Search

ARCHIVED - Broadcasting Notice of Public Hearing CRTC 2007-10

This page has been archived on the Web

Information identified as archived on the Web is for reference, research or recordkeeping purposes. Archived Decisions, Notices and Orders (DNOs) remain in effect except to the extent they are amended or reversed by the Commission, a court, or the government. The text of archived information has not been altered or updated after the date of archiving. Changes to DNOs are published as “dashes” to the original DNO number. Web pages that are archived on the Web are not subject to the Government of Canada Web Standards. As per the Communications Policy of the Government of Canada, you can request alternate formats by contacting us.

Archived

This page has been archived on the Web.

 

Broadcasting Notice of Public Hearing CRTC 2007-10

 

See also : 2007-10-1, 2007-10-2 , 2007-10-3,  2007-10-4, 2007-10-5, 2007-10-6, 2007-10-7

Ottawa, 5 July 2007

 

Review of the regulatory frameworks for broadcasting distribution undertakings and discretionary programming services

  The Commission will hold a public hearing commencing on 28 January 2008 at 9:00 a.m. at the Conference Centre, Phase IV, 140 Promenade du Portage, Gatineau, Quebec, to consider the matters addressed in this notice as part of a review of the regulatory frameworks for broadcasting distribution undertakings and discretionary programming services.
  The Commission invites written comments and proposals, along with supporting evidence, on the matters for consideration set out below. The Commission anticipates that many of the matters identified will prove suitable to be addressed through written comments and need not be discussed at the hearing.
  The deadline for filing comments is 9 October 2007. Parties may file replies to matters raised in the comments and proposals. The deadline for the filing of replies is 5 November 2007. Parties are asked to clearly identify, with rationale, those issues that, in their view, need to be considered at the hearing. The Commission will make a determination as to matters that will be dealt with at the hearing following the intervention period, and parties will be notified of that determination.
 

Introduction

1.

On 22 December 1997, the Commission issued Public Notice 1997-150, in which it set out the current Broadcasting Distribution Regulations (the Regulations). In updating its regulatory framework, the Commission's primary objective was to promote the development of effective competition in the broadcasting distribution industry while ensuring attainment of the objectives of the Broadcasting Act (the Act).

2.

Ten years later, broadcasting distribution undertakings (BDUs) operate in a competitive environment where most subscribers have a choice of two or more licensed distributors. Other fundamental changes have affected the broadcasting distribution environment. Among these is the development and advancement of digital technology to deliver programming services to subscribers. While the introduction of digital technology has required a significant investment, it has permitted more efficient delivery of programming services and has significantly increased flexibility for distributors. It has also facilitated the development of new types of services, such as video-on-demand (VOD), and related revenue sources for both programmers and distributors, and has expanded the choice of services for subscribers. In addition, new technology has created an environment where Canadian broadcasting licensees will increasingly face competition, not only from other licensees but also from largely unregulated digital platforms.

3.

The intervening decade has also seen the arrival of true convergence, with BDUs offering telecommunications services, and telephone companies increasingly involved with the distribution of programming services. In today's environment, distribution services are often one of a suite of services offered by converged entities seeking to provide a "triple or quadruple play" consisting, as well, of wireline and/or wireless telephone and Internet services.

4.

In addition, the industry has been characterized by increasing consolidation, with considerable common ownership of BDUs and programming services.

5.

With respect to discretionary programming services, the Commission's policy framework was in large part developed through several processes held between 1982 and 1996 to license new pay and specialty undertakings for distribution using analog technology (analog pay and specialty services). The Commission's determinations in licensing such services were based on the goals of increasing the availability of diverse, high-quality Canadian programming services while ensuring a strong and viable system. The availability of analog channel capacity was also a major factor in determining the number and type of services that were approved. Hence, the Commission's approach to analog pay and specialty services was to provide a supportive and structured environment in which the services could maximize their contributions to achieving the objectives of the Act.

6.

In Public Notice 2000-6, the Commission adopted an approach to the licensing of new pay and specialty services for digital distribution that bridged the traditional regulatory mechanisms and a more open-entry environment. While the framework for Category 1 services was similar to that for analog pay and specialty services, Category 2 services have been licensed on a more open-entry basis characterized by greater risk and competition.

7.

In Broadcasting Public Notice 2006-23, the Commission set out its framework to guide the migration to a digital distribution environment of those pay and specialty services that were approved under the analog licensing framework. Subsequently, in Broadcasting Public Notice 2006-74, the Commission set out its policy for the licensing and distribution of high definition (HD) pay and specialty services.

8.

The Canadian pay and specialty sector is robust, with over 170 services in operation. In 2006,1 Canadian specialty, pay, pay-per-view (PPV) and VOD services overall earned $2.5 billion in revenue, with profit before interest and taxes (PBIT) of 22.95%. While analog specialty services account for the bulk of total specialty revenues ($1.8 billion), revenues from digital Category 1 services ($69.7 million) and Category 2 services ($123.3 million) continue to grow.

9.

Though financially sound overall, the discretionary services sector has and will continue to be faced with challenges, as well as opportunities, resulting from an increasingly competitive and fragmented marketplace. Since the release of Public Notice 2000-6, 79 Category 2 services have been licensed and continue to operate today. This increase in the number of Canadian services has occurred against the backdrop of more than 120 non-Canadian satellite services available on the list of eligible satellite services for distribution by BDUs.

10.

Furthermore, like BDUs, discretionary services have had to respond to the impact - both positive and negative - of the rapid pace of technological change. Digital technology offers flexibility in the ways that services are offered and frees up capacity for the launch of new services. However, that same flexibility represents a risk for analog services migrating to digital distribution, because adjustments to how they are packaged and offered to subscribers may result in changes to their penetration levels. Related to the move to digital distribution are the increasing demand for HD programming and the associated HD conversion costs. On-demand and new media platforms offer more opportunities for building an audience for programming, but certain program rights issues need to be resolved before these platforms can be fully exploited.

11.

In the coming years, distribution and discretionary service licensees will find themselves increasingly obliged to adapt to significant changes within the communications environment, as the full potential of digital technology is reached within a truly converged environment. In this environment, industry players will be increasingly called upon to focus on the consumer. More and more in Canadian broadcasting, the consumer is in charge. BDUs and programmers must be able to respond to the evolving expectations, tastes and demographics of Canadian viewers. In order to meet the challenges in the years ahead, above all, licensees will need to have the flexibility to react quickly and creatively to the opportunities and challenges they encounter, and not be burdened by detailed or unnecessary regulations.

12.

The considerations described above would lead to the conclusion that it is time to move away from the current detailed regulation, and to take a revitalized approach to both distribution and discretionary programming undertakings that aims at reducing regulation to the minimum essential to achieve the objectives of the Act, relying instead on market forces wherever possible. In particular, the Commission seeks to:
 
  • develop forward-looking regulatory frameworks that are strategic, straightforward, flexible, and equitable;
 
  • ensure a strong Canadian presence in the broadcasting system in the form of distinct and diverse Canadian programming and services; and
 
  • recognize the increasing autonomy of audiences and consumers, providing them with the greatest possible choice of services at affordable prices.

13.

In addition, in this proceeding, the Commission will finalize the regime to apply to direct-to-home (DTH) distributors with respect to the distribution of HD services.

14.

In keeping with the approach described above, the Commission has today issued Broadcasting Public Notice 2007-74, in which it has significantly reduced the requirements applicable to previews and promotional channels. In so doing, the Commission found it critical, in order to ensure a strong Canadian presence in the broadcasting system in the current environment, that both programmers and distributors be encouraged to promote and publicize Canadian programming, and that they have the flexibility to do so by the most effective means possible.
 

Overview of the process

15.

As a first step in the review process, Commission staff undertook consultations in late 2006 and early 2007 with members of the programming and distribution industries, as well as with members of the production community and consumer representatives. The consultations entailed a series of informal meetings with individual companies or groups for the purpose of identifying key public policy issues and concerns currently preoccupying participants. Based on these consultations, and its own analysis, the Commission has identified certain issues pertaining to the distribution, pay, specialty and VOD frameworks. These issues are described in the paragraphs that follow. They are included here with a view to focusing discussions and developing a record for streamlining, updating and eliminating various regulatory provisions. As would be expected, in many instances, there is a considerable relationship between issues of concern to distributors and those of concern to discretionary services. Other issues identified in this public notice pertain more particularly to one sector or the other.

16.

Where appropriate, the Commission has set out a number of options for comment by parties. Parties are invited to provide their own proposals on simplified regulatory approaches, as well as comments on options identified by the Commission. Parties are encouraged to provide concrete evidence in support of whatever comments or proposals they may make. In general, the Commission will expect parties arguing for continued regulatory intervention to provide a full rationale for that intervention, with supporting evidence, to establish that such intervention is essential to the objectives of the Act. Where parties consider that regulation is required, the Commission encourages them to suggest simple and strategic forms of intervention that will constrain, to the minimum degree possible, the ability of industry players to respond to the demands of the marketplace.

17.

The Commission will hold an oral public hearing commencing 28 January 2008. The process leading to that hearing will consist of two stages. The first stage will afford an opportunity for parties to submit any comments and/or proposals that they might have with respect to the relevant issues, as well as supporting evidence. The second stage will provide parties with an opportunity to file repliesto comments and proposalsprior to the hearing. It is noted that the Commission will not generally be disposed to permit the introduction of new material at the hearing.

18.

In addition, the Commission anticipates that many of the issues identified in this public notice will prove suitable to be addressed solely through written comments, and need not be discussed at the hearing. In their submissions, parties are therefore requested to clearly identify, with rationale, those issues that in their view need to be discussed at the hearing. The Commission will make a determination as to matters that will be dealt with at the hearing following the intervention period, and parties will be notified of that determination.
 

Dunbar/Leblanc report

19.

Finally, the Comission advises that it has commissioned communications lawyers Laurence Dunbar and Christian Leblanc2 to conduct an independent study of its broadcasting rules and regulations. The purpose of their work is to examine each of the Commision's rules and regulations in light of its original purpose. Dunbar and Leblanc will make recommendations as to whether that purpose has any continued relevance; whether the same purpose can be obtained by streamlined or less intrusive means or whether the rule or regulation should be altogether eliminated. The Commission anticipates that the Dunbar/Leblanc report will be placed on the record of this proceeding by the end of August. The Commission asks that parties review this study, and comment in their submissions on the recommendations in the study.
 

Other materials to be placed on the record

20.

The Commission reserves the right to place other relevant studies on the record by the end of August. Parties making submissions may also wish to comment on such additional materials.
 

Issues

 

A. Supports and obligations

21.

The Commission considers that there is a constellation of issues that generally relate to the continued effectiveness and/or relevance of and relationship among key regulatory supports and obligations such as genre exclusivity, access, preponderance, distribution and linkage, and Canadian programming obligations.
 

Genre exclusivity

22.

The Commission has licensed analog and Category 1 pay and specialty services on a one-per-genre basis. Specifically, the Commission generally requires that pay and specialty services be complementary and not compete head-to-head with one another.3 While Category 2 services may be competitive with each other, the Commission does not generally license a Category 2 service that would be directly competitive with an existing analog pay or specialty service or with a Category 1 service.4 To ensure that specialty services remain distinct and true to the genre for which they were licensed, the Commission imposes conditions of licence that define and limit the nature of service.

23.

The Commission's objectives with respect to its genre policy are two-fold: to ensure a diversity of programming genres, and to provide a measure of support to pay and specialty services licensed under the analog and Category 1 licensing frameworks to enable them to meet their Canadian content and other programming obligations. The pay and specialty sector currently includes a wide range of diverse genres, including services that serve specific demographic groups such as women, children or third-language communities, as well as a significant number of services targeted to specific program niches.

24.

The increased number of specialty services has resulted in an increased overlap or cross-over among genres. While the Commission has consistently attempted to ensure that there is no direct competition, some services in the news and sports genres, for example, have become increasingly similar in terms of genre.

25.

Nature of service conditions may limit a service from adjusting its program orientation to respond to audience preferences. Over time, the Commission has considered a significant number of applications to amend nature of service conditions of licence, as well as complaints about alleged violations of nature of service. Instances when specialty services change their orientation may also raise questions about whether the service continues to respect the genre for which it was licensed.

26.

Given that the pay and specialty industry is now a mature, healthy industry characterized by a diversity of popular, recognized brands, the Commission considers it may be timely to eliminate the one-per-genre policy in order to give flexibility to pay and specialty services to adapt their programming strategies to challenges resulting from a rapidly changing broadcasting industry. Accordingly, the Commission seeks comment on what ongoing public purpose is served by continuing to maintain genres for pay and specialty services. As an alternative to eliminating genres for pay and specialty services, should genres be broadly defined and individual natures of service eliminated to permit services to compete directly with other services in the same genre?
 

Authorization of non-Canadian satellite services

27.

The Commission's general policy has been not to authorize for distribution in Canada non-Canadian satellite services that would compete in whole or in part with Canadian pay or specialty services.5 The objective of this policy is to provide a measure of support to Canadian services to enable them to fulfil their commitments and obligations and to encourage alliances between Canadian and non-Canadian services in similar genres. In assessing requests to authorize English- and French-language non-Canadian services for distribution in Canada, i.e., to add them to the Revised lists of eligible satellite services, the Commission examines factors such as the specific genre and nature of service of Canadian pay and specialty services.

28.

The Commission requests comment on what the process should be for authorizing the distribution of non-Canadian services, should the Commission elect to eliminate, or broadly define, genre for Canadian pay and specialty services. Alternatively, in the event that the Commission decides to retain its one-per-genre policy, it requests comment on whether changes are required with respect to its current approach to the addition of non-Canadian satellite services to the lists of eligible satellite services, and in particular, whether changes are required with respect to the definition and application of the competitiveness test noted in the previous paragraph.
 

Access and preponderance

29.

