Broadcasting Public Notice CRTC 2003-10
Ottawa, 6 March 2003
Industry code of programming standards and practices governing pay, pay-per-view and video-on-demand services
The Commission approves the new Industry code of programming standards and practices governing pay, pay-per-view and video-on-demand services (the new Code). The new Code was drafted by Canada's pay television, video-on-demand and pay-per-view licensees, with the assistance of other industry experts.
The new Code supersedes the Pay television programming standards and practices (the former Code). A copy of the new Code is appended to this notice. Effective immediately, all licensees that have been governed by the former Code, whether by condition of licence or by expectation, are governed by the new Code.
1. The Pay television programming standards and practices (the former Code) was prepared by the pay television (Pay) industry in 1984 and was published by the Commission in Statement concerning the publication by pay television licensees of an industry code for pay television programming standards and practices, Public Notice CRTC 1984-46, 29 February 1984.
2. In 1994, the former Code was revised through the inclusion of a separate, stand-alone section. This section was labelled as Part II of the former Code, and was entitled The pay television and pay-per-view programming code regarding violence (the Violence Code). The Violence Code was announced by the Commission in The pay television and pay-per-view programming code regarding violence, Public Notice CRTC 1994-155, 21 December 1994. Adherence to the Violence Code is imposed on licensees by condition of licence, separately from the former Code, and is not affected by the changes announced later in the present public notice.
3. The former Code set out standards with respect to various types of programming, including adult programming. It also addressed program classification and advisories, as well as other programming matters such as scheduling. Most Pay, video-on-demand (VOD) and pay-per-view (PPV) licensees were either required to adhere to the former Code by condition of licence, or were expected to do so.
4. Pay, PPV and VOD licensees drafted a new code in response to the following events. In the spring of 2001, the Commission became aware that some adult programming being broadcast on the PPV services of Bell ExpressVu Limited Partnership (ExpressVu) gave cause for concern. On 26 March 2001, the Commission wrote to ExpressVu requesting a list of all English- and French-language films offered on the adult channels of ExpressVu's DTH and terrestrial PPV undertakings during the month of February 2001, including the rating for each film.
5. On 27 March 2001, ExpressVu altered the program offering of its PPV services by removing two channels. On 28 March 2001, the Canadian Broadcasting Corporation's program entitled the fifth estate contained a segment that investigated the exhibition by ExpressVu, some days earlier, of what appeared to be inappropriate adult content on the two PPV channels that ExpressVu had removed on 27 March 2001. The Commission subsequently received complaints about the exhibition by ExpressVu of this adult content.
6. In a letter to the Commission dated 27 April 2001, ExpressVu admitted that it had failed to adhere to its obligation to oversee all programming broadcast on its PPV undertaking. The Commission found that, as a result of this failure, ExpressVu had broadcast inappropriate content in contravention of its conditions of licence requiring adherence to the Violence Code, and to the Canadian Association of Broadcasters' Sex-role portrayal code for television and radio programming. In a letter to ExpressVu dated 3 August 2001, the Commission accepted the licensee's admission and recognized the efforts described in its 27 April 2001 letter to ensure that the exhibition of inappropriate content would not occur again. In its 3 August 2001 letter to ExpressVu, the Commission asked the licensee to collaborate with the industry and relevant experts with a view to developing a new code to more effectively address the broadcast of adult programming.
7. The Commission's request was based on its concern that the effectiveness of the former Code was being eroded by changes that had occurred in the broadcasting industry, including the increasing availability of adult programming in the system. The Commission notes in this regard that the former Code was created before the licensing of PPV and VOD services. Certain of its provisions did not use directive language, creating the potential for differing interpretations and inconsistent application. Moreover, while the former Code included references to adult programming, it did not include a comprehensive section addressing such programming.
8. In its 3 August letter, the Commission noted that ExpressVu had been pursuing the development of an industry-wide PPV programming code. However, given that the former Code contained references to adult programming, the Commission stated that it would be preferable to incorporate additional provisions into the former Code rather than to implement an additional, separate code for PPV licensees. The Commission requested that all provisions related to adult programming be reviewed and that particular attention be paid to ratings and classification. It also requested ExpressVu to consult with the industry, and with other relevant parties and experts, for the purpose of ensuring that the guidelines published in Guidelines for Developing Industry-Administered Standards, Public Notice CRTC 1988-13, 29 January 1988 (the guidelines) were respected.
9. The guidelines state that the following should be considered when developing an industry standard:
- whether the Commission's concerns were addressed;
- whether the type of standard was defined, to whom it would apply and whether the criteria for achievement were established;
- the extent of public participation and how the standard will be administered; and
- whether a fair consultative process was used in the development of the standard.
10. Subsequently, the Pay, PPV and VOD licensees conducted detailed consultations amongst themselves and with the following government bodies:
- The Ontario Film Review Board;
- Alberta Film Classification;
- the British Columbia Film Classification Office;
- Régie du cinéma du Québec; and
- the Prohibited Importations Unit at the Canada Customs and Revenue Agency.
11. The Industry code of programming standards and practices governing pay, pay-per-view and video-on-demand services (the new Code) was filed with the Commission for its approval on 18 January 2002. The Commission has now completed its review of the new Code.
The Commission's determination
12. The Commission notes that the government bodies that were consulted have specific expertise relating to the sensitive nature of adult content, and routinely take evolving community standards into account in their own activities. These government bodies have developed their own codes and guidelines with the input of a wide range of expertise.
13. Specifically, the Commission finds the new Code to be more comprehensive than the former Code, takes account of the changes that have occurred in the broadcasting industry in recent years, and addresses concerns regarding the broadcast of adult programming. The new Code represents an improvement over the former Code in a number of other areas, including the following:
- the new Code now encompasses licensed PPV and VOD services, in addition to Pay services;
- adult programming is specifically addressed in a comprehensive section;
- concrete watershed hours are provided for both adult programming and mature programming intended for a general audience;
- more directive language is used; and
- more guidance has been given to licensees with respect to classification.
14. The section that addresses adult programming contains provisions to ensure that:
- only adult programs that have been approved and rated by a provincial film classification board will be broadcast;
- licensees will review all adult programming prior to broadcast to ensure that such programming is consistent with the licensees' internal policies on adult programming; and
- viewers and subscribers will be informed of the nature of the adult programming being aired throughout the purchase, selection and viewing of such programming.
15. Under the new Code, a licensee will assign the same ratings to programs aired on its service as those assigned by a provincial classification board. The new Code also identifies specific watershed hours, both for adult programming, and for mature material intended for a general audience, but that may not be appropriate for young viewers. Specifically, the new Code states that:
- on Pay services, mature material intended for a general audience should not be programmed prior to 9:00 p.m. or after 6:00 a.m. in the home province of the service;
- adult programming aired on Pay services will not be programmed prior to 11:00 p.m. or after 6:00 a.m. in the home province of the service; and
- "title specific trailers" that appear on a universally available barker channel, and that contain clips from upcoming adult films on PPV and VOD services shall not, themselves, contain any adult programming, nor shall these trailers be shown prior to 10:00 p.m. in the applicable time zone of the service's home province.
16. The Commission is satisfied that the industry has adhered to the CRTC guidelines in the development of the new Code, and that it has adequately addressed the Commission's concerns outlined in its 3 August 2001 letter. Accordingly, the Commission approves the Industry code of programming standards and practices governing pay, pay-per-view and video-on-demand services, as set out in the appendix to this notice. The new Code replaces the former Codeeffective immediately. It does not, however, replace the Violence Code, which continues to be imposed, by condition of licence, separately from the new Code. All licensees that, either by condition of licence or expectation, have until now been governed by the former Code (as may be amended from time to time and approved by the Commission) are now governed by the new Code.
