ARCHIVED - Decision CRTC 2001-757

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Decision CRTC 2001-757

Ottawa, 14 December 2001
World Television Network/Le Réseau Télémonde inc. (WTM)
Across Canada 2000-2155-1
19 June 2001 Public Hearing
National Capital Region

WTM is to be licensed as a new, national, Category 2 specialty television service for digital distribution; the applicant's request for guaranteed access to analog distribution on cable is denied

The Commission will license WTM as a national, Category 2 specialty service authorized for digital distribution. As proposed by the applicant, the service will have as its target a mainstream audience of all Canadians, and will offer a variety of programming from Canada and around the world, including foreign news, public affairs, film and entertainment that is not offered to Canadians by existing services in the broadcasting system. WTM described the purpose of its programming as being to facilitate insight, understanding and integration by providing viewers with direct windows on the people of Canada and the world. Non-Canadian programs, collectively described by WTM as "world programming", will be aired in the language of origin. The service will be distributed as three separate feeds of the same programming, one with subtitles in French for reception across the country, and two with English-language subtitles - one for carriage in Eastern Canada and a time-shifted version for Western Canada.
The applicant proposed a distribution model that would have virtually guaranteed the service carriage, in a high penetration tier or package, on the analog offering of all but the smallest distribution systems. WTM based its request for such regulatory treatment on the premise that its service would be of exceptional importance to the achievement of the multicultural objectives outlined in section 3(1)(d)(iii) of the Broadcasting Act.
The Commission's majority is not convinced that the proposed service would be of such exceptional importance as to warrant the carriage requested in the prevailing circumstances. It has accordingly denied the applicant's carriage request. The Commission nonetheless acknowledges that the proposed service would complement existing mainstream, multilingual and third-language services. Accordingly, the Commission will license WTM, but as a Category 2 service, whose distribution would be subject to negotiations between the licensee and distributors, and whose carriage would be as a discretionary service, available on a digital basis only.

The Commission's approach to Canadian cultural diversity


Section 3(1)(d)(iii) of the Broadcasting Act is Parliament's expression of its multicultural objectives for the Canadian broadcasting system. This section states that the 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.


The Commission has taken numerous steps in pursuit of the Act's multicultural objectives, including steps to ensure the provision of ethnic programming, aboriginal programming and mainstream programming reflective of Canada's multicultural reality.


In 1999, following cross-country consultations, the Commission completed its review of its ethnic broadcasting policy (Public Notice CRTC 1999-117).


Today, ethnic programming is available on ethnic television stations in each of Toronto and Montréal, and 14 ethnic radio stations across Canada. Ethnic communities are also served by the SCMO (subsidiary multiplex communications operations) of a number of FM stations, and by the programming of numerous community and campus radio stations. In addition, the Commission has licensed five ethnic analog specialty services, as well as 42 ethnic Category 2 specialty services for digital distribution. Some ethnic programming is also offered by conventional radio and television services. On 15 October 2001, the Commission considered two applications for new ethnic television stations to serve Vancouver, and should issue decisions concerning them in the new year.


Aboriginal Peoples Television Network (APTN), a general interest, satellite-to-cable programming undertaking presents a wide range of Aboriginal programming. This Aboriginal programming is in addition to that provided by several stations operating under the Commission's Native Radio Policy, mostly in communities in northern Canada. It is soon to be complemented by the services of radio stations in Toronto, Ottawa, Calgary and Vancouver that will operate as components of the Aboriginal Voices Radio Network.


Earlier this year, the Commission issued a call for applications to provide new over-the-air radio services that would reflect the diverse languages and cultures of the population of the Greater Toronto Area. It also launched a process to develop a policy framework for specialty audio services that would target underserved audiences in the Toronto area and elsewhere across Canada.


Although the Canadian broadcasting services noted above assist greatly in meeting the objectives of section 3(1)(d)(iii) of the Act, more can be done. Ultimately, in the Commission's view, it is also the responsibility of all broadcasters to reflect the multicultural nature of Canadian society. As stated in the Commission's policy framework for Canadian television (Public Notice CRTC 1999-97):

The Commission will expect all conventional television licensees (at licensing or licence renewal), to make specific commitments to initiatives designed to ensure that they contribute to a system that more accurately reflects the presence of cultural and racial minorities and Aboriginal peoples in the communities they serve. Licensees are expected to ensure that the on-screen portrayal of all minority groups is accurate, fair and non-stereotypical.


Accordingly, in response to the decisions issued following the group television renewal hearings earlier this year, CTV, TVA and CanWest Global have submitted corporate plans detailing their commitments to ensure that they improve the portrayal of Canada's cultural diversity in all of their programming. In recent decisions renewing the licences of various specialty services, the Commission directed the licensees to submit similar corporate plans. Further, the Commission has called upon the Canadian Association of Broadcasters (CAB) to create a task force whose goal 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. The CAB's action plan is to be filed in January of 2002.

The Commission's analog distribution policy


In Public Notice CRTC 1996-120 dated 4 September 1996, the Commission announced the licensing of more than 20 new specialty services. Eight of these (four French-language and four English-language services) were authorized under terms that entitled them, upon launch, and subject to available channel capacity, to distribution on analog channels. For the other licensed services, however, the Commission determined that they would not have a right to carriage by distribution undertakings until the earlier of: the deployment of digital technology by a distributor, or 1 September 1999.


In Public Notice CRTC 1997-33 dated 27 March 1997, the Commission announced its timetable for consideration of various other applications for new specialty and pay television services. Among other things, the Commission emphasized that:

.applications proposing new English- and French-language services that are premised on carriage on basic service, or on a high penetration discretionary tier, must justify such distribution on the basis of agreements with distributors or on the basis of evidence demonstrating the exceptional importance of the proposed service to the achievement of the objectives of the Broadcasting Act.


Subsequently, in Public Notice CRTC 2000-6 dated 13 January 2000, and following a full public review, the Commission announced its licensing framework for new pay and specialty services. The Commission emphasized the limited analog capacity available on distribution systems, the many advantages of digital over analog distribution, and the importance of promoting the deployment of the new technology. It added:

To provide incentives for Canadian viewers to switch to digital technology, and given the limitations of analog capacity, the Commission will now license a range of pay and specialty services for digital distribution only. (emphasis added)


In the five years since September 1996, the Commission has authorized only one English-language specialty service for distribution on an analog basis. In Decision CRTC 2000-217 dated 4 July 2000, the Commission licensed Food Network Canada (FNC) as a Canadian replacement for the U.S. service TV Food Network, on the basis that only those cable licensees who had carried the U.S. service on an unscrambled analog channel be required to distribute the new Canadian service on the same unscrambled analog tier. This placed no new demand on channel capacity, and ensured the seamless introduction of an additional Canadian service to the system.


The Commission, over the same five-year period, has licensed five French-language specialty services for carriage on an analog basis. Four of these were approved in May 1999 and were justified, in the Commission's view, on the grounds of the greater availability of channel capacity in Francophone markets and the smaller number of licensed French-language services available to viewers. The fifth French-language service permitted analog distribution was La Télé des Arts, now known as ArTV (Decision CRTC 2000-386 dated 14 September 2000). It was approved one year following the Commission's report to the government on the establishment of a national French-language arts television service (Public Notice CRTC 1999-187), in which the Commission stated that such a service could make a significant contribution to achieving the objectives of the Broadcasting Act.


Since 1996, with the exceptions described above, the Commission has not considered or approved any application for a new specialty service predicated on analog distribution on a high penetration tier. As noted, the Commission's purpose in adopting this approach has been to avoid disruption to the system and to subscribers in the prevailing distribution context, and to encourage the transition from analog to digital distribution.


In Decision CRTC 2000-393 dated 21 September 2000, the Commission, by majority vote, denied an earlier proposal by WTM for a new specialty service. The service was to be programmed in a manner very similar to that described in the current application. The proposal was predicated on broad distribution by cable systems across Canada on a dual status basis. This means that it would have been distributed on an analog channel as part of the basic service by all Class 1 cable undertakings, and by all Class 2 cable undertakings choosing to carry the service. Alternatively, with the agreement of both the distributor and the service provider, it could have been carried on an analog channel of a discretionary tier. In its denial, the Commission stated, among other things, that:

.at a time of pressure on the availability of analog channel capacity on most cable distribution undertakings, and of increased expectation by consumers that they will have a greater ability to choose the specialty services they receive, the Commission has not been convinced that it is in the public interest to grant the proposal the distribution status the applicant required for its implementation.

WTM's proposed analog distribution model and its inconsistency with Commission policy


As mentioned above, WTM's current application had proposed that its service be made available to subscribers of all but the smallest distribution undertakings across Canada. In the case of Class 1 and 2 cable systems, WTM requested that the subtitled feed in the official language of the majority be distributed on a modified dual status basis. This carriage status would require distribution on an analog channel, as a discretionary service, by all Class 1 cable undertakings, and by Class 2 cable undertakings choosing to carry the service. Alternatively, a service granted modified dual status carriage may, with the agreement of both the distributor and the service provider, be distributed on an analog channel as part of the basic service. The applicant also proposed that, as a discretionary service, WTM be carried either as part of the highest penetration discretionary tier or on a discretionary tier having at least 60% penetration. Further, WTM proposed that the other feed, namely that containing subtitles in the official language of the minority, be carried as a digital service by these larger cable distributors, and delivered to subscribers on an optional basis.


At the hearing, WTM discussed various options for carriage of the service by licensees of direct-to-home (DTH) and multipoint distribution services (MDS) undertakings, and by licensees of Class 3 cable systems. In the case of Class 3 undertakings (i.e. those generally with fewer than 2,000 subscribers), it proposed that carriage of the service be at the licensee's option. WTM requested in its application that DTH and MDS undertakings be required to distribute the feed of the service containing subtitles in the language of the majority. In the case of DTH systems, it was proposed that this feed be included in the package of services having the greatest number of services in the language of the majority. WTM further proposed that MDS systems either include the service in a package having at least 60% penetration or deliver it to all subscribers whose existing service package consists of three or more services in the same language.


The Commission notes that the distribution model proposed by WTM would give the applicant broader carriage rights than any analog service, other than those that have been accorded dual status. For English-language and ethnic services, the Commission has not guaranteed the distribution of a specialty service on a specific tier on cable or in a specific DTH package. Because of the scarcity of available analog channels, the distribution status requested by the applicant would oblige most cable operators to remove or displace an existing service. This, in turn would increase the cost of the tier where WTM costs more than the service it is replacing.* Because granting WTM modified dual status also raises the possibility of the service negotiating with cable distributors for its carriage as part of the basic service, it also gives rise to further concerns, such as affordability of basic service and the subscriber's right to choice among services.
19. The onus was thus clearly on WTM to convince the Commission that the proposed service would be of such exceptional importance to the achievement of the multicultural objectives of the Broadcasting Act as to warrant distribution of the service on an analog channel. In the current distribution environment, it would be extremely difficult for a proposed service to lay a convincing claim to being of such exceptional importance in relation to the Act's multicultural objectives, unless it is one devoted to programming focused on the needs and interests, the circumstances and aspirations, primarily and predominantly, of Canadians.

WTM's programming plans

Non-Canadian programming


WTM's proposed non-Canadian programming, referred to by the applicant as its "world programming" component, is to focus on films, drama and variety programming, and "bring recognition to world cultures". As proposed, non-Canadian content will make up as much as 60% of the overall broadcast year in year one, decreasing by 5% per year, to a maximum of 50% by year three, and to 40% by year five. Non-Canadian programming is to remain at a maximum of 50% during the evening broadcast period of 6:00 p.m. to midnight, throughout the licence term.


The Commission acknowledges the ability of foreign programming to provide information about, and entertainment from, other cultures. Its rightful presence within the program schedules of Canadian broadcasters is confirmed in part by section 3(1)(i)(ii) of the Broadcasting Act, which states that: ".the programming provided by the Canadian broadcasting system drawn from local, regional, national and international sources". At issue, however, is whether non-Canadian programming can help achieve the multicultural objective of the Act's section 3(1)(d)(iii) quoted above, given the importance it places on reflecting the multicultural and multiracial nature of Canadian society. The Commission does not believe that foreign programming, in and of itself, can serve this purpose, particularly if it is selected for its importance in other countries rather than its importance to Canada.

Canadian content


As mentioned above, although WTM's proposed Canadian content would increase to 55% and 60% in years four and five respectively, it would not attain an overall minimum level of 50% until the third year of operation. Moreover, while it was proposed that Canadian content over the course of the licence term would remain at 50% during the evening broadcast period, the applicant's program schedule made no provision for the broadcast of any Canadian content during the peak viewing hours of 8:00 p.m. to 11:00 p.m. Instead, these hours are reserved for "world drama" and "world cinema".


The Commission finds the maximum level of 50% Canadian content proposed for the evening broadcast period, the absence of any Canadian content during the peak evening viewing hours, and the preponderance of foreign programming, at least in the early years of operation, to be significant limitations on the ability of the service to reflect Canada's multicultural reality.


The Commission considers that an examination of the substance of the applicant's Canadian programming further erodes its argument that the service, as proposed, would be of exceptional importance to achieving the objectives of the Broadcasting Act. According to WTM, several of its Canadian programs are to "reflect the creative dynamics generated in the cultural interface within Canada". (emphasis added) The applicant's descriptions of the vast majority of these programs, however, do not support this conclusion. For example, while Cabaret is to be set in Toronto, and while WTM stated at the hearing that the program would feature new Canadian performers, it is described in the application, in greater detail, as aiming to "showcase performance art from around the world". Books in Print is to feature "the best of international non English/French language literature from book festivals in Europe and South America", while World of Art, as this title implies, is to be an "exploration of world art".


Other proposed Canadian productions, such as the current affairs programs Canada and the World, World Regional Sport, World Journal International Business and World Sport, will consist largely of clips of foreign news and public affairs programming. These programs are to include in-studio guests, and are to provide a Canadian analysis of foreign news events. There appears to be a strong reliance in the programming on the interpretation of Canada's multicultural reality through international events, and very little focus on Canada's multicultural reality itself. The Commission is not convinced that these programs would make a very strong or meaningful contribution to an understanding of Canada's multicultural landscape.


Based on the descriptions provided by WTM, there are three programs that the Commission considers will have the reflection of Canadian multiculturalism as their predominant themes. These are: Original Voices, offering "First Nation perspectives from First Nation producers"; Intercom Community Magazines, which is to provide diverse Canadian communities with a "national platform to deal with the specific issues, ideas from their community"; and Day and Night, presenting "a chronicle of the daily lives and meeting places in urban and rural centres that will bring a new understanding to the audience of the cultural diversity of Canada". None of these three programs, however, has been entered in WTM's proposed schedule for broadcast during peak evening viewing hours. In fact, most of the original and repeat broadcasts of these programs are scheduled to air either before 9:00 a.m. or after 11:00 p.m.


The Commission's majority, for all of these reasons, has not been convinced that the service proposed by WTM would be of such exceptional importance to the achievement of the objectives of the Broadcasting Act as to warrant its mandated distribution on an analog channel as proposed. The Commission does find that the proposal would complement existing services, however, and will license WTM as a Category 2 service authorized for distribution as a discretionary service on a digital basis only, and subject to the further terms and conditions set out below.

Terms and conditions of licence


The majority of the Commission approves a category 2 specialty television serviceto be known as World Television Network/Le Réseau Télémonde inc.). A licence will be issued and effective at such time as the applicant confirms in writing that it is ready to begin operation. This must take place no later than three years from the date of this decision. Any request for an extension to that deadline requires Commission approval and must be made in writing before that date.


The licence, when issued, will expire 31 August 2008 and will be subject to the condition set out below concerning the nature of service, to the conditions set out in the licence to be issued, as well as to those terms and conditions generally applicable to Category 2 services, as set out in Public Notice CRTC 2000-171-1.


As explained in that notice, with respect to such matters as Canadian content, Canadian program expenditures and closed captioning, and consistent with the requirements imposed on other Category 2 specialty services, licence conditions have either not been imposed or are generally far less onerous than the applicant's own commitments.

Nature of service licence condition


In the Commission's view, the description of the nature of the service contained in WTM's written application should be more specific if it is to serve as the basis for a condition of licence. At the hearing, the applicant indicated that it would accept and adhere to an abridged description similar to that set out in a) below. Accordingly, by condition of licence:

a) The licensee will provide a national service with both English- and French-language feeds. The service will be dedicated to providing news, public affairs, film and entertainment programming from Canada and around the world in the original language of production and will reflect Canadian and global cultural diversity. Through the extensive use of subtitles in English and French, the service will be widely accessible to Canadian viewers.

b) The programming must be drawn exclusively from the following categories, as set out in Schedule 1 to the Specialty Services Regulations, 1990: 1, 2a, 2b, 3, 4, 5b, 6a, 6b, 7a, 7b, 7c, 7d, 7e, 7f, 7g, 8a, 8b, 8c, 9, 10, 11, 12, 13 and 14.

c) A maximum of 10% of the programming in the broadcast week may be drawn from program category 6 (sports).

d) A maximum of 20% of the programming in the broadcast week may be drawn from program category 7c (specials, mini-series or made-for-TV films).

e) A maximum of 35% of the programming in the broadcast week may be drawn from program category 7d (theatrical feature films aired on TV).

f) A maximum of 20% of the non-Canadian programming aired in each quarter of the broadcast year may be produced in any one language.

g) Programming produced in Great Britain or the U.S. may, in each case, account for a maximum of 5% of the non-Canadian programming aired in each quarter of the broadcast year.

h) A maximum of 10% of the non-Canadian programming aired in each three-month period commencing 1 September, 1 December, 1 March and 1 June of the broadcast year may originate in any single country other than Great Britain and the U.S.

Secretary General
This decision is to be appended to the licence. It is available in alternative format upon request, and may also be examined at the following Internet site:
  Dissenting Opinion of Commissioner Martha Wilson


I disagree with the majority on this decision. I would have granted World Télémonde (WTM) a licence for a modified dual status service. This means that WTM would be distributed on an analog channel as a discretionary service unless WTM and a distributor agreed that the service would be carried on basic. I would not have granted WTM any additional access rights, i.e., their English service would have modified dual status access in Anglophone markets and their French service would have modified dual status access in Francophone markets. As a result, they would be carried by all Class 1 cable undertakings and by Class 2 cable undertakings choosing to carry the service. I would not stipulate on which tier the service was to be carried, nor would I grant additional access rights for the English service in Francophone markets and vice versa. Nor would I require carriage on MDS undertakings. This, I believe, would be a reasonable compromise in terms of giving the service a real opportunity to survive and respecting the scarcity of analog channel availability for cable undertakings and the scarcity of spectrum availability for MDS undertakings.


What drives me to this view is the sea change in the demographics of this country over the last ten years and what I believe is a need for "bridge" programming in the Canadian broadcasting system. In the applicant's words, bridge programming, aimed at a mainstream audience in both official languages through the use both of subtitles and commentary and analysis, would "facilitate insight, understanding and integration by providing viewers with direct windows on the people of Canada and the world." In this case, WTM would provide programming which would help the official language groups better understand the various ethnocultural groups which comprise a very large and growing part of our population. This would be achieved by offering a significant amount of international programming not now available in our broadcasting system along with Canadian programming whose specific aim is to provide some context for understanding Canada's multicultural communities. This context would be provided both by programming from the multicultural communities' countries of origin and through Canadian programming offering commentary and analysis to bridge understanding.


The majority's decision at paragraphs 2, 3 and 4 describes the steps the Commission has taken in pursuit of the Broadcasting Act's (the Act's) multicultural objectives through third-language programming. And they acknowledge in paragraph 7 that "more can be done" including better reflection of Canada's multicultural reality by conventional broadcasters in conventional programming. I would suggest, however, that this argument misses the essential point of the WTM application. While there is a substantial amount of third-language programming in the system, and while conventional broadcasters are turning their attention to a more realistic reflection of Canada's demographics in their news and other Canadian programming, there is, in my view, a clear gap between the two. On the one hand, we have conventional broadcasting channels that serve and reflect the official language groups. On the other, we have third language programming which serves the various ethnocultural communities which have made this country their home - but this programming is not accessible to the official language groups in terms of making the context and the reality of Canada's multicultural communities understandable. So what kinds of programming services should there be in the system - available to a wide number of Canadians - which help us to understand one another better? I would suggest that the programming service applied for by WTM is one such service. It may not be the only programming service that would fill this gap, but it would be a beginning.


The following chart illustrates my point:


Conventional Television

Bridge Programming

Third-Language Television

Elements of the Canadian Broadcasting System CBC, CTV, Global, SRC, TVA, TQS, Canadian specialty services, both analog and digital CFMT - some programming in English which addresses Canadian multi-cultural realities CFMT, CJNT, Telelatino, Fairchild, Asian Television Network, Odyssey, Talentvision, Category 2 digital services
What they do or what they should do Reflects official language groups to themselves Reflects Canada's official language groups and multi-cultural groups to one another Reflects ethnocultural groups to themselves
  Some reflection of multicultural reality of Canada Uses Canadian commentary and analysis in both official languages to provide insight and understanding into the origins, issues and orientations of Canada's multi-cultural communities Reflects official language groups to the ethnocultural groups
  Reflects official language groups to ethnocultural groups who speak either of the official languages Uses international programming to provide a context for understanding the origins, issues and orientations of Canada's multi-cultural communities  
    Provides a bridge between generations of ethnocultural Canadians where the "older" generation is third-language speaking and the "younger" generation speaks one of the two official languages.  


Analog distribution and the argument for exceptional importance


There is little argument about the scarcity of analog capacity in the current distribution environment, although this is a reality only for cable distribution undertakings, not for direct-to-home satellite undertakings (DTH). (MDS is a special case on its own due to the limited spectrum available to it for delivery of programming services.) Cable companies have upgraded or are in the process of upgrading their plant to offer programming services on a digital basis bringing two important things to the Canadian broadcasting system: the possibility for consumers to choose more specifically the programming they receive, and the ability of the broadcasting system to offer a much wider array of programming. These are important goals and the Commission has done much to support the roll-out of digital technology to Canadian homes. If a cable company chooses to roll out this technology without upgrading its plant to a full 750 MHz, then analog channels must be harvested in order to create digital capacity. This situation - combined with the carriage on analog of existing services, the removal of which could be disruptive to consumers - is what results in analog scarcity.


As outlined in the majority decision, in 1997 (PN CRTC 1997-33), some time before digital distribution was a reality for both cable undertakings and consumers, the Commission articulated its approach to any further analog distribution of specialty services. This approach took into account information about the roll-out of digital supplied to it by the cable industry and other parties, and set out the requirement that English or French specialty services proposing analog carriage would have to justify this distribution "on the basis of agreements with distributors or on the basis of evidence demonstrating the exceptional importance of the proposed service to the achievement of the objectives of the Broadcasting Act." (my emphasis)


At closer look, this is an odd test.


On the one hand, if the distributor agrees to carry the service, it doesn't seem to matter if the service is of exceptional importance, only that the operator is willing to carry it on analog.


On the other hand, if the distributor does not agree to distribution, the Commission applies an exceedingly demanding test to decide whether or not the service achieves the objectives of the Act. Where is the logic in this approach? If a distributor agrees to analog carriage, then that's fine? But if a distributor does not agree to analog carriage, the Commission must meet a higher standard than the distributor and may be reluctant to introduce into the system programming that plays an important role by a test that leaves a fair amount of room for subjectivity and could be difficult to meet for any individual service?


In my view, this is a questionable approach. Much has changed in the country and in the broadcasting system since 1997 and the Commission must be able to respond to those changes with some flexibility. Indeed, even after the approach to any further analog carriage was articulated by the Commission, a number of American specialty services were launched on analog discretionary tiers while licensed Canadian specialty services were kept waiting for "the earlier of: deployment of digital technology by a distributor, or 1 September 1999" (PN CRTC 1996-120). I am not suggesting that cable undertakings should not have the flexibility to develop programming packages that will appeal to consumers. Nor am I suggesting that they shouldn't have the flexibility to offer American services which provide "lift" for the Canadian services if this will help drive penetration (although viewership data consistently and clearly indicates that the Canadian services garner far greater audiences than those of the American services launched with them in 1997). I am suggesting that in spite of the frameworks the Commission develops to respond to certain realities in the distribution environment, there sometimes become apparent clear gaps in the broadcasting system - in this case because of the radically altered demographics of the country - and the Commission must be able to "fill those gaps" without being held to a higher standard than those they regulate.


Disruption to consumers and the affordability of basic service


The majority decision supports its argument against analog carriage of WTM based in part on the issues of disruption to consumers, including the subscriber's right to choice and the affordability of basic service. These are important issues and I do not take any of them lightly. However, I would argue that in an increasingly competitive distribution environment, if the Commission believes that a service should be granted analog carriage to fulfill a certain need in the broadcasting system, then the best people to decide how to implement this decision are the distributors themselves. Subscribership to DTH is growing rapidly. Bell Expressvu, for example, announced in the last week that it had reached one million subscribers and Star Choice has 670,000 subscribers. Combined, this brings DTH penetration ever closer to the two largest cable operators in Canada: Shaw (2.1 million subscribers) and Rogers (2.3 million subscribers). At the same time, growth in cable penetration has remained relatively flat in the last year and, indeed, some cable operators are beginning to apply for deregulation of their basic rates because they've lost 5% of their subscribers to DTH and/or MDS. It would seem, then, that there is sufficient market incentive for cable operators to minimize any action that might drive their subscribers to the competitors without the Commission's intervention.


I would argue, therefore, that while these are important issues which the Commission should consider when licensing any additional analog services, they must be weighed against the need to have certain programming available in the system. Surely this is exactly what the Commission concluded when it decided that APTN should be licensed and should be granted basic carriage under Section 9(1)(h) of the Act with a subscriber rate of 15 cents per month. And the Commission reached a similar conclusion with respect to the national distribution of TVA and the licensing of ArTV. I am not suggesting that the Commission should be at all capricious in licensing analog services - and we certainly haven't since 1997 - but there are and will be times before cable distribution is entirely digital when the Commission may want to introduce a certain type of programming into the system in order to achieve the objectives of the Act and those situations may require analog carriage.


Does WTM's programming achieve the objectives of the act?


The majority argues that WTM's programming is not sufficiently Canadian to render it of exceptional importance to the achievement of the multicultural objectives of the Act. Paragraph 19 of the majority decision states that "In the current distribution environment, it would be extremely difficult for a proposed service to lay a convincing claim to being of such exceptional importance in relation to the Act's multicultural objectives, unless it is one devoted to programming focused on the needs and interests, the circumstances and aspirations, primarily and predominantly, of Canadians" (emphasis added by the majority)


Interestingly, the Act itself, in its vision of the Canadian broadcasting system, does not set out the requirement of "primarily and predominantly Canadian" for every single programming service in that system. In fact, the words "primarily and predominantly" in combination do not appear anywhere in the Act. While the words "needs and interests" and "circumstances and aspirations" come from Section 3(d) (which is the same Section which articulates the Act's multicultural objectives), the notion of "predominance" is found in Section 3(f). But even there, a clear exception is set out with respect to services which have specialized content or format or which use languages other than French or English.


Section 3(f) states:

f) each broadcasting undertaking shall make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation and presentation of programming, unless the nature of the service provided by the undertaking, such as specialized content or format or the use of languages other than French and English, renders that use impracticable, in which case the undertaking shall make the greatest practicable use of those resources; (my emphasis)


It seems, then, that the majority has drawn a conclusion which, it could equally be argued, is not explicit in the Act. If it were, then there are many Canadian programming services which would not measure up in terms of reflecting the Canadian reality, ethnic or otherwise, and all of them have analog carriage.


The majority also discusses the Canadian content exhibition levels proposed by WTM and suggests that the levels proposed are "significant limitations on the ability of the service to reflect Canada's multicultural reality". Let's take a closer look at this suggestion by comparing the exhibition levels of some of the existing analog specialty services with those of WTM:


Overall Exhibition Requirement (%)

Evening Exhibition Requirement (%)

Bravo 40% in 1994/95
50% in 1996/97
60% in 1998/99
40% in 1994/95
45% in 1996/97
50% in 1998/99
History Television Minimum of 30%
40% if 4 million subs
50% if 5 million subs
Outdoor Life 30% 30%
Space: The Imagination Station 25% in 1997/98
30% in 1999/00
35% in 2001/02
40% in 2002/03
25% in 1997/98
30% in 1999/00
35% in 2002/03
Canal D 30% in 1995/96
32% in 1997/98 on
30% in 1995/96
32% in 1997/98 on
Historia 35% in year 1 rising to 45% in year 6 35% in year 1 rising to 45% in year 6
WTM (proposed) 40% in year 1
50% in year 3
55% in year 4
60% in year 5
50% throughout the licence term


Clearly the Commission has shown significant flexibility in applying Canadian content exhibition requirements in order to get certain types of programming into the system - just as the Act envisioned we would do in Section 3(f). In several cases, we have allowed lesser levels of Canadian content than those provided by conventional broadcasters or by specialty services which lend themselves to higher levels (such as news and lifestyle programming) because we felt it would strengthen the broadcasting system, whether from a cultural or an economic point of view.


And certainly no one would argue that specialty channels such as Bravo and History which start out at 30% or 40% Canadian content and grow to 50% or 60% over time are not capable of reflecting the Canadian reality. Nor would they argue against the importance of having the types of programming offered by Bravo and History in the Canadian broadcasting system. But is it any more important than having programming available which goes to one of the very principles which define the fundamental nature of this country - equality, linguistic duality, the importance of our aboriginal peoples, and multiculturalism? And further, how are WTM's proposed exhibition levels a significant limitation on its ability to reflect Canada's multicultural reality when an important part of that reality has to do with understanding where our multicultural communities come from, their countries of origin, and how those cultures have formed these new Canadians? Surely exhibition levels on their own are not the only indicator of whether or not a service is reflecting a certain reality. And why would the Commission hold a programming service which would serve both the mulitcultural communities and the official language groups and provide an important "bridging" role at a time of demonstrated need to a higher standard?


I believe that at this time in our country we need the kind of bridge programming proposed by WTM. Our country's demographics have changed dramatically in the last 10 years and there is very little programming aimed at a mainstream audience which attempts to provide an international context for this change or address the issues that this kind of change raises. Is WTM the only service which should bring this perspective to the Canadian broadcasting system? No. Has anyone else proposed to do something like this in the last 10 years? No. Does WTM have to fill the entire gap that exists in the system right now? No. It need simply fill a part of it, just as any other Canadian specialty service does. But licensing WTM and giving it a fighting chance to survive by granting analog carriage would be a beginning, and it's a decision I wish we had made.

Date Modified: 2001-12-14

Date modified: