ARCHIVED - Decision CRTC 2001-255

Decision CRTC 2001-255

Ottawa, 3 May 2001

Rogers Cablesystems Ontario Limited
Guelph, Ontario 2000-1981-1

Rogers Cable Inc.
Kitchener/Grand River, Ontario 2000-1980-4

Applications processed by
Public Notice CRTC 2001-6
dated 11 January 2001

Relief from the regulatory requirement to distribute CFTO-TV Toronto

1. 9;

Rogers Cablesystems Ontario Limited and Rogers Cable Inc. (hereafter referred to collectively as Rogers) have applied for relief, by condition of licence, from the regulatory requirement that they distribute the signal of CFTO-TV Toronto as part of the basic service of the cable broadcasting distribution undertakings serving Guelph and Kitchener/Grand River.

2. 9;

Section 3(1)(t)(i) of the Broadcasting Act states, as part of the broadcasting policy for Canada, that distribution undertakings "should give priority to the carriage of Canadian programming services and, in particular, to the carriage of local Canadian stations." The Commission has made this policy objective a fundamental principle of its Access rules for broadcasting distribution undertakings (Public Notice CRTC 1996-60). Specifically, the Commission stated in that notice that distribution undertakings must give priority to the carriage, on unrestricted channels, of the services of licensed Canadian programming undertakings over all other services, including those provided by exempt programming undertakings.

3.

According to the definition contained in the Broadcasting Distribution Regulations, CTV affiliate CFTO-TV Toronto is a "local television station" in relation to the cable distribution undertakings concerned, and is thus a carriage priority. CKCO-TV Kitchener, likewise a CTV affiliate, is also a local station and is carried on both undertakings. In virtually all other important respects, however, especially by virtue of its local news and information programming, CKCO-TV provides a service that is more accurately described as "local" to the communities affected. Apart from local news and information, however, there is a very high duplication of program content on the two stations.

4. 9;

For these reasons, as expanded upon below, the Commission approves the applications; and will amend the licences by adding, in each case, a condition that grants relief from the requirement to distribute the CFTO-TV service. These applications do, however, give rise to a Commission concern, that being Rogers' intention, as stated in the applications, to replace CFTO-TV with the service of an exempt programming undertaking. In the Commission's view, this would conflict with the policy objective expressed in section 3(1)(t)(i) of the Act and with a fundamental principle of the Commission's access rules.

5. 

Accordingly, in the case of each of the Guelph and the Kitchener/Grand River undertakings, it is a condition of licence that the licensee is relieved of the requirement to distribute CFTO-TV as part of the basic service, provided that the channel made available is used by the licensee to distribute a Canadian programming service licensed by the Commission.

Applicants' rationale

6. 9;

In support of the applications, Rogers noted that approximately 85% of the programming aired on CFTO-TV is duplicated on CKCO-TV, and that carriage of both thus provides subscribers with very little by way of programming diversity. Rogers also submitted that subscribers of the two cable undertakings have a greater interest in and affinity for the local news and information broadcast by CKCO-TV Kitchener. The applications include ratings data gathered by the Bureau of Broadcast Measurement in support of this claim.

7. 9;

Further, according to the channel line-ups filed by Rogers with these applications, The Shopping Channel (TSC) is currently distributed on an analog channel by the two affected undertakings. TSC, an exempt programming undertaking, is effectively owned and controlled 100% by Rogers Cable Inc. Rogers stated that there is no vacant analog channel remaining on either cable undertaking. It claimed that, in each case, the analog channel currently occupied by CFTO-TV Toronto is needed in order to make room for a third party exempt service, whose distribution is necessary if the systems are to operate in compliance with section 21(3) of the regulations. This section of the regulations states as follows:

Interventions and reply

8. 9;

Three individuals filed interventions to one or other of the applications. One intervener opposed the deletion of CFTO-TV Toronto and argued, among other things, that there is an interest in Toronto news among residents of the communities served by the two Rogers cable systems. Two interveners acknowledged that the programming of CFTO-TV Toronto was highly duplicative of that broadcast by CKCO-TV Kitchener, and expressed conditional support of the applications. All three, however, argued that, if the analog distribution of CFTO-TV Toronto is to cease, then the channel should be used for the distribution, as part of the analog basic service, of a non-premium television programming service not currently distributed.

9. 9;

In reply, Rogers reiterated many of the principal arguments presented in the original applications. In responding to the comment of the opposing intervener about the degree of local interest in Toronto news, Rogers noted that such news would continue to be available within the programming of CITY-TV Toronto. Regarding the views of the three interveners that CFTO-TV should be replaced on analog basic by another programming service, Rogers stated that "the use of any vacated analog channel is best determined on a case by case basis by the cable company operating the system".

Commission's determination

10. 9;

The Commission agrees that the high degree of duplication between CFTO-TV Toronto and CKCO-TV Kitchener means that subscribers receive little by way of programming diversity through carriage of both stations. Most of the unduplicated programming consists of local news. The evidence supports the applicants' claim that, of the two stations, residents in the areas served by the Rogers cable systems watch the local news provided by CKCO-TV to a far greater degree. For these reasons, the Commission considers that removal of the CFTO-TV signal from the two affected systems should have a negligible impact on subscribers and, by condition of licence, has relieved the applicants of the requirement to distribute the Toronto signal on the basic service of the two systems. The Commission, however, is not prepared to allow the service of an exempt programming undertaking to replace that of a licensed programming undertaking. Accordingly, the condition of licence granting relief from the regulatory requirement carries with it the proviso that the channel, once vacated by deletion of the CFTO-TV signal, be used to distribute another Canadian programming service licensed by the Commission.

11. 9;

As mentioned, Rogers had earmarked the channel, for the distribution of an exempt programming service, and had argued that such distribution was necessary for it to comply with section 21(3) of the regulations. In the case of both undertakings, the Commission is satisfied that alternatives are readily available to Rogers that would allow it to comply with this regulatory requirement.