ARCHIVED - Public Notice CRTC 2001-85

Public Notice CRTC 2001-85

Ottawa, 25 July 2001

Call for comments on a licensing framework for new specialty audio programming services and on proposed amendments to the Broadcasting Distribution Regulations regarding carriage of ethnic audio services

Summary

In this notice, the Commission calls for comments on issues relating to the development of an appropriate licensing framework for specialty audio programming services. The Commission considers that such services could increase the availability of programming for specialized audiences. The Commission further calls for comments on proposed amendments to the Broadcasting Distribution Regulations. The proposed regulations would permit digital distribution by class 1 and class 2 distribution undertakings of ethnic audio programming services without prior Commission authorization.

Comments must be submitted by 12 October 2001. The procedure for filing comments may be found at the end of the notice.

The context

Order in Council

In Public Notice CRTC 2001-10, in response to Order in Council P.C. 2000-1464, the Commission reported to the Governor in Council. The report included a variety of recommendations designed to ensure that the residents of the Greater Toronto Area (GTA) receive a range of radio services reflective of the diversity of their languages and cultures.

One of the Commission's recommendations was to initiate a public process to develop a regulatory approach for specialty audio programming services. In its report, the Commission stated:

The Commission also considers that the development of new specialty audio programming services (i.e. services delivered by Broadcasting Distribution Undertakings [BDUs] but not licensed as over-the-air services) can serve to increase the diversity of audio programming available in the GTA and other markets.

Accordingly, the Commission stated that it would initiate "a public process to develop an appropriate licensing framework, or exemption criteria, for specialty audio programming services. Such services could include ethnic services as well as other specialized services such as official minority-language, religious, gay/lesbian or children's."

The Commission further noted in its report that:

While recognizing that most interveners did not strongly endorse the development of new audio programming services by means other than over-the-air transmitters, the Commission wishes to encourage such services to the extent that they are useful or appropriate.

Current radio landscape

In the current broadcasting system, Canadians have access to a variety of audio services, including some specific services that are reflective of the diversity of Canada's multilingual and multicultural society. These include:

· Licensed ethnic radio stations serving various markets.

· Subsidiary Communications Multiplex Operation (SCMO) services providing programming to a variety of specific ethnic communities. SCMO services are auxiliary radio services transmitted on part of the signal of FM radio stations. Listeners need a special decoder to receive SCMO services.

· Community-based broadcasting services, such as campus and community radio stations, which often provide air time to ethnic and cultural groups in their communities.

· Audio services provided through the Internet.

Objective of call for comments

In addition to these existing services, the Commission considers that the development of new specialty audio programming services (i.e. services delivered by BDUs but not licensed over-the-air services) could expand the availability of specialized audio programming services, especially to underserved audiences, in markets across the country.

Issues and questions

In this process, the Commission seeks comments on questions such as, but not limited to, the subject areas addressed below. The Commission notes that it is not proposing changes to existing procedures for the authorization of SCMO services. Neither does the process contemplate changes to the existing framework for pay audio services.

Defining specialty audio programming services

The Commission considers that specialty audio programming services could be defined as services, other than licensed over-the-air services, delivered by BDUs and that are specialized with respect to their content and/or target audience. Specialty audio programming services could, for example, include SCMO services separated from their host FM licensees delivered via cable, and closed circuit services carried by cable and other BDUs. These possibilities give rise to the following questions:

· Would the development of a framework for regulating specialty audio programming services be an effective means of expanding the availability of services for underserved audiences? How attractive would such services be?

· Is the preliminary definition of specialty audio programming services set out above appropriate?

· What technologies could be used to deliver specialty audio programming services - for example, BDUs, closed circuit technology, SAP channels?

· Should the Commission only authorize specialty audio programming services that target specific audiences or that provide specific types of programming? For example, should specialty audio programming services exclusively serve ethnic audiences?

· Should specialty audio programming services target other non-ethnic underserved groups, such as those speaking the official language used by a minority of those in the undertaking's service area, religious groups, gays and lesbians, or children?

Nature of service

Given that specialty audio programming services are being contemplated as services especially for underserved audiences, it might be useful for individual services to be specifically defined through a nature of service or format definition. Generally, licensees with a defined nature of service or format are expected to adhere to their commitment as a condition of licence for the duration of the licence term.

· Is a nature of service or format definition appropriate? If so, what elements should the definition include?

Programming

Licensed audio services are subject to programming obligations that are set out in the Radio Regulations, 1986, or in particular conditions of licence, to further various objectives of the Broadcasting Act (the Act).