The current rules pertaining to access generally require BDUs to distribute some or all pay and specialty services, with the particular requirements depending on such factors as the size (class) of the BDU, the BDU's total capacity, the nature of the technology used (for example, analog or digital), the official language of the majority in the market served by the BDU, and the presence and size of third-language populations in the area served by the BDU.6

30.

In addition to the above, the policies established in Broadcasting Public Notice 2006-74 would require, in general, that BDUs also distribute HD versions of the analog/standard definition (SD) services that they are required to distribute, provided that those services have obtained new HD-transitional licences obliging them to provide specified minimum amounts of HD content.

31.

In addition to requirements to distribute specific services, BDUs are also subject generally to a preponderance requirement under section 6(2) of the Regulations, which states as follows:
 

Except as otherwise provided under a condition of its licence, a licensee shall ensure, in respect of each of analog and digital technology, that a majority of the video and audio channels received by a subscriber are devoted to the distribution of Canadian programming services, other than the programming distributed on program repeat channels.

32.

Given the Commission's objectives with respect to reducing regulation to a minimum and considering the maturity of the discretionary services industry, the Commission regards it as timely to consider eliminating all or most access rules pertaining to analog and Category 1 pay and specialty services, relying instead on a preponderance requirement or requirements, such as that set out above, to ensure that Canadian programming services occupy a central place within the broadcasting system. In the Commission's view, such an approach would contribute significantly to a simplification of the rules applicable to BDUs, perhaps facilitating a reduction in the number of licence classes and the elimination or reduction in the number of specific rules applicable to various sizes and/or types of distributors. Accordingly, the Commission seeks comment on such an approach, including comment on any particular issues or considerations relevant to French-language pay and specialty services.
 

Measuring preponderance

33.

The Commission seeks comment on how preponderance should be measured, should it choose to rely solely on a preponderance requirement or requirements. For example, should it maintain the current approach set out in section 6 of the Regulations, which requires that preponderance be assessed by reference to the number of services received by each subscriber? Or would some alternative be preferable? In addition, within the context of a preponderance approach, are measures needed to ensure a sufficient flow of revenues to programmers to support Canadian programming? For example, should BDUs be required to direct a preponderance of their affiliation payments to Canadian services?
 

Recognizing the types of Canadian services

34.

As discussed below, under the current discretionary services framework, services that are guaranteed a right of access, such as analog and Category 1 specialty services, generally have higher Canadian programming requirements than services with no access rights, such as Category 2 services. The Commission seeks comment on how, through a preponderance approach, it might recognize services that make more significant contributions to Canadian programming. In addition, in applying a preponderance requirement, should the Commission distinguish between HD and SD services? For example, should a separate preponderance requirement apply with respect to HD services?
 

Services in the language of the minority

35.

The Commission considers that it may be appropriate to implement, for all terrestrial BDUs, a 1:10 rule to simplify distribution requirements for services in the language of the minority. For example, all such BDUs could be required to distribute at least one Canadian specialty service in the language of the minority for every 10 programming services distributed in the language of the majority7, up to the maximum number of services available in the language of the minority. In the Commission's view, such a rule would likely result in the distribution of a comparable number of services in the language of the minority as are currently distributed, while removing the complexity of the current rules for the distribution of these services, which are tied to the capacity and size of the undertaking.

36.

Parties are asked to comment on such an approach, and in particular on the specifics of how it might be implemented.
 

Access by related or affiliated programming undertakings

37.

The Commission notes that several provisions of the Regulations are intended to provide equitable and non-discriminatory access by programming undertakings not related to or affiliated with the BDU.8 The Commission requests comment on what public interest would be served by the retention of such provisions. Further, to the extent that the concerns underlying such provisions may still be relevant, the Commission requests comment on whether they could be adequately addressed through some measure of general application. Among other things, the Commission requests comment on whether section 9 of the Regulations (dealing with undue preference and undue disadvantage) would be sufficient, especially if the Commission adopts a reverse onus provision, as discussed later in this public notice.
 

Third-language services

38.

Class 1 systems are currently required to distribute certain ethnic programming services9 to all or part of their licensed areas if (i) the licensee was distributing the service on 16 December 2004, or (ii) 10% or more of the total population in the whole or in part of its licensed area is of one or a combination of the ethnic origins to which the service is intended to appeal. The Commission seeks comment on whether there would still be a need to retain specific rules with respect to the distribution of third-language services, and if so, what those rules should be.
 

Delivery of signals

39.

The Commission has generally considered it the responsibility of pay and specialty services to deliver their signals to distributors.10 However, in Broadcasting Decision 2007-2, the Commission noted that HD versions of pay and specialty services offered under amendments to existing licences (rather than under new HD-transitional licences) are of a status similar to Category 2 services in that their distribution is authorized but not required. The Commission stated that, while it is a reasonable quid pro quo to expect programmers to deliver "must-carry" signals to a BDU in light of the BDU's obligation to distribute those signals, arguments for making the programmer responsible for delivery are much less compelling when distribution of the service is totally at the discretion of the BDU.

40.

The Commission requests comment as to which party or parties should bear responsibility for the delivery of signals to BDUs, if the Commission should choose to replace access requirements with preponderance requirements. Given the additional bandwidth required to distribute HD signals, should the Commission's approach make a distinction between SD and HD signals? Finally, the Commission asks parties to comment on any changes to its policies with respect to satellite relay distribution undertakings (SRDUs) and terrestrial relay distribution network undertakings (TRDUs)11 that might be required as a result, for example, of possible changes as to who is responsible for the delivery of signals or the capacity requirements for the delivery of HD signals.
 

Distribution and linkage

41.

The current distribution and linkage requirements for Class 1 and 2 and DTH licensees are set out, respectively, in Broadcasting Public Notice 2007-51 and Broadcasting Public Notice 2007-52.12 These rules designate the status of analog specialty services as, for example, dual status services, to be distributed by Class 1 licensees as part of the basic service unless the programming service operator consents in writing to its distribution on a discretionary basis, or as modified dual status, to be distributed on a discretionary basis unless the Class 1 licensee and the programming service operator agree to distribute the service as part of the basic service. They also specify that non-Canadian services and Canadian services may be linked by Class 1 and 2 and DTH licensees on a 1:1 basis for specialty services and a 5:1 basis for pay services. In addition, the distribution and linkage rules set out, among other things, detailed rules as to the distribution of certain French-language services in francophone markets, packaging rules with respect to adult services and single point-of-view religious services, and a prohibition on the practice known as "account stacking".13

42.

In Broadcasting Public Notice 2006-23, the Commission announced requirements related to, among other things, the "mirroring" of analog service packages when distributed using digital technology. In addition, in that public notice and in Broadcasting Public Notice 2006-74, the Commission has already adopted some significant departures from the distribution and linkage rules described above.

43.

It is the Commission's view that program packaging should be a matter left more to negotiations between programmers and distributors. Accordingly, the Commission proposes to eliminate most of the distribution and linkage rules, in respect of both analog/SD and HD services, and both analog and digital distribution. However, the Commission proposes to retain rules related to account stacking and to the distribution of adult services and single point-of-view religious services.

44.

