ARCHIVED - Broadcasting Decision CRTC 2011-737

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Additional reference : 2011-737-1

Route reference: 2011-317

Ottawa, 30 November 2011

Bell Canada
Hamilton/Niagara, Kingston, Kitchener, London, Oshawa, Ottawa, Peterborough, Stratford, Toronto, Windsor and their surrounding areas, Ontario

Drummondville (region of Centre-du-Québec), Gatineau, Joliette (region of Lanaudière), Montréal, Québec, Saint-Jérôme (region of Laurentides), Sherbrooke, Trois-Rivières (region of Mauricie) and their surrounding areas, Quebec

Applications 2011-0186-5 and 2011-0203-7, received 1 February 2011

Regional broadcasting licences for terrestrial broadcasting distribution undertakings serving various communities in Ontario and Quebec – Licence renewals and amendments

The Commission renews the regional broadcasting licences for the terrestrial broadcasting distribution undertakings serving Hamilton/Niagara, Kitchener, London, Oshawa, Ottawa, Toronto, Windsor and their surrounding areas in Ontario and Gatineau, Montréal, Québec, Sherbrooke and their surrounding areas in Quebec from 1 December 2011 to 31 August 2018.

The Commission approves the proposed redefinition of some of the licensed areas, as well as the addition of licensed areas in Kingston, Peterborough and Stratford and their surrounding areas in Ontario and Drummondville (region of Centre-du-Québec), Joliette (region of Lanaudière), Saint­-Jérôme (region of Laurentides), Trois-Rivières (region of Mauricie) and their surrounding areas in Quebec.

The Commission also approves the addition, amendment and deletion of various conditions of licence, as discussed in the decision. However, the Commission notes that certain conditions of licence, either previously granted or requested as part of these renewals, are no longer required due to the implementation of the amended Broadcasting Distribution Regulations, which came into effect on 1 September 2011.

Introduction

1.    The Commission received applications by Bell Canada (Bell) to renew the regional broadcasting licences for its terrestrial broadcasting distribution undertakings (BDUs) serving:

• Hamilton/Niagara, Kitchener, London, Oshawa, Ottawa, Toronto, Windsor and their surrounding areas, Ontario; and

• Gatineau, Montréal, Québec, Sherbrooke and their surrounding areas, Quebec.

2.    The current licences expire 30 November 2011.^[1]

3.    Bell requested a redefinition of some of its licensed areas (i.e. extensions to current licensed areas), as well as the addition of service areas in Kingston, Peterborough and Stratford and their surrounding areas in Ontario and Drummondville (region of Centre-du-Québec), Joliette (region of Lanaudière), Saint-Jérôme (region of Laurentides), Trois-Rivières (region of Mauricie) and their surrounding areas in Quebec, as set out in its applications.

4.    Bell also requested an authorization to provide an outlet for local expression using, in whole or in part, the video-on-demand (VOD) service licensed to Bell ExpressVu Inc. (the general partner) and Bell Canada (the limited partner), carrying on business as Bell ExpressVu Limited Partnership (ExpressVu). Bell further requested that in licensed areas where it serves 20,000 or fewer subscribers, it be authorized to allocate its entire 5% contribution to Canadian programming to local expression.

5.    Bell also proposed to add, amend or delete various other conditions of licence, as set out in its applications and discussed further in this decision. Finally, Bell stated its willingness to accept a condition of licence requiring it to provide one or more simple means of accessing described programming and committed to meet the requirements regarding customer service and information set out in Broadcasting and Telecom Policy 2009-430 (the Accessibility Policy).

6.    The Commission received an intervention in opposition to the applications from the Canadian Association of Community Television Users and Stations (CACTUS), as well as interventions in opposition to the application to renew the regional licence for the BDUs in Quebec from the English-Language Arts Network of Quebec (ELAN) and the Quebec Community Groups Network (QCGN). It also received comments from Cogeco Cable Inc. (Cogeco) and Rogers Communications Partnership (Rogers). The public record for these applications can be found on the Commission’s website at www.crtc.gc.ca under “Public Proceedings.”

7.    After examining the public record for the applications in light of applicable regulations and policies, the Commission considers that the issues it must address are the following:

• Bell’s proposals for local expression; and

• other matters.

Bell’s proposals for local expression

8.    As noted above, Bell proposed to distribute a VOD-based outlet for local expression through the VOD service licensed to ExpressVu. Bell also requested that in licensed areas where it serves 20,000 or fewer subscribers, it be authorized to allocate its entire 5% contribution to Canadian programming to local expression.