Further Commission expectations
17. The Commission expects all Pay, PPV and VOD services that broadcast adult programming, as defined in the new Code, to develop internal policies for such programming. The Commission notes that the new Code contemplates that all Pay, PPV and VOD licensees will take this action. The Commission expects these policies to be filed at the time of licence renewal, or earlier where needed, in order for the Commission to deal with any complaint. In the Commission's view, in order to be effective, an internal policy should include the following:
- adult content must be pre-screened to ensure compliance with pertinent industry codes and guidelines;
- ratings must be assigned to all programming and be displayed for the consumer;
- training must be provided to all staff involved in implementing internal programming policies;
- senior staff responsible for all adult programming content must be identified; and
- program suppliers must be made aware of all applicable guidelines, regulations and codes.
18. The Commission notes that, to date, the licensees of the following services have developed and submitted internal policies for adult programming: ExpressVu; Canal Indigo; Viewer's Choice Canada; Shaw PPV (formerly Corus VC), Rogers VOD and Archambault VOD.
This docucent is available in alternative format upon request, and may also be examined at the following Internet site: http://www.crtc.gc.ca
Appendix to Broadcasting Public Notice CRTC 2003-10
Industry Code of Programming Standards and Practices Governing Pay, Pay-Per-View and Video-on-Demand Services
- Programming Provided by Licensees of Pay Television Programming Undertakings
Selection of programs
- Responsibility for Selection
- Relationship with Production and Distribution Communities
- Exercise of Discretion
- Basis of Discretion
Classification and Viewers Advisories
- Viewer Advisories
- Program Guide
- Sex-Role Stereotyping
- Adult Programming
Scheduling of programming
Pay Television Services
- Programming Content intended for a general audience
- Adult Programming
- PPV and VOD Services
- Pay Television Services
The pay television industry, in co-operation with the CRTC, first developed a Code of Standards and Practices in 1984. The formation of the Action Group on Violence on Television in 1993 subsequently led to the creation of a General Statement of Principles upon which the pay television and pay-per-view licensees formulated a revision in 1994 of the Pay Television Programming Standards and Practices endorsed on an industry-wide basis.
These Standards and Practices supersede all previous versions of the Standards and Practices, including, without limitation, the 1984 Code, the 1994 revised Code and any interim codes established by a licensee.
2. Programming Provided by Licensees of Pay Television Programming Undertakings
Licensed pay television, pay-per-view ("PPV") and video-on-demand ("VOD") services in Canada are committed to the presentation of programming that is well balanced, of high quality, and of interest to a wide number of Canadians. The programming so presented is intended to appeal to a variety of interests and tastes.
A major appeal of premium pay, PPV and VOD television services is the ability to see feature films and other programming material in their original theatrical form, uninterrupted by commercials.
Discretionary services including pay television, PPV and VOD services are distinguished from conventional television, as they require an affirmative decision by a subscriber to purchase and receive them on an unencrypted basis in the home. As discretionary services, pay television, PPV and VOD services have more latitude to program material that is intended for mature audiences than is the case with conventional television services.
In the particular case of PPV and VOD services, subscribers are offered the opportunity to choose programs on an individual basis.
Pay television and PPV/VOD licensees have a responsibility to ensure that the programming they provide is of high quality and meets general community standards within the context of a discretionary service.
Pay TV and PPV/VOD services are typically distributed in digital format, which requires digital set-top boxes at each subscriber's television set. Each set-top box has the capability of locking out programming by rating and by channel. This gives each Canadian home equipped with digital service the capability of precluding reception of unwanted programming.
B. Selection of programs
1. Responsibility for Selection
As provided in the Broadcasting Act and/or by condition of licence, selection of programs is the responsibility of the particular pay television or PPV/VOD broadcasting licensee. The licensee is by law responsible for what is distributed and will not delegate this responsibility.
2. Relationship with Production and Distribution Communities
In the course of making acquisitions and investments in programming, particularly prior to commencement of filming or taping, or in approving any changes during production, pay television and PPV/VOD licensees can influence producers positively in their exercise of good judgement and taste. In order to raise issues of concern with independent producers, pay television and PPV/VOD licensees will distribute a copy of this document to all independent producers who apply for script and concept development funding, for pre-licensing of product or for equity investment, and to all regular program suppliers, whether Canadian or foreign.
3. Exercise of Discretion
The discretion in the selection of programs will be exercised by the programming personnel of the pay television or PPV/VOD licensee, pursuant to these Standards and Practices and as directed by management consistent with its internal policies, where applicable. All material will be screened prior to airing.
4. Basis of Discretion
The discretion of programming personnel will be exercised responsibly and in good taste. In particular, no material shall be selected that is:
- contrary to law, including the Broadcasting Act and CRTC Regulations; or
- offensive to general community standards
"Community standards" will necessarily change over time and therefore will be subject to continuing review and evaluation.
Notwithstanding the above, where a licensee airs any program on a preview basis, it will ensure that the programming previewed meets the same standards of scheduling and content that apply to conventional broadcasters and will be classified in accordance with C.1, below.
C. Classification and Viewer Advisories
All full-length programs aired by pay and PPV/VOD licensees will be rated. Recognizing the differing jurisdictions of provincial classification/review boards across Canada, each pay television and PPV/VOD licensee will utilize the current classification system used by the classification/review board (the "Review Board") in the province in which the licensee's primary broadcast operations are based.
Programs that have been classified by the applicable provincial Review Board will attract the same classification by the pay or PPV/VOD licensee.
The licensee will classify any program that has previously not been classified by the Review Board1, with a view to reflecting current community standards, using one or more of the following criteria:
- the guidelines then in effect for the applicable Review Board; or
- the classification system of the Action Group on Violence on Television (AGVOT), as amended from time to time.
These classifications will designate the intended audience (i.e. age group) for programming or a warning that the programming is not intended for a specific age group.
Moreover, if the date of a Board classification exceeds five years from the proposed air date of the program2, the licensee will have the discretion to re-classify the program with a view to reflecting current community standards, using one or more of the criteria set out in (i-ii), above.
Finally, if applicable and practicable, the licensee will adopt any nationally recognized classification system that has been agreed to and adopted by provincial Review Boards across Canada.
2. Viewer Advisories
While a classification is given to a program based on its overall impact, descriptive viewer advisories will be provided to alert subscribers to the fact that the titles contain scenes with specific content, such as "violence" or "horror" which may cause concern for subscribers. Classifications and Advisories will appear in written and spoken form at the beginning of every aired title that is not suitable for viewing by children. Advisories will also appear as part of the written descriptions given for all titles exhibited on the service, as published in the subscribers' monthly guide. All media are provided with any viewer advisories assigned to a program along with the program's classification.
3. Program Guide
In the event that any licensee provides a monthly published program guide to its broadcasting distribution affiliates for distribution to their subscribers, a brief description of the meaning of the program classifications will be included in the guide, to ensure that viewers are able to exercise an informed programming choice.
In addition to these classifications, those licensees distributing the program guide will provide appropriate and adequate descriptive advisories as to the nature of the material, e.g., "Adult situations and language", "graphic violence", "brief nudity".
D. Programming matters
All pay and PPV/VOD services shall be governed by the Pay Television and Pay-per-view Programming Code Regarding Violence (the "Violence Code").
2. Sex-Role Stereotyping
Licensees will adhere to the Sex-Role Portrayal Code for Television and Radio Programming. This question has been extensively explored in the Report of the Task Force on Sex-Role Stereotyping to the CRTC. Licensees have a responsibility to raise the issue with producers who seek script and concept development funding and pre-licensing of product. Licensees will seek to fund programming that provides a balanced view of sex roles when appropriate to do so in context with the story line.
3. Adult Programming
In Public Notice CRTC 1984-46, the Commission reaffirmed the following approach regarding pay television programming:
"While it accepts the idea that a discretionary service like pay television, which is not freely available to all viewers, can carry a wide range of programs, including adult programming, to appeal to a variety of interests and tastes, this does not detract from the duty of licensees to ensure that any such programming is presented in good taste, at the appropriate time, and is of high quality.
As to the question of the respective responsibilities of the Commission and the broadcasters, it must be stated clearly that:
- the Commission and broadcasters must be guided by Section 3(c) of the Broadcasting Act;
- the Commission is not a censorship body;
- the Commission has no mandate to act pre-emptively with respect to events that have not yet occurred and with respect to programs that have not yet been aired;
- it is for the courts to define key terms like obscenity".
In order to meet their duty, licensed pay television and PPV/VOD services undertake not to air any program that constitutes an "Adult Sex Film" under the Detailed Adult Sex Guidelines established by the Ontario Film Review Board, as amended from time to time (hereinafter referred to as "adult programming") unless such programming has been previously classified and approved by a Review Board in Canada.
The content of all adult programming will comply with the Pay Television Regulations, 1990, the Pay Television and Pay-Per-View Programming Code Regarding Violence and the Sex-Role Portrayal Code for Television and Radio Programming.
Any adult programming broadcast and promoted by pay and PPV/VOD services will possess the applicable Review Board certification number and classification. The classification (e.g., "R", "18+(SE)", etc.) will be displayed, in both written and spoken form, immediately prior to the broadcast of each adult program, along with the appropriate advisories.
Prior to airing, licensees will review all adult programming to ensure that it is consistent with the licensee's internal policies on adult programming.
Finally, licensees of pay television and PPV/VOD services undertake to provide to their subscribers adequate information with respect to the nature and audience suitability of any mature programming distributed on their undertaking.
E. Scheduling of programming
1. Pay Television Services
a) Programming Content intended for a general audience
Pay television services generally schedule fewer programs per month than conventional television services, but such programs are repeated more frequently to suit the convenience of the schedules of pay television subscribers.
At the same time, licensees of pay television services, as distinguished from PPV or VOD services, are sensitive to the concerns expressed by some that mature material should not be scheduled in periods when school-age children are home. There may also be certain mature material on pay television services that should not be programmed prior to 9:00 p.m. or after 6:00 a.m. in the home province of the service in question.
Licensees of pay television services will exercise particular care for all time periods in the scheduling of programs that are likely to be considered as not suitable for viewing in a family context.
b) Adult Programming
In the event that adult programming is aired by licensees of pay television services, such services will exercise their discretion carefully so that all such programming will not be programmed prior to 11:00 p.m. or after 6:00 a.m. in the home province of the service in question.
2. PPV and VOD Services
PPV and VOD services are distinguished from pay television services by the requirement that a PPV/VOD subscriber is required to take positive steps each time he/she wishes to view a program. By contrast, a subscriber to a pay television service makes only a one-time decision to purchase the entire service.
In the case of PPV and VOD, the very process of ordering programs enables the subscriber to control and safeguard access to each program. Therefore, the transactional nature of PPV/VOD services will make subscribers aware of the selection and ordering process, and most importantly, of the means to prevent the reception of programs by unauthorized individuals within their subscribing households.
In the event that a broadcasting distribution undertaking offers PPV titles to subscribers on an analog basis, licensees of PPV services shall ensure that any adult programming distributed on such channels will be scheduled no earlier than 11:00 p.m. (in the applicable time zone of the service's home province).
In the event that licensees of PPV and VOD services offer "title specific" trailers on a universally available "barker" channel that promotes adult programming, such trailers shall:
- not be shown prior to 10:00 p.m. (in the applicable time zone of the service's home province); and
- not contain any "adult programming" as defined in Section D.3. herein.
 Other than in respect of adult programming, which will not be aired unless such programming has been previously classified by a Review Board: see Section D, below.
 Other than in respect of adult programming: see Section D, below.
- Date modified: