ARCHIVED - Public Notice CRTC 2001-63

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Public Notice CRTC 2001-63

  Ottawa, 5 June 2001
  Introductory statement to Decisions CRTC 2001-312 to 2001-320: Radio applications considered at the 20 November 2000 public hearing in Burnaby, B.C.
  In this document, the Commission set out its rationale for decisions on radio applications that it considered at the 20 November 2000 public hearing.
1. At the 20 November public hearing in Burnaby, the Commission considered a number of radio-related applications for Vancouver and Victoria, as well as for other areas of the lower mainland of British Columbia and Vancouver Island.
  Applications for Vancouver
2. Thirteen applicants applied for new FM radio stations to serve Vancouver. Eleven applicants proposed to use the frequency 94.5 MHz, while two proposed to use the frequency 90.9 MHz.
  Applications for 94.5 MHz
3. Ten applicants proposed to use the frequency 94.5 MHz to establish commercial FM stations.
4. Six commercial applicants (Craig Broadcast Systems Inc., CHUM Limited, Jim Pattison Industries Ltd., Newcap Inc., Standard Radio Inc. and Telemedia Radio (West) Inc.) proposed variations of the New Adult Contemporary/Smooth Jazz format.
5. Two applicants, FOCUS Entertainment Group Inc. (Focus) and Future Radio Inc. proposed Urban formats. Classic 94.5 FM proposed a format based on classical music, while Mainstream Broadcasting Corporation (Mainstream) proposed an ethnic service.
6. The CBC, on the other hand, proposed to use the frequency to provide for the first time to residents of British Columbia, the signal of its French-language network service La Chaîne culturelle.
  Applications for 90.9 MHz
7. Two not-for-profit corporations competed to use the frequency 90.9 MHz. Simon Fraser Campus Radio Society (Simon Fraser) proposed to establish a campus FM station that would replace its existing carrier current operation.
8. Gary Farmer, on behalf of a company to be incorporated (Aboriginal Voices Radio, AVR) applied for a Type B native station that, in its initial years of operation, would essentially rebroadcast the signal of the Aboriginal Voices Radio station in Toronto that the Commission licensed in Decision CRTC 2000-204.
  CBC's Victoria application
9. In Decision CRTC 99-480, the Commission approved in part an application by the CBC to add a transmitter in Victoria to rebroadcast the signal of CBUF-FM Vancouver. This transmitter would make the Corporation's French-language network service La Première Chaîne available to Victoria residents. In the decision, the Commission directed the CBC to file an amendment to the technical parameters for the station predicated on the use of another frequency.
10. In response, the Corporation submitted an application that was considered at the 20 November 2000 hearing to operate the Victoria transmitter on the frequency 88.9 MHz.
  Other applications
11. The Commission considered three other applications relating to existing or proposed radio services located outside of the immediate areas of Vancouver and Victoria, including:
  • an application by Rogers Broadcasting Limited (Rogers) to convert its AM station CFSR Abbotsford to an FM station on the frequency 107.1 MHz.
  • a similar application byCentral Island Broadcasting Ltd. (Central Island) to convert its AM station CKEG Nanaimo to the FM band on the frequency 106.9 MHz.
  • an application by the Radio Malaspina Society for a new community-based campus FM station in Nanaimo on the frequency 101.7 MHz.
  The Commission's determinations
  Availability of frequencies
12. The Commission has made its determinations in the context of the very limited number of available frequencies in Vancouver and Victoria. In reaching its decisions on the current applications, the Commission has sought to ensure that frequencies will be used in a way that, to the greatest possible extent, meets the objectives set out in the Broadcasting Act, satisfies the public interest and takes into account the objectives of the applicants.
13. The Commission also considered the applications in light of specific expectations related to the coverage of the CBC's French-language radio network La Chaîne culturellethat were set out in Decision CRTC 2000-2.This decision, which last renewed the licence for the Corporation's French-language radio networks, included two provisions with respect to the extension of La Chaîne culturelle that are relevant to this proceeding. Specifically, the Commission expected that the CBC extend the coverage of La Chaîne culturelle to:
  • at least 50% of the French-speaking population of each province by the end of the licence term; and
  • all provincial capitals by the end of the licence term.
14. The Commission reiterated these objectives in Achieving a better balance: Report on French-language broadcasting services in a minority environment (Public Notice CRTC 2001-25).
15. Since only one applicant can be assigned a particular frequency, there was considerable discussion by parties to the hearing about the potential usefulness of other frequencies to serve the area. The availability of additional frequencies could make it possible to licence additional applicants. To ensure a complete record, the panel extended Phase IV of the hearing until 22 December in order that applicants could submit further written comments addressing the use of frequencies. The Commission also asked Industry Canada for assistance in assessing the various frequency proposals that some of the applicants suggested. Industry Canada's report, as well as data on frequency availability submitted by the applicants, is available on the public file for this hearing.
16. In summary, there appear to be very few unused frequencies that could be used to provide effective radio service to Vancouver, and which are not included in those frequencies sought by the group of current applicants proposing new stations for that market. These include the frequency 90.1 MHz (FM channel 211), which is currently allotted to Chilliwack, but could be utilized in Vancouver as an A or A1 channel. The AM frequency 1200 kHz, which was released by CKXM Victoria when it converted to the FM band, could be used either in Vancouver, or in Victoria.
17. Further, Rogers indicated that, if its application to convert CFSR Abbotsford to an FM station were approved, it would make CFSR's current AM transmitting facilities, now operating on the frequency 850 kHz, available to either AVR or Simon Fraser and provide further funding to pay for the operating expenses of the facilities for seven years.
18. In addition to 1200 kHz AM, the FM frequency 88.1 MHz (channel 201 C) is available for use in Victoria. However, for technical reasons, 88.1 MHz could only be used if it co-sites with channel 6 CHEK-TV on Saturna Island. Further, tests show that an FM transmitter on this frequency could only be used in monophonic mode to serve Victoria because stereophonic operation would result in an unacceptable level of multi-path interference.
  The CBC applications
19. As indicated above, the Commission has assessed the proposals by the CBC in the context of Decision CRTC 2000-2. It is concerned that approval of the CBC applications for Vancouver and Victoria as filed would meet one of the objectives set out with respect to coverage of La Chaîne culturelle, but may make it impossible to fulfil both.
20. Specifically the CBC's proposal to use the frequency 94.5 MHz for La Chaîne culturelle would succeed in making the network available to over 50% of the French-speaking population of British Columbia, fulfilling the first expectation. However, the proposed frequency would not enable the station to fulfil the second expectation in that it would not put a reliable signal into Victoria, the provincial capital. The Commission notes that this limitation would appear to apply to any FM frequency that might be used in Vancouver for La Chaîne culturelle. This means that the Corporation would have to establish a second transmitter in the vicinity of Victoria to satisfy the second expectation. As well, because the frequency 94.5 MHz in Vancouver covers a large area, there would be an extensive overlap between the coverage area of a Vancouver station operating on that frequency and virtually any transmitter for La Chaîne culturelle that might be established to serve Victoria.
21. In a second application considered at this hearing, the CBC proposed use of the frequency 88.9 MHz to provide the service of its other French-language network, La Première Chaîne to Victoria. This is a concern because 88.9 MHz is the only remaining frequency available for use in Victoria that is suitable for transmitting a stereo service. Using this frequency for La Première Chaîne, which is a monaural service, would make it impossible to establish a transmitter that would provide Victoria with a full and reliable signal for La Chaîne culturelle, which is a stereo service. The second of the Commission's expectations would thus remain unfulfilled.
22. The Commission considers that the frequency 88.9 MHz would serve more appropriately as the Victoria frequency for La Chaîne culturelle, given its capacity to provide a reliable stereo signal. In this regard, the Commission notes that the Corporation originally filed an application to use the frequency 88.9 MHz for La Chaîne culturelle, but later withdrew the proposal.
23. In light of these considerations, in Decision CRTC 2001-316 issued today, the Commission, by majority vote, denies the CBC's proposal to amend the licence for CBUF-FM so that its rebroadcasting transmitter in Victoria would operate on the frequency 88.9 MHz. It further directs the Corporation to find a frequency in the Victoria area for La Première Chaîne that would be more suitable for a monaural service. In this regard, it notes that the frequency 88.1 MHz could be used to provide monaural service to Victoria.
24. In Decision CRTC 2001-313 also issued today, the Commission, by majority vote, approves in part the Corporation's application for a new radio station in Vancouver to provide programming of La Chaîne culturelle. Specifically, the Commission is prepared to issue a licence, but denies the applicant's use of the frequency 94.5 MHz. The Commission will therefore only issue a licence to the CBC provided that it submits, within three months of the date of this decision, an application proposing the use of another FM frequency, one that is acceptable to both the Commission and to Industry Canada. The coverage area of the new frequency chosen for Vancouver, and that of any frequency that the CBC may choose to make the programming of La Chaîne culturelle available in Victoria, should serve to satisfy both of the expectations set out in Decision CRTC 2000-2, while minimizing overlap in the coverage area of the transmitters. The Commission notes that the frequency 90.9 MHz remains available in Vancouver following today's licensing actions.