Interventions and applicant’s reply

9.    CACTUS, ELAN and the QCGN asked that Bell’s application(s) to renew its regional licence(s) be denied on the basis that Bell had not adhered to the requirements of Broadcasting Regulatory Policies 2010-622 and 2010-622-1 (the Community Television Policy).

10.    Both CACTUS and ELAN submitted that Bell did not provide sufficient information to allow interested parties to effectively evaluate its plan to provide an outlet for local expression using, in whole or in part, ExpressVu’s VOD service. CACTUS recommended that a unique programming facility be established in each community served and that not-for-profit community-based organizations be able to ask for the applicable revenue percentage to operate a community-based programming undertaking if Bell cannot meet the rule requiring licensees to devote no less than 60% of the programming aired each broadcast week to local community television programming.

11.    ELAN and the QCGN noted that Bell did not outline any plans or commitments for its community channel in Quebec with respect to the reflection of the English-language minority community in the Montréal licensed area, contrary to the expectation set out in the Community Television Policy. ELAN also noted that Bell did not mention that it had or would engage the community through community advisory boards, contrary to the encouragement set out in the Community Television Policy.

12.    Rogers and Cogeco expressed concern over the proposal to allow a transfer of community programming between Bell and ExpressVu. Cogeco in particular submitted that the Community Television Policy did not permit the transfer of community television programming to the VOD platforms of other licensees or a delegation of control over programming to another licensee.

13.    For its part, although it did not object to Bell’s proposal to use the VOD platform as an outlet for local expression,[2] rogers expressed concern about how the commission would ensure that bell’s provision of community programming on the vod platform would comply with the community television policy. rogers noted that unlike a linear television service that has a finite number of scheduled hours, a vod service can be accessed any time. rogers was of the view that this posed a significant challenge for monitoring compliance with the community television policy. therefore, rogers urged the commission to collect sufficient information in its reporting forms[3] and requested that the Commission clearly indicate in its decision that it would do so. Rogers also emphasized the importance of ensuring that all BDUs are held to the same rigorous reporting standards to ensure that local and access programming requirements are met in each licensed area and that contribution funding generated in a broadcast year is spent on new community programming.

14.    In its reply, Bell submitted that CACTUS’s recommendations would involve imposing requirements on Bell that were considerably more onerous than those in place for the community channels of other BDUs and should therefore be rejected. Bell argued that CACTUS’s proposals would amount to a change in the Community Television Policy and that such a policy change should not take place as part of a licence renewal process, particularly not for licensees whose community channels had not yet commenced operations. The licensee further explained that its plans to provide a community channel were not sufficiently advanced to outline the details deemed necessary. To address the concerns above, Bell submitted that it would comply with the new policy over the next licence term.

15.    In response to Cogeco’s submission, Bell noted that as a licensee of a national, terrestrial VOD service, ExpressVu is not restricted by regulation from striking an affiliation agreement for content distribution with a BDU. Bell submitted that Cogeco was proposing that the Commission adopt a new rule restricting VOD-based community channels from being offered by any distributor other than one that also had a VOD licence, which would constitute an unnecessary and artificial impediment to the provision of community programming for BDU subscribers.

16.    In response to Rogers’ concerns over compliance with reporting requirements, Bell again confirmed that it intended to adhere to the Commission’s Community Television Policy. Bell was also of the view that Rogers’ proposals for reporting requirements should apply not only to Bell but also to all other BDUs.

Commission’s analysis and decisions

17.    The Commission has given careful consideration to the concerns expressed by interveners regarding Bell’s request to be authorized to provide an outlet for local expression through the use of ExpressVu’s VOD service. The Commission notes that Bell and ExpressVu are both owned and controlled by BCE Inc. Moreover, as a partner, Bell is a licensee together with Bell ExpressVu Inc. of the VOD service operated under the Bell ExpressVu Limited Partnership. As such, the Commission is satisfied that Bell will be entirely responsible for the community programming on the VOD service provided on its BDUs, in the same manner as other BDUs that offer community programming on their VOD services. In this respect, the Commission notes that it has approved applications by a number of other BDUs to provide community programming on a VOD basis.[4] The terms and conditions for these VOD-based community programming services are set out in the approval decisions and are similar to those proposed by Bell. Accordingly, the outlet for local expression proposed by Bell would be operated under terms and conditions of licence similar to those of other BDUs.  

18.    The Commission acknowledges Bell’s willingness to adhere to the provisions set out in the Community Television Policy. However, it also recognizes the concerns expressed by interveners regarding the lack of information provided by Bell as to how it will operate the VOD service as an outlet for local expression and in accordance with the Community Television Policy.

19.    The Commission notes that there is particular uncertainty as to the operation of VOD-based outlets for local expression in areas where Bell is not yet in operation. For instance, in such situations, it is not clear where and how community programming will be produced or by what means community members will have opportunities to be involved in the production of access programming, as required by the Community Television Policy. Accordingly, the Commission also deems it appropriate to require Bell to submit reports (one for its regional licence in Quebec and one for its regional licence in Ontario) once it has commenced providing community programming on a VOD basis in Quebec and/or Ontario. These reports must outline how the licensee will be operating in accordance with the provisions set out in the Community Television Policy, particularly as it pertains to:

• information regarding the provision of distinct local content for each undertaking under the regional licences and the expenses made towards new and distinct programming provided by these undertakings, on a yearly basis;

• the amount and types of local community programming that are or will be available in each licensed area;

• the amount and types of community programming, other than local, that are or will be available in each licensed area;

• the amount and types of access programming that are or will be available in each licensed area (information with respect to expenditures and exhibition requirements for each undertaking);

• proposed accountability and reporting measures; and

• other related information regarding community programming (e.g. promotion of access programming initiatives and community outreach initiatives, information regarding volunteer participation and production facilities and contact information for enquiries on access programming).

20.    Bell must submit these reports no later than 30 days after it has commenced providing community programming on a VOD basis.

21.    It should be noted that the Commission is currently in the process of amending its application forms to reflect the provisions set out in the Community Television Policy. The information requested from Bell in these reports will essentially be the same as what will be included in the amended forms and will apply to future licence renewal applications for other BDUs.

22.    In light of the above, the Commission is satisfied that Bell’s request to provide a VOD-based community programming service is consistent with similar applications for VOD services previously approved by the Commission. The Commission is of the view that while these past and current applications introduce a model for the provision of local expression that differs from the traditional model, such an approach is consistent with its intention to encourage innovative proposals for outlets for local expression, as originally set out in Public Notice 1997-25. Accordingly, the Commission approves the request by Bell Canada to provide an outlet for local expression through the use of ExpressVu’s VOD service. The Commission notes that other BDUs that are authorized to provide Canadian programming on a VOD basis are subject to conditions of licence establishing requirements for community programming that substantially parallel those for linear community channels. Therefore, in the appendix to this decision, the Commission has imposed similar conditions of licence, which reflect the provisions of the amended Broadcasting Distribution Regulations (the Regulations) concerning the community channel.

23.    The Commission, however, denies Bell’s request to be allowed to direct its entire 5% contribution to Canadian programming to local expression in licensed areas in which it has 20,000 or fewer subscribers. With the introduction of the amended Regulations, which came into effect on 1 September 2011, all licensed terrestrial BDUs are subject to the same requirements concerning contributions to Canadian programming and the provision of outlets for local expression. Distinctions are no longer made for BDUs that serve 20,000 or fewer subscribers since these BDUs are now, to a large extent, exempted from the amended Regulations. Approval of Bell’s request would therefore be inconsistent with these amendments and the Community Television Policy. However, in Broadcasting Public Notice 2008-100, the Commission noted that in certain circumstances BDUs operating under regional licences are permitted to remove a service area from that licence and operate in that area as a “discrete operation” that would be eligible for exemption under the exemption order set out in Broadcasting Order 2009-544.

24.    Under section 34(4)(a) of the amended Regulations, if a licensed BDU distributes its own community channel, it must make a contribution to Canadian programming that is equal to 5% of its gross annual revenues derived from broadcasting activities, less any contribution to local expression made by the licensee in that broadcast year. In its application, Bell requested that it be allowed to redirect up to 2% of its gross annual revenues derived from broadcasting activities to the VOD outlet for local expression. Bell proposed the addition of a condition of licence in that regard.

25.    As an exception to the requirements set out in section 34 of the Regulations, the Commission is authorizing Bell by condition of licence to redirect up to 2% of its gross annual revenues derived from broadcasting activities to the VOD outlet for local expression. The Commission notes that it has approved similar conditions for other BDUs that distribute community programming on their VOD services. Conditions of licence to this effect are set out in the appendix to this decision.

Other matters

Distribution of WGBH-FM Boston and KUOW-FM Seattle

26.    Bell requested the authorization to distribute WGBH-FM Boston and KUOW-FM Seattle, two member stations of the non-Canadian audio programming service National Public Radio, in all of its licensed areas in Ontario and Quebec, including the new proposed service areas. The Commission notes that the authorization requested by Bell is consistent with authorizations previously granted to other BDUs in similar cases. Accordingly, the Commission authorizes Bell to distribute WGBH-FM Boston and KUOW-FM Seattle. Conditions of licence to that effect are set out in the appendix to this decision.

Distribution of U.S. 4+1 signals as part of the basic service

27.    For its proposed service areas in Kingston, Peterborough and Stratford, Bell requested authorization to distribute, as part of the basic service, a specific set of U.S. 4+1 signals[5] or different U.S. 4+1 signals originating in the same time zone as that of the licensed areas.

28.    The Commission notes that it has already granted this authorization to Bell for its other licensed areas under its regional licences in Ontario and Quebec, as well as to other BDUs. Accordingly, the Commission has set out conditions of licence to this effect in the appendix to this decision.

29.    Similarly, for its proposed service areas in Drummondville, Joliette, Saint-Jérôme and Trois-Rivières, Bell also requested the authorization to distribute as part of the basic service a specific set of U.S. 4+1 signals or different U.S. 4+1 signals originating in the same time zone as that of the licensed areas. However, Bell requested an additional PBS signal for these locations. The Commission notes that BDUs are generally limited to a maximum of two sets of U.S. 4+1 signals, including one that is offered as part of the basic service. Bell did not provide a rationale as to why it should be authorized to distribute an additional PBS signal as part of the basic service. Therefore, the Commission will permit Bell to choose which of the two proposed PBS signals it will distribute as part of the basic service in each licensed area but will not authorize the licensee to offer both of these services. Conditions of licence to that effect are set out in the appendix to this decision.

30.    The Commission notes that in the case of the Saint-Jérôme licensed area, WCFE-TV may already be available over-the-air. If such is the case, this service would be authorized through the Regulations and a condition of licence authorizing the distribution of this service would not be necessary.

Distribution of WNYO-TV Buffalo

31.    Bell requested the authorization to distribute the signal of WNYO-TV Buffalo on a discretionary basis in Kingston, Peterborough and Stratford. The Commission notes that it has already granted this authorization to Bell for other licensed areas under its regional licences in Ontario and Quebec, as well as to other BDUs. Accordingly, the Commission authorizes Bell to distribute the signal of WNYO-TV Buffalo on a discretionary basis in Kingston, Peterborough and Stratford. Conditions of licence to that effect are set out in the appendix to this decision.

Distribution of distant Canadian television signals and a second set of U.S. 4+1 signals

32.    The amended Regulations address, among other things, the distribution by terrestrial BDUs of distant Canadian signals and a second set of U.S. 4+1 signals. Accordingly, the Commission notes that existing and new conditions of licence authorizing Bell to distribute, in certain of its licensed areas, distant Canadian signals, either as part of the basic service or on a discretionary basis, and a second set of U.S. 4+1 signals on a discretionary basis are no longer required and are therefore not included in the appendix to this decision. Instead, the Commission is of the view that these signals should be distributed in accordance with the regime established in the amended Regulations.

Redefinition of the licensed areas and addition of new undertakings under the regional licences

33.    The Commission considers Bell’s proposed redefinition of some of its licensed areas in Ontario and Quebec, as well as the proposed addition of service areas in Kingston, Peterborough and Stratford and their surrounding areas in Ontario and Drummondville, Joliette, Saint-Jérôme, Trois-Rivières and their surrounding areas in Quebec, to be appropriate.

Implementation of the Commission’s determinations regarding accessibility of services

34.    In the Accessibility Policy, the Commission stated its intention to impose on BDUs at their licence renewal a number of requirements and expectations concerning customer service, access to described video and accessibility of programming.

35.    Further, in the Community Television Policy, the Commission stated that it intended to impose conditions of licence requiring licensed BDUs that operate community channels to caption 100% of original licensee-produced programming by the end of the next licence term. The Commission also indicated that it expected licensed BDUs to ensure that 100% of original access programming on the community channel is captioned by the end of the next licence term. Finally, the Commission stated that it intended to impose conditions of licence requiring licensed BDUs that operate community channels to provide audio description (that is, the voice-over of key textual, graphic design and still image elements, such as phone numbers, stock information or weather maps that are posted on the screen) for all information programs and news programming. Accordingly, the Commission has set out conditions of licence and expectations to this effect in the appendix to this decision.

36.    As indicated above, Bell stated that it was prepared to accept a condition of licence requiring it to provide one or more simple means of accessing described programming, whether in an open or embedded format. A condition of licence to that effect is also set out in the appendix to this decision.

37.    Consistent with the Accessibility Policy, the Commission expects Bell to ensure that subscribers are able to identify programming with described video in the electronic program guide and to make information available in alternative formats to subscribers regarding, among other things, the programming and services offered and the channel line-up. The Commission further encourages the licensee to ensure that its set-top boxes are accessible to subscribers with vision and fine motor skill disabilities.

38.    In addition, consistent with the Accessibility Policy and the licensee’s commitments, Bell is required to provide and promote specific information in an accessible manner, to ensure the accessibility of specific customer service functions and to ensure that the use of alternate avenues of customer service do not result in a disadvantage to persons with disabilities.

39.    The Commission notes that it may impose further conditions of licence concerning accessibility matters five years into the licence term, if deemed appropriate.

Conclusion

40.    In light of the foregoing, the Commission renews the regional broadcasting licences for the terrestrial broadcasting distribution undertakings serving Hamilton/Niagara, Kitchener, London, Oshawa, Ottawa, Toronto, Windsor and their surrounding areas in Ontario and Gatineau, Montréal, Québec and Sherbrooke and their surrounding areas in Quebec from 1 December 2011 to 31 August 2018. The Commission also approves the proposed redefinition of some of the above-noted licensed areas, as well as the addition of licensed areas in Kingston, Peterborough and Stratford and their surrounding areas in Ontario and Drummondville (region of Centre-du-Québec), Joliette (region of Lanaudière), Saint-Jérôme (region of Laurentides), Trois-Rivières (region of Mauricie) and their surrounding areas in Quebec. The licences will be subject to the conditions specified therein, as well as to the terms and conditions set out in the appendix to this decision.

41.    The Commission notes that certain references contained in the conditions of licence set out in the appendix to this decision, which refer to specific sections of the Regulations, have been updated to reflect the appropriate sections in the amended Regulations.

Employment equity

42.    Because the licensee is subject to the Employment Equity Act and files reports concerning employment equity with the Department of Human Resources and Skills Development, its employment equity practices are not examined by the Commission.

Secretary General

Related documents

• Administrative renewals, Broadcasting Decision CRTC 2011-531, 26 August 2011

• Amendments to the Broadcasting Distribution Regulations and other Commission Regulations, Regulatory Policy CRTC 2011-455, 29 July 2011

• Community television policy, Broadcasting Regulatory Policy CRTC 2010-622-1, 13 September 2010

• Community television policy, Broadcasting Regulatory Policy CRTC 2010-622, 26 August 2010

• Exemption order for terrestrial broadcasting distribution undertakings serving fewer than 20,000 subscribers, Broadcasting Order CRTC 2009-544, 31 August 2009

• Accessibility of telecommunications and broadcasting services, Broadcasting and Telecom Regulatory Policy CRTC 2009-430, 21 July 2009

• Regulatory frameworks for broadcasting distribution undertakings and discretionary programming services – Regulatory policy, Broadcasting Public Notice CRTC 2008-100, 30 October 2008

• Licence amendments related to the funding and provision of an outlet for local expression, Broadcasting Decision CRTC 2008-136, 30 June 2008

• Licence amendments related to the provision of an outlet for local expression by video-on-demand, Broadcasting Decision CRTC 2008-135, 30 June 2008

• Licence amendments related to the funding and provision of an outlet for local expression, Broadcasting Decision CRTC 2007-86, 16 March 2007

• Licence amendments related to the funding and provision of an outlet for local expression, Broadcasting Decision CRTC 2006-490, 8 September 2006

• New regulatory framework for broadcasting distribution undertakings, Public Notice CRTC 1997-25, 11 March 1997

*This decision is to be appended to each licence.

Footnotes

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[1] The licences were administratively renewed from 1 September to 30 November 2011 in Broadcasting Decision 2011-531.

[2] Rogers noted that it offered a subset of community programming originally aired on its linear community channels on its VOD service and that the Commission has authorized several BDUs to use the VOD platform as an outlet for local expression.

[3] In the appendix to the Community Television Policy, the Commission stated that beginning in the 2011-2012 broadcast year (1 September 2011 to 31 August 2012), licensed and exempt BDUs with more than 2,000 subscribers shall report various information related to local expression as part of their annual returns.

[4] These include applications by Saskatchewan Telecommunications (Broadcasting Decision 2006-490), MTS Allstream Inc. (Broadcasting Decision 2007-86) and TELUS Communications Inc., and 1219823 Alberta ULC in partnership with TELUS Communications Inc. in TELE-MOBILE Company, partners in a general partnership carrying on business as TELUS Communications Company (Broadcasting Decisions 2008-135 and 2008-136).

[5] “U.S. 4+1 signals” refers to a set of signals that provides the programming of the four U.S. commercial networks (CBS, NBC, ABC, FOX) and the non-commercial PBS network.