ARCHIVED - Broadcasting Public Notice CRTC 2002-57

Broadcasting Public Notice CRTC 2002-57

See also: 2002-57-1, 2002-57-2

Ottawa, 4 October 2002

The Commission has received the following application:

1.

Across Canada
Application No. 2002-0653-3

Application by BELL EXPRESSVU INC., the general partner, and BCE Inc., the limited partner, doing business under the name of Bell ExpressVu Limited Partnership, for a licence amendment granting temporary relief from conditions of licence on simultaneous and non-simultaneous deletion of programming.

The licensee proposes to amend its broadcasting licence to carry on a national direct-to-home satellite distribution undertaking by being temporarily relieved of the requirements contained in conditions of licence 4(b) and 4(c).

The application has been filed pursuant to a Memorandum of Understanding (MOU) reached between Bell ExpressVu Limited Partnership (Bell ExpressVu) and the Canadian Association of Broadcasters (CAB) respecting alternative measures to simultaneous and non simultaneous program deletion. This MOU forms part of this application.

Condition of licence 4(b) which pertains to simultaneous program deletion reads, in part:

.the licensee shall delete programming received by subscribers located within the Grade B contour of a licensed Canadian television programming undertaking, where the programming distributed as part of the DTH undertaking is identical to the programming broadcast by the Canadian television programming undertaking;

Condition of licence 4(c) which pertains to non-simultaneous program deletion reads, in part:

.the licensee shall delete programming received by subscribers located within the grade B contour of licensed Canadian television programming undertakings where the programming distributed as part of its service is identical (i.e., in relation to the above-mentioned programming, not less than 95 percent of the video and audio components of those programming services, exclusive of commercial messages and any part of the services carried on a subsidiary signal are the same) to the programming broadcast by the Canadian television programming undertaking and is distributed on a non-simultaneous basis within the same broadcast week;

The above conditions of licence are worded similarly to sections 42(1)(b) and 43(1) of the Broadcasting Distribution Regulations (the Regulations). However, these Regulations apply to licensees of a DTH distribution undertaking except as otherwise provided under a licensee's condition of licence. In the case of this application, Bell ExpressVu is applying for temporary relief from Bell ExpressVu's conditions of licence relating to simultaneous and non-simultaneous program deletion. In the event that this relief is granted, Bell ExpressVu also asks for temporary relief from sections 42(1)(b) and 43 of the Regulations.

The applicant requests that suspension and temporary relief from the conditions of licence listed above and sections 42(1)(b) and 43(1) of the Regulations last as long as this MOU is in force between the licensee and the CAB.

Background

In Introductory statement - Licensing of new direct-to-home (DTH) satellite distribution undertakings, and new DTH pay-per-view (PPV) television programming undertakings, Public Notice CRTC 1995-217, 20 December 1995, introducing the decisions authorizing new DTH satellite distribution undertakings, the Commission explained its reasons for imposing conditions of licence requiring program deletion and substitution by the licensees. Specifically, the Commission stated:

... the protection of program rights purchased by Canadian television programming undertakings is fundamental to maintaining the integrity of the Canadian rights market, and to protecting the advertising base of local and regional television stations so that they may meet their commitments to Canadian programming.

As part of the same public notice, the Commission noted the discussions between some DTH distribution applicants and the CAB concerning alternative measures that could be used to compensate or protect local and regional program rights and advertising revenues. The Commission stated that it would accept alternatives to program deletion and substitution requirements that had been mutually agreed upon by all parties.

In Bell Satellite Services Inc., Decision CRTC 98-500, 23 November 1998 (Decision 98-500), the Commission agreed to suspend application of Bell ExpressVu's conditions of licence pertaining to program deletion described earlier. At that time, a comprehensive agreement for the compensation of television licensees had been reached between the CAB and Bell Satellite (now Bell ExpressVu) and formed part of that application. Decision 98-500 amended Bell Satellite's licence and approved the addition of Condition of licence 4(e) which stated the following:

e) The application of the conditions of licence specified in 4(b) and 4(c) will be suspended from the date of this decision until the earlier of 31 August 2000 and the date upon which the DTH satellite distribution undertaking obtains 500,000 subscribers.

In the application at hand, Bell ExpressVu states that although the agreement between the CAB and Bell ExpressVu was to expire on or about August 31, 2000, the agreement continued under the same terms and conditions so that the parties could negotiate a new agreement.

In Complaint by Cogeco Radio-Télévision inc. concerning signal carriage by Star Choice Communications Inc., Decision CRTC 2001-609, 28 September 2001, (Decision 2001-609), the Commission addressed matters raised in a complaint filed by Cogeco Radio-Télévision Inc. (Cogeco) against Star Choice Communications Inc. (Star Choice). In its complaint, Cogeco alleged that Star Choice, by distributing local TVA signals from Chicoutimi/Jonquière and Sherbrooke and not local TQS and CBC French-language service signals from those markets, had breached section 9 of the Regulations by conferring an undue preference on TVA and by subjecting Cogeco to an undue disadvantage.

In its decision, the Commission was not able to find that Star Choice had conferred an undue preference on TVA and/or that Cogeco had been subjected to an undue disadvantage. The Commission considered, however, that the circumstances involving local television stations and DTH distribution decisions raised in the Cogeco/Star Choice matter, as well as in similar situations described in a number of other complaints before the Commission alleging undue preference or disadvantage, warranted further investigation.

In Call for Comments-Carriage of local television stations by DTH undertakings in smaller markets, Public Notice CRTC 2001-103, 28 September 2001 (Public Notice 2001-103), the Commission made reference to Decision 2001-609 and added that "recent developments in DTH distribution raised some concerns about the impact of the distribution of optional local television signals by DTH on smaller market television stations across Canada." Accordingly, the Commission initiated a call for comments asking questions that explored the factual context, the policy implications, and possible courses of action related to the distribution of local television signals and out-of-market television services in smaller markets by DTH licensees.

According to a letter from the CAB dated 12 August 2002 that accompanied the application at hand by Bell ExpressVu, a new round of intense negotiations between Canadian DTH operators and the CAB was launched in January 2002 following the publication of Public Notice CRTC 2001-103. These negotiations culminated in a signed MOU between the CAB and Bell ExpressVu dated 12 August 2002. The application at hand by Bell ExpressVu was filed pursuant to a newly executed MOU between the CAB and Bell ExpressVu.

The signed MOU addresses a number of issues including carriage of distant Canadian signals (including the carriage of time-shifted signals), compensation for small market television stations, as well as additional carriage for small market stations both on an emergency basis and once new satellite capacity becomes available.

The MOU also contains a clause relating to compensation in the form of an independent local and regional television programming fund. The proposed fund would be, if approved by the Commission, accessible by private local and regional television programming undertakings to assist in the creation, development, and production of television programming exhibited by local and regional private television undertakings.

Call for comments- Three phase process

In order to gather additional information with respect to this application and to co-ordinate the Commission's efforts more efficiently given the issues raised in the process contemplated by Public Notice 2001-103, the Commission implements the following public process:

Phase 1:

The Commission requires the CAB and ExpressVu to file, no later than 25 October, 2002, a detailed brief explaining why they believe that the proposals within the MOU are in the public interest and how these proposals address all of the issues set out in Public Notice 2001-103. The Commission also requires the CAB and Bell ExpressVu to file the following detailed information on the proposed local and regional television programming fund:

· the objectives of the fund

· the structure of the fund and how it will be governed;

· the eligibility criteria;

· the fund's potential impact on the Canadian Television Fund (CTF);

· the monitoring/evaluation mechanisms in the fund;

· a detailed explanation as to what measures will be taken to ensure that monies dispursed from the proposed fund will be targeted to small markets in such a way so as to achieve the objectives of the fund and address the issues of concern as set out in Public Notice 2001-103.

The above information will be placed on the public file upon receipt to permit all parties to comment.

Phase 2:

The Commission invites written comments from the public concerning this application. Interested parties have until 2 December, 2002, to file comments on the application, in particular, the MOU and the proposed local and regional programming fund. Although comments received in response to Call for comments-Carriage of local television stations by DTH undertakings in smaller markets, Public Notice CRTC 2001-103, 28 September 2001, form part of the record of this proceeding, this invitation to comment is limited to issues raised in this specific application. Those who wish to provide comments to the Commission must also send a copy of their submission to Bell ExpressVu at the address below and the CAB by mail at P.O. Box 627 Station B, 306-350 Sparks Street, Ottawa, Ontario, K1P 5S2 or by fax (613) 233-6961. The complete process for filing an intervention is outlined at the end of this notice.

Phase 3:

The Commission will give the CAB and Bell ExpressVu until 20 December, 2002 to reply to the comments filed in Phase 2 of this proceeding. The reply comments must only address matters raised by any of the comments submitted during the second phase of this proceeding.

Once this three phase process has been completed, the Commission will fully assess the issues raised with respect to Public Notice 2001-103, and this application including the MOU, and the proposed local and regional programming fund. Upon completion of this assessment, the Commission will issue a decision concerning this application.

The Commission will not formally acknowledge comments. It will, however, fully consider all comments and they will form part of the public record of the proceeding, provided that the procedures for filing set out below have been followed.

Procedures for filing comments

Licensee's address

Bell ExpressVu Limited Partnership
105 Hôtel de Ville Street
5^th Floor
Hull, Quebec
J8X 4H7
Fax: (819) 773-5282
E-mail: parmstrong@expressvu.com

Examination of application:

At the licensee's address

[ Intervention Form]

PUBLIC PARTICIPATION

DEADLINE FOR INTERVENTION

2 December 2002

The intervention for the second phase of this public process must be received by the CRTC, the applicant and the CAB ON OR BEFORE the above-mentioned date. The Commission cannot be held responsible for postal delays.

Your intervention will be considered by the Commission, and will form part of the public record of the proceeding without further notification to you, provided the procedure set out below has been followed. You will be contacted only if your submission raises procedural questions.

Submit your written intervention to the Secretary General of the Commission in ONLY ONE of the following formats:

by using the form
[Intervention Form]

OR

by electronic mail to
procedure@crtc.gc.ca

OR

by mail at
CRTC, Ottawa, Ontario, K1A 0N2

OR

by fax to the
Secretary General - (819) 994-0218

A true copy MUST be sent to the applicant and proof that this has been done must accompany the intervention sent to the Commission.

Where the intervention is filed by electronic means, the line ***End of document*** should be entered following the last paragraph of the document, as an indication that the document has not been damaged during electronic transmission.

Please note that only the documents (applications and interventions) electronically filed will be available on the Commission's web site. You will be able to access these documents by indicating the public notice or the notice of public hearing number.

Each paragraph of the document should be numbered.

Your intervention should clearly identify the application and indicate whether you support or oppose the application, or if you propose changes to it, include the facts and grounds for your proposal.

In the event that the application is brought to the oral phase of the hearing, and if you wish to appear, you must provide reasons why your written comments are not sufficient and why an appearance is necessary.

In exceptional circumstances, the Commission may allow an intervenor to present its intervention by teleconference. At the time of filing its intervention, the intervenor must clearly indicate why the Commission should grant such a request.

EXAMINATION OF DOCUMENTS DURING NORMAL OFFICE HOURS

Documents are available at the local address provided in this notice and at the Commission offices and documentation centres directly involved with these applications or, upon request, within 48 hours, at any other CRTC offices and documentation centres.

Central Building
Les Terrasses de la Chaudière
1 Promenade du Portage, Room G-5
Hull, Quebec K1A 0N2
Tel: (819) 997-2429 - TDD: 994-0423
FAX: (819) 994-0218

Metropolitan Place
99 Wyse Road, Suite 1410
Dartmouth, Nova Scotia B3A 4S5
Tel: (902) 426-7997 - TDD: 426-6997
FAX: (902) 426-2721

405 de Maisonneuve Blvd East
2^nd Floor, Suite B2300
Montréal, Quebec H2L 4J5
Tel: (514) 283-6607 - TDD: 283-8316
FAX: (514) 283-3689

55 St. Clair Avenue East, Suite 624
Toronto, Ontario M4T 1M2
Tel: (416) 952-9096
FAX: (416) 954-6343

Kensington Building
275 Portage Avenue, Suite 1810
Winnipeg, Manitoba R3B 2B3
Tel: (204) 983-6306 - TDD: 983-8274
FAX: (204) 983-6317

Cornwall Professional Building
2125 - 11^th Avenue, Room 103
Regina, Saskatchewan S4P 3X3
Tel: (306) 780-3422
FAX: (306) 780-3319

10405 Jasper Avenue, Suite 520
Edmonton, Alberta T5J 3N4
Tel: (780) 495-3224
FAX: (780) 495-3214

530-580 Hornby Street
Vancouver, British Columbia V6C 3B6
Tel: (604) 666-2111 - TDD: 666-0778
FAX: (604) 666-8322

This document is available in alternative format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca

Secretary General