ARCHIVED - Broadcasting Decision CRTC 2013-468

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Route reference: 2013-19

Additional references: 2013-19-1, 2013-19-2, 2013-19-3 and 2013-19-4

Ottawa, 30 August 2013

Various licensees
Across Canada

The application numbers are set out below.
Public hearing in the National Capital Region
23 April 2013

Various independent pay and specialty Category A services – Licence renewals

The Commission renews the broadcasting licences for the independent pay and specialty Category A services Super Channel, iChannel, OUTtv, The Brand New ONE: Body Mind Spirit Love Channel, Fairchild TV, Talentvision, Odