ARCHIVED - Broadcasting Decision CRTC 2002-281

Broadcasting Decision CRTC 2002-281

Ottawa, 5 September 2002

Southmount Cable Limited
Hamilton, Ontario

Application 2002-0191-3

Distribution of additional signals on a discretionary digital basis

1.

The Commission received an application by Southmount Cable Limited (Southmount) to distribute on its Class 1 cable distribution undertaking serving Hamilton the following services on a discretionary digital basis:

a) a second set of signals that provides the programming of the four U.S. commercial networks (CBS, NBC, ABC, FOX) and of the non-commercial PBS network (collectively, the U.S. 4+1 signals);

b) any of the Canadian television signals set out in the List of Part 3 eligible satellite services¹ (the List); and

c) the off-air signal of WNYO-49 (Warner Brothers) Buffalo, New York.

2.

Section 19 (o) of the Broadcasting Distribution Regulations (the BDU Regulations) stipulates that a licensee may distribute "any programming service authorized under a condition of its licence". One of the conditions of licence that appear on all licences to carry on a cable or multipoint distribution system (MDS) distribution undertaking (condition of licence no. 2) stipulates that:

The written approval of the Commission is required prior to the distribution of any service not authorized in:

a) the Broadcasting Distribution Regulations;

b) the most recent renewal decision or, if there has been no renewal, the initial licensing decision; or

c) any subsequent written approvals granted during the term of this licence.

3.

Southmount filed the present application as required by condition of licence no. 2.

The Commission's determination

U.S. 4+1 signals and distant Canadian signals

4.

The Commission considers that carriage, on a discretionary digital basis, of Canadian signals included on the List and of an additional set of U.S. 4+1 signals, when coupled with other initiatives such as the carriage of newly licensed Canadian digital services, could serve as an incentive for cable customers to subscribe to the digital service offerings of cable systems. The distribution of such services would also increase the choice available to cable subscribers.

5.

In Carriage of Canadian and U.S. 4+1 signals on a digital basis, Decision CRTC 2000-437, 8 November 2000 (Decision 2000-437), the Commission also recognized the need to protect the program rights acquired by local broadcasters.

6.

Accordingly, as required by condition of licence no. 2, the Commission approves the application by Southmount to distribute, on a discretionary digital basis, a second set of U.S. 4+1 signals and any of the Canadian television signals set out in the List, so long as the licensee complies with the following:

The distribution on a discretionary basis on the licensee's digital service of U.S. 4+1 signals, in addition to the set of such signals already carried by the system, and of Canadian distant television signals contained in the List, is subject to the provision that, with respect to such signals, the licensee adhere to the requirements regarding non-simultaneous program deletion set out in section 43 of the BDURegulations. The Commission may suspend the application of this provision in respect of a signal, upon its approval of an executed agreement between the licensee and the broadcaster concerned. Such an agreement must deal with issues related to the protection of program rights arising in connection with the discretionary carriage of a second set of U.S. 4+1 signals and of Canadian distant television signals solely on the licensee's digital service, as approved in this decision.

7.

The Commission reminds the licensee that the simultaneous substitution requirements, as set out in section 30 of the BDU Regulations, also apply with respect to the U.S. 4 + 1 and distant Canadian signals.

Addition of WNYO-49

8.

In addition to the requirement of condition of licence no. 2, section 19(g) of the BDU Regulations stipulates that the Commission's prior approval is required should a Class 1 or 2 cable licensee wish to distribute the programming service of any non-Canadian television station received directly over the air at the local head end and that began operation after 1 January 1985. WNYO-49 began operating in October 1996.

9.

In Distribution of WNYO-49 (Warner Brothers) Buffalo, New York,Decision CRTC 2001-688, 9 November 2001, the Commission confirmed its policy to permit the distribution of U.S. stations that began operation after 1985 only in cases where it is satisfied that the station will not materially compete for Canadian advertising revenues with local broadcasters.

10.

Taking into account the licensee's statement that the WNYO-49 signal is readily available off air, the Commission considers that the impact of the distribution of WNYO-49 as part of a discretionary digital tier in Hamilton will be minimal.

11.

Accordingly, as required by condition of licence no. 2 and pursuant to section 19(g) of the BDU Regulations,the Commission approves the discretionary digital distribution of the off-air signal WNYO-49 (Warner Brothers).

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: www.crtc.gc.ca