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Broadcasting Circular CRTC 2006-2
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Ottawa, 5 April 2006
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Introduction of service standards for certain broadcasting applications
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In this circular, the Commission announces new service standards for its processing of certain types of applications filed after 31 March 2006. These include applications for licence amendments and licence renewals currently processed using the public notice approach, as well as applications processed using the administrative approach that does not entail a public process.
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Background
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1.
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In Call for comments on the Commission's service standards, Broadcasting Public Notice CRTC 2006-16, 10 February 2006 (Public Notice 2006-16), the Commission proposed service standards for the issuance of decisions on broadcasting applications in a timely manner and in accordance with a predictable schedule. The Commission also announced that it was introducing streamlining measures specifically to address the processing of applications that are dealt with administratively, as well as applications for licence amendments and renewals that are dealt with by public notice.
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Summary of comments received
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2.
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In response to Public Notice 2006-16, the Commission received comments from the Canadian Association of Broadcasters (CAB), CanWest MediaWorks Inc. (CanWest), Quebecor Media Inc. (QMI), Rogers Cable Communications Inc. (Rogers), Bell Canada and Bell ExpressVu1 (Bell), and from a group consisting of MTS Allstream Inc., SaskTel Telecommunications and TELUS Communications Inc. (MTS et al.). In general, the comments received from the industry supported the Commission's commitment to ensure that decisions on broadcasting applications are issued in a timely fashion. According to the parties, improved efficiency and accountability in the Commission's licensing activities would provide for greater certainty in a rapidly-changing industry. Certain parties called for even more stringent service standards than those proposed and suggested that additional measures should be put in place by the Commission to streamline its procedures.
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3.
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The Commission also received comments from the following organizations and individuals: C.M.E.S. Community Media Education Society, Pacific Foundation for Diversity, Lynda G. Leonard, Jim McGibbon, Sean Maguire and Alexander F. Forbes. These organizations and individuals called upon the Commission to, among other things, render the application filing process less cumbersome; maintain a strong regulatory presence in support of Canadian content; ensure that procedural streamlining not be achieved at the expense of the public's ability to express its views and concerns; and conduct more public hearings in the regions.
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General comments about Commission processes
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Positions of parties
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4.
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Bell submitted that there was no discussion in the Commission's call for comments of the streamlined procedures or operational efficiencies that will be put in place to assist the Commission in meeting its proposed service standards. It sought more clarity in this regard, and suggested that the pre-determined timeframes for consideration of applications should include the deficiency process, where one is required.
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5.
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Bell further submitted that the absence of any mention in Public Notice 2006-16 of applications that raise policy matters would indicate that such applications will be dealt with outside of the proposed six- or eight-month timeframe. In the interest of greater certainty, Bell, the CAB, CanWest, QMI and Rogers proposed a notification procedure whereby the Commission would advise applicants of all cases where applications will require a longer process than that contemplated under the service standard, and provide projected deadlines up to and including that for the release of a decision. Bell suggested that an applicant should be apprised of a potential delay within 30 days of the Commission's receipt of an application.
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6.
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Rogers, Bell and the MTS et al. indicated that, while not completely comparable, the streamlined process adopted by the Commission with respect to telecommunications tariff approvals should be matched on the broadcasting side. QMI suggested that the processing of applications considered under the Broadcasting Act and Telecommunications Act should be harmonized to take advantage of all possible streamlining measures.
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Commission analysis and determination
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7.
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In Streamlined processes for certain broadcasting applications, Broadcasting Circular CRTC 2006-1, 27 March 2006 (Circular 2006-1), the Commission announced the introduction of procedural changes to streamline and expedite the processing of certain applications. These changes include an expedited process similar to the one implemented for telecommunications tariff approvals. The measures outlined in Circular 2006-1 should provide clarity with regard to most of the questions raised in the comments received in the current proceeding.
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8.
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In addressing the general comments received in response to Public Notice 2006-16, and specific comments discussed later in this circular, the Commission is mindful that its ability to process applications in an efficient and timely manner is governed by the factors addressed below.
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Process requirements
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9.
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Certain applications are dealt with without a public process provided that there are no concerns raised by the applications. Such applications include those requesting extensions of time to implement service, changes to authorized contours or cable service areas, or changes to the services authorized for carriage by broadcasing distribution undertakings (BDU). However, where an applicant proposes to add, delete or amend a condition of licence, and where the condition of licence does not provide for an administrative approval, the Broadcasting Act requires that the Commission conduct a public process. The processing route affects the number of steps that are required (the number of steps being reduced if a public process is not required).
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Complexity of applications
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10.
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The complexity of an application dictates the extent of the analysis and research that will be needed to dispose of the application. Licence amendment applications dealt with by public notice, and that are subject to interventions that raise issues, take longer to process than more routine applications. In addition, applications that represent important precedents or policy exceptions would also require more time than routine applications.
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Number and clarity of applications
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11.
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Based on an average of the three previous years, at any given time the Commission has some 500 broadcasting applications in hand at various stages of processing, including: initial review, public notice comments stage, and decision-making. The challenge is to ensure the availability of resources to review all applications upon receipt and at various stages of the process.
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12.
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In Circular 2006-1, the Commission indicated that, subject to certain exceptions, it would not generally be disposed to review, on an expedited basis, applications for licence amendments that are received within two years of (a) the date that a new service has been implemented, or (b) the date of a Commission decision relating to an amendment concerning the same or a similar matter.
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13.
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With a view to increased efficiency, the Commission will also review how it processes applications for licences to carry on new category 2 specialty programming services. In each of the past two years the Commission has received several hundred applications of this type, and has devoted a substantial portion of its resources to process them. While most of the applications have been approved, only some 15 % of the proposed services have launched, and a large number of the approvals issued in respect of Category 2 specialty services have lapsed due to the failure of applicants to begin operations within the Commission's specified deadlines. Clearly, the Commission must find ways to ensure that the resources it currently expends in processing these applications are utilized in a more effective and efficient fashion.
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14.
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The clarity of the applications receivedis an important element in expediting the processing of applications. The success of the expedited process will greatly depend on receiving applications that are clear and contain all relevant information. To assist applicants in this area, all application forms are currently being reviewed by the Commission and the revised forms will be available shortly, beginning with those for licence amendments.
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Applications that are not processed via public notice
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Positions of parties
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15.
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MTS et al. suggested that more applications should be dealt with administratively, i.e. without a public process. The parties questioned whether the public interest is served by announcing applications to add new service areas to a regional licence, given the long-standing policy favouring competitive entry by multiple BDUs. They also noted a recent public process involving the amendment of a video-on-demand (VOD) licence to allow the distribution of programming that includes commercial messages, and suggested that since a similar proposal had previously been approved by the Commission, there did not seem to be a need for a public process.
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16.
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MTS et al. further submitted that the Commission should expand the practice adopted by the Commission for transfers of ownership applications2 that do not raise policy issues and that are consistent with previous applications. In such cases, applications are approved by letter of approval and the details of the applications are published every two months in a public notice. These parties suggested that taking two months to process applications administratively was excessive.
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17.
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According to the CAB, these applications are routine and should all be treated within two months of receipt in the Commission. QMI expressed its support of the Commission's proposal in this area, while noting that some administrative corporate reorganizations may need to be dealt with more expeditiously. Rogers and Bell indicated that, in order to provide applicants with greater certainty, the Commission's service standards should be made more comprehensive. For example, while the Commission's existing proposal sets out service standards identifying within what period 80% of applications in a given category should be processed, the Commission should also specify timeframes within which other percentages such as 75%, 90% or even 100% of applications should be processed.
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Commission analysis and determination
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18.
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An application can be processed without a public process in certain cases such as when a licensee's condition of licence contemplates that exceptions may be made by way of Commission authorizations without a public process, and the application does not raise concerns. This would not, however, be the case for amendments involving the addition of conditions of licence to a VOD licence as suggested by MTS et al. Such amendments must, pursuant to the Broadcasting Act, be processed by public notice. The Commission will continue to review its processes to identify other areas where conditions of licence could provide for exceptions by way of Commission authorizations. Such requests for authorization could be processed without resorting to a public process.
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19.
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In Circular 2006-1, the Commission announced that it had adopted a process similar to that applied to applications for transfers of ownership in its consideration of other types of applications that do not require a public process. The list is provided in Circular 2006-1. Most of these applications are currently being processed within two months of their receipt.
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20.
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Based on the above, the Commission has adopted a service standard for applications that do not require a public process, including transfers of ownership, whereby 80% of applications will be processed within 2 months and 90% within 3 months.
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Applications processed by public notice excluding licence renewals
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Positions of parties
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21.
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Rogers did not propose any other service standards, but indicated that the service standards should apply to 90% of the applications.
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22.
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QMI proposed that the Commission amend its process to ensure that 80% of the applications are processed:
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- within 40 days for those that do not raise concerns;
- within 18 weeks (4.5 months) for those that raise concerns; and
- within 8 months for those raising policy issues.
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23.
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Bell considered that the Commission's proposal did not address or provide assurances on expected timeframes for applications that raise policy issues. It, therefore proposed that applications be processed with the following timeframes:
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- 80% within 6 months and 100% within 8 months for applications that are not the subject of opposing interventions or do not raise policy issues;
- 80% within 8 months and 100% within 10 months for applications that either are the subject of opposing interventions or raise policy issues; and
- 80% in 8 months and 90% in 10 months for applications that are both the subject of opposing interventions and raise policy issues.
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24.
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The CAB indicated that the Commission should revisit the proposed service standard for the processing, within six months, of 80% of all applications that are not the subject of opposing interventions. It suggested that the service standard for applications that do not raise policy issues, whether or not they are the subject of opposing interventions, should be 80% in four months rather than six; and where applications are the subject of opposing interventions that raise policy issues, the service standard should call for processing 80% of the applications within six months.
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Commission analysis and determination
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25.
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The Commission has noted the comments offered with respect to the proposed service standards and has also considered the historical information on its past performance. Results for the first three quarters of the current fiscal year indicate that, to date, the Commission has been able to achieve the following:
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- 60% of applications that did not give rise to opposing interventions were processed within 6 months and 90% were processed within 9 months;
- 50% of applications that did give rise to opposing interventions were processed within 10 months and 90% were processed within approximately 15 months.
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26.
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Applications raising policy issues, whether or not they were also the subject of opposing interventions, have not been tracked separately.
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27.
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The Commission expects that the expedited process described in Circular 2006-1 will provide for some efficiency in this area, allowing the Commission to offer assurances with respect to the processing of applications that it has been unable to offer in the past.
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28.
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After consideration of comments received in this area and the streamlining measures that it has introduced, the Commission has adopted the following service standard for applications processed via public notice, excluding licence renewals:
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- 80 % of applications that do not give rise to opposing interventions or policy issues will be processed within 6 months and 90% within 8 months; and
- 80% of applications that give rise to opposing interventions, but that do not raise policy issues, will be processed within 8 months, and 90% within 10 months.
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29.
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It is, however, possible that, once the streamlined process has been in effect for a period of six to eight months and the backlog of applications has been reduced significantly, the Commission will be in a position to shorten these timeframes.
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30.
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The Commission considers that it is inappropriate to create pre-established service standards for applications that raise policy issues. These will be delth with on a case-by-case basis. It will inform an applicant that its application raises a policy issue within 30 days of this policy issue being identified by the Commission. The Commission notes in this regard that, while some policy issues may be readily identifiable by the Commission at the time an application is filed, others may only become apparent upon examination of interventions and replies.
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Licence renewal applications processed by public notice
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Positions of parties
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31.
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The CAB had no objection to the proposed service standards for processing licence renewal applications within eight months, but submitted that decisions on licence renewal applications that neither attract substantive public comment nor raise significant policy issues should be issued within two months of the deadline for receipt of interventions. It further urged the Commission to take the necessary measures to minimize the use of short-term renewals for administrative reasons because of the uncertainty that it creates and the impact it has on a licensee's ongoing operations.
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32.
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QMI proposed that the Commission streamline the licence renewal process further. It argued that, since a licensee's annual reports already contain a substantial amount of information, the requirement to complete lengthy licence renewal forms is excessive, especially where no issues are raised. It stated that the current process is demanding of both applicants and the Commission especially where a licensee holds multiple licences. It proposed, as an alternative approach, a public notice on an annual basis providing a list of licences coming up for renewal and asking for comments from the public. Where no concerns are raised, a licensee would be asked to confirm that it wishes to renew its licence, but would not be required to complete an application form. The Commission could then renew a number of licences in one decision.
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33.
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QMI indicated that such an approach would allow the Commission to set a service standard whereby it would undertake to process 90% of all renewal applications within two months of the date a licensee provides confirmation that it wishes to renew its licence. Where concerns are raised and/or where opposing interventions are received, the service standard should be that 80% of all renewal applications will be processed within eight months.
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34.
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Bell indicated that the service standard for licence renewals, with or without interventions, should be 80% in eight months and 100% in ten months and that issuing a short-term administrative renewal should not be considered as meeting the service standard.
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Commission analysis and determination
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35.
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While the anticipated number of most types of applications cannot be predicted, the Commission can determine how many licences will expire in a given year. Thus, the planning for licence renewal applications is managed in accordance with expiry dates. A degree of flexibility can, therefore, be built into this process that is not available for any other type of application. One of the processing objectives is to dispose of a renewal application within a reasonable period prior to the expiry of the licence.
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36.
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Accordingly, the Commission adopts a service standard for licence renewal applications processed by public notice whereby 80% of the applications will be processed within 8 months and 90% within 10 months.
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37.
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The service standard will not apply to renewal applications that raise policy concerns. These will be dealt with on a case-by-case basis. The Commission will inform the applicant that its application raises a policy issue within 30 days of this policy issue being indentified by the Commission. As noted above, some policy issues may only become apparent upon examination of interventions and replies.
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38.
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The Commission will make every effort to dispose of licence renewal applications processed by public notice, and that do not give rise to any concern or to any opposing interventions, within two months of the end of the intervention period.
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39.
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The Commission takes note of the alternative review process suggested by QMI with respect to licence renewal applications, and will examine this proposal further. As part of the Commercial Radio Policy review announced in Broadcasting Notice of Public Hearing CRTC 2006-1, 13 January 2006, the Commission has undertaken to examine how the current radio renewal process may be further streamlined.
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Additional comments
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40.
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Lynda G. Leonard indicated that the Commission should ensure that equal treatment is given to all applicants. Her concern was that there is an apparent expedited process for approval of requests by is given BDUs to carry non-Canadian services in Canada, while Canadian-applicants seeking licences or feedback on other applications wait much longer for Commission decisions. She stated that, since non-Canadian services are allowed in Canada, there should be reciprocity whereby the services of Canadian broadcasters would have access to distribution undertakings in other countries. She also noted that public access television is expanding around the world, but not in English Canada due to a lack of funding.
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41.
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The CAB and Rogers commented on the Commission's proposal to extend the streamlining review to include applications processed by public hearing, and suggested that the Commission should work toward implementing the service standards for such applications as soon as possible.
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42.
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Rogers also submitted that the Commission should give top priority to applications that involve the removal of any asymmetrical rules that are not associated with protecting a new entrant against an incumbent service provider. It also requested the Commission to move quickly on applications and proceedings that have, as their objective, the removal of barriers to fair competition or innovation.
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43.
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The Commission acknowledges the comments received on these matters. They will all be considered by the Commission in its ongoing review of policies and processes.
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Secretary General
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This document is available in alternative format upon request, and may also be examined in PDF format or in HTML at the following Internet site: http://www.crtc.gc.ca
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Date Modified: 2006-04-05