Consistent with Broadcasting Public Notice 2004-96, the distribution and linkage rules specify that, in order to receive certain third-language non-Canadian general interest services, BDU customers must also subscribe to specified Canadian services in the same language (a "buy-through" requirement).14 In addition, BDUs wishing to distribute third-language non-Canadian general interest services must also offer a Category 2 service in the same language, provided that one has been launched (a "must-offer" requirement).

45.

The Commission seeks comment on whether there are any public policy objectives to be served by retaining distribution and linkage rules related to third-language services, and if so, what those rules should be.

46.

If parties consider that some of the distribution and linkage rules should be retained, they are asked to comment on whether they should be incorporated directly into the Regulations, rather than by reference to a public notice.15 Parties are also requested to comment on any corollary changes to the lists of eligible satellite services, and the way those lists are structured and formatted, that would result from the elimination of some or many of these rules, or from a more simplified regulatory regime, generally.
 

Programming obligations

47.

Under the existing framework, obligations regarding the level of contribution to Canadian programming are closely tied to the level of regulatory support that the programming service receives, particularly in terms of distribution and genre. Analog and Category 1 pay and specialty services have relatively high requirements with respect to the exhibition of Canadian content overall and in the evening hours, as well as Canadian programming expenditure (CPE) requirements. The amount of Canadian content and CPE required is determined on a case-by-case basis and is based on considerations such as the genre of the service and the availability of programming falling within that genre. In recent years, the Commission has determined it to be appropriate at licence renewals to increase the CPE levels of those specialty services recording average historical PBIT levels in the previous licence term of 20% or more. Certain analog and Category 1 pay and specialty services have additional programming commitments, such as commitments to original programming or expenditures on script and concept development. Analog and Category 1 pay and specialty services are also required to ensure that at least 75% of content is from independent producers.

48.

In light of the open-entry, competitive licensing framework for Category 2 services, these services have relatively low obligations toward exhibition of Canadian programming and no expenditure requirements.

49.

The Commission seeks comment on how programming obligations of pay and specialty services should be balanced with providing greater competition among programmers and more flexibility for BDUs with respect to the distribution of programming services. For example, if the Commission were to eliminate genre requirements and/or access rights for analog and Category 1 services, what factors or criteria should be taken into account to determine what appropriate contribution levels should be? How would the obligations of such services relate to those of Category 2 services? The Commission also seeks comment on whether both exhibition and expenditure requirements for analog and Category 1 pay and specialty services are still relevant to ensure appropriate levels of support for Canadian programming while providing maximum flexibility for such services to compete and to take advantage of on-demand and new platforms to extend their programming.
 

B. Video-on-demand and pay-per-view

50.

The current regulatory framework for VOD and PPV is set out Public Notice 2000-172. It was developed at a time when VOD was perceived as developing into primarily a feature-film-based service with programs offered on a pay-per-title basis, similar to PPV. When the Commission set out the framework in 2000, none of the five VOD services approved in 1997 had launched. In such an environment, the Commission chose a relatively light-handed regulatory approach to VOD undertakings, based largely on its approach to existing PPV services, to ensure they had the flexibility to develop the platform in innovative ways.

51.

Today, VOD is playing an increasingly important role in the Canadian broadcasting system. Nine VOD undertakings, each BDU-owned and -operated, are in operation, acquiring content from broadcasters and directly from foreign studios and producers. Traditional broadcasters and program producers are also seeking ways to maximize on-demand opportunities for their programming.

52.

The existing framework for VOD and PPV sets out relatively low requirements for Canadian programming.16 The increasing importance of such undertakings, and particularly VOD, in the system raises the question of what the appropriate contributions toward Canadian programming should be for VOD and PPV.

53.

In establishing the current framework, the Commission acknowledged a potential concern that allowing VOD and PPV undertakings to sell programming in packages could lead to situations in which these services could compete directly with pay and specialty services, which have genre restrictions and significantly higher Canadian programming and expenditure requirements. The Commission therefore prohibited VOD and PPV undertakings from offering program packages of more than one week in duration, with the exception of sports programming.

54.

The evolving nature of subscription video-on-demand (SVOD) has put pressure on VOD undertakings to explore alternative program packaging models, including offering bundles of specific types or brands of programming. This raises questions about the continued appropriateness of the existing policy regarding program packaging. It also raises questions about the appropriateness of VODundertakings offering SVOD bundles consisting exclusively of programming from non-Canadian services, including programming from services not currently authorized for distribution in Canada.

55.

Under the current framework, VOD and PPV undertakings are generally prohibited from broadcasting commercial messages. In recent years, several VOD and PPV undertakings have sought exceptions to these limitations via conditions of licence. As on-demand undertakings are exploring potential revenue streams, the Commission questions whether it is appropriate to continue to limit the broadcast of commercial messages by VOD and PPV undertakings.

56.

The Commission therefore seeks comment on how BDUs and programmers can take advantage of the increasingly important on-demand platform, while ensuring that VOD and PPV undertakings continue to make an appropriate contribution to the objectives of the Act. In addition to the questions set out above, how should the Commission balance providing flexibility for VOD and PPV undertakings to innovate and provide diverse, attractive program offerings, while not unduly affecting linear programming services? How can the Commission ensure that Canadian programming services, especially those that are unaffiliated to existing VOD undertakings, have access to the on-demand platform? How can the Commission assist in ensuring that there is sufficient and appropriate programming available for on-demand platforms?
 

C. Other new revenue opportunities

57.

Over the last several years, programmers and distributors have expressed interest in finding new revenue streams to offset the costs of HD conversion and other technology upgrades. In addition to opportunities related to on-demand platforms, some of the options they have put forward include engaging in traditional advertising or promoting non-programming services on the community channel, inserting local advertising into the U.S. local availabilities, and exploring more targeted advertising, i.e., aiming different advertisements at different groups of customers within a BDU's service area (e.g., by district).

58.

The Commission requests that parties describe any new revenue-generating opportunities, and seeks comment on how Canadian BDUs and programmers (including over-the-air television stations) can best share the risks and rewards of those opportunities. Parties are also asked to provide specific proposals regarding any regulatory action that would be needed to permit industry players to take advantage of those opportunities.

59.

Parties should also describe how their specific proposals relate to the objectives of the Act and address any potential impact of these new revenue-generating opportunities on the Canadian broadcasting system in general.

60.

The Commission notes that BDUs would likely be obliged to alter and delete programming for the purposes of inserting targeted advertising into programming. Parties are asked to identify what amendments to section 7 of the Regulations and/or to BDUs' conditions of licence would be required to permit this practice, as well as any other possible amendments to section 7 that may be required for other purposes.
 

D. Issues specific to discretionary services programming

 

Advertising limits

61.

The Commission requests comment on the possibility of increasing the 12 minute per hour limit on traditional advertising for specialty licensees, with the intention of eliminating the limit altogether, as was announced for over-the-air television stations in Broadcasting Public Notice 2007-53.
 

Category 2 applications

62.

The Commission notes that, since its decision to approve applications for a broadcasting licence to operate a Category 2 specialty programming undertaking, the Commission has, as of 31 December 2006, authorized 579 Category 2 services, of which only 79 have launched and remain in operation. In this respect, the Commission resources required to process Category 2 applications are significantly disproportionate to the number of services that become operational.17 Accordingly, the Commission seeks comment on measures to better focus resources required to process such applications on proposed services that will in fact become operational. For example, should the Commission require evidence of a concrete business plan, program agreements or evidence that a BDU will distribute the proposed service?
 

E. Other issues

 

General

 

Introduction

63.

Set out below are a number of other issues, the majority of which would appear to pertain more particularly to the Regulations. Parties are invited to comment generally on any changes required to the Regulations to reflect developments since they were last reviewed (e.g., the entry of BDUs using digital subscriber line (DSL) technology). Parties are also asked to provide proposed definitions, or any proposed changes to the existing definitions, required to implement whatever proposals they might have.
 

Classes of licensees

64.

The Commission notes that a significant simplification of the rules might permit a reduction in the number of classes of cable systems, perhaps to a single class. Parties are asked to bear this in mind in formulating their proposals, and to address specifically the issue of whether there is any need to retain the current classes of terrestrial BDU licences, i.e., Class 1, Class 2 and Class 3 (including the former Part III systems).
 

Departures from the Regulations

65.

Currently, some provisions of the Regulations are prefaced by the words "except as otherwise provided by a condition of licence," while other provisions are not. The Commission requests comment on whether all provisions of the Regulations should be subject to such a proviso. Parties who consider that such an approach would not be appropriate are asked to clearly identify those provisions where they consider departures should or should not be permitted by condition of licence.
 

Analog/digital distribution

66.

Parties are asked to comment on when they would anticipate analog distribution being phased out entirely, and to identify any provisions of the Regulations that can be eliminated, in light of the increasing penetration of digital distribution technology.

Generally, parties are asked to specify whether their proposals and comments pertain to analog and/or to digital distribution.

 

Exemption orders

67.

The Commission has issued two exemption orders applicable to small cable BDUs.18 The Commission anticipates that any changes with respect to the Regulations, which apply to licensed systems, would result in comparable changes to these exemption orders. Accordingly, parties are asked to identify in their comments and proposals any appropriate changes to these exemption orders (or, where relevant, to other exemption orders).
 

Filing requirements

68.

In formulating their comments and proposals, parties are asked to identify any filing requirements needed to implement their proposed approaches, including any changes to section 11 of the Regulations or to the content of annual returns filed pursuant to section 11.
 

Convergence issues

69.

In providing proposals and comments, parties might wish to note issues related to convergence/symmetry between broadcasting and telecommunications that might be the appropriate subject of a further proceeding under both the Broadcasting Act and the Telecommunications Act.
 

Specific issues

 

Basic service

70.

The Commission is of the preliminary view that it would be appropriate to retain a requirement that a basic service be provided. However, with respect to section 5 of the Regulations, the Commission requests comment on whether the exceptions noted for PPV, VOD and exempt services remain appropriate, and/or on whether there are other services that BDUs should be permitted to provide without having to provide the basic service.

71.

In addition, the Commission considers that it may be possible to eliminate some specific requirements as to basic service, and to simplify other requirements. Among other things, given the transition to digital distribution, the Commission considers that it may now be appropriate to eliminate the requirement that priority signals be distributed "beginning with the basic band."19 The Commission requests comment on this possibility.

72.

Bearing in mind the possibility of reducing the number of classes of terrestrial BDUs, the Commission asks parties to comment on whether it would be appropriate to reduce the number of services that Class 1 and 2 licensees must distribute as part of the basic service. In addition, the Commission requests comment on whether, in order to facilitate a reduction in the number of classes of terrestrial BDUs, it might be appropriate to add, to some extent, to the basic service distributed by Class 3 licensees. Specifically, in order to facilitate the integration of licence classes, the Commission requests comment on whether it should:
 
  • eliminate requirements for Class 1 and 2 systems to distribute extra-regional channels;
 
  • delete sections 17(i) and 17(j) of the Regulations, and instead incorporate the substance of these provisions into the distribution order issued pursuant to section 9(1)(h) of the Act, dealing with the distribution of the wrap-around service, Cable Public Affairs Channel Inc. (CPAC);20 and/or
 
  • require Class 3 systems to distribute the provincial educational service as part of the basic service, if supplied to the head-end.21

73.

The Commission also considers that it might be appropriate to eliminate the regulatory requirement that the community channel, if offered, be distributed as part of the basic service, and requests comment on that possibility.

74.

Parties are also asked to comment on any other possible amendments with respect to the basic service offered by terrestrial BDUs, and in particular, on possible amendments that might facilitate the integration of the various classes of BDU licence into a single class.

75.

The Commission also requests comments on an appropriate basic service to be offered by DTH undertakings, taking into account their national footprint, any particular technological characteristics of satellite distribution, and anticipated demands on satellite capacity resulting from the transition to HD broadcasting.22

76.

Finally, parties may wish to comment generally on any implications for the distribution of over-the-air television signals, by both terrestrial and satellite BDUs, of the determinations in Broadcasting Public Notice 2007-53. Parties may wish to comment in particular on any implications of the Commission's determinations regarding the planned shut-down of analog over-the-air television signals.
 

Community channels, community-based undertakings

77.

Since the outcome of the review may entail changes as to distinctions between the various classes of systems (perhaps even the reduction to one class), parties filing proposals or comments in this regard should fully address the implications of any proposals they might make, including proposals for a reduction in the number of classes, for those sections of the Regulations pertaining to the community channel and contributions to local expression.23

78.

The Commission also requests comment on whether any changes are required to sections 18(11.01) and 33.3(1.1) of the Regulations regarding the distribution on a digital basis of community-based low-power television stations and digital undertakings to subscribers living in their service areas.
 

Mechanism for standard authorizations

79.

From time to time, a BDU will apply for conditions of licence permitting it to do something not contemplated by the Regulations.24 Often, in approving such an application, the Commission is aware that other BDUs will likely request similar authorizations. It establishes terms and conditions of approval that it anticipates will serve as a precedent when further BDUs apply for authority to do the same thing. Despite the existence of such a precedent, at present, BDUs who wish to be granted such authority must file individual applications. This entails delays for BDUs wishing to offer comparable services, as well as extra work for the Commission in processing the individual applications.

80.

In the Commission's view, it may be possible to address this problem by including such "standard authorizations" (including many currently set out in the Regulations) in a public notice that could be updated whenever a precedent authorization is granted. The public notice could then be incorporated by reference into the licences of BDUs by way of a standard condition of licence granted to all BDUs.25 The Commission would envisage that, when it received an application for a new authorization, a public notice would be issued requesting comment on whether the proposed authorization, if granted, should be included in the "standard authorizations" public notice.

81.

The Commission requests comment on such a mechanism, or proposals for alternative mechanisms that would accomplish the same end. In particular, the Commission requests comment on how, if it was to adopt a mechanism such as that described above, it could address the constraint imposed by section 9(1)(c) of the Act.
 

Undue preference or disadvantage

82.

Section 9 of the Regulations specifies that no licensee shall give an undue preference to any person, including itself, or subject any person to an undue disadvantage. Both the Pay Television Regulations, 1990 and the Specialty Services Regulations, 1990 contain a similar provision. Comparable sections of the Telecommunications Act contain a "reverse onus" provision. Specifically, section 27(4) provides that "the burden of establishing before the Commission that any discrimination is not unjust or that any preference or disadvantage is not undue or unreasonable is on the Canadian carrier that discriminates, gives the preference or subjects the person to the disadvantage."

83.

Since the undue preference/disadvantage provision was adopted with respect to broadcasting, it has been the Commission's experience that parties alleging an undue preference or an undue disadvantage face considerable difficulties in fully establishing a case, due in many instances to the fact that they are unable to assemble all the information necessary to provide the Commission with the record it requires. The Commission anticipates that, in many instances, the information necessary to found a well-informed determination would be in the hands of the party alleged to have given the undue preference or to have subjected someone to an undue disadvantage. On this basis, and in order to provide symmetry with its approach under the Telecommunications Act, the Commission considers that it may be appropriate to incorporate a reverse onus provision into the regulations applicable to distribution, pay and specialty licensees, and requests comment on that possibility.
 

Dispute resolution

84.

The Commission requests comment on any changes that might be required to its approach to dispute resolution, should it decide to replace access requirements with a preponderance requirement. In particular, parties are asked to comment on the appropriateness in such an environment of a process leading to a binding determination under section 15 of the Regulations. If parties consider that binding determinations remain appropriate, they should provide details as to how any process leading to such a determination should unfold, and how the determination should be enforced.

85.

More generally, the Commission requests comment on the appropriate role of dispute resolution, particularly in an environment of significantly reduced regulation for programmers and distributors, and on any changes that may be required to the applicable sections of the Regulations (see sections 12 to 15) and related policies (see Public Notice 2000-65 and Broadcasting Circular 2005-463).
 

Customer service standards

86.

Through the Cable Television Standard Foundation (CTSF), the former Canadian Cable Telecommunications Association (CCTA) had developed and adopted Cable Television Customer Service Standards pertaining to matters such as clarity of billing, availability of billing in alternative formats, privacy, standards of operation, etc.26 These organizations have since disbanded.

87.

In addition, on 3 November 2000, a set of Digital Competitor Service Standards was provided to the Commission by a group of DTH and multi-point distribution system (MDS) BDUs.27 These standards were intended to apply to these BDUs as an alternative to those developed to apply to cable BDUs under the auspices of the CTSF.

88.

The Commission requests comment on whether some intervention on its part is required with respect to matters addressed in the above-noted standards. In particular, are there salient matters that should be addressed directly in the Regulations?

89.

In addition, the Commission requests comment on whether a single uniform set of standards should be developed that would apply to all BDUs, and on the possible need for an industry body to oversee and apply such standards. In this regard, the Commission requests that BDUs propose appropriate standards and mechanisms whereby industry would apply them.
 

Inside wire

90.

The Commission requests comment on any changes that may be required with respect to section 10 of the Regulations, relating to the use of "inside wire" owned by a licensee. In this regard, parties may wish to comment on whether amendments are required to reflect the increasing use of cable plant to provide telephony and other telecommunications services, and of telephone company plant to provide distribution services. On a more detailed level, the Commission is of the preliminary view that section 10 should be amended to clarify that the section also applies to externally wired buildings.
 

Other sections of the Regulations

91.

The Commission requests comments on sections of the Regulations that are not specifically mentioned above. In particular, in light of the Commission's intention of minimizing regulatory requirements, parties are advised that, in the absence of cogent argument for retention of particular sections of the Regulations, the Commission may be disposed to delete those sections. In this context, the Commission notes in particular the following sections of the Regulations:
 
  • section 17(5) (service of national public interest);
 
  • sections 18(8) though 18(10) (distribution of certain specialty services);
 
  • section 22 (audio services that must be distributed);
 
  • the exceptions noted in section 23(1)(b) and section 43(2)(b) (distribution of certain audio services);
 
  • section 23(2) (prohibition of the distribution of certain audio services);
 
  • section 25 (restricted channels);
 
  • section 26 (notice of channel realignment);
 
  • various sections of Part 3 of the Regulations pertaining to fully interconnected Class 3 systems; and
 
  • Part 5 of the Regulations, pertaining primarily to rate regulation.28
 

F. Distribution of HD programming services by DTH distributors

92.

In Broadcasting Public Notice 2003-61, the Commission considered that, given the bandwidth requirements of programming in HD format, DTH distributors would be unable to replicate a majority of their current services in HD. The Commission also noted concerns raised as to asymmetries in the regulatory obligations of various distributors, and expressed the view that the regulatory obligations of BDU licensees operating in the same market should in principle be equivalent taking into account their different circumstances, including the differences in their distribution technologies. In view of these concerns, the Commission stated that it would launch a separate proceeding to examine the regulatory framework governing the obligations of DTH undertakings with respect to the distribution of HD services. Pending completion of that proceeding, the Commission required DTH licensees to distribute the upgraded versions of services that they must currently distribute as part of the basic service.29

93.

In Broadcasting Public Notice 2006-74 dealing with HD pay and specialty services, the Commission reiterated its intention to hold a further proceeding to address the distribution of HD services by DTH undertakings. Pending completion of the anticipated further proceeding, the Commission required DTH undertakings to provide access to all HD-transitional licensees that are subject to conditions of licence requiring them to meet specified minimum levels of HD content, excluding Category 2 services.

94.

The Commission invites comments and proposals as to the approach it should take with respect to the distribution of HD services by DTH undertakings.

95.

As indicated above, the Commission is of the view that the obligations of DTH undertakings with respect to the distribution of HD signals should in principle be comparable to those applicable to other BDUs operating in the same market, taking into account their particular characteristics. Accordingly, to the extent that the review proceeding may result in changes to its policies for the distribution of HD services by terrestrial BDUs, the Commission would anticipate that those changes would also be reflected in the policies applicable to DTH BDUs. In this regard, the Commission refers parties to the comments and questions set out earlier in this public notice, and in particular, to the sections entitled Access and preponderance and Distribution and linkage.

96.

Parties are asked to address how the anticipated demands on satellite capacity arising from the transition to HD broadcasting can best be reconciled with distribution requirements as set out in the Regulations as well as those imposed by condition of licence in the most recent licence renewals of the DTH undertakings.30

97.

Parties are also asked to take into account in their comments and proposals that the DTH licensees share a common platform with SRDUs, and that the platform is also used to provide transport services for pay and specialty services.31 As indicated earlier in this public notice, the Commission has requested comments as to which party or parties should bear responsibility for the delivery of pay and specialty signals to distributors, especially if the Commission chooses to replace access requirements with a preponderance requirement or requirements, and on whether changes should be made to current regulatory requirements pertaining to SRDUs and to TRDUs. Parties may also wish to comment on any other Commission policies and regulations that should be altered in order to contribute to the efficient and effective use of satellite technology for the delivery of HD programming services.

98.

