ARCHIVED - Letter
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Ottawa, 15 November 2007
Facsimile: (613) 234-2997
Mr. Ken Stein
Senior Vice President
Corporate and Regulatory Affairs
Shaw Communications Inc.
440 Laurier Ave W., #330
Ottawa, Ontario
K1R 7X6
Dear Mr. Stein:
Re: HD Simultaneous substitution by Shaw Cablesystems and Star Choice
Background
On 1 August 2007, the Commission issued letter decisions setting out its determinations with respect to a complaint filed by the Canadian Association of Broadcasters (CAB) that certain broadcasting distribution undertakings (BDUs) had not been performing simultaneous substitution with respect to certain high definition (HD) signals. In its letter decisions, the Commission directed certain BDUs, including Shaw Cablesystems and Star Choice, to undertake simultaneous substitution with respect to all HD television stations, and in particular, the CITY-TV station in Toronto and the CTV stations in Toronto and Vancouver, by the end of the calendar year. The Commission further directed Shaw Cablesystems and Star Choice to file detailed plans to implement HD substitution within that time frame.
On 7 September 2007, Shaw Communications Inc. (Shaw) filed a letter on behalf of Shaw Cablesystems and Star Choice in response to the Commission's direction of 1 August 2007. In its letter, Shaw described what it considered to be difficulties with regard to the implementation of HD substitution, and reiterated its belief, first expressed in response to the CAB's complaint, that broadcasters should bear the costs of such implementation. Shaw did not provide a plan to implement HD substitution within the time frame set out in the Commission's direction, nor did it express an intention to comply with the Commission's instruction to implement HD substitution by the end of the year.
In a letter to the Commission dated 11 October 2007, the CAB submitted that, by failing to file detailed implementation plans for HD substitution, as directed by the Commission, Shaw has clearly demonstrated that it has no intention of complying with its regulatory obligations respecting the simultaneous substitution of HD programming. The CAB urged the Commission to take immediate action to require Shaw Cablesystems and Star Choice to comply with the regulatory framework for the substitution of HD signals. The CAB added that the Canadian HD signals in question have been operational for several years, and an increasing number of consumers are interested in these signals.
The CAB stated that the specific HD signals entitled to substitution pursuant to the Commission's determination are:
- The CTV HD signal in Vancouver, as distributed by the Class 1 cable systems operated by Shaw Cablesystems in the Vancouver area, and
- The CTV and CITY-TV HD signals in Toronto and the CTV HD signal in Vancouver, as distributed by Star Choice.
Application of Regulations and Policies
In The regulatory framework for the distribution of digital television signals, Broadcasting Public Notice CRTC 2003-61, 11 November 2003 (Public Notice 2003-61), the Commission established a policy framework that would require BDUs, absent a condition of licence to the contrary, to carry the primary digital signals of those Canadian over-the-air televisions signals identified in sections 17, 32 and 37 of the Broadcasting Distribution Regulations (the Regulations). The Commission also stated that such digital signals would have the same substitution rights as their analog counterparts, provided that the signal to be substituted was the same or higher quality than the signal to be replaced. In support of these determinations, the Commission set out definitions of “local”, “regional” and “extra-regional” expressed in terms relevant to digital signals.
While these determinations and the related definitions have yet to be enacted into the Regulations, the Commission notes that, under the definitions currently set out in the Regulations, a “local television station” includes “a licensed television station that … (b) has, if there is no Grade A official contour, a transmitting antenna that is located within 15 km of the licensed area.” The Commission finds that this definition would apply to digital transmitting antennas, provided that the condition set out is met, i.e., that the antenna in question is within 15 kilometres of the licensed area.
Information on file with the Commission indicates that the CTV Vancouver transitional digital television station has a transmitter that is located within the licensed area of Shaw Cablesystems' North Vancouver system and within 15 kilometres of the licensed area of Shaw Cablesystems' Vancouver system. Accordingly, pursuant to section 30 of the current Regulations, these two systems are required to perform simultaneous substitution with respect to programming broadcast by this station, in the circumstances set out in that section. Not to do so is a violation of the Regulations.
With respect to Star Choice, section 42(1)(a) of the Regulations requires that a direct-to-home licensee “delete a non-Canadian programming service and substitute the comparable and simultaneously broadcast programming service of the Canadian television programming undertaking whose signal is distributed by the licensee”, if it receives a written request from a licensed Canadian television programming undertaking at least four days before the program in question. Since each of the stations identified by the CAB is a “licensed Canadian television programming undertaking”, the Regulations require Star Choice to perform simultaneous substitution with respect to these signals, when so requested in the circumstances described in section 42(1)(a). Not to do so is a violation of the Regulations.
Consistent with the policies established in Public Notice 2003-61, Shaw Cablesystems and Star Choice are required to perform substitution of Canadian HD signals over non-Canadian signals when the Canadian signal is of equal or superior quality.
Direction to appear
In its determination of 1 August 2007, the Commission indicated that, in the absence of a specific implementation plan, the Commission would consider further enforcement of its direction that Shaw Cablesystems and Star Choice undertake HD substitution with respect to all HD stations by the end of the calendar year. In light of the failure of Shaw and Star Choice to provide a detailed implementation plan to implement HD substitution within the time frame specified in the Commission's determination of 1 August 2007, the Commission directs Shaw to appear at a public hearing to inquire into, hear and determine whether, pursuant to section 12 of the Broadcasting Act, a mandatory order should be issued requiring Shaw and Star Choice to implement HD substitution with respect to digital television stations meeting the criteria set out in the Regulations, and in particular those television stations noted by the CAB in its letter of 11 October 2007.
Details regarding the date and location of the public hearing will be set out in a Notice of Public Hearing to be released shortly.
Sincerely,
Original signed by
Robert A. Morin
Secretary General
c.c. Michael Ferras, Shaw
Cynthia Rathwell, Star Choice
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