ARCHIVED - Broadcasting Decision CRTC 2011-124
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Route reference: 2010-715
Ottawa, 23 February 2011
Rogers Broadcasting Limited
Application 2010-1128-8, received 12 July 2010
Public Hearing in the National Capital Region
26 November 2010
Luxury Living – Category 2 specialty service
The Commission approves an application for a broadcasting licence to operate a new Category 2 specialty service.
1. Rogers Broadcasting Limited (Rogers) filed an application for a broadcasting licence to operate Luxury Living, a national, English-language Category 2 specialty programming undertaking that would be devoted to programming about the finer things in life. The service would feature all things that can bring a taste of the luxurious, from vacations and leisure activities to home furnishings, food and fashion.
2. Rogers is wholly owned and controlled by Rogers Communications Inc.
3. The applicant proposed to draw programming for the service from the following program categories set out in Item 6 of Schedule I to the Specialty Services Regulations, 1990, as amended from time to time: 2(a), 2(b), 5(a), 5(b), 7(a), 7(b), 7(c), 7(d), 10, 11, 12, 13, and 14.
4. To ensure that the service would not be directly competitive with existing Category 1 or analog pay or specialty services, the applicant indicated that it would accept a condition of licence stating that no more than 25% of all programming aired during the broadcast week shall be from any one programming genre (i.e., health, fashion, travel, food).
5. The Commission received an intervention in support of the application. Shaw Media, which operates Food Network Canada, filed an intervention in opposition. In addition, the Commission received a comment that did not address issues directly relevant to the present application. The public record for this proceeding is available on the Commission’s website at www.crtc.gc.ca under “Public Proceedings.”
Commission’s analysis and determinations
6. After examining the application in light of applicable policies and regulations, and taking into account the interventions received and the applicant’s reply, the Commission considers that the issue to be determined is whether Luxury Living would compete directly with Food Network Canada, an existing analog specialty service.
7. In Public Notice 2000-6, the Commission implemented a competitive, open-entry approach to licensing Category 2 services. While the Commission does not consider the impact that a Category 2 service might have on an existing Category 2 service, it does seek to ensure that Category 2 services do not compete directly with any existing Category 1 or analog pay or specialty service.
8. In Public Notices 2000-171 and 2000-171-1, the Commission adopted a case-by-case approach to determining whether a proposed Category 2 service should be considered directly competitive with an existing category 1 or analog pay or specialty service. The Commission examines each application in detail, taking into consideration the proposed nature of service and the unique circumstances of the genre in question.
9. In its intervention, Shaw Media objected to the portion of the application that would permit Luxury Living to devote up to 25% of its service to food-related programming. Shaw Media submitted that this could infringe on the genre exclusivity protection afforded to Food Network Canada, which, as an analog service, has higher Canadian content obligations than a Category 2 service. Shaw Media submitted that Luxury Living should be limited to a maximum of 10% food-related programming.
10. In reply, Rogers argued that a precedent exists that demonstrates that a limit of 25% on food-related programming is sufficient to satisfy the Commission’s competitiveness test. In this regard, Rogers cited Seniors’ Life HD, which the Commission approved in Broadcasting Decision 2007-51. In that decision, food is mentioned as one of the genres of programming that Seniors’ Life HD may distribute. However, the licence is subject to a condition specifying that no more than 25% of all programming broadcast during the broadcast week shall be devoted to programming from any one genre.
11. The Commission further notes that the Category 2 service Showcase Action has a condition of licence specifying that not more than 25% of all programming broadcast during the broadcast week may consist of programs based on science fiction or fantasy themes, which ensures that Showcase Action is not competitive with the specialty service known as Space. Similarly, the Commission is of the view that the 25% limit on food-related programming proposed for Luxury Living is sufficient to ensure that the service is not competitive with Food Network Canada.
12. The Commission is satisfied that the application complies with the frameworks set out in Public Notice 2000-6 and Broadcasting Public Notice 2008-100, with the approaches set out in Broadcasting Public Notices 2003-61 and 2006-74, and with all applicable terms and conditions set out in Public Notice 2000-171-1 Accordingly, the Commission approves the application by Rogers Broadcasting Limited for a broadcasting licence to operate the national, English-language Category 2 specialty programming undertaking Luxury Living. The terms and conditions of licence are set out in the appendix to this decision.
13. The Commission reminds the applicant that the distribution of this service is subject to the applicable distribution rules set out in Broadcasting Public Notice 2008-100.
Regulatory frameworks for broadcasting distribution undertakings and discretionary programming services – Regulatory policy, Broadcasting Public Notice CRTC 2008-100, 30 October 2008
Seniors’ Life HD – Category 2 specialty service, Broadcasting Decision CRTC 2007-51, 2 February 2007
Regulatory framework for the licensing and distribution of high definition pay and specialty services, Broadcasting Public Notice CRTC 2006-74, 15 June 2006
The regulatory framework for the distribution of digital television signals, Broadcasting Public Notice CRTC 2003-61, 11 November 2003
Introductory statement – Licensing of new digital pay and specialty services – Corrected Appendix 2, Public Notice CRTC 2000-171-1, 6 March 2001
Action Television, Decision CRTC 2000-675, 14 December 2000
Introductory statement – Licensing of new digital pay and specialty services, Public Notice CRTC 2000-171, 14 December 2000
Licensing framework policy for new digital pay and specialty services, Public Notice CRTC 2000-6, 13 January 2000
*This decision is to be appended to the licence.
Appendix to Broadcasting Decision CRTC 2011-124
Terms and conditions of licence for the Category 2 specialty programming undertaking Luxury Living
A licence will be issued once the applicant has satisfied the Commission, with supporting documentation, that the following requirements have been met:
the applicant has entered into a distribution agreement with at least one licensed distributor; and
the applicant has informed the Commission in writing that it is prepared to commence operations and has provided the Commission with a launch date for the service. The undertaking must be operational at the earliest possible date and in any event no later than 48 months from the date of this decision.
The licence will expire 31 August 2017.
Conditions of licence
1. The licence will be subject to the conditions set out in Introductory statement – Licensing of new digital pay and specialty services – Corrected Appendix 2, Public Notice CRTC 2000-171-1, 6 March 2001.
2. The licence will be subject to the conditions set out in Implementation of the Accessibility Policy with respect to Category 2 pay and specialty services, Broadcasting Regulatory Policy CRTC 2010-355, 8 June 2010.
3. The licensee shall provide a national, English-language Category 2 specialty programming service devoted to programming about the finer things in life. The service will feature all things that can bring a taste of the luxurious, from vacations and leisure activities to home furnishings, food and fashion.
4. The programming shall be drawn exclusively from the following program categories set out in Item 6 of Schedule I to the Specialty Services Regulations, 1990, as amended from time to time:
2 (a) Analysis and interpretation
(b) Long-form documentary
5 (a) Formal education and pre-school
(b) Informal education/Recreation and leisure
7 Drama and comedy
(a) Ongoing dramatic series
(b) Ongoing comedy series (sitcoms)
(c) Specials, mini-series or made-for-TV feature films
(d) Theatrical feature films aired on TV
10 Game shows
11 General entertainment and human interest
13 Public service announcements
14 Infomercials, promotional and corporate videos
5. No more than 10% of all programming broadcast during the broadcast week shall be drawn from category 7.
6. No more than 25% of all programming broadcast during the broadcast week shall be drawn from any one programming genre (i.e., health, fashion, travel, food).
7. In order to ensure that the licensee complies at all times with the Direction to the CRTC (Ineligibility of non-Canadians), P.C. 1997-486, 8 April 1997, as amended by P.C. 1998-1268, 15 July 1998, the licensee shall file, for the Commission’s prior review, a copy of any programming supply agreement and/or licence trademark agreement it intends to enter into with a non-Canadian party.
8. The licensee is authorized to make available for distribution a version of its service in high definition (HD) format, provided that not less than 95% of the video and audio components of the upgraded and standard definition versions of the service are the same, exclusive of commercial messages and of any part of the service carried on a subsidiary signal. Further, all of the programming making up the 5% allowance shall be provided in HD.
For the purposes of the conditions of this licence, including condition of licence 1, broadcast day means the period of up to 18 consecutive hours, beginning each day not earlier than six o’clock in the morning and ending not later than one o’clock in the morning of the following day, as selected by the licensee, or any other period approved by the Commission.
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