The Commission notes that letters have today been sent to both DTH licensees requesting further information on various issues related to their current satellite distribution capacity and their plans for future use of satellite capacity. Responses to these letters will be received by 10 August 2007 and will be added to the public record of this proceeding in time to permit parties to take this information into consideration in making their comments. As is the Commission's normal practice, should confidentiality be requested and granted for any of the information provided in these responses, abridged versions, excluding this confidential material, will be placed on the public record.

99.

Consistent with the process established for the broader proceeding, parties may also file replies to comments and proposals filed earlier.
 

Public proceeding

100. The Commission will hold an oral public hearing commencing on 28 January 2008 at9:00 a.m. at the Conference Centre, Phase IV, 140 Promenade du Portage, Gatineau, Quebec, to address the matters set out in this notice.
101. The Commission invites written comments that address the issues and questions set out above. The deadline for filing written comments is 9 October 2007. The Commission invites interested parties then to file replies to any of the comments submitted during the first stage. Parties will have until 5 November 2007 to do so.
102. The Commission will only accept submissions that it receives on or before the prescribed dates noted above.
103. Following the oral public hearing, interested parties may have an opportunity to file brief final written comments.
104. Parties wishing to appear at the public hearing must state their request on the first page of their written submissions. Parties requesting appearance must provide clear reasons, on the first page of their submissions, as to why the written submission is not sufficient and why an appearance is necessary. The Commission will subsequently inform parties whether their request to appear has been granted. While submissions will not otherwise be acknowledged, they will be considered by the Commission and will form part of the public record of the proceeding, provided the procedures set out herein have been followed.
 

Procedures for filing comments

105. Interested parties can file their comments to the Secretary General of the Commission:
 
  • by usingthe
     Broadcasting Intervention/Comments Form
 

OR

 
  • by mail to
     CRTC, Ottawa, Ontario K1A 0N2
 

OR

 
  • by fax at
     819-994-0218
106. Submissions longer than five pages should include a summary.
107. 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.
  Important notice
108. Note that all information that you provide as part of this public process, except information granted confidentiality, whether sent by postal mail, facsimile, e-mail or through the Commission's Web site at www.crtc.gc.ca, becomes part of a publicly accessible file and will be posted on the Commission's Web site. This information includes your personal information, such as your full name, e-mail address, postal/street address, telephone and facsimile number(s), and any other personal information you provide.
109. The personal information you provide will be used and may be disclosed for the purpose for which the information was obtained or compiled by the Commission, or for a use consistent with that purpose.
110. Documents received electronically or otherwise will be put on the Commission's Web site in their entirety exactly as you send them, including any personal information contained therein, in the official language and format in which they are received. Documents not received electronically will be available in PDF format.
111. Please note that the information you provide to the Commission as part of this public process is entered into an unsearchable database dedicated to this specific public process. This database is accessible only from the webpage of this particular public process. As a result, a general search of our Web site with the help of either our own search engine or a third-party search engine will not provide access to the information which was provided as part of this public process.
112. The Commission encourages interested parties to monitor the public examination file and 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

  Toll-free telephone: 1-877-249-2782
Toll-free TDD: 1-877-909-2782
  Central Building
Les Terrasses de la Chaudière
1 Promenade du Portage, Room 206
Gatineau, Quebec K1A 0N2
Tel.: 819-997-2429
Fax: 819-994-0218
  Metropolitan Place
99 Wyse Road
Suite 1410
Dartmouth, Nova Scotia B3A 4S5
Tel.: 902-426-7997
Fax: 902-426-2721
  205 Viger Avenue West
Suite 504
Montréal, Quebec H2Z 1G2
Tel.: 514-283-6607
  55 St. Clair Avenue East
Suite 624
Toronto, Ontario M4T 1M2
Tel.: 416-952-9096
  Kensington Building
275 Portage Avenue
Suite 1810
Winnipeg, Manitoba R3B 2B3
Tel.: 204-983-6306
TDD: 204-983-8274
Fax: 204-983-6317
  Cornwall Professional Building
2125 - 11th Avenue
Room 103
Regina, Saskatchewan S4P 3X3
Tel.: 306-780-3422
  10405 Jasper Avenue
Suite 520
Edmonton, Alberta T5J 3N4
Tel.: 780-495-3224
  530-580 Hornby Street
Vancouver, British Columbia V6C 3B6
Tel.: 604-666-2111
TDD: 604-666-0778
Fax: 604-666-8322
  Secretary General
 

Related documents

 
  • Previews and promotional channels, Broadcasting Public Notice CRTC 2007-74, 5 July 2007
 
  • Determinations regarding certain aspects of the regulatory framework for over-the-air television, Broadcasting Public Notice CRTC 2007-53, 17 May 2007
 
  • Linkage requirements for direct-to-home (DTH) satellite distribution undertakings, Broadcasting Public Notice CRTC 2007-52, 16 May 2007
 
  • Distribution and linkage requirements for Class 1 and Class 2 licensees, Broadcasting Public Notice CRTC 2007-51, 16 May 2007
 
  • Exemption order respecting certain third-language television undertakings, Broadcasting Public Notice CRTC 2007-33, 30 March 2007
 
  • Historia, Séries+, Canal Vie, VRAK-TV, Ztélé, Canal D, Super Écran, Teletoon/Télétoon and MPix - Licence amendments, Broadcasting Decision CRTC 2007-2, 4 January 2007
 
  • Determination with respect to the marketing and billing practice by which a broadcasting distribution undertaking treats the provision of service to separate dwellings owned by the same person as a single subscription, Broadcasting Public Notice CRTC 2006-133, 20 October 2006
 
  • Bell ExpressVu Satellite Relay Distribution Undertaking - Licence renewal, Broadcasting Decision CRTC 2006-564, 28 September 2006
 
  • Amendment to section 22 of the Broadcasting Distribution Regulations, Broadcasting Public Notice CRTC 2006-119, 8 September 2006
 
  • Regulatory framework for the licensing and distribution of high definition pay and specialty services, Broadcasting Public Notice CRTC 2006-74, 15 June 2006
 
  • Applications for new pay television services, Broadcasting Decision CRTC 2006-193, 18 May 2006
 
  • Digital migration framework, Broadcasting Public Notice CRTC 2006-23, 27 February 2006
 
  • Changes to the distribution of the Cable Public Affairs Channel and the parliamentary programming service in response to a Direction from the Governor in Council, Broadcasting Public Notice CRTC 2006-5, 19 January 2006
 
  • Revised approach for the consideration of broadcasting licence applications proposing new third-language ethnic Category 2 pay and specialty services, Broadcasting Public Notice CRTC 2005-104, 23 November 2005
 
  • Good commercial practices, Broadcasting Public Notice CRTC 2005-35, 18 April 2005
 
  • Expedited procedure for resolving issues arising under the Broadcasting Act, Broadcasting Circular CRTC 2005-463, 18 April 2005
 
  • Improving the diversity of third-language television services - A revised approach to assessing requests to add non-Canadian third-language television services to the lists of eligible satellite services for distribution on a digital basis, Broadcasting Public Notice CRTC 2004-96, 16 December 2004
 
