999, were put forward for public comment in Public Notice CRTC 1998-80. They were registered with the clerk of the Privy Council on 11 December 1998 and will be published in Part II of the Canada Gazette on 2 January 1999. The amendments give effect to those aspects of the Commission's new policy for commercial radio dealing with programming that were announced in Public Notice CRTC 1998-41.

2. These amendments apply only to "commercial stations" as defined in the amendments.

3. The primary effect of these amendments will be as follows:

· Except as otherwise provided by condition of licence, stations must ensure that at least 35% of the popular music (category 2) selections they broadcast are Canadian. They must meet this requirement both over the broadcast week and between 6 a.m. and 6 p.m. Monday through Friday.

· Except as otherwise required by condition of licence, French-language stations must ensure that at least 55% of popular (category 2) vocal music selections are in the French-language between 6 a.m. and 6 p.m. Monday through Friday. This is in addition to the current requirement that French-language stations broadcast a level of French-language vocal music of at least 65% over the broadcast week.

· The regulations require that stations play popular (category 2) musical selections in their entirety if the selections are to be counted toward fulfilling quotas for Canadian or for French-language vocal music. Later in this document, the Commission provides guidance on how it will interpret the phrase "in their entirety". The Commission also provides guidance for licensees concerning the recognition of musical medleys and montages for the purpose of measuring compliance with the content requirements.

· Stations are required to register all non-Canadian programs that they broadcast on their program logs.

4. The Commission also announces that, in the case of stations whose formats are based on the presentation of older music ("oldies" stations), it will be disposed to give favourable consideration to applications requesting flexibility to broadcast a lower level of Canadian popular music than that required of other commercial radio licensees by regulation. This lower level takes into account the relatively limited supply of Canadian music appropriate for the format of these stations.

5. Specifically, the Commission will be prepared to approve applications by licensees for conditions of licence permitting them to broadcast a minimum of 30% Canadian popular music during any broadcast week where at least 90% of the music they play consists of selections released before 1 January 1981. Stations would be required to meet this 30% minimum level both over the broadcast week and between 6 a.m. and 6 p.m., Monday through Friday. Stations subject to this condition of licence would also be responsible for specifying, on the music lists they provide to the Commission, the year of release for all musical selections they broadcast.

6. The following sections of this notice include a summary of some of the points made in the submissions filed in response to Public Notice CRTC 1998-80 and a fuller discussion of the measures outlined above.

Discussion

7. As noted above, the amendments give effect to certain aspects of the Commission's new policy for commercial radio set out in Public Notice CRTC 1998-41. The Commission adopted this policy following an extensive public process that included three rounds of written comments and an oral public hearing. In Public Notice CRTC 1998-80 the Commission announced proposed amendments related to programming and invited comments on whether the proposed amendments accurately reflected the policy. The public process announced in Public Notice CRTC 1998-80 was not a forum to revisit the substance of the policy.

8. In Public Notice CRTC 1998-81, the Commission also announced proposed amendments to the regulations related to the acquisition by radio licensees of equity in other stations in the same market and language. The final regulations dealing with this area are set out in Public Notice CRTC 1998-131, released today.

Canadian Content

Implementing the increase to 35%

9. The amended regulations require commercial stations to ensure that at least 35% of popular music (category 2) selections are Canadian in any broadcast week (that being the hours between 6:00 a.m. and midnight, seven days a week). Licensees also meet this 35% Canadian content requirement between the hours of 6 a.m. and 6 p.m., Monday through Friday.

10. The Canadian Association of Broadcasters (CAB) suggested that eleven holidays not be counted in determining compliance with Canadian content regulations. The CAB argued that this would allow stations more programming flexibility, especially on those holidays where there is a lower availability of Canadian music appropriate for the holiday in question.

11. The CAB also suggested that stations be allowed to choose up to five "exempt days" per year that would not be included when determining if they were in compliance with requirements for Canadian music. The CAB considered that this would give stations the flexibility to respond appropriately to events such as the death of prominent non-Canadian musical artists.