25. Further, the Commission notes that the CBC only identified 94.5 MHz as a frequency that it contemplated for use in Vancouver in its Long Range Radio Plan on 31 March 2000. The CBC updates this plan from time to time in order to identify frequencies that it intends to use to extend its radio services across the country. Prospective applicants may then consult the plan as they develop their own applications for new radio stations.
26. The Commission issued its call for applications for radio programming undertakings to serve Vancouver in Public Notice CRTC 2000-48 dated 24 March 2000. The call followed the filing of an application for a commercial FM station on the frequency 94.5 MHz. The deadline for prospective applicants to submit letters of intent was 25 April 2000, with applications due on 23 May 2000. Applicants thus had very little time to consider CBC's request for the frequency 94.5 MHz prior to the filing deadline.
27. As a general observation, the Commission considers that, by keeping its Long Range Radio Plan up to date at all times, the CBC would minimize potential for conflicts between private applicants and the Corporation in the selection of frequencies. The Commission therefore expects the CBC to undertake reviews and provide updates of its Long Range Radio Plan on a semi-annual basis starting 31 August 2001.
  The use of 94.5 MHz
28. In Decision CRTC 2001-312 issued today, the Commission, by majority vote, has granted a licence for a new Vancouver commercial FM station to Focus Entertainment Group Inc. The new station will offer an Urban musical format, a format that new stations in Toronto and Calgary will also provide. Forus will also provide spoken word programming designed to reflect Vancouver's diversity. The Commission notes that Focus will add a new radio voice to the Vancouver market as well as to the Canadian broadcasting system. The Commission considers that, overall, the Focus application best fulfils the criteria it has established to assess competing applications for new commercial FM stations. These criteria, and the Commission's overall assessment of the Focus application, are discussed in the licensing decision.
  The use of 90.9 MHz
29. In Decisions CRTC 2001-314 and 2001-315 the Commission has, by majority vote, approved, in part, both the application by AVR for a new Type B native station and the application by Simon Fraser for a new campus station.
30. In light of the scarcity of frequencies available in Vancouver, and the need for the CBC to find an alternative frequency to broadcast the signal of La Chaîne culturelle that will meet the expectations set out in Decision CRTC 2000-2, the Commission has concluded that the AVR and Simon Fraser applications do not constitute the best possible use of the frequency 90.9 MHz. It therefore approves these applications in part, but, in each case, will not issue a licence unless each applicant submits, within six months of today's date, an application for another frequency that is acceptable to both the Commission and to Industry Canada. The Commission encourages the applicants to consult with each other when selecting the frequencies that they will propose to use.
  Other applications
31. In Decisions CRTC 2001-317, 2001-318 and 2001-319 the Commission has approved the applications by Rogers, Central Island and Radio Malaspina. These applications were scheduled as appearing items at the Burnaby hearing for the purpose of allowing discussion of whether the frequencies applied for might be put to more effective use in the larger communities of Vancouver or Victoria. Based on the available evidence, the Commission is satisfied that none of the FM frequencies proposed by these applicants would provide reliable service to Vancouver or Victoria but will effectively serve the licensees' primary markets.
32. The Commission considers that the new services approved today will increase the diversity and quality of radio programming available to those living in Vancouver, the lower Mainland and various areas of Vancouver Island.
  Secretary General
  This document is available in alternate format upon request and may also be examined at the following Internet site: 
  Dissenting opinion of Commissioner Jean-Marc Demers on the following files:
  Public Notice CRTC 2001-63
  CBC Vancouver and Victoria
  Simon Fraser Campus Radio Society
  Gary Farmer Vancouver
  FOCUS Entertainment Group Inc. 2000-1513-2
  The Commission has considered thirteen applications for radio licences to serve Vancouver. Eleven of these applications were technically mutually exclusive; they all applied to use the frequency 94.5 MHz. These eleven included the CBC's application to use this frequency to broadcast La Chaîne culturelle and the application by Focus to broadcast "new urban music". Two other applications also were technically mutually exclusive, both requesting the use of the frequency 90.9 MHz. The majority of the panel has decided to approve the applications by the CBC and Focus, but has granted the frequency 94.5 MHz to Focus. For Victoria, there was also an application from the CBC to offer La Première chaîne on the frequency 88.9 MHz. In this case, the majority denied the use of this frequency.
