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Broadcasting Decision CRTC 2003-258
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Ottawa, 16 July 2003
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Star Choice Television Network Incorporated
Across Canada
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Application 2002-0752-3
Broadcasting Public Notice CRTC 2002-71
19 November 2002
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Licence amendment for Star Choice - relief from requirements for simultaneous and non-simultaneous program deletion
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The Commission approves in part the application for a licence amendment that would relieve this direct-to-home broadcasting distribution undertaking licensee of its condition-of-licence obligations for performing simultaneous and non-simultaneous program deletion. The licensee is relieved of these condition-of-licence obligations until 12 August 2006 so long as it fulfils the alternative measures set out in this decision.
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Background
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1.
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There are currently two direct-to-home (DTH) broadcasting distribution undertakings (BDUs) that operate on a national basis to deliver a broad range of programming services directly via satellite to subscribers. One of these, the applicant, is Star Choice Television Network Incorporated (Star Choice). The second national DTH BDU is Bell ExpressVu Inc., the general partner, and BCE Inc. and 4119649 Canada Inc. (Partners in BCE Holdings G.P.), the limited partners. The licensee carries on business as Bell ExpressVu Limited Partnership (ExpressVu).
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2.
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In the fall of 2001, in response to concerns expressed by small market television broadcasters related to the impact of the distribution of optional local television signals by DTH BDUs, the Commission issued 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).
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3.
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In August 2002, while the Commission's deliberations were still ongoing with respect to the process initiated by Public Notice 2001-103, ExpressVu applied for a licence amendment to suspend conditions of licence that require it to perform simultaneous and non-simultaneous program deletion. The application was filed pursuant to a Memorandum of Understanding (MOU) between the licensee and the Canadian Association of Broadcasters (CAB) concerning measures that would serve as an alternative to the simultaneous and non-simultaneous program deletion requirements of its licence. The MOU forms part of ExpressVu's application.
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4.
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Star Choice filed an application, similar to that by ExpressVu, for relief from its requirements for simultaneous and non-simultaneous program deletion.
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5.
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In Broadcasting Public Notices CRTC 2002-57, 4 October 2002 (Public Notice 2002-57) and 2002-71, 19 November 2002 (Public Notice 2002-71), respectively, the Commission invited public comments with respect to the ExpressVu and the Star Choice applications. In their applications, the licensees of the two DTH BDUs had argued that their proposals: a) responded fully to the concerns of small market television broadcasters regarding the distribution of optional local television signals; and b) provided adequate, alternative measures to compensate for the impact of the importation by DTH BDUs of distant Canadian and non-Canadian signals into local markets. Accordingly, the Commission determined to examine the matters raised in each of the applications in the context of its consideration of the concerns that were the subject of Public Notice 2001-103.
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6.
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In Direct-to-home (DTH) broadcasting distribution undertakings - simultaneous and non-simultaneous program deletion and the carriage of local television signals in smaller markets, Broadcasting Public Notice CRTC 2003-37, 16 July 2003 (Public Notice 2003-37), the Commission has announced its conclusions with respect to the issues raised in Public Notice 2001-103 and in the two DTH BDU applications. Public Notice 2003-37 serves as the introduction to this decision on Star Choice's application and to the decision on the application by ExpressVu (for the latter, see Licence amendment for ExpressVu - relief from requirements for simultaneous and non-simultaneous program deletion, Decision CRTC 2003-257, 16 July 2003).
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7.
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The Commission's disposition of the Star Choice application is set out below.
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Commission's determinations on the Star Choice application
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8.
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For the reasons set out in Public Notice 2003-37, by majority vote, the Commission approves in part Star Choice's application for a licence amendment that would relieve it of its condition-of-licence program-deletion obligations for performing simultaneous and non-simultaneous program deletion, so long as the licensee fulfils the alternative measures set out in this decision.
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9.
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Star Choice's existing conditions of licence 4 and 5 read, in part:
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4. a) For the purpose of this condition, the term "identical" shall have the same meaning as that set out in section 2 of the cable regulations.
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b) Where the licensee receives, at least seven days before the date on which the programming service is broadcast, a written request for substitution or deletion from the operator of a licensed Canadian television programming undertaking, the licensee shall.
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ii) delete a programming service that is identical to that of the Canadian television programming undertaking and that is receivable by subscribers located within the grade B contour of the Canadian television programming undertaking..
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5. a) For the purposes of this condition, "identical", in respect of two or more programming services, means that not less than 95 per cent 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 and are broadcast on a non-simultaneous basis within the same broadcast week; "broadcast week" shall mean a period of seven consecutive days beginning on Sunday; "commercial message shall have the same meaning as that set out in section 2 of the cable regulations.
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b) Where the licensee receives, at least seven days before the date on which the programming service is broadcast, a written request for deletion from the operator of a licensed Canadian television programming undertaking, the licensee shall delete a programming service that is identical to that of the Canadian television programming undertaking and that is receivable by subscribers located within the grade B contour of the Canadian television programming undertaking.
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d) The application of the conditions of licence specified in 4b)ii) and 5b) 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.
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10.
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For the reasons provided in Public Notice 2003-37, the Commission is satisfied that the conditions of licence proposed by the licensee on 28 October 2002, as modified by its reply submission of 17 January 2003, with the exception of aspects of those conditions relating to a proposed programming fund, are appropriate as part of a set of measures constituting an alternative to the applicant's existing program deletion conditions of licence. Accordingly, the Commission will relieve the licensee of the application of conditions of licence 4(b)(ii) and 5(b) provided that it:
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· fulfils the obligations that it proposed as part of its application, other than those that relate to a proposed programming fund, and that it fulfils the additional measures regarding simultaneous substitution over Canadian programming that it stated it would be prepared to fulfil in its reply submission of 17 January 2003;
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· contributes, annually, not less than 0.4% of its gross revenues derived from broadcasting activities to a new, independently administered fund to assist small market, independently owned broadcasters in meeting their commitments to local programming.
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11.
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The Schedule to this decision sets out those obligations that the licensee agreed to fulfil in its application, as modified by its reply submission of 17 January 2003, and that the Commission considers appropriate as part of a set of measures constituting an alternative to the applicant's existing program deletion conditions of licence. The measures are set out in the Schedule so that it is clear that, from the date of this decision, the licensee will be relieved of the program deletion conditions of its licence provided that it fulfils all those measures, and so that it is equally clear that the suspension of these conditions of licence is not dependent upon whether the licensee has done so prior to the date of this decision.
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12.
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Accordingly, the Commission hereby amends the licence by deleting condition of licence 5(d) and substituting the following therefor:
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(d) The application of the conditions of licence specified in 4(b)(ii) and 5(b) will be suspended, from the date of this decision until 12 August 2006, so long as the licensee:
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(i) fulfils all of the measures set out in the Schedule that is appended to this decision;
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(ii) contributes the amount set out below to a new, independently administered fund to assist small market, independently owned broadcasters in meeting their commitments to local programming as set out in Contributions to Canadian Programming by Broadcasting Distribution Undertakings, Broadcasting Public Notice CRTC 2003-38, 16 July 2003 when such a fund is established and, before such time, places the required contribution in trust in an interest-bearing account, to be conveyed with interest to such fund when it is established:
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I. in the broadcast year ending on 31 August 2003, an amount not less than 0.4% of its gross revenues derived from broadcasting activities in the period beginning on 16 July 2003 and ending on 31 August 2003;
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II. in the broadcast years ending on 31 August 2004 and on 31 August 2005, an amount not less than 0.4% of its gross revenues derived from broadcasting activities in each year; and
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III. in the period ending on 12 August 2006, an amount not less than 0.4% of its gross revenues derived from broadcasting activities in the period beginning 1 September 2005 and ending on 12 August 2006.
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Secretary General
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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: https://crtc.gc.ca
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Schedule to Broadcasting Decision CRTC 2003-258
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Definitions
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"Broadcast year" means the period beginning on September 1 in a calendar year and ending on August 31 of the following calendar year.
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"CAB" means the Canadian Association of Broadcasters.
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"Larger broadcast groups" means those television groups listed in Appendix B to this Schedule.
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"Second set of U.S. commercial network television signals" means the signals of each of the CBS, NBC, ABC and Fox networks originating from a U.S. city in a different time zone than that of the first set of U.S. commercial network signals.
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"Small market, independently owned television stations" means those television stations listed in Appendix A to this Schedule.
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"Subscriber" means a subscriber of the licensee.
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Distribution of small market, independently owned television stations
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1. (a) Subject to sections 6 and 9, the licensee shall distribute the programming services of television stations CKSA-TV Lloydminster and CITL-TV Lloydminster, both owned by Mid West Television Ltd., and CFTK-TV Terrace and CJDC-TV Dawson Creek, both owned by Standard Radio Inc. Each service shall be distributed to those subscribers who reside within the Grade B contour of that television station.
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(b) Subject to sections 6 and 9, the licensee shall, beginning on the first to occur of (i) 60 days after the commercial deployment of Anik F2 or (ii) 31 December 2003, distribute the programming services of two (2) television stations for each of the ownership groups listed in Appendix A, except that, in the case of an ownership group for which Appendix A lists a single television station, the licensee shall distribute the programming of that station. Each station required to be distributed pursuant to this agreement shall be distributed to those subscribers who reside within the Grade B contour of that station.
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Distribution of television stations owned by larger broadcast groups
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2. Subject to section 6, the licensee shall provide equitable distribution for the television stations of the broadcast groups listed in Appendix B (the larger broadcast groups).
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Input from broadcast ownership groups
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3. The licensee shall give reasonable commercial consideration to input from affected broadcast ownership groups respecting the programming services to be distributed pursuant to sections 1(b) and 2.
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Distribution of a second set of U.S. commercial network television signals
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4. The licensee shall not distribute to any subscriber more than two sets of U.S. commercial network television signals.
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Simultaneous substitution over Canadian television programs
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5. (a) Where the licensee receives, at least seven days before the date on which the programming service is broadcast, a written request for substitution from the operator of a licensed Canadian television programming undertaking distributed pursuant to section 1 of this Schedule, the licensee shall delete, in respect of subscribers located within the Grade B contour of the television programming undertaking distributed pursuant to section 1 of this Schedule, a Canadian television programming service and substitute the comparable and simultaneously broadcast programming service of the Canadian television programming undertaking whose signal is also distributed by the licensee pursuant to section 1 of this Schedule and which is of the same network and originated from the same time zone as the service to be deleted.
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(b) The licensee may delete and substitute in accordance with (a) notwithstanding that the licensee has received a written request from the operator of a licensed Canadian television programming undertaking distributed pursuant to section 1 of this Schedule less than seven days before the date on which the programming service is broadcast.
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(c) The licensee shall not delete the programming service under (a) if the Commission notifies the licensee that the deletion is not in the public interest because the programming service to be deleted contains subsidiary signals designed to inform or entertain and the simultaneously broadcast programming service does not contain similar signals.
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(d) The licensee may discontinue a substitution made under (a) if the programming services in respect of which the substitution is made are not, or are no longer, comparable and broadcast simultaneously.
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Satellite capacity and transmission
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6. The licensee shall utilize up to a maximum of two (2) additional transponders in order to meet the distribution requirements set out in sections 1 and 2. The licensee shall be responsible for all transmission costs including backhaul costs associated with the distribution of television signals referred to in sections 1 and 2. Where the licensee is able to meet all distribution requirements set out in sections 1 and 2, and where there remains excess bandwidth within the limits of the two (2) additional transponders, the licensee shall use such additional capacity solely for the carriage of Canadian local or regional television stations.
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Interim compensation for small market, independently owned television stations
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7. Until the programming services referred to in section 1(b) are required to be distributed pursuant to this Schedule, the licensee shall pay to each broadcaster who owns one of the stations providing such programming services an amount equal to $0.20 per month for each subscriber located within the Grade B contour of each television station referred to in section 1(b). The licensee is not required to make this payment to a broadcaster once it is distributing that broadcaster's programming service pursuant to section 1(b).
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Compensation for the carriage of a second set of U.S. network television signals
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8. a) The licensee shall pay to the CAB $0.25 per month for each subscriber who purchases a second set of U.S. network television signals.
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b) The licensee shall provide to a third party independent auditor who has been chosen by both the licensee and the CAB, and who has undertaken, in an agreement approved by the licensee prior to execution, to keep all information received pursuant to this section strictly confidential, on a semi-annual basis during the broadcast year starting 1 September 2002 and ending 31 August of the following year and of all subsequent broadcast years, all necessary relevant information as to the number of subscribers receiving a second set of U.S. network television signals in order to verify and facilitate the payment by the licensee to the CAB of the monies due pursuant to this section.
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Change of control of small market, independently-owned television stations
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9. The distribution requirements set out in section 1 shall continue to apply independent of changes in the ownership of voting equity by the ownership groups listed in Appendix A or in section 1(a), except where a change in voting equity results in a change in control of voting equity in accordance with Commission regulations, and also involves a change in the network affiliation and/or a material change in the programming of any subject station. In the case of a change in control that also involves a change in network affiliation and/or a material change in programming with respect to a station listed in Appendix A or in section 1(a), the licensee's distribution requirements shall cease with respect to that station upon notification of such a change from the CAB or an authorized representative of that station. Furthermore, any change in control of voting equity of any station listed in Appendix A or in section 1(a) shall not trigger any additional distribution of programming services of television stations operated by the larger broadcast ownership groups pursuant to section 2.
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Appendix A
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Small market, independently owned television stations by ownership group
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Ownership group
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Station
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Jim Pattison Industries Ltd.
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CHAT-TV Medicine Hat
CFJC-TV Kamloops
CKPG-TV Prince George
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Norcom Telecommunications Limited
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CJBN-TV Kenora
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Radio Nord Communications inc.
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CFGS-TV Gatineau
CHOT-TV Gatineau
CKRN-TV Rouyn-Noranda
CFEM-TV Rouyn-Noranda
CFVS-TV Val d'Or
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Télé Inter-Rives ltée
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CIMT-TV Rivière-du-Loup
CFTF-TV Rivière-du-Loup
CKRT-TV Rivière-du-Loup
CHAU-TV Carleton
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Thunder Bay Electronics Limited
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CKPR-TV Thunder Bay
CHFD-TV Thunder Bay
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Appendix B
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Ownership Groups
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Bell Globemedia Inc. (CTV)
CanWest Media Inc. (Global)
CHUM Limited
Cogeco Radio-Télévision inc. (TQS)
Quebecor Media Inc. (TVA)
Craig Media Inc.
Corus Entertainment Inc.
Rogers Media Inc.
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Date Modified: 2003-07-16
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