ARCHIVED - Broadcasting Public Notice CRTC 2002-63

Broadcasting Public Notice CRTC 2002-63

See also: 2002-63-1

Ottawa, 22 October 2002

Call for comments on program-related interactive television (ITV) services

The Commission has today issued its Report on Interactive Television Services (the ITV report). This report sets out the findings of the Commission's inquiry into the development of interactive television (ITV) services in Canada. The inquiry was initiated by the Commission in Fact finding inquiry on interactivity, Public Notice CRTC 2001-113, 2 November 2001 (Public Notice 2001-113).

A question on which the Commission solicited comment in Public Notice 2001-113 was which interactive activities, if any, might fall within the definition of broadcasting under the Broadcasting Act. While parties presented a wide variety of views on this question, the Commission does not consider that the record of the proceeding provided sufficient information to enable the Commission to make a determination.

The majority of those who submitted comments on this question considered that ITV activities, referred to by the Commission in the ITV report as "enhanced programming", might be considered broadcasting under specific circumstances. Enhanced programming services are described in the ITV report as including services that provide viewers with:

· access to more detailed information on a program or an advertisement through the addition of text, graphics, still images or audio-visual content;

· the opportunity to conduct "T-commerce", such as ordering products featured in a program or advertisement;

· the opportunity to personalize the viewing experience by permitting viewers to select camera angles or alternative plot lines, or allowing them to play along with a game or television program; and

· addressable advertising designed to target viewers' specific interests.

Some parties considered that even activities referred to as enhanced programming, but consisting primarily of alpha-numeric text, would fall under the definition of broadcasting if they were "program-related", or were "integral" to a program. The CBC, for example, stated that "a number of interactive features when provided as add-ons to the service offered by a licensed programming undertaking, would be considered to be part of that licensee's 'program', as that term is defined in the Broadcasting Act." Some parties, including Pelmorex Broadcasting Inc., CHUM Limited and the Canadian Association of Broadcasters, argued that interactive content that is related to a program should be considered an integral part of that service. BCE Inc., however, stated that the interactive content must first be determined to be "integral" to a broadcasting service. The Commission notes that none of the parties who used the terms "program-related" or "integral to a program" offered definitions for them or proposed guidelines as to how the Commission might apply the terms.

Section 7(f) of the Broadcasting Distribution Regulations (the Regulations) which prohibits a distributor from altering or deleting a programming service, includes the concept of a subsidiary signal that is program-related. Specifically, section 7(f) states that a licensee shall not alter or delete a programming service in the course of its distribution except "for the purpose of deleting a subsidiary signal, unless the signal is, itself a programming service or is related to the service being distributed" [emphasis added]. One example of a subsidiary signal covered by section 7(f) is closed captioning. Closed captioning, like many ITV services currently available, is transmitted using the vertical blanking interval (VBI) (See Simultaneous Substitution on Cable of Television Signals Containing Closed Captioned Programs, Public Notice CRTC 1985-28, 15 February 1985). Several parties to this proceeding compared interactive signals to subsidiary signals that carry closed captioning or descriptive video.

It should be noted that ensuring the accessibility of broadcasting services to disabled Canadians remains a priority for the Commission. The Commission thus emphasizes that the use of the VBI for interactive services should not be to the detriment of services, such as closed captioning, that are intended to facilitate access for persons with disabilities.

The Commission again referred to the concept of a subsidiary signal that is program-related in the context of Call for comments on a proposed policy framework for the distribution of digital television services, Public Notice CRTC 2002-32, 12 June 2002 (Public Notice 2002-32). With respect to the carriage of data services, the Commission proposed in its notice that distributors be permitted to delete the subsidiary signals of a programming service in the course of distributing the service, "unless the subsidiary signals are, themselves, programming services or are related to the programming service being distributed". This is essentially what section 7(f) of the Regulations currently stipulates.

In Public Notice 2002-32, the Commission noted the suggestion by the Canadian Cable Television Association (CCTA) that the Commission adopt the test used by the Federal Communications Commission (FCC) in the United States for making determinations as to what constitutes program-related information. In the analog context, the FCC used the same three criteria chosen by the United States Court of Appeals for the Seventh Circuit in WGN Continental Broadcasting Co. v United Video Inc. for the purpose of determining whether ancillary or supplementary material transmitted in the VBI is program-related and, therefore, entitled to mandatory cable carriage (the WGN test). Under the WGN test, the following three criteria must be met for data to qualify as program-related:

· the broadcaster's intention must be that the information be seen by the same viewers as those who are watching the video signal;

· the information must be available during the same interval of time as the video signal: and

· the information must be an integral part of the program.

The Commission found the CCTA's suggestion, that it adopt the WGN test, to be consistent with section 7(f) of the Regulations, as referenced above, and with section 9(1)(g) of the Broadcasting Act, which empowers the Commission to require that broadcasting distribution undertakings give priority to the carriage of broadcasting.

In adopting the WGN test, the FCC had stated that, in its view, the criteria used in the WGN test did not necessarily form the exclusive basis for determining program-relatedness. The FCC did not clarify this statement further, nor did it suggest any method for determining what might be considered an "integral" part of a program. The Commission notes, however, that the FCC has sought public comment on the definition of "program-related" in the digital broadcasting context, for the purposes of determining what distributors should be required to carry in the digital broadcasting environment (See In re Carriage of the Transmission of Digital Television Broadcast Stations, CS Docket No. 98-120).

The Commission agrees with views of several parties who filed comments in response to Public Notice 2001-113 that the concept of a "program-related" activity should be one of the key factors in determining which ITV services, if any, fall under the definition of broadcasting, and what regulatory treatment they should be subject to as a result. The Commission considers that a more methodical examination of this concept would be a useful starting point for the next stage of public dialogue on the development of ITV services.

Call for comments

The Commission therefore seeks comment on the specific method or tests that could be employed to determine whether or not ITV activity is program-related. In order to assist interested parties in developing their submissions, but without limiting the scope of their comments, the Commission raises the following questions for parties to address.

1) What criteria should be used for making determinations as to what constitutes program-related activity in the Canadian ITV context?

2) Is the WGN test adopted by the FCC relevant to the Canadian ITV context? What, if any, criteria should be added to or deleted from this test to adapt it to the Canadian environment?

3) If an ITV activity should be "integral" to a program in order for it to be deemed "program-related", how should this integrality be determined?

4) Should any of the following types of ITV enhancements be considered "program-related" ITV activity and, if so, why?

· enhancements that provide viewers with access to more detailed information on a program or advertisement through the addition of text, graphics, still images or audio-visual content;

· enhancements that provide viewers with the opportunity to order products featured in a program or an advertisement;

· enhancements that provide viewers with the opportunity to personalize their viewing experience by permitting them, for example, to select camera angles or alternative plot lines, or by allowing them to play along with a game or television program; and

· enhancements that provide addressable advertising intended to target more precisely the specific interests of viewers.

5) Are there other types of ITV enhancements not mentioned above that should be considered "program-related"?

6) What types of ITV activity should not be considered "program-related"?

7) If certain types of ITV activity are determined to be program-related, should a distributor be prohibited under section 7(f) of the Regulations from altering or deleting a subsidiary signal containing such ITV activity?

8) Given the significant bandwidth that the large-scale distribution of ITV content could require, is distribution capacity generally available to support a "must-carry" rule for program-related material? What are the mechanisms currently or potentially available that would address any concerns raised with respect to capacity?

13.

The Commission will hold a two-stage written comment process for this proceeding. In the first stage, the Commission will accept comments that it receives on or before 20 December 2002. Interested parties, whether they have made submissions during the first phase or not, may then file reply comments by no later than 31 January 2003. The reply comments may only address matters raised by any of the comments submitted during the first phase.

14.

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

15.

Interested parties can file their comments either on paper or electronically (i.e. by email). Submissions longer than five pages should include a summary.

16.

Parties wishing to file their comments on paper should send them to the Secretary General, CRTC, Ottawa, K1A 0N2.

17.

Parties wishing to file their comments electronically can do so by sending them to procedure@crtc.gc.ca.

18.

Please number each paragraph of your submission. In addition, please enter the line ***End of document*** following the last paragraph. This will help the Commission verify that the document has not been damaged during transmission.

19.

The Commission will make comments filed in electronic form available on its web site at http://www.crtc.gc.ca but only in the official language and format in which they are submitted. Such comments may be accessed in the Decisions, Notices and Orders section of the CRTC web site by searching under "Broadcasting Public Notice CRTC 2002-63". Copies of all comments, whether filed on paper or in electronic form, will also be placed on the public examination file.

20.

The Commission encourages interested parties to monitor the public examination file (and/or the Commission's web site) for additional information that they may find useful when preparing their comments.

Examination of public comments and related documents at the following Commission offices during normal business hours

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

Secretary General