ARCHIVED - Broadcasting Decision CRTC 2002-293

Broadcasting Decision CRTC 2002-293

Ottawa, 13 September 2002

Rogers Broadcasting Limited
Toronto, Ontario

Application 2002-0482-6
Public Notice CRTC 2002-37
17 July 2002

Proposed channel 44 in Toronto - OMNI.2

The application

1.

The Commission received an application by Rogers Broadcasting Limited (Rogers) for the use of channel 44, with an effective radiated power (ERP) of 179,000 watts, for the operation of CFMT-TV too Toronto, now designated as OMNI.2.

2.

In New multilingual ethnic television station to serve Toronto, Broadcasting Decision CRTC 2002-82, 8 April 2002 (Decision 2002-82), the Commission approved an application by Rogers to operate a new ethnic television station in Toronto. However, the Commission awarded the channel proposed by Rogers to a competing applicant at the same hearing and stated that it would only issue a licence to Rogers if it submitted an application proposing the use of another channel acceptable to both the Commission and to the Department of Industry (the Department). The present application was filed in response to the Commission's proviso.

Interventions

3.

Seven parties filed interventions opposing this application: Craig Broadcast Systems Inc. (Craig), Global Communications Limited (Global), the Western New York Public Broadcasting Association (the Public Broadcasting Association), Christopher Bart, Janet Carnegie, Adriana G. Lever and Peter E. Snyder.

4.

Craig argued that Rogers' proposal for channel 44 would be short-spaced with channel 45 that was authorized for use by the intervener in New television station for Toronto/Hamilton, Broadcasting Decision CRTC 2002-81, 8 April 2002 (Decision 2002-81). The intervener also claimed that it was unable to comment fully on the application because it had not been given a copy of Rogers' technical brief for channel 44 as required by the Department's Broadcast Procedures and Rules.

5.

For its part, Global raised concerns regarding the potential for interference to its transmitter CIII-TV-41 (IND) Toronto operating on channel 41 that could result from the short-spacing of two third-adjacent channels, namely Rogers' proposed use of channel 44 and its existing operation of CFMT-TV (IND) Toronto on channel 47. Global also submitted that Rogers' proposal did not comply with the Department's Broadcast Procedures and Rules related to the location of the transmitter and overload contours in cases where a third-adjacent channel relationship exists.

6.

The Public Broadcasting Association, the owner and operator of WNED-TV (PBS) Buffalo, New York, claimed that Rogers' proposal would substantially interfere with the ability of Canadian viewers in southern Ontario to receive the PBS signal over the air, particularly when the station migrates to digital on channel 43. The intervener stated that the U.S. Federal Communications Commission (FCC) had authorized the transmission of WNED-TV on channel 43 by May 2003.

7.

The Public Broadcasting Association also considered that the interference problems with the over-the-air reception of WNED-TV would cause the licensees of local broadcasting distribution undertakings (BDUs) to drop the signal from their line-up unless another originating source for the retransmission of the signal was found. It further contended that Rogers' intended use of channel 44 could result in interference to WNED-TV's signal within the United States, and that this concern is currently being investigated by the FCC. In addition, the intervener alleged that Rogers had not fully considered the use of channel 69 or other alternatives.

8.

The individual interveners also expressed concern that Rogers' broadcasts on channel 44 would create interference with channel 43, the digital channel assigned for use by WNED-TV, thereby preventing Canadian viewers from receiving a strong signal of the PBS station.

The applicant's response

9.

Rogers stated that it has provided Craig with all the technical information related to the application and that the intervener's consulting engineer, D.E.M. Allen & Associates, has confirmed that the proposed use of channel 44 fully protects its operation on channel 45 in Hamilton as authorized in Decision 2002-81.

10.

In response to Global's concerns regarding the potential interference to CIII-TV-41 as well as the Public Broadcasting Association's argument that Rogers had not fully considered channel 69 or other alternatives, the applicant explained that it had originally submitted an application to the Department to use channel 69. The Department, however, found that Rogers' proposal conflicted with an ongoing spectrum consultation process, initiated in June 2001, to consider the sharing of a portion of television spectrum, specifically channels 60 to 69, to meet the spectrum needs of public safety and commercial mobile services. Consequently, Rogers engaged two broadcast consulting engineers who, working with the assistance of the Department, determined that channel 44 was a viable alternative.

11.

With respect to the concerns raised by interveners that the proposed use of channel 44 in Toronto could impede the ability of Canadian viewers to receive WNED-TV on channel 43, Rogers stated that, since the allotment and assignment of television channels along the Canada-U.S. border is governed by a bilateral agreement that specifies that each country's television signals are only entitled to protection to the common border, WNED-TV is not entitled to protection within Canada from interference from any Canadian television signal. Rogers, nevertheless, maintained that approval of its application would not result in viewers losing a service that they have been receiving. It stated that most of WNED-TV's Canadian viewers receive it via cable or satellite and not over-the-air and that they will continue to do so after the station has moved to the digital platform.

12.

Rogers also considered that its proposal would not affect the ability or desire of the licensees of BDUs in southern Ontario to continue to source their U.S. 4+1 signals, including WNED-TV from Buffalo. In fact, the applicant noted that these licensees, including Rogers Cable Inc., have established a fiber-optic transmission system to transport the Buffalo network affiliate signals, including WNED-TV, from a receiver location in Fort Erie, Ontario to cable system headends in southern Ontario. Rogers also stated that WNED-TV's analog signal would continue to be available on channel 17 even after the station implements digital transmission on channel 43.

13.

In response to the Public Broadcasting Association's claim that Rogers' proposal was being investigated by the FCC because of the potential for interference to U.S. television stations, Rogers expected that its application would not raise any objection from the FCC. This was subsequently confirmed by the Department.

14.

Finally, Rogers indicated that a number of unresolved technical issues prevented it from pursuing its preferred option of using channel 44 in Toronto with an omni-directional antenna. Instead, it submitted the current application which proposes a directional antenna with reduced parameters so as to fully protect all current channel allotments and assignments. Rogers stated that, once it has resolved the technical issues, it would file an application for a technical amendment that would enable it to optimize the use of channel 44.

The Commission's analysis and conclusion

15.

The Commission notes that both Rogers and Craig's own consulting engineer have confirmed that the proposed use of channel 44 fully protects the currently licensed channel 45 transmitter in Hamilton. Moreover, the Department has informed the Commission that Rogers would not object to any future change of technical facilities by Craig on its channel 45 transmitter in Hamilton.

16.

On 29 August 2002, the Department also advised the Commission that Rogers' proposal for channel 44 was conditionally technically acceptable, subject to the satisfactory resolution of any third-adjacent interference with Global's CIII-TV-41 operation on channel 41 as well as Rogers' own CFMT-TV operation on channel 47. The Department further indicated that both Rogers and Global have agreed to a stepped implementation plan for channel 44 that should minimize any interference and that Rogers has also agreed to lower the ERP on channel 44 if no other solution can be found.

17.

Based on the foregoing, the Commission determines that the concerns raised in the interventions submitted by Craig and Global have been satisfactorily addressed.

18.

The Commission has no concerns with regard to the issues raised by the Public Broadcasting Association and by the individual interveners in light of the existing agreement between Canada and the U.S., as stated in Rogers' reply. Moreover, with regard to the digital transmission of WNED-TV on channel 43, the Commission notes that the station is, in fact, not yet on the air and would not be entitled to protection even if it were. In any event, the Commission considers that the future use of channel 43 by WNED-TV would not preclude the continued availability of the station's analog signal on channel 17.

19.

The Commission considers that the Public Broadcasting Association did not substantiate its claim that licensees of BDUs in southern Ontario would drop WNED-TV's signal from their line-ups if Rogers' application were approved.

20.

The Commission concludes that approval of this application would enable Rogers to implement without further delay the authority it received in Decision 2002-82 to establish a new multilingual ethnic television station in Toronto and will not impede Craig from implementing the authority it received in Decision 2002-81 to implement a transmitter on channel 45 in Hamilton. Accordingly, the Commission approves the application by Rogers for the use of channel 44, with an ERP of 179,000 watts, for the operation of OMNI.2.

21.

The Commission reminds the licensee that, pursuant to section 22(1) of the Broadcasting Act, no licence may be issued until the Department notifies the Commission that its technical requirements have been met, and that a broadcasting certificate will be issued.

Secretary General