· Should specialty audio programming services be subject to particular programming obligations, for example, to broadcast Canadian programming, local programming or French-language vocal music? Should they be obligated to make contributions to Canadian talent? If so, what types of obligations would be appropriate? If Canadian content obligations are appropriate, would those obligations apply to musical programming, spoken word programming, or both?

· What other types of programming obligations would be appropriate?

Competitiveness and financing

The Commission considers that specialty audio programming services should develop in such a way as to be complementary to existing over-the-air services such as ethnic radio stations, and SCMO services.

· What potential is there for new specialty audio programming services to compete with existing licensed services? Should the Commission authorize services that are unduly competitive with existing services?

· Should the Commission authorize specialty audio programming services that are directly or partially competitive with each other?

· Should specialty audio programming services be allowed to advertise? If so, what, if any, restrictions would be appropriate?

· Should specialty audio programming services have the option of charging subscriber fees? If so, should such fees be considered as a "pass-through" portion for the purposes of the Broadcasting Distribution Regulations (the regulations), and what, if any restrictions would be appropriate? For example, should a subscriber fee for such services be regulated by the Commission?

Accountability

The Actassigns responsibility to broadcasters for the programming they provide. Over-the-air radio services are responsible for the content they broadcast, as well as any content on SCMO channels that they offer.

· In what way should specialty audio programming services be accountable for their programming?

· What rules should apply in this regard? For example, should the relevant sections relating to broadcasting content in sections 3, 4, 6 and 8 of the Radio Regulations, 1986 apply?

Distribution and access issues

Existing requirements for carriage of audio services by BDUs are set out in sections 22 to 25 and section 34 of the regulations. These requirements outline the audio services that BDUs must carry, as well as the audio services they may carry at their own discretion.

· Should specialty audio programming services have any access rights at all? If specialty audio programming services were to have access rights, what would they be?

· Should the Commission restrict the carriage of specialty audio programming services to a BDU's digital tier?

· Should specialty audio programming services be afforded national carriage, or be limited to local or regional carriage?

· Should DTH services require authorization from the Commission before being permitted to distribute specialty audio programming services?

Ownership issues

Programming undertakings licensed by the Commission must comply with ownership policies and eligibility requirements, as set out in P.C. 1997-486, dated 8 April 1997, Direction to the CRTC (Ineligibility of non-Canadians), amended by P.C. 1998-1268, dated 15 July 1998, and in P.C. 1985-2108, dated 27 June 1985, Direction to the CRTC (Ineligibility to hold broadcasting licences), amended by P.C. 1997-629, dated 22 April 1997.

· Should transfers of ownership and control of specialty audio programming services require Commission approval?

· The Commission has a policy on common ownership of radio undertakings that is set out in Public Notice CRTC 1998-41. Should a similar policy on common ownership also be applied to specialty audio programming services? If so, how should such limits be defined?

· Should there be any limitations on the ownership of specialty audio programming services by BDUs? If so, what limitations would be appropriate? Are special access rules necessary to protect specialty audio programming undertakings that are not affiliated to BDUs?

· Should DTH services require authorization from the Commission before being permitted to distribute specialty audio programming services?

Authorization: Licensing vs exemption

As explained in the Commission's policy regarding the use of exemption orders (Public Notice CRTC 1996-59), the Commission, as a rule, licenses distribution and programming undertakings that offer broadcasting services to the public. The Commission considers that licensing provides the most effective means of ensuring that broadcasters fulfil the policy objectives set out in the Act. It also provides a mechanism for ensuring that broadcasters fulfil their programming commitments and ensures that, in an increasingly competitive environment, reasonable rules apply equitably to all players.

The Commission issues exemption orders for broadcasting undertakings in cases where the Commission is satisfied that compliance with certain requirements will not contribute in a material manner to the implementation of the broadcasting policy set out in section 3(1) of the Act.

· Should specialty audio programming services be licensed or exempted?

· If such services were to be exempt, what exemption criteria would be appropriate? For example, should they be obligated to adhere to industry codes dealing with gender portrayal and advertising to children?

· Given that these services are being contemplated as services especially for underserved audiences, would licensing or exemption better encourage new or small players to enter the broadcasting system?

Other Matters

Consideration of applications

Applicants who have previously submitted applications for other types of audio services such as SCMO services will have an opportunity to revise their applications in light of the Commission's determinations made as part of this review, or to withdraw their applications. At the same time, these applicants or any other interested parties may submit new applications for specialty audio services taking into account any new licensing or exemption framework that the Commission may develop.

Applications received pursuant to the Commission's directions following the conclusion of this proceeding will be dealt with according to the process announced at the conclusion of this proceeding. Depending on the framework adopted, the Commission may hear such applications at a future public hearing, follow a streamlined licensing process, or make them subject to an exemption order. If a public hearing is required, the Commission will announce details concerning the public hearing at a later date.

The Commission may take into consideration requests for authorization to distribute foreign specialty audio programming services following the publication of any licensing framework or exemption order resulting from this proceeding.

Changes to BDU regulations

In its report to the Governor in Council, the Commission also recognized that increased carriage of ethnic radio services by BDUs on the digital tier can supplement the range of programming available through conventional means. The Commission noted that it may be appropriate to revise its regulatory framework for BDUs to remove barriers to the distribution of out-of-market ethnic services, decoded SCMO services and other non-broadcast ethnic services. It indicated that it would consider the appropriateness of amendments to the regulations to permit BDUs to distribute any Canadian ethnic audio programming service on a digital tier without prior application and would initiate a public process to solicit comments on such amendments.

The Commission proposes to make amendments to the Broadcasting Distribution Regulations, SOR/99-555. A copy of the proposed Regulations Amending the Broadcasting Distribution Regulations is appended to this Public Notice.

The proposed regulations would permit digital distribution by class 1 and class 2 distribution undertakings of ethnic audio programming services without prior Commission authorization.

Call for Comments

The Commission invites written comments addressed to the issues and questions set out in this notice. The deadline for filing written comments is 12 October 2001. The Commission will only accept submissions that it receives on or before this date.

The Commission will not formally acknowledge comments. It will, however, fully consider all comments and they will form part of the public record of the proceeding, provided that the procedures for filing set out below have been followed.

Procedures for filing comments

Interested parties can file their comments on paper or electronically. Submissions longer than five pages should include a summary.

Parties wishing to file their comments on paper should send them to the Secretary General, CRTC, Ottawa, K1A 0N2.

Parties wishing to file electronic versions of their comments can do so by email or on diskette. The Commission email address is procedure@crtc.gc.ca

Electronic submissions should be in HTML format. As an alternative, those making submissions may use "Microsoft Word" for text and "Microsoft Excel" for spreadsheets.

Please number each paragraph of your submission. In addition, please enter the line ***End of document*** following the last paragraph. This will help the Commission verify that the document has not been damaged during transmission.

The Commission will make comments filed in electronic form available on its web site at www.crtc.gc.ca in the official language and format in which they are submitted. This will make it easier for members of the public to consult the documents.

The Commission also encourages interested parties to monitor the public examination file (and/or the Commission's web site) for additional information that they may find useful when preparing their comments.

Examination of public comments and related documents at the following Commission offices during normal business hours

Central Building
Les Terrasses de la Chaudière
1 Promenade du Portage, Room G-5
Hull, Quebec K1A 0N2
Tel: (819) 997-2429 - TDD: 994-0423
Fax: (819) 994-0218

Bank of Commerce Building
1809 Barrington Street
Suite 1007
Halifax, Nova Scotia B3J 3K8
Tel: (902) 426-7997 - TDD: 426-6997
Fax: (902) 426-2721

405 de Maisonneuve Blvd. East
2^nd Floor, Suite B2300
Montréal, Quebec H2L 4J5
Tel: (514) 283-6607 - TDD: 283-8316
Fax: (514) 283-3689

55 St. Clair Avenue East
Suite 624
Toronto, Ontario M4T 1M2
Tel: (416) 952-9096
Fax: (416) 954-6343

Kensington Building
275 Portage Avenue
Suite 1810
Winnipeg, Manitoba R3B 2B3
Tel: (204) 983-6306 - TDD: 983-8274
Fax: (204) 983-6317

Cornwall Professional Building
2125 - 11^th Avenue
Room 103
Regina, Saskatchewan S4P 3X3
Tel: (306) 780-3422
Fax: (306) 780-3319

10405 Jasper Avenue
Suite 520
Edmonton, Alberta T5J 3N4
Tel: (780) 495-3224
Fax: (780) 495-3214

530-580 Hornby Street
Vancouver, British Columbia V6C 3B6
Tel: (604) 666-2111 - TDD: 666-0778
Fax: (604) 666-8322

Secretary General

This document is available in alternate format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca