ARCHIVED - Broadcasting Decision CRTC 2008-366

1. The licensee shall adhere to the Pay Television Regulations, 1990, with the exception of section 3(2)(d) pertaining to commercial messages and section 4 pertaining to logs and records.

2. The licensee shall not include, as part of its video-on-demand offering, any program containing a commercial message except where:

3. The licensee shall maintain for a period of one year and submit to the Commission upon request a detailed list of the inventory available on each file server. The list must identify each program by programming category and by country of origin and indicate the period of time that each program was on the server and available to subscribers.

4. Except as authorized by the Commission, the broadcasting undertaking licensed herein shall be operated in fact by the licensee itself.

5. The licensee shall ensure that, at all times:

6. The licensee shall contribute 5% of its gross annual revenues to an existing Canadian program production fund administered independently of its undertaking.

For the purposes of this condition:

7. The licensee shall ensure that not less than 25% of the titles promoted each month on its barker channel are Canadian titles.

8. The licensee shall remit to the rights holders of all Canadian feature films 100% of revenues earned from the exhibition of these films.

9. The licensee shall not enter into an affiliation agreement with the licensee of a broadcasting distribution undertaking unless the agreement incorporates a prohibition against linkage of its service with any non-Canadian discretionary service.

10. The licensee shall caption 100% of its programs over the broadcast day, consistent with the approach set out in A new policy with respect to closed captioning, Broadcasting Public Notice CRTC 2007-54, 17 May 2007.

11. The licensee shall adhere to the Equitable Portrayal Code, as amended from time to time and approved by the Commission. However, the application of the foregoing condition of licence will be suspended if the licensee is a member in good standing of the Canadian Broadcast Standards Council.

12. The licensee shall adhere to the Pay television and pay-per-view programming code regarding violence, as amended from time to time and approved by the Commission.

13. The licensee shall adhere to the Industry code of programming standards and practices governing pay, pay-per-view and video-on-demand services, as amended from time to time and approved by the Commission.

1) We know that the Broadcasting Act (the Act) gives us the flexibility to deal with these types of cases.

After acknowledging the community element of the Canadian broadcasting system, the Act states in section 3(1)(d)(ii) that the broadcasting system should "encourage the development of Canadian expression by providing a wide range of programming…"

With respect to the Commission's mission, the Act states in section 5(2)(c) that the system should be regulated and supervised in a manner that "is readily adaptable to scientific and technological change."

Finally, with respect to the Commission's general powers, the Act specifies that "the Commission may, in furtherance of its objects […] require any licensee who is authorized to carry on a distribution undertaking to give priority to the carriage of broadcasting" and "require any licensee who is authorized to carry on a distribution undertaking to carry, on such terms and conditions as the Commission deems appropriate, programming services specified by the Commission" (sections 9(1)(g) and (h)).

Of course, mediation is one of the tools available to the Commission, but it is not the only one. With reference to the Commission's jurisdiction, paragraph 12(1)(a) states that where it appears that "any person has failed to do any act or thing that the person is required to do pursuant to […] any licence […] the Commission may inquire into, hear and determine the matter."

2) As custodians of the Act, we are obliged to do everything in our power to promote community television just as we promote private and public television, but we must recognize that community television is unique in that it has limited access to financial resources, be they advertising revenues or government subsidies.

3) The proposed service would offer a few hours per week of programming and would be free of charge to VidéOptique subscribers.

4) To use a euphemism, the service would incur only marginal distribution costs for VidéOptique and would in no way limit its ability to offer feature films to its subscribers. In other words, imposing a requirement that VidéOptique offer community television programs would in no way be prejudicial to the undertaking. On the contrary, in my opinion, it would enhance its brand.

5) Given their size, the four broadcasting distribution undertakings (BDUs) carrying VidéOptique are unable to offer a full community television service to their subscribers.

6) If negotiations were to fail on this issue, subscribers would be deprived of a free community television service in their vicinity.

7) According to Mesure d'impact social et profil d'auditoire des télévisions communautaires autonomes du Québec, February 2007, a recent study conducted by Lynda Binhas, Ph.D. with a margin of error of ± 5%, 41% of television viewers watch their community station once to twice a week, and 25% of them tune in three to four times a week. The author considers that the study's results can be generalized across Quebec. Accordingly, we can confidently say that at least one-third, if not one-half, of subscribers to the four BDUs would take advantage of these free community television services.

8) Most community television services do not own the means of distribution for their content; that is the very nature of non-profit organizations. For them, access is fundamental. There is no doubt that VOD is a new, attractive and practically cost-free option for the VOD programming undertaking. Consequently, approving the request is in the interest of the entire broadcasting system; it would benefit the viewers and it would increase the audience share of community television.

9) VOD services, like conventional community channels, can also be vehicles for community-produced programs. In the past, two Canadian Prairie undertakings, MTS Communications Inc. (MTS) in Manitoba (Broadcasting Decision 2003-590) and Saskatchewan Telecommunications (SaskTel) in Saskatchewan (Broadcasting Decision 2003-451), indicated that they could offer, as part of their VOD services, a range of free services to enhance the availability of Canadian content. As potential services, they had listed concerts, music videos, sports programs, educational and children's programs and television programs. Of course, the term "television program" encompasses community television programs. The Western Canadian undertakings even added that although the programming would be offered mainly in English, their programming could include films in French or in other languages to meet demand. Why and in the name of what principle would these four small and no doubt dynamic undertakings refuse to give a boost to the Canadian broadcasting system, particularly when they themselves are not able to offer community television worthy of the name?