ARCHIVED - Decision CRTC 2001-736

Decision CRTC 2001-736

Ottawa, 29 November 2001

SuperChannel Ltd.
British Columbia, Alberta, Saskatchewan, Manitoba, Nunavut, the Yukon Territory and the Northwest Territories 2001-0221-0

19 June 2001 Public Hearing
National Capital Region

Licence renewal for SuperChannel

The licence for "SuperChannel" is renewed for a full term. The licensee's condition of licence on Canadian programming expenditures will continue to link its requirements to subscriber levels which will now also take into account direct-to-home (DTH) satellite subscribers. For the purpose of this condition, the definition of revenues will include monies derived from DTH satellite subscribers to the service and any return on investment in programming.

1.

The Commission renews the broadcasting licence issued to SuperChannel Ltd. for the regional English-language pay television service known as "SuperChannel", from 1 December 2001 to 31 August 2008, subject to the conditions specified in the appendix to this decision and in the licence to be issued.

Expenditures on Canadian programming

2.

Under its current condition, the licensee's requirements for expenditures on Canadian programming are based on the average number of subscribers in the previous broadcast year, excluding direct-to-home (DTH) satellite subscribers. In its licence renewal application, the licensee originally proposed to establish a fixed requirement to allocate 20% of its revenues to Canadian programming expenditures. This level is lower than what the licensee currently must spend. The licensee also asked the Commission to revise the definition of revenues to include monies derived from the distribution of its service by DTH satellite services and any return on investment in programming.

3.

In interventions to this application, a number of parties, including the Directors Guild of Canada, the Alberta Motion Picture Industries Association, the Canadian Film and Television Production Association and The Writers Guild of Canada argued that the licensee's required expenditures on Canadian programming should continue to be linked to subscriber levels.

4.

In response, the licensee stated that, during the new licence term, it was prepared to maintain the current subscriber-based formula for Canadian programming expenditures, but take DTH satellite subscribers and revenues as well as any return on investment in programming into consideration when calculating its requirements.

5.

In accordance with the licensee's request, the Commission has amended the licensee's condition of licence to include DTH satellite subscribers and revenues and any return on investment in programming. The revised condition (set out in the appendix) will significantly increase the level of the licensee's expenditures on Canadian programming.

Script and concept development

6.

The licensee made a commitment to double its current contributions towards script and concept development. During the new licence term, the licensee will spend $1,000,000 in each broadcast year of the licence term. A condition of licence in this regard is found in the appendix.

Exhibition of Canadian programs

7.

In each semester of the current licence term, the licensee was required to broadcast Canadian programs during at least:

· 30% of the time between 6:00 p.m. and 11:00 p.m. (condition of licence 2 (i)); and

· 25% of the remaining time (condition of licence 2(ii)).

8.

The licensee was unable to demonstrate full compliance with these conditions of licence in the broadcast years 1998-1999 and 1999-2000. For the broadcast year 1998-1999, the logs submitted by the licensee indicated a failure to comply with condition of licence 2(ii) in the second semester. Subsequently, for the broadcast year 1999-2000, the licensee's logs revealed that it was in full compliance with condition of licence 2(ii) only in the second semester of the broadcast year, and did not achieve compliance with condition of licence 2(i) in either semester.

9.

The Commission notes that, during the periods of non-compliance described above, SuperChannel was owned by another party. Corus Entertainment Inc., the service's present owner, acquired the licensee on 6 July 2000 pursuant to Decision CRTC 2000-222. The Commission, nevertheless, emphasizes that the licensee must comply with the requirements of its conditions of licence at all times and expects the licensee to maintain and submit complete and accurate records of the material that it broadcasts.

10.

The Commission has reimposed SuperChannel's condition of licence on the exhibition of Canadian programs for the new licence term. It is found in the appendix.

Rebranding of services

11.

The Commission notes that SuperChannel and certain other pay television licensees have adopted a thematic approach in programming the multiplexed channel feeds they make available to distributors. The Commission has no concerns about this approach provided the programming offered on each channel meets the Canadian content requirements for the service. Further, individual channels must not be offered on a stand-alone basis (i.e. the licensee and its distribution affiliates must ensure that all of the multiplexed channel feeds that make up the service are distributed to subscribers within a package).

12.

As discussed with the licensee, these two requirements are stipulated in the conditions of licence set out in the appendix to this decision.

Cultural diversity

13.

The Commission expects SuperChannel, and all other specialty and pay television licensees, to contribute to a broadcasting system that accurately reflects the presence in Canada of cultural and racial minorities and Aboriginal peoples. The Commission further expects licensees to ensure that their on-screen portrayal of all such groups is accurate, fair and free of stereotypes. These expectations are fully in keeping with section 3 (1)(d)(iii) of the Broadcasting Act, which states that the Canadian broadcasting system should, "through its programming and the employment opportunities arising out of its operations, serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of Aboriginal peoples within that society."

14.

In Public Notice CRTC 2001-88, Representation of cultural diversity on television - Creation of an industry/community task force, the Commission called upon the Canadian Association of Broadcasters to develop an action plan for a joint industry/community task force. The role of this task force is to sponsor research, identify "best practices", and help define the issues and present practical solutions to ensure that the Canadian broadcasting system reflects all Canadians. In its notice, the Commission emphasized the importance of having the participation of all sectors of the broadcasting industry, including pay television services. The Commission therefore expects Corus to contribute to the work of the task force.

15.

The Commission further expects the licensee to develop and implement a comprehensive corporate plan that explains how Corus intends to improve its representation of Canada's cultural diversity and to file this plan with the Commission within three months of the date of this decision. The plan should include specific commitments to corporate accountability and to the reflection of diversity in programming, and should make provision for the gathering of feedback on the effectiveness of these commitments. The plan should also set goals for achieving the full, fair and consistent reflection of diversity in Canada.

16.

With respect to corporate accountability, the plan should address how Corus will create an environment that supports the cultural diversity objectives outlined above, by:

· creating a corporate culture that recognizes and supports Canada's cultural diversity;

· assigning accountability to a senior executive for corporate practices related to cultural diversity, and for ensuring that management becomes more reflective of Canada's multicultural reality;

· ensuring that managers receive proper training;

· ensuring that regular opportunities are provided for assessing progress towards attaining these objectives and for identifying future opportunities and challenges; and

· setting out plans for the hiring, retention and ongoing training of visible minorities and Aboriginal peoples.

17.

With respect to the reflection of diversity in programming, the plan should focus on how the licensee will ensure the presence and the fair, accurate and non-stereotypical portrayal of cultural minorities and Aboriginal peoples in the programming it produces or acquires. Specifically, the plan should include provisions for making certain that, wherever possible:

· on-air personalities reflect Canada's diversity; and

· programming obtained from independent producers reflects the presence of visible minorities and Aboriginal peoples in Canadian society and provides for their accurate portrayal.

18.

As for feedback, the corporate plan should describe the specific mechanisms Corus will put in place to ensure that it receives effective input from community groups concerning its performance in reflecting cultural diversity in programming.

On-air presence

19.

The Commission reminds the licensee that the expectations set out above with respect to cultural diversity are over and above the longstanding and more general expectations concerning employment equity in on-air prescence. Specifically, the Commission expects the licensee to ensure that the on-air presence of members of the four designated groups (women, Aboriginal persons, disabled persons and members of visible minorities) is reflective of Canadian society, and that members of these groups are presented fairly and accurately.

Closed captioning

20.

The Commission is committed to improving service to television viewers who are deaf or hearing impaired. Over the period since the Commission announced its policy on closed captioning in Public Notice CRTC 1995-48, it has consistently encouraged broadcasters to increase the amount of captioned programming they provide. The Commission now requires the licensees of television, specialty and pay television undertakings to achieve a minimum level of captioned programming appropriate to the nature of the service that each provides. Generally, the specified minimum requirement is 90% of all programming.

21.

In the case of SuperChannel, the licensee stated that it would close caption 70% of programming in the first year of the licence term increasing to 90% by the fifth year.

22.

Consistent with the Commission's policy approach described above, the Commission expects the licensee to gradually increase the level of captioning it provides and requires the licensee, by condition of licence, to achieve a minimum captioning level of 90% for all programming aired during the broadcast year, beginning no later than  1 September 2006 and continuing throughout the remainder of the licence term.

23.

The 90% obligation is based on the recognition that requiring 100% captioning at all times may not be reasonable or appropriate. Thus, the obligation is designed to provide some flexibility to cover unforeseen circumstances (such as late delivery of captions, technical malfunctions, or the lack of availability of captions for programs acquired outside North America), or programming where captioning may not be feasible, such as third language programming.

24.

The Commission expects the licensee to focus on improving the quality, reliability and accuracy of closed captioning, and to work with representatives of the deaf and hard of hearing community to ensure that captioning continues to meet their needs.

Service to the visually impaired

25.

In decisions issued last December, the Commission encouraged the licensees of new Category 1 specialty services, over their licence terms, to provide increasing amounts of programming accompanied by audio or video description. More recently, in decisions issued in the summer of this year renewing the licences for the television stations owned by Global, CTV and TVA, the Commission imposed conditions of licence regarding the provision of increasing amounts of such programming.

26.

"Audio description" and "video description" or "described video" are methods of improving the service that television broadcasters provide to people who are visually impaired. Audio description involves the provision of basic voice-overs of textual or graphic information displayed on the screen. A broadcaster providing audio description will, for example, not simply display sports scores on the screen, but also read them aloud so that people who are visually impaired can receive the information.

27.

Video description, or described video as it is also known, consists of narrative descriptions of a program's key visual elements so that people who are visually impaired are able to form a mental picture of what is occurring on the screen. These descriptions can be provided on the Secondary Audio Programming (SAP) channel. Not all broadcasters are currently equipped to deliver a SAP signal. Thus, the introduction of described video via the SAP channel could require significant capital expenditures to upgrade a licensee's transmission facilities.

28.

The Commission notes the increasing amount of described programming available for acquisition, particularly from U.S. sources. It notes as well the encouragement given to the operators of the new Category 1 specialty services and the requirements it has placed on the television stations operated by CTV, Global and TVA concerning the provision of such programming. In correspondence with SuperChannel, the Commission requested the licensee's views on implementing audio description, video description or described video. The Commission considers it reasonable to expect the operators of the pay and specialty services whose licences are being renewed at this time to take steps to respond to the needs of viewers who are visually impaired.

29.

Accordingly, the Commission expects the licensee to:

· provide audio description (defined as the provision of basic voice-overs of textual or graphic information displayed on screen) wherever appropriate;

· undertake the necessary upgrades to permit the broadcast of described programming (for example, via the SAP channel);

· acquire and broadcast the described versions of a program wherever possible; and

· take the necessary steps to ensure that its customer service responds to the needs of visually impaired viewers.

30.

In addition, and consistent with the approach adopted for the new Category 1 services, the Commission encourages the licensee to provide, at a minimum, one hour per month of described programming in the period between 1 December 2001 and 31 August 2002, and to increase this monthly minimum by at least one hour in each subsequent broadcast year of the new licence term.

Compliance with industry codes

31.

In accordance with its usual practice, the Commission is imposing on the licensee conditions of licence requiring that it adhere to the industry codes related to violence in television programming and sex role portrayal. Application of the sex role portrayal code will be suspended so long as the licensee remains a member in good standing of the Canadian Broadcast Standards Council. In addition, by condition of licence, the licensee must adhere to the Pay television programming standards and practices code.

Interventions

32.

The Commission acknowledges all of the interventions submitted with regard to this application and has noted the licensee's response to the concerns expressed in some submissions.

Related CRTC documents

Secretary General

Appendix to Decision CRTC 2001-736

Conditions of licence for SuperChannel

Exhibition of Canadian programs

(a) 30% of the time from 6:00 p.m. to 11:00 p.m. (Mountain time) and

(b) 25% of the remainder of the time during which the service is in operation.

Expenditures on Canadian programs

Average number of subscribers in the previous broadcast year: residential and bulk cable, satellite master antenna television (SMATV) and direct-to-home (DTH) satellite

Percentage of revenues

18%
19%
20%
21%
22%
23%
24%
25%
26%
27%
28%
29%
30%
31%

(i) from the minimum required expenditure for the next broadcast year of the licence term, an amount not exceeding the amount of the previous broadcast year's overspending; and

(ii) from the minimum required expenditure for any subsequent broadcast year of the licence term, an amount not exceeding the difference between the overspending and any amount deducted under paragraph (i) above.

Multiplex channels

Closed captioning

Industry codes

Definitions

In these conditions:

(a) a Canadian dramatic program

(i) which exceeds 75 minutes in duration and in relation to which all financial expenditures made by the licensee were made prior to the commencement of principal photography or taping and in which principal photography or taping was completed after 1 January 1985; and

(ii) which is intended for children and exceeds 22:30 minutes in duration and in relation to which all financial expenditures by the licensee were made prior to the completion of principal photography or taping

(b) and which is a program that has never been broadcast in English in the licensed territory.