  • Requests to add non-Canadian third-language services to the lists of eligible satellite services for distribution on a digital basis, Broadcasting Public Notice CRTC 2004-50, 15 July 2004
 
  • Introductory statement to Broadcasting Decisions CRTC 2004-129 and 2004-130, which renew the licences of the ExpressVu and Star Choice direct-to-home satellite distribution undertakings, Broadcasting Public Notice CRTC 2004-19, 31 March 2004
 
  • ExpressVu - Licence renewal, Broadcasting Decision CRTC 2004-129, 31 March 2004
 
  • Star Choice - Licence renewal, Broadcasting Decision CRTC 2004-130, 31 March 2004
 
  • The regulatory framework for the distribution of digital television signals, Broadcasting Public Notice CRTC 2003-61, 11 November 2003
 
  • Amendments to the Exemption order for small cable undertakings,Broadcasting Public Notice CRTC 2002-74, 19 November 2002
 
  • Introductory statement to Decisions CRTC 2000-733 to 2000-738: Licensing of new video-on-demand and pay-per-view services, Public Notice CRTC 2000-172, 14 December 2000
 
  • Call for proposals to amend the lists of eligible satellite services through the inclusion of additional non-Canadian services eligible for distribution on a digital basis only, Public Notice CRTC 2000-173, 14 December 2000
 
  • Practices and procedures for resolving competitive and access disputes, Public Notice CRTC 2000-65, 12 May 2000
 
  • Final revisions to certain exemption orders, Public Notice CRTC 2000-10, 24 January 2000
 
  • Licensing framework policy for new digital pay and specialty services, Public Notice CRTC 2000-6, 13 January 2000
 
  • Broadcasting Distribution Regulations, Public Notice CRTC 1997-150, 22 December 1997
  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: www.crtc.gc.ca 
  Footnotes:

1 Pay, PPV, VOD and Specialty Services - Statistical and financial summaries 2002-2006.

2 As announced in a speech by the Chairman of the Commission at the Annual Conference of the British Columbia Association of Broadcasters in Penticton on 10 May 2007.

3 Recently, the Commission determined that an exception to its one-per-genre policy was appropriate in the pay sector given the health of the existing pay licensees and the significant increase in support for Canadian programming that would result (see Broadcasting Decision 2006-193).

4 In 2005, the Commission adopted an open-entry approach to third-language Category 2 services with an objective of maximizing the availability of such Canadian services and to improve the diversity and choice of programming available to underserved cultural and linguistic communities (see Broadcasting Public Notice 2005-104).

5 The exception being general interest, third-language, non-Canadian services, which are generally authorized for distribution in Canada, subject to specific distribution and linkage requirements. For the Commission's policies with respect to non-Canadian services, see Public Notice 2000-173, Broadcasting Public Notice 2004-50 and Broadcasting Public Notice 2004-96.

6 The Commission notes that, when BDUs are obliged to distribute a pay and specialty service, its general policy has been that a programmer should not be permitted to withhold the service from BDUs and their subscribers, for example, during negotiations as to new affiliation agreements.

7 This is the rule currently applicable to Class 3 systems and to digital Class 1 and 2 systems with less than 750MHz of capacity. See section 18(11.2) and section 33.3(1) of the Regulations.

8 See section 18(14), section 21, section 23(4), section 24(2), section 31, section 36 and section 41 of the Regulations. See also Public Notice 1997-150, at paragraph 100, where the Commission discusses an example of undue preference relevant to section 24(2) and section 41 of the Regulations.

9The services in question are Fairchild Television, Telelatino, Talentvision, South Asian Television and Odyssey. See section 18(5)(c) of the Regulations.

10See, for example, Broadcasting Decision 2006-564.

11 See the Appendix to Public Notice 2000-10.

12 These rules apply by virtue of sections 20 and 40(1) of the Regulations.

13 With regard to account stacking, see Broadcasting Public Notice 2006-133.

14 The Canadian services in question are those whose distribution is governed by section 18(5)(c) of the current Regulations, i.e. Fairchild Television, Telelatino, Talentvision, South Asian Television and Odyssey.

15 See section 20 and section 40(1) of the Regulations.

16By condition of licence, a minimum of 5% of English-language feature films, 8% of French-language feature films, and 20% of other programming made available by VOD and PPV undertakings must be Canadian. VOD and PPV undertakings are also required to contribute 5% of gross revenues to a Canadian program production fund.

17It should be noted that the Commission has issued an exemption order for third-language ethnic Category 2 pay and specialty services that meet specific criteria (Broadcasting Public Notice 2007-33).

18 The most recent versions of these are set out in: (a) the appendix to Broadcasting Public Notice 2002-74; and (b) Appendix II to Broadcasting Public Notice 2006-5.

19 See sections 17(2) and 32(2) of the Regulations. Priority signals are those that must be distributed as part of the basic service by virtue of sections 17(1) and 33(1).

20 See Appendix 1 to Broadcasting Public Notice 2006-5. The Commission notes that the status of services required to be distributed as part of the basic service by virtue of an order pursuant to section 9(1)(h) of the Act would not be affected by changes to the Regulations.

21 Section 32(1)(c) of the Regulations sets out a similar requirement with respect to Canadian Broadcasting Corporation (CBC) stations. It requires Class 3 licensees to distribute one CBC English-language television station and one CBC French-language television station, even if these signals are not received over the air, provided that the CBC makes the signals available and absorbs the costs for doing so. 

22 Section 37 of the Regulations sets out the services that DTH BDUs are currently required to distribute as part of the basic service.

23 See sections 27 through 29 and section 35 of the Regulations.

24 Sections 19, 33 and 39 of the Regulations set out, for Class 1 and 2, Class 3 and DTH licensees, respectively, those (primarily) television services that a BDU may distribute, but is not obliged to distribute. Sections 23 and 34 of the Regulations authorize the distribution of certain audio services. It is contemplated that the mechanism described here could replace these sections of the Regulations, and possibly any other sections that currently authorize, but do not require, the distribution of certain services.

25 Such a condition might read, for example: The licensee is authorized to distribute any service and to undertake any activities authorized in the public notice entitled Standard authorizations for broadcasting distribution undertakings, as amended from time to time, under the terms and conditions set out in the public notice.

26 The Cable Television Customer Service Standards were set out in a publication of that name issued by the CTSF in March 2001.

27 Available on the Commission's Web site under "Industries at a Glance".

28 At present, there are about ten Class 1 cable systems that remain rate regulated, out of about 140 Class 1 systems.  For those systems that remain rate regulated, the Commission notes the possibility of relying on conditions of licence to replace Part 5.

29 In general, an "upgraded version" of a service is a version that contains any amount of programming in HD.

30 In particular, requirements related to the distribution of independent small market television stations, the distribution of signals of the CBC and equitable distribution of television stations owned by larger private broadcast groups. See Broadcasting Public Notice 2004-19 and the related licensing decisions.

31 See, for example, Broadcasting Decision 2006-564.

Date Modified: 2008-04-30

Date modified: