ARCHIVED -  Decision CRTC 99-552

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Decision CRTC 99-552

Ottawa, 22 December 1999

3609294 Canada Inc., the general partner, and BCE Inc., the limited partner, which will operate as Bell ExpressVu Limited Partnership
Across Canada – 199910625 – 199910633 – 199910641

6 December 1999 Public Hearing
National Capital Region

Acquisition of assets

1. The Commission approves the applications for authority to acquire the assets of the direct-to-home (DTH) broadcasting distribution undertaking, the DTH pay-per-view undertaking and the satellite relay distribution undertaking from Bell ExpressVu Inc., and for broadcasting licences to continue the operation of these undertakings, under the same terms and conditions as those in the current licences.

2. Upon surrender of the current licences, the Commission will issue licences to 3609294 Canada Inc., the general partner, and BCE Inc., the limited partner, which will operate as Bell ExpressVu Limited Partnership. The licences will expire on their current expiry dates: 31 August 2002 for the DTH satellite distribution undertaking and 31 August 2005 for the DTH pay-per-view undertaking and for the satellite relay distribution undertaking. The licences will be subject to the conditions specified in the appendices to this decision and in the licences to be issued.

3. These transactions, which are part of a corporate reorganization, will not affect the ultimate control of the undertakings. 3609294 Canada Inc. is a wholly-owned subsidiary of Bell ExpressVu Inc. that, in turn, is a wholly owned subsidiary of BCE Inc. Both before and after the reorganization, the licensed undertakings are and will be effectively controlled and wholly owned by BCE Inc.

4. 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.

5. The Commission acknowledges the intervention received with respect to these applications and is satisfied with the licensee's reply.

Secretary General

This decision is to be appended to each licence. It is available in alternative format upon request, and may also be viewed at the following Internet site: www.crtc.gc.ca

Appendix I to Decision CRTC 99-552 

Conditions of licence for the national direct-to-home (DTH) satellite distribution undertaking

1. a) Unless otherwise authorized by the Commission, the licensee is authorized to distribute the signal of any licensed television programming undertaking. The licensee is authorized to distribute such a service unless the licensee of that service objects in writing to its carriage, both to the Commission and to the distribution undertaking, within 90 days of the date of this decision. The licensee is also authorized to distribute the services of all other licensed or exempt programming undertakings (other than a pay television programming undertaking that provides a pay-per-view service). The licensee is also authorized to distribute an Electronic Program Guide, a PPV marketing channel, and a marketing channel for its service.

b) Unless otherwise authorized by the Commission, the licensee is authorized to distribute the following non-Canadian programming services:

WTVS Detroit (PBS)
WTOL-TV Toledo (CBS)
WXYZ-TV Detroit (ABC)
WUHF-TV Rochester (FOX)
Cable News Network (CNN)
CNN Headline News (CNN-2)
The Nashville Network (TNN)
The Arts and Entertainment Network (A&E)
CNBC/FNN
The Weather Channel (TWC)
Cable Satellite Public Affairs Network (C-Span)
The Silent Network (Kaleidoscope)
The Learning Channel
WTBS Atlanta
WGN-TV Chicago
WWOR-TV New York City
WPIX New York City
WSBK-TV Boston
KTLA Los Angeles
Black Entertainment Television (BET)
Lifetime Television
Comedy Central

The licensee is authorized to make available to subscribers as part of a discretionary package, a second set of 4 U.S. commercial signals, one from each of the major U.S. television networks, and one non-commercial U.S. signal (U.S. "4+1" signals) from either the Eastern or the Pacific time zones.

2. The licensee shall offer a basic service that includes at least one of each of the CBC English- and French-language television network affiliates or member stations and at least one affiliate of the CTV English-language television network service. Every subscriber must subscribe to the basic service to receive any discretionary services, except the DTH pay-per-view services.

3. The licensee is required to adhere to the following, unless otherwise authorized by the Commission:

a) the licensee shall delete the programming of a non-Canadian television programming service distributed on the DTH undertaking, and substitute the identical programming of a Canadian television programming undertaking whose signal is also distributed on the DTH undertaking;

b) the licensee shall delete programming received by subscribers located within the Grade B contour of a licensed Canadian television programming undertaking, where the programming distributed as part of the DTH undertaking is identical to the programming broadcast by the Canadian television programming undertaking;

c) the licensee shall delete programming received by subscribers located within the grade B contour of licensed Canadian television programming undertakings where the programming distributed as part of its service is identical (i.e. in relation to the above-mentioned programming, not less than 95 percent of the video and audio components of those programming services, exclusive of commercial messages and any part of the services carried on a subsidiary signal are the same) to the programming broadcast by the Canadian television programming undertaking and is distributed on a non-simultaneous basis within the same broadcast week.

d) the licensee shall delete and/or substitute programming of television programming services in the manner contemplated under paragraphs a), b) and c) above, where the DTH operator has received, at least seven days prior to the date on which the programming is broadcast, a written request for the deletion and/or substitution of the programming of the television programming service.

e) The application of the conditions of licence specified in b) and c) will be suspended from the date of this decision until the earlier of 30 August 2000 and the date upon which the DTH satellite distribution undertaking obtains 500,000 subscribers.

The licensee may discontinue the deletion and/or substitution of programming of a television programming service where the licensee verifies that the programming of the television programming service in respect of which the deletion is made, is not, or is no longer identical.

For the purposes of paragraphs a) and b) of this condition, the term "identical" shall have the same meaning as that contained in section 2(1) of the Cable Television Regulations, 1986 (the cable regulations), the term "commercial message" shall have the same meaning as that contained in the cable regulations and the term "broadcast week" shall mean a period of seven consecutive days, beginning on Sunday.

4. The licensee shall ensure that no subscriber receives a total number of programming services that contains less than a preponderance of Canadian programming services.

For the purpose of this condition, multiplex programming channels, repeat channels and non-programming channels will be disregarded and each licensed DTH PPV service distributed will be counted as a single channel.

5. The non-Canadian programming services listed below may only be offered in a discretionary package with Canadian pay television and/or Canadian specialty services, and are subject to the following linkage requirements:

a) each Canadian pay television service (excluding a Canadian DTH PPV television service) may be linked in a single discretionary package with no more than five channels of the following authorized non-Canadian programming services:

Cable News Network (CNN)
CNN Headline News (CNN-2)
The Nashville Network (TNN)
The Arts and Entertainment Network (A&E)
CNBC/FNN
The Weather Channel (TWC)
Cable Satellite Public Affairs Network (C-Span)
The Silent Network (Kaleidoscope)
The Learning Channel
WTBS Atlanta*
WGN-TV Chicago*
WWOR-TV New York City*
WPIX New York City*
WSBK-TV Boston*
KTLA Los Angeles*
Black Entertainment Television (BET)
Lifetime Television
Comedy Central

*U.S. Superstations/*Superstations américaines

But in no case can a single discretionary package, whose Canadian component includes more than one pay television service, contain more than five channels of non-Canadian programming services linked with those Canadian pay television services included in that package;

b) each Canadian specialty service, distributed within a discretionary package that may include one or more Canadian specialty and/or pay television services, may be linked with no more than one channel of the following authorized non-Canadian programming services:

Cable News Network (CNN)
CNN Headline News (CNN-2)
The Nashville Network (TNN)
The Arts and Entertainment Network (A&E)
CNBC/FNN
The Weather Channel (TWC)
Cable Satellite Public Affairs Network (C-Span)
The Silent Network (Kaleidoscope)
The Learning Channel

c) the licensee may designate one of the U.S. superstations authorized in paragraph a) above, and distribute the signal of that superstation within discretionary packages that may include one or more Canadian specialty and/or pay television service;

d) the licensee is not permitted to offer a package of services containing only non-Canadian programming services; and

e) the licensee is not permitted to link authorized non-Canadian programming services with a Canadian specialty service distributed on the basic service.

6. The licensee is prohibited from distributing any pay-per-view service other than that of a licensed DTH PPV television programming undertaking.

7. The licensee must distribute at least one French-language DTH PPV service where it distributes one or more English-language DTH PPV service.

8. The licensee may, at its option, insert certain promotional material as a substitute for the "local availabilities" (i.e. non-Canadian advertising material) of non-Canadian satellite services. At least 75% of these local availabilities must be made available for use by licensed Canadian programming services for the promotion of their respective services, for the promotion of the community channel and for unpaid Canadian public service announcements. A maximum of 25% of the commercial availabilities may be made available for the promotion of discretionary programming services and packages, customer service information and channel realignments.

Appendix II to Decision CRTC 99-552

Conditions of licence for the national direct-to-home pay-per-view undertaking

1. The licensee must ensure that the service consists of programming to be drawn from the categories set out in Item 6 of Schedule 1 of the Pay Television Regulations, 1990, as amended, generally consisting of feature films, but also including concerts, sports events and other special events, and sold on both an individual and series basis.

2. The licensee is authorized to make available for distribution by licensed DTH distribution undertakings its service, which will consist of as many as 30 channels of programming with no less than 8 French channels as well as both English- and French-language "barker" channels.

3. If the total number of channels moves above or below 30, the licensee shall maintain the channels in a ratio of French to English of 1:3, with a minimum of 5 French-language signals in addition to the French-language barker channel.

4. With respect to English-language programming, the licensee shall, through its agreements with the licensees of DTH distribution undertakings, ensure that in each broadcast year, the following is made available by these licensees to their PPV subscribers:

a) a minimum amount of 12 Canadian feature films (including all new Canadian feature films suitable for PPV exhibition and meeting the Pay Television Standards and Practices Code);

b) a minimum amount of 4 English-language Canadian-based events; and

c) a minimum yearly ratio of Canadian to non-Canadian first-run feature film titles of at least 1:20, and a yearly ratio of Canadian to non-Canadian events of at least 1:7.

5. With respect to French-language programming, the licensee shall, through its agreements with the licensees of DTH distribution undertakings, ensure that, in each broadcast year, the following is made available by these licensees to their PPV subscribers:

a) a minimum amount of 20 Canadian feature films in the original French-language version, or dubbed in French, which have been exhibited in theatres in French-language markets, including all new Canadian feature films suitable for PPV exhibition and meeting the Pay Television Standards and Practices Code;

b) a minimum amount of 6 French-language events in each of years one and two of operation, eight in each of years three and four; ten in each of years five and six; and twelve in year seven of operation; and

c) a minimum yearly ratio of Canadian to non-Canadian first-run feature films of 1:12, and a minimum ratio of Canadian to non-Canadian events, on each channel used for their broadcast, of at least 6:20 in years one and two of operation, 8:20 in years three and four, 10:20 in years five and six and 12:20 in the seventh year of operation.

6. During the period from the commencement of operations of the service to 31  August of that broadcast year, the licensee’s performance with respect to its commitments regarding Canadian content in feature films and events will be assessed on a pro-rata basis.

7. The licensee shall ensure that both English-language and French-language Canadian feature films are scheduled, repeated and promoted in the same manner as non-Canadian feature films.

8. The licensee shall contribute at least 5% of its gross annual revenues derived from its PPV broadcasting activities to independently-administered Canadian production funds, to support the development of Canadian programming.

a) Of this amount, 80% must be directed to the Canadian Television Fund (CTF) (as defined in the Broadcasting Distribution Regulations, as amended from time to time) while up to 20% may be directed to one or more independently-administered production funds other than the CTF, provided that these other funds meet the criteria set out in Public Notice CRTC 1997-98, as may be amended from time to time.

b) The licensee is required to remit its first contribution to the CTF, and to such other independently-administered production fund(s) as it may elect to support in accordance with paragraph (a) above, no later than 45 days following the end of the month in which it commences operations. Contributions made thereafter shall take the form of monthly instalments to be remitted within 45 days of month's end, and representing a minimum of 5% of that month's gross revenues.

9. The licensee shall remit to the rights holders of all English-language Canadian films and two Canadian-based events per year, 100% of the gross revenues earned by the licensee from the exhibition of these films and events. With respect to French-language Canadian feature films, the licensee shall remit 100% of the gross revenues earned by the licensee from the exhibition of these films to distributors and providers, with a minimum of 60% to the programming providers.

10. The licensee shall not acquire exclusive or other preferential rights to PPV programming exhibited as part of its service.

11. The licensee shall not enter into an affiliation agreement with the licensee of a DTH distribution undertaking unless the agreement incorporates a prohibition against the linkage of the licensee's PPV service with any non-Canadian discretionary service.

12. The licensee shall adhere to the Pay Television Regulations, 1990.

13. The licensee shall adhere to the Pay Television and Pay-Per-View Programming Code Regarding Violence as amended from time to time and approved by the Commission.

14. The licensee shall adhere to the guidelines on gender portrayal set out in the Canadian Association of Broadcasters' Sex-Role Portrayal Code for Television and Radio Programming as amended from time to time and approved by the Commission.

For the purpose of the above conditions of licence, "broadcast year" means that period between 1 September in any year and the following 31 August.

Appendix III to Decision CRTC 99-552

Conditions of licence for the national satellite relay distribution undertaking (SRDU)

1. Consistent with the Commission’s SRDU policy framework, the licensee is authorized to distribute, via satellite to its affiliates, the signals of any of the services listed at the end of this appendix, subject to the following requirements:

a) the licensee shall ensure that a majority of the television signals it distributes are Canadian services, and

b) the licensee shall distribute the signals of all conventional, Canadian, French-language television services that purchase national program rights. These services exclude the French-language television network service of the Canadian Broadcasting Corporation (CBC), which is already generally available to BDUs via satellite.

For the purpose of this condition, non-Canadian services of the same affiliation will be counted as a single service.

2. The licensee must provide its service to all of the following undertakings whose operators are willing to enter into affiliation agreements with it:

a) terrestrial BDUs that are licensed by the Commission or that are operating in accordance with an exemption order issued by the Commission; and,

b) licensed DTH distribution undertakings (for retransmission to DTH subscribers only).

3. The licensee shall not delete, curtail or alter the programming services which it distributes to BDUs in any manner from the form in which they are transmitted for public reception by the originating broadcasters, except such alterations as are incidental to the transmission of the services using digital video compression technology and except as may be authorized or required by the Commission in writing.

4. The licensee shall contribute a minimum of 5% of its annual gross revenues derived from regulated SRDU activities to the creation and presentation of Canadian programming.

For the purpose of this condition, contributions directed to a production fund are required to be made on a monthly basis, within 45 days of each month's end. Funds allocated to subsidize the provision of decoder equipment to broadcasting distribution undertakings are not eligible contributions.

5. The licensee shall not give an undue preference to any person, including itself, or subject any person to an undue disadvantage.

6. If there is a dispute between the licensee and a distribution undertaking, whether operating by licence or by exemption order, concerning the terms under which programming services are or may be provided, then the licensee shall submit to a dispute resolution process, if the Commission so requires.

7. The licensee shall adhere to the provisions of section 4 of the Broadcasting Distribution Regulations, in respect of any transfers of ownership or control.

Signals authorized for distribution 
Canadian television services

CBRT (CBC) Calgary

CBHT (CBC) Halifax

CFJC-TV (CBC) Kamloops

CBMT (CBC) Montréal

CHEX-TV (CBC) Peterborough

CBKT (CBC) Regina

CBLT (CBC) Toronto

CBUT (CBC) Vancouver

CBWT (CBC) Winnipeg

CFCN-TV (CTV) Calgary

CFRN-TV (CTV) Edmonton

CJCH-TV (CTV) Halifax

CKCO-TV (CTV) Kitchener

CFCF-TV (CTV) Montréal

CKCK-TV (CTV) Regina

CJON-TV (CTV) St. John's

CKCW (CTV) Saint John

CFTO-TV (CTV) Toronto

CHAN-TV (CTV) Vancouver

CHEX-TV (CTV) Victoria

CKY-TV (CTV) Winnipeg

CIFH-TV (Global) Halifax

CKMI-TV-1 (Global) Montréal

CFRE-TV (Global) Regina

CIII-TV (Global) Toronto

CKND-TV (Global) Winnipeg

U.S. television services

WHDH-TV (NBC) Boston, Massachusetts

WGBH-TV (PBS) Boston, Massachusetts

WXYZ-TV (ABC) Detroit, Michigan

WDIV (NBC) Detroit, Michigan

WUHF (FOX) Rochester, New York

WUTV (FOX) Buffalo, New York

WTOL-TV (CBS) Toledo, Ohio

WUAB-TV (IND) Cleveland, Ohio

WJET-TV (ABC) Erie, Pennsylvania

WSEE-TV (CBS) Erie, Pennsylvania

WICU-TV (NBC) Erie, Pennsylvania

Canadian radio services

CIQB-FM Barrie

CHAY-FM Barrie

CFJB-FM Barrie

CHFM-FM Calgary

CHQR Calgary

CJAY-FM Calgary

CKIK-FM Calgary

CFFR Calgary

CHED Edmonton

CIRK-FM Edmonton

CISN-FM Edmonton

CFBR-FM Edmonton

CHQT Edmonton

CFRQ-FM Halifax

CIOO-FM Halifax

CFDR Halifax

CJCH Halifax

CKOC Hamilton

CJXY-FM Hamilton

CKLH-FM Hamilton

CKGL Kitchener

CFPL-FM London

CJBK London

CJBX-FM London

CJAD Montréal

CKMF-FM Montréal

CHOM-FM Montréal

CIQC Montréal

CITE-FM Montréal

CFGL-FM Montréal

CKPT Peterborough

CKQM-FM Peterborough

CKRU Peterborough

CKWF-FM Peterborough

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