  I have taken due note of my colleagues' reasoning in these cases, but I do not share their conclusions. In accordance with the objectives of the Broadcasting Act (the Act), as well as with the Commission's established policies and the public interest, in the case of Vancouver, I am of the opinion that the CBC's application for the frequency 94.5 MHz should be approved and the applications from Focus and the nine other applicants should be denied. The presence of La Chaîne culturelle on this frequency would give Francophones in the Vancouver region a second French-language service, where 18 services already exist in English as well as three services in languages that are not official languages. I would also approve the CBC's application to broadcast La Première Chaîne on the frequency 88.9 MHz in Victoria. This would be the first French-language service in Victoria, something which has been requested since 1972 and deferred several times.
  Here is my reasoning.
  Use of the Canadian frequency spectrum - question of principle and procedure
  In general, ever since 1 April 1968, the Commission has included the assignment of the requested frequency whenever it has approved a licence application, and when there have been competing applications, it has rejected them all. In this way, any unsuccessful applicant could, if necessary, refile its application on a completely equal competitive footing with any other unsuccessful application and any other new applications. To partly approve an application without assigning it a specific frequency amounts to granting a privilege to eventually be awarded a frequency without having been subject to a public competitive process, which may create procedural problems in future.
  Today, in the case of Vancouver, by a majority vote of the hearing panel (the panel), the Commission has adopted a special procedure. The majority has declared its "approval" of four applications when only two frequencies have been applied for. It states that it has approved the CBC's application "in part", without awarding the frequency 94.5 MHz that it had requested. A second applicant, Aboriginal Voices Radio (AVR), which had requested the frequency 90.9 MHz, has also received an "approval" without the assignment of the requested frequency, because this frequency would for all practical purposes be assigned to the CBC, which has not requested it. A third applicant, Simon Fraser, has also received an "approval" without the assignment of the frequency 90.9 MHz, which it had requested in competition with AVR, because, as just stated, this frequency has for all practical purposes been assigned to the CBC. A fourth applicant, Focus, has received approval of its application along with the assignment of the frequency 94.5 MHz, which it had requested in competition with the CBC and nine other parties. The nine other applications have been denied.
  Until now, the Commission's usual practice has been to treat the frequency as part of the essence of the licence being applied for. One of the primary reasons for the Commission's existence is that broadcasting frequencies are a scarce public resource and the primary means of transmitting programming over the airwaves. Thus, to comply with the requirements identified in section 22 of the Act, the Commission has made it a practice not to place an application on the agenda of a hearing unless the applicant has already received an indication that if this application is approved, a Technical Certificate will be issued by Industry Canada, which manages the frequency spectrum.
  To do otherwise would create the risk that someone who did not have the use of the frequency spectrum might nevertheless hold a broadcasting right that it could exercise with priority over other persons, or that it might never be able to exercise, or that it might even sell to someone else. Under these conditions, it is even conceivable that someone could apply to the Commission for a licence to broadcast only, on the pretext that later on, the applicant would find a frequency that met its needs, or might purchase a company that holds a frequency that would fulfill its needs. To approve more than one application for the same frequency, as is the case in the current instance, or to approve applications while denying one of their essential elements-the frequencies concerned-or to decide that the frequency that an applicant is requesting would be better suited to another applicant who has not requested it, without giving anyone else the opportunity to request it, can only lead to hypothetical applications, as well as to uncertainty regarding applicants' rights and an impasse in the management of the spectrum.
  Why should this special procedure not be subject to a competitive process, or at the very least to a public discussion, just like any other major change that affects the right of citizens to receive a requested service? One thing is certain: to approve an application without a frequency is not the equivalent of approving an application for a broadcasting service. The proof: the Commission issued its call for applications for an FM radio licence in Victoria on 25 September 1998, and the CBC responded with an application dated 28 November 1998, but Francophones and Francophiles in Victoria are still waiting for a favourable decision that will assign a frequency for this application.
  I regret that the Commission's usual practice of treating the use of the frequency as an essential part of the requested licence has not been followed in awarding these licences for Vancouver and Victoria. The attribution of a new frequency should, in the interests of the public and in light of the objectives of the Act, constitute the best possible use of that frequency. With respect, I think that the majority's decision perpetuates an inconsistency in the application of the broadcasting policy to a French-speaking official-language minority group compared with the other minority group throughout the country. This decision goes against the findings in Achieving a Better Balance, the report on French-language broadcasting services in a minority environment,which the Commission submitted to the Governor in Council three months ago.
  Consequently, I would:

A- Approve the CBC's application for Vancouver. After 30 years, add a second French-language service to serve 65% of the Francophones in British Columbia with 8 hours of programming from Vancouver, where there are already 18 English-language services. This is the best use of the frequency 94.5 MHz. I disagree with the majority's view that the best use of the frequency 94.5 MHz in Vancouver consists of adding a 19th English-language service, broadcasting "new urban music".


B- Approve the CBC's application for Victoria, thereby establishing the first French-language radio service in that city-something that has been requested since 1972 and deferred several times by the CBC. Victoria is the only provincial capital in Canada that is not yet served by
La Première chaîne. The frequency 88.9 MHz is the one most capable of providing high-quality service, because it is the one least likely to be subject to interference. I note that no competing applications have been filed for this frequency.


C- Also approve these two applications for frequencies from the CBC, because I believe that the process followed must be final, equitable, known by the applicants and the public at the time that the applications are being prepared and filed, well established, and readily understood by the persons concerned. Also, I cannot support the conclusions of the majority, which "approves" two competing applications that are technically mutually exclusive.


D- Deny the application by Focus and the nine other applications that are technically mutually exclusive.

  I note that the majority, even though it says that it "approves" the CBC application for the frequency 94.5 MHz "in part", actually is denying it for all practical purposes. The CBC is going to have to resubmit its application as it has already had to do once before in this same case for Victoria, when a preceding panel used the same scenario. The majority states very clearly that it "approves" the Focus application with the 94.5 MHz assignment, but in the case of the CBC, it subjects this same "approval" to conditions that deny an essential part of it: the frequency. The majority does not say what it is actually doing, which is rejecting the CBC's applications to provide services to Francophones.
  In the following pages I provide further reasons that I support the two applications by the CBC.
  Since the context of the present application is important, it will be helpful to review the ins and outs of the decisions that the Commission has made since 1998 with regard to CBC radio.
  On 30 April 1998, the Commission published its Commercial Radio Policy 1998, in which it stated that it planned to thoroughly examine the role of CBC radio when renewing the Corporation's radio licences.
  On 2 February 1999, the CBC filed its licence renewal applications for the following seven years. In the case of La Chaîne culturelle, the CBC made a commitment to take the necessary steps to serve every provincial capital as well as a minimum of 50% of the Francophones in each province. On 6 January 2000, the Commission noted these two commitments by the CBC and stated its expectation that La Chaîne culturelle would fulfil these commitments during its licence term.
  On 24 March 2000, two months after its licences were renewed, the CBC filed its current application on behalf of La Chaîne culturelle to serve Vancouver on the frequency 94.5 MHz. The application thus proposed to establish a second French-language radio service in British Columbia, offering La Chaîne culturelle to over 65% of the Francophones in the province.
  Twelve days later, on 5 April 2000, in accordance with section 15 of the Broadcasting Act, the Governor in Council requested that the Commission consult the public and report in particular on French-language broadcasting services in French linguistic minority communities in Canada and propose measures to encourage and facilitate the widest possible access to French-language broadcasting services (P.C. 2000-511, 5 April 2000).
  On 12 February 2001, in response to this request, and after holding consultations throughout Canada as well as a public hearing, the Commission submitted its report to the Governor in Council, Achieving a better balance: Report on French-language broadcasting services in a minority environment. This report restated the expectation identified in the Commission's decision of 6 January 2000, that La Chaîne culturelle provide coverage to all provincial capitals and to at least 50% of the Francophones in each province.
  Under section 5 of the Broadcasting Act, the Commission is responsible for regulating and supervising all aspects of the Canadian broadcasting system with a view to implementing the broadcasting policy for Canada. This policy provides that a range of broadcasting services in French and in English shall be progressively extended to all Canadians, as resources become available.
  The application by the CBC meets these requirements regarding resources: the frequency 94.5 MHz is available; CBC has the programming available in the form of the service La Chaîne culturelle; and it has the budget to implement and operate the service.
  Awarding this frequency to the CBC would enable it to respond to the rights and needs of over 65% of the Francophones in British Columbia. Francophones and Francophiles constitute a community of some 130,000 people in Vancouver and the surrounding areas, not counting those who live in Victoria and on Vancouver Island.
  In Vancouver, there are currently 18 radio stations broadcasting in English, 3 broadcasting in non-official languages, and one in French. The arrival of La Chaîne culturelle would double the number of French-language services in Vancouver from one to two after 30 years.
  The programming of La Chaîne culturelle is currently accessible in many regions of Quebec, New Brunswick, and Ontario. According to the CBC's representatives, the Corporation will also be submitting applications to serve 19 other cities, including Edmonton, Regina, Calgary, Winnipeg, Halifax, Charlottetown, and St. John's.
  It makes sense that the third-largest city in Canada should become part of the network of La Chaîne culturelle. The CBC argued that a gap in the trans-Canadian network in Vancouver would be severely detrimental to CBC's development plans. It also argued that we should avoid adopting local solutions that would serve to dismantle the overall plan, on which there has been general agreement following an overall hearing. No other party or documents have contradicted these assertions.
  This network is 100% Canadian. Even though it is not currently available to listeners in Vancouver, it broadcasts eight hours of programming per week from Vancouver. Granting the frequency 94.5 MHz to the CBC would enable the programming from this great Canadian city to be available to its own residents as well. Thus, Francophones in British Columbia would receive La Chaîne culturelle just as their Anglophone fellow citizens receive Radio Two.
  The CBC's plan to serve at least 50% of the Francophones in every province has been public knowledge at least as far back as the CRTC Public Notice of 24 March 1999, concerning the renewal of CBC's licence for La Chaîne culturelle . Further, its obligation to do so has been a matter of public record ever since the Commission's decision of 6 January 2000.
  For me, to authorize the CBC to broadcast La Chaîne culturelle on the frequency 94.5 MHz in accordance with its application seems fully consistent with the rationale that Canadian courts have given for linguistic rights. I am thinking in particular of reasoning such as the following: "Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees. . Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada." (R. v. Beaulac, [1999] 1 S.C.R.. 768, Pages 788 and 791).
  Conclusions regarding Vancouver
  I favour approving the CBC's application for the frequency 94.5 MHz for La Chaîne culturelle, because Francophones in Vancouver and throughout British Columbia have the right to a French-language service from the CBC and need one for their development. This application is part of the CBC's plans that have already been approved by the Commission following a public hearing. The Commission has even requested a detailed timetable for the implementation of these plans. My conclusion allows access to a second French official language service in Vancouver and thus in British Columbia as well, since it would reach 65% of the Francophones in this province. Thus it helps to respond to a call that was made 35 years ago in the White Paper on Broadcasting, 1966, which led to the establishment of the Commission: "The time has also come to consider full national network services in both official languages from coast to coast..."
  In my view, a decision in accordance with the opinion that I have expressed would be consistent with the Commission's obligation as a component of the Canadian federal government to preserve and develop official language communities in Canada. It would provide Francophones, as well as other citizens of this very large area, forming a community of some 130,000 people who know French, an official language of Canada, as well as numerous students of French, a second choice of service, whereas the English-speaking majority already has 18 choices in English.
  The applicants who have submitted technically mutually exclusive proposals were required to consider the Commission's decision on the CBC's service for Francophones and Francophiles in British Columbia like any other decision. Also, at the hearing, these other applicants were well prepared and provided their suggestions for frequencies-all of them of lesser quality, of course-that the CBC should use so as to leave them the best frequency, 94.5 MHz. I, therefore, cannot support the majority's decision, which says that the other applicants did not become aware of the CBC's request to use 94.5 MHz in Vancouver until 31 March 2000. If the majority makes this statement, it must believe that the CBC failed to comply with some procedural principle. In this regard, I cannot think of any obligation that was more incumbent on the CBC than it was on any of the other applicants.
  The CBC has requested the frequency 94.5 MHz to enable it to serve 65% of the Francophones in British Columbia. I am surprised that the majority can conclude, without citing any supporting documents, facts, or arguments at the hearing, that if the CBC used 94.5, it would not meet the condition of establishing coverage in Victoria by the end of its licence period. However, to judge from its statement, the majority is asking the CBC to use another frequency, 90.9 MHz, that would reduce its coverage to 50% of the French-speaking population. Thus the majority fails to consider the 15% of Francophones who will not get this service and who are not part of any plan to provide service from Victoria.
  The majority states that if the CBC used the frequency 94.5 MHz, there would be a lot of duplication when the CBC sets up a transmitter in Victoria. If this duplication does exist, most will be over the Strait of Georgia and of no use to anyone, or else it is in Victoria. If we accept this idea of duplication, it seems obvious that the signal on the frequency 94.5 MHz would reach Victoria, consistent with the documents tabled by the CBC.
  The majority suggests that the CBC could use AM frequencies such as 1200 kHz to serve the French-speaking audience. But it is common knowledge that the use of the AM band for general interest services such as La Chaîne culturelle which broadcasts in stereo is entirely impractical. In major Canadian cities, the applications being filed with the Commission are now either to obtain an FM frequency to begin with, or to transfer existing programming from current AM frequencies to the FM band. Asking La Première chaîne to use the AM band in Victoria means preventing Francophones and Francophiles who live or drive in this major urban centre from enjoying the same quality of service as their Anglophone fellow citizens. A similar proposal was discussed in the first application involving Victoria: the private companies that were giving up their AM frequencies and wanted the Commission to let them move to the FM band offered to give the CBC, for free, the AM facilities that they were abandoning, but nothing came of this idea.
  The majority states that the Commission will issue a licence to the CBC "only" if it proposes another frequency acceptable to the Commission within 3 months. The majority adds that "the frequency 90.9 MHz remains available in Vancouver following today's licensing actions." Since the majority is thereby for all practical purposes denying the CBC's application, the CBC may consequently submit a new application for the frequency that it chooses and that it has requested from Industry Canada within the time frame that it chooses. The majority of a panel cannot tie the hands of other commissioners, nor can it hold on to a file so that other members cannot decide otherwise, in particular should new facts emerge.
  The majority also makes the "general observation" that the CBC must keep its long-range radio plan up to date to minimize conflicts with private radio stations over the use of frequencies. The majority asks the CBC to review this plan every 6 months. With respect, I do not agree that an administrative expectation of this kind should be placed on the CBC by a panel whose job it is to rule on competing applications for Vancouver. It is an administrative burden that I do not feel serves any useful purpose. I also do not see how it is fair, since it places this burden on the shoulders of the CBC alone, and not on any other commercial or non-commercial licensees. Since broadcast frequencies are the lifeblood of the industry, it is hard to believe that after half a century of quarrels between the CBC and private firms about which urban frequencies are "the really good ones with major commercial value", these quarrels will suddenly disappear just because the CBC starts to update its establishment plan every six months. On the contrary, and this is entirely legitimate, it would be advantageous for these firms to know the details of these updates, so that they could take pre-emptive action. In fact, it would give them a way to create yet another obstacle to the establishment of the CBC's service, because the CBC would not be on an equal footing with these firms when it came to obtaining a frequency. Since currently, most of CBC's plans are designed to serve linguistic minorities, this new expectation would represent another obstacle to the establishment of services in minority communities.
  Furthermore, it is usually the Commission's practice to impose stricter requirements for administrative follow-up on its decisions when a licensee has failed to comply with the established rules. In the present case the CBC is not being accused of any such failure, yet the majority is increasing its administrative expectations. I cannot agree with the expectation that they impose.
  Under section 26 of the Act, the government has the power to reserve frequencies for the CBC. If such were the case, any announcement that some desired frequencies are reserved for the CBC would be binding upon the Corporation, any potential applicant, and the Commission. In my opinion, this is not an obligation whose result is to oblige only one party to show its cards. However, in the absence of any reservations in the procedures set out in the Act, I think that the Commission should follow an equitable process that easily allows the public broadcaster to serve official language minorities.
  To better understand what follows, it is necessary to place the present application in its context, as well as in the context of the CBC's licence renewals.
  On 26 November 1998, the CBC filed a first application to amend the licence for CBUF-FM La Première Chaîne in Vancouver to add a transmitter to serve Victoria on the frequency 89.7 MHz. In so doing, the CBC was responding to a call from the Commission for applications for licences to serve this region. By providing a service including 43.5 hours of regional programming that Francophones had been demanding since 1972, the CBC sought to extend La Première chaîne to the last provincial capital that did not have it and thus reach 95% of the Francophone population of the province.
  On 2 February 1999, as part of the submission of its licence renewal applications for the next seven years, the CBC included its plan for La Première chaîne in Victoria on the frequency 89.7 MHz. In its application, the CBC explained that the French-language radio network La Première chaîne was continuing to fulfil its mandate to serve Francophone communities while rethinking its activities and its ways of carrying out its mission. According to the CBC, its radio service continued to be sensitive to the needs of Francophones in minority settings and to play a major role not only in their survival but also in their development.
  On 28 October 1999, in its decision CRTC 99-480 on this initial application, the Commission declared that the public interest was best served by the use of the frequency 89.7 MHz by a local English-language radio station that was already operating on the AM band rather than by the French-language CBC network La Première chaîne. The decision stated that the CBC should not rule out using the AM band in the Victoria area, and that OK Radio and Rogers, two companies that were applying at the same hearing to transfer their programming from the AM band to the FM band were offering the use of their AM facilities to the CBC. The Commission stated that it "approved" the CBC's application, and gave it six months to amend its technical parameters predicated on the use of another frequency.
  Following this decision, the CBC entered into discussions with OK Radio and came to the conclusion that its operating costs on the AM band would be eight times higher than it had projected for the FM band. Since then, OK Radio has sold its facilities. Meanwhile Rogers has opted for the frequency 103.1 MHz, which was occupied by an educational station to which Rogers offered its AM facilities.
  On 17 March 2000, the CBC filed the present second application to amend the licence of CBUF-FM La Première chaîne in Vancouver in order to serve Victoria on the 88.9 MHz frequency. This frequency had previously been requested for La Chaîne culturelle in Victoria.
  On 21 June 2000, in response to questions from the Commission about amending the requested frequency, the CBC wrote that in unserved regions, it gave precedence to La Première chaîne. The CBC added that following the Commission's decision to grant the frequency 89.7 MHz to the English-language radio station CKAY, there were still two usable FM frequencies, and that one of these, 88.9, was less susceptible to interference. The CBC also explained that it was no longer able to extend the coverage of La Chaîne culturelle to Victoria, because there was only one usable frequency, but that it was examining alternatives.
  Conclusions regarding Victoria
  For the reasons cited above, including those regarding the application for Vancouver as they apply to the present case, I favour approving the CBC's application to use the frequency 88.9 MHz to broadcast, in Victoria, the programming of La Première chaîne which is already present in Vancouver. The Francophones and Francophiles of the Victoria region will thus be served by La Première chaîne, their first French-language radio service, for which they have been calling since 1972.
  As the Commission itself stated in its licence renewal decision of 6 January 2000, CBC French radio offers an incomparable service. It provides in-depth coverage of news and events and an identifiable sense of place and culture. The Commission also noted that at the public consultations in Vancouver, Francophones reminded the Commission that the CBC's services were not accessible by all residents.
  In its report of 12 February 2001 to the Governor in Council, Achieving a Better Balance, the Commission stated that the allocation and assignment of frequencies is one of the principal factors curbing development and that the CRTC must continue to take competitive situations into account, particularly in major urban areas, where demand far outweighs the availability of frequencies.
  Today, even though there is no competing application, the majority has rejected the CBC's application to assign the frequency 88.9 MHz to La Première chaîne in Victoria.
  I cannot support the majority decision that gives preference to 88.1, a frequency subject to numerous constraints, including the need to place the transmitter on Saturna Island, at the same location as CHEK-TV Channel 6. Tests on this frequency have shown that it is subject to restrictions that make it usable for monaural service only.
  The majority states that 88.9 is the only frequency that can accommodate stereophonic transmission in Victoria, and it wants to keep this frequency for La Chaîne culturelle. But the majority knows that on the basis of priorities established over the years in consultation with minorities across Canada, the CBC prefers to make La Première chaîne the first French-language service available in any given area. In any event, the use of 94.5 MHz by CBC from a transmitter located in Vancouver would allow it to offer the service of La Chaîne culturelle on Vancouver Island and reach Victoria within the 5 mV/m contour.
  General conclusions regarding Vancouver and Victoria
  The broadcasting system in Canada does not consist of a commercial component only. It also includes public broadcasting. Public broadcasting is recognized throughout the world as being just as powerful a cultural vehicle as education. In a country that has two official languages, I consider it highly necessary for the institutions of the state to demonstrate a very high degree of equity toward its linguistic minorities.
  The majority decision, by allocating the frequency 94.5 MHz to a nineteenth English-language station in Vancouver, places the CBC in a position where, to serve the Francophones of British Columbia, it must use the frequency proposed for a native station, which the CBC has not even requested. This is called "robbing Peter to pay Paul." With respect, the majority's decision to take away the frequency 90.9 MHz that AVR has applied for and give it to the CBC is not a very generous act. As an agency of the Canadian federal government, in the exercise of its authority the Commission should make decisions that take the initiative of applicants such as the CBC and AVR into account and that reflect the great national examination of conscience that resulted from the work and the Report of the Royal Commission on Aboriginal Peoples (the Dussault/Erasmus Commission) of 1996.
  The Francophones of the Greater Vancouver Area, with two French-language services to the 18 services available in English, would have the same services as Francophones in the Greater Toronto Area, who have La première chaîne and La Chaîne culturelle. In my view, the Francophones of Victoria have the right to a service comparable to that enjoyed by the 13,000 Anglophones in the Quebec City area, who have had access to CBC Radio One ever since that English network's inception and who, under the CBC's plan, will soon have Radio Two available. They will still be far behind the Anglophones in the Greater Montreal Area, who receive Radio One and Radio Two as well as 6 private stations in English.
  In my opinion, the French-language programming of the CBC is a cathedral into which all Francophone and Francophile Canadians have the right to immediate entry with no further obstacles.

 Date Modified: 2001-06-05

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