12. The Commission notes that the amendments, whether with respect to Canadian content or to French-language vocal music, do not require compliance on a daily basis. The requirement for the broadcast week is based on the total number of selections played over seven days. The requirement for weekdays is based on the total number of selections that a station plays over the five-day period from Monday through Friday, between 6 a.m. and 6 p.m. Thus, it is possible for a station that is below the 35% minimum level on one day to make up the shortfall on other days. The Commission considers that this provides stations with flexibility to deal with holidays and special occasions.

Stations programming formats based on older music

13. The CAB put forward a number of arguments related to the difficulties that a general increase in Canadian content for popular (category 2) music could have on "oldies" stations.

14. Such stations, which are all currently on the AM band, play old hits from the rock era. The CAB noted that the core programming of such stations is music from the 1960s and pointed out that the availability of Canadian music from this era is relatively limited since Canadian content requirements did not come into effect until the 1970s. As a result, hit Canadian selections from the 1960s and 1970s, which such stations also play, already receive extensive airplay. The CAB also noted that, since "oldies" stations don't play new releases, the supply of Canadian selections for them to broadcast cannot increase.

15. The CAB, therefore, suggested that the draft regulations be amended to allow "oldies" stations to continue to broadcast a minimum level of 30% Canadian category 2 music over the broadcast week. The existing guideline of 25% Canadian music between 6 a.m. and 7 p.m., Monday through Friday, would also apply. The CAB proposed that, for purposes of this flexibility, the Commission define an "oldies" station as one that, in a broadcast week, devotes 75% or more of its musical selections to selections released before 1 January 1975.

16. The Commission recognizes the special circumstances of these stations, but has a number of concerns about the specific proposal that the CAB has put forward.

17. First, the Commission is not prepared to incorporate special flexibility for such stations into the regulations because there has been no opportunity for interested parties to comment. The Commission notes, however, that the regulations already provide stations with the flexibility to apply for conditions of licence that would vary the minimum level of Canadian content that they must meet.

18. Second, the definition provided by the CAB may be too broad in that it might also allow some stations that provide a blend of older and newer music to program a lower level of Canadian selections than that generally required under the regulations. The Commission considers that stations broadcasting significant levels of music produced in the 1980s and later have access to a significant catalogue of Canadian music as well as to new releases. The Commission therefore believes that such stations should meet the levels of Canadian music required of other stations.

19. Third, the proposal would allow "oldies" stations, as defined by the CAB, to broadcast a lower level of Canadian music during prime weekday listening periods than the level programmed over the broadcast week as a whole. This would be contrary to an important principle of the new policy for commercial radio, namely that there be an increased presence of Canadian music on weekdays between 6 a.m. and 6 p.m. where more people are listening.

20. In light of these concerns, the Commission will generally be prepared to approve applications by licensees for conditions of licence permitting them to broadcast a minimum of 30% Canadian popular music during any broadcast week where at least 90% of the music they play consists of selections released before 1 January 1981. This is instead of the 35% Canadian content requirement otherwise stipulated in the amended regulations. Stations would be required to meet this 30% minimum level both over the broadcast week and between 6 a.m. and 6 p.m., Monday through Friday. Stations subject to this condition of licence would also be responsible for specifying, on the music lists they provide to the Commission, the year of release for all musical selections they broadcast.

21. The Commission suggests that licensees interested in receiving this flexibility apply for the necessary condition of licence before 25 January 1999. The Commission will then process such applications by public notice and interested parties will have an opportunity to submit interventions.

Playing selections in their entirety

22. The regulations, as amended, require that category 2 musical selections be played in their entirety if they are to be counted when measuring compliance with percentage requirements for Canadian and for French-language vocal music. (Special treatment will be given to musical "montages", as is specifically discussed in a later section in this notice.)

23. As outlined in Public Notice CRTC 1998-41, the Commission determined that this amendment was necessary to deal with a specific problem. During the policy review, it came to light that some stations were shortening French-language selections on a systematic basis. This practice allowed the stations to fulfil requirements for French-language vocal music by playing a large number of shortened selections in periods of lower listening.

24. In Public Notice CRTC 1998-41, the Commission indicated that it considered that shortening selections to meet content requirements was inconsistent with the objectives of the Broadcasting Act and the regulations. It therefore indicated that it proposed to amend the regulations to require that category 2 Canadian selections and category 2 French-language selections be played in their entirety for the purpose of meeting Canadian content and French-language vocal music requirements.

25. Several briefs indicated that it was necessary to clarify how the Commission will apply this regulation. Four parties involved with the production and composition of instrumental selections considered that requiring stations to play Canadian instrumental selections in their entirety would actually decrease the level of airplay that such selections receive. They noted that some stations use such selections to fill out short periods leading up to scheduled programming such as newscasts. They use Canadian instrumentals for this purpose because they can be easily faded out and, under the former regulations, still count as Canadian if they were over a minute in length. In their view, requiring stations to play these selections in their entirety would remove an important incentive for stations to play them.

26. They also noted that jazz instrumental pieces are often quite long and are therefore sometimes shortened by stations that choose to play them. With respect to this comment, the Commission notes that jazz selections are categorized as Traditional and Special Interest (category 3)
music. The "entirety" provision in the amended regulations applies only to category 2 selections.

27. In one further comment, a commercial broadcaster noted that, as an ordinary industry practice, stations routinely program musical selections in ways that might be interpreted as not playing them in their entirety. For example, announcers often talk over the introductions and endings of selections. As mentioned above, stations also fade out selections on occasion to accommodate scheduled events such as newscasts or during "segues," when one selection is played directly after another.

28. In light of these concerns, the Commission wishes to clarify that the requirement that musical selections be "played in their entirety" is not intended to interfere with the ordinary programming practices of radio stations. It is to prevent the systematic editing of French-language and Canadian musical selections.

29. Accordingly, the Commission will generally accept talking over the introduction or ending of a selection, or the fading of selections for newscasts or to accommodate segues of musical selections, as not constituting a violation of the requirement that musical selections be played in their entirety. The Commission would be concerned, however, if a disproportionate number of Canadian or French-language selections, in comparison with non-Canadian and English-language selections, respectively, were faded for these purposes.

Medleys and montages

30. The definition of a musical selection in the amended regulations includes reference to medleys and montages in order that these can be classified as music selections for purposes of calculating compliance with the regulations. The amendments incorporate into the regulations a long-standing policy approach that the Commission first enunciated in Circular 343 dated 11 May 1988 entitled Analysis by the Commission of Medleys and Montages.

31. The two terms are defined as follows:

"medley" means a compilation of one minute or more in duration in which artists or musicians combine excerpts from several musical selections within a single performance.

"montage" means a compilation of one minute or more in duration containing excerpts from several musical selections but does not include a medley.

32. A medley must be played in its entirety to count as a Canadian or French-language vocal selection. As set out in Circular 343, a medley may be classified as a Canadian or a French-language selection depending on the predominant type of material that it contains. For example, an entire medley would count as a Canadian selection if over 50% of its duration consisted of excerpts from selections that are Canadian.

33. Montages, however, consist of compilations of excerpts from various musical selections that are edited and assembled by persons other than the artists or musicians in a performance. The regulations specify two basic requirements that a montage must meet if it is to count as a Canadian or French-language selection played in its entirety:

· The total duration of the excerpts of Canadian musical selections from content category 2, or of the excerpts of vocal musical selections in the French language from content category 2, as the case may be, must be greater than 50% of the total duration of the montage; and

· The total duration of the montage must be four minutes or more.

34. The combined effect of these two requirements is that the total duration of the excerpts of Canadian selections or of French-language vocal musical selections contained in a montage must be over two minutes if the montage is to count as a Canadian or as a French-language musical selection played in its entirety.

35. The Commission's policy whereby a medley or montage is recognized as a single selection was introduced in 1988 to provide licensees with guidance on dealing with such selections. The Commission adopted the policy at a time when licensees, primarily those broadcasting dance music formats, often would broadcast montages containing expertly mixed excerpts from several musical selections including Canadian and foreign songs, hits and non-hits or French- and English-language songs. In determining how such a selection would be classified for regulatory purposes, the Commission uses the duration of the predominant type of material comprising the montage. This simplifies the assessment of music programming by avoiding the need to count and classify each excerpt contained in a montage as a musical selection.

36. This policy has been incorporated into the regulations to allow licensees to continue the practice of evaluating a medley or montage as a single selection. It also makes it clear that broadcasters cannot count each excerpt contained in a medley or montage as an individual selection for the purpose of increasing the number of Canadian or French-language selections.

37. The Commission recognizes that there can be positive aspects to playing montages. Properly used, montages allow audiences to sample selections that would not otherwise be broadcast or to present new artists to audiences on a first time basis.

38. In their comments, broadcasters generally supported the proposed regulations and definitions for medleys and montages. Concerns about how the Commission will deal with medleys or montages were expressed, however, in submissions by certain organizations associated with the music and recording industries.

39. La Société professionnelle des auteurs et des compositeurs du Québec (SPACQ) considered that broadcasters infringe upon the rights of composers and lyricists by broadcasting medleys and montages. SPACQ therefore suggested that medleys and montages should not count as Canadian or French-language musical selections.

40. L'association québécoise de l'industrie du disque, du spectacle et de la vidéo (ADISQ) expressed no concerns about the approach to medleys, but considered that the provisions related to montages might constitute a new incentive for French-language stations to program a greater proportion of English and non-Canadian music. Specifically, ADISQ considered inappropriate the possibility that a montage could be recognized as a Canadian or as a French-language musical selection when only 50% of its duration is comprised of Canadian or French-language music. ADISQ, therefore, recommended that montages not count toward meeting requirements for Canadian content or French-language vocal music. In its submission, the Canadian Independent Record Production Association (CIRPA) supported ADISQ's position.

41. While recognizing the concerns that have been raised, the Commission considers that true montages are relatively rare in radio programming. As the Commission observed in Circular No. 343, it also finds that the tightly woven montages of the style most often associated with the dance club and dance music environment differ considerably from the multi-record music sweeps used daily as a radio programming tool by many radio stations.

42. Accordingly, the Commission wishes to emphasize that, in order to be classified as a montage, the programming should consist of excerpts that are tightly woven and tied together by unifying elements such as a common rhythm or theme. Several unrelated musical excerpts played back to back, will therefore not be considered to be a montage, even if they are by the same artist. In cases where it is not clear whether the programming is a montage or a series of shortened selections, the Commission will consider the programming as a series of shortened selections.

43. In the Commissions view, concerns such as those raised by SPACQ about infringements upon the rights of composers and lyricists by broadcasters are matters best addressed in other fora.

Non-Canadian programming

44. The regulations as adopted require licensees to identify all non-Canadian programming on their program logs and records.

45. The CAB expressed concern that, under the definition set out in the proposed regulations, programming covering events in the United States that was produced by Canadians for use on Canadian stations might be classified as non-Canadian programming. The Commission agrees that such programming should properly be considered as Canadian and, in the regulations as adopted, has included a definition of non-Canadian programming that will ensure that this occurs.

Other matters

46. In addition, the new regulations incorporate a number of changes to reflect more accurately the Commission's intentions in implementing its new commercial radio policy.

47. The proposed regulations included a provision that was intended to permit a licensee to reduce the proportion of Canadian musical selections from content category 2 where, in a given broadcast week, the licensee broadcasts a specified level of instrumental selections. Certain parties noted in their comments that section 2.2(6) as proposed, was worded in a manner that would permit commercial licensees to avoid the requirement that musical selections be played in their entirety for the purpose of calculating compliance with Canadian music requirements.

48. The Commission agrees with the parties that the proposed section, as drafted, did not accurately reflect the policy determination set out in Public Notice CRTC 1998-41. Accordingly, in order to reconcile the regulations with the new policy, the Commission has reworded section 2.2(6) to permit licensees to reduce the percentage of Canadian musical selections required under sections 2.2(7) through 2.2(9) without affecting the remaining obligations under these sections.

49. By way of example, under section 2.2(6) as adopted, a licensee may reduce the percentage of popular Canadian musical selections to 20% in a broadcast week provided it devotes 35% or more, but less than 50%, of all its musical selections to instrumental selections. The licensee, however, will still be required to play the Canadian musical selections in their entirety, as required under section 2.2(8). In these circumstances, the licensee will also be permitted to reduce Canadian content between 6 a.m. and 6 p.m., Monday through Friday, from the 35% required in section 2.2(9), to 20%.

50. The Commission has also changed section 2.2(6)(a) of the proposed regulations to remove the unintentional gap that had been created in a previous amendment with respect to the prescribed levels of instrumental selections. Section 2.2(6)(a) now refers to a level of "less than 50%" rather than "no more than 49%".

51. Section 2.2(8) has been reworded to more clearly express the Commission's intention that an exception to the 35% Canadian content requirement may be made only by way of a condition of licence that specifically refers to this new requirement.

52. Finally, the Commission notes that a section 2.2(13) has been added to the regulations to preserve the status quo for licensees of other than commercial stations who are authorized to operate a station in the French language. The addition of this section is necessary to maintain the current requirements for French-language vocal music that apply to those licensees who were excluded from the purview of the new commercial radio policy set out in Public Notice CRTC 1998-41.

53. Related documents: Public Notices CRTC 1998-41, Commercial Radio Policy 1998; CRTC 1998-80, Proposed Regulations Amending the Radio Regulations, 1986 - Commercial Radio Programming; CRTC 1998-81, Proposed Regulations Amending the Radio Regulations, 1986 - Acquisition by Radio Licensees of Equity in Other Stations in the same Market and Language; and CRTC 1998-131, Regulations Amending the Radio Regulations, 1986 - Acquisition by Radio Licensees of Equity in Other Stations in the same Market and Language.

Secretary General

This document is available in alternative format upon request, and may also be viewed at the following Internet site:www.crtc.gc.ca

JUS-600459
(SOR/DORS)

Whereas, pursuant to subsection 10(3) of the Broadcasting Act, a copy of the proposed Regulations Amending the Radio Regulations, 1986, substantially in the annexed form, was published in the Canada Gazette, Part I, on August 8, 1998, and a reasonable opportunity was thereby given to licensees and other interested persons to make representations to the Canadian Radio-television and Telecommunications Commission with respect to the Regulations;

Therefore, the Canadian Radio-television and Telecommunications Commission, pursuant to subsection 10(1) of the Broadcasting Act, hereby makes the annexed Regulations Amending the Radio Regulations, 1986.

Hull, Quebec, 9 December 1998

Secretary General

JUS-600459
(SOR/DORS)

REGULATIONS AMENDING THE RADIO REGULATIONS, 1986

AMENDMENTS

1. Section 2 of the Radio Regulations, 1986 is amended by adding the following in alphabetical order:

"campus station" means an A.M. station or an F.M. station that is licensed as a campus station; (station de campus)

"commercial station" means an A.M station or an F.M. station other than a station owned and operated by a not-for-profit corporation, a campus station, a community station, a native station, an ethnic station or a station owned and operated by the Corporation; (station commerciale)

"community station" means an A.M. station or an F.M. station that is licensed as a community station; (station communautaire)

"medley" means a compilation of one minute or more in duration in which artists or musicians combine excerpts from several musical selections within a single performance; (pot-pourri)

"montage" means a compilation of one minute or more in duration containing excerpts from several musical selections but does not include a medley; (montage)

"musical selection" means any live or recorded music of one minute or more in duration that is broadcast uninterrupted, and includes a medley and a montage; (pièce musicale)

"native station" means an A.M. station or an F.M. station that is licensed as a native station; (station autochtone)

2. (1) Subsection 2.2(3) of the Regulations is replaced by the following:

(3) Except as otherwise provided under a licensee's condition of licence, an A.M. or F.M. licensee shall, in a broadcast week, devote 10% or more of its musical selections from content category 3 to Canadian selections and schedule them in a reasonable manner throughout each broadcast day.

(2) Subsections 2.2(5) and (6)2 of the Regulations are replaced by the following:

(5) Except as otherwise provided under a licensee's condition of licence, an A.M. or F.M. licensee licensed to operate a commercial station in the French language shall, in a broadcast week, devote 65% or more of its vocal musical selections from content category 2 to musical selections in the French language broadcast in their entirety.

(6) An A.M. or F.M. licensee may, in a broadcast week, reduce the percentage of its Canadian musical selections from content category 2 referred to in subsection (7), (8) or (9) to

(a) not less than 20% if, in that broadcast week, the licensee devotes 35% or more but less than 50% of all its musical selections to instrumental selections; and

(b) not less than 15% if, in that broadcast week, the licensee devotes 50% or more of all its musical selections to instrumental selections.

(7) Except as otherwise provided under a licensee's condition of licence, and subject to subsection (6), an A.M. or F.M. licensee licensed to operate a station other than a commercial station shall, in a broadcast week, devote 30% or more of its musical selections from content category 2 to Canadian selections and schedule them in a reasonable manner throughout each broadcast day.

(8) Except as otherwise provided under a licensee's condition of licence that refers expressly to this subsection and subject to subsection (6), an A.M. or F.M. licensee licensed to operate a commercial station shall, in a broadcast week, devote 35% or more of its musical selections from content category 2 to Canadian selections broadcast in their entirety.

(9) Except as otherwise provided under a licensee's condition of licence, and subject to subsection (6), an A.M. or F.M. licensee licensed to operate a commercial station shall, between 6:00 a.m. and 6:00 p.m., in any period beginning on Monday of a week and ending on Friday of the same week, devote 35% or more of its musical selections from content category 2 to Canadian selections broadcast in their entirety.

(10) Except as otherwise provided under a licensee's condition of licence, an A.M. or F.M. licensee licensed to operate a commercial station in the French language shall, between 6:00 a.m. and 6:00 p.m., in any period beginning on Monday of a week and ending on Friday of the same week, devote 55% or more of its vocal musical selections from content category 2 to musical selections in the French language broadcast in their entirety.

(11) For the purpose of this section, a montage is deemed to be a Canadian selection broadcast in its entirety if

(a) the total duration of the excerpts of Canadian selections from content category 2 is greater than 50% of the total duration of the montage; and

(b) the total duration of the montage is four minutes or more.

(12) For the purpose of this section, a montage is deemed to be a musical selection in the French language broadcast in its entirety if

(a) the total duration of the excerpts of vocal musical selections in the French language from content category 2 is greater than 50% of the total duration of the montage; and

(b) the total duration of the montage is four minutes or more.

(13) Except as otherwise provided under a licensee's condition of licence, an A.M. or F.M. licensee licensed to operate a station in the French language other than a commercial station shall, in a broadcast week, devote 65% or more of its vocal musical selections from content category 2 to musical selections in the French language and schedule them in a reasonable manner throughout each broadcast day.

3. Subparagraph 8(1)(c)(iv) of the Regulations is amended by striking out the word "and" at the end of clause (C) and by adding the following after clause (D):

(E) if applicable, the code set out in the schedule identifying non-Canadian programming, and

14. (1) Il est interdit au titulaire M.F. qui détient également une licence M.A. de diffuser simultanément sur les ondes de sa station M.F., au cours de la journée de diffusion, la matière radiodiffusée sur les ondes de sa station M.A. lorsqu'il y a chevauchement de toute partie du périmètre de rayonnement de 3 mV/m de la station M.F. et du périmètre de rayonnement de jour de 15 mV/m de la station M.A.

5. The title of the schedule to the Regulations is replaced by the following:

CODES INDICATING ORIGIN, LANGUAGE,
TYPE AND GROUP OF PROGRAMMING AND NON-CANADIAN PROGRAMMING

6. The schedule to the Regulations is amended by adding the following after Part D:

E. Code Identifying Non-Canadian Programming

Column I/Colonne I Column II/Colonne II
Item/Article Code Description

1. NC Programming that originates outside Canada other than local programming, as defined in Public Notice CRTC 1993- 38 dated April 19, 1993, published in the Canada Gazette, Part I, on May 1, 1993, as amended from time to time, and other than programming that is produced by a Canadian within the meaning of section 1 of the Direction to the CRTC (Ineligibility of Non- Canadians).

COMING INTO FORCE

7. These Regulations come into force on January 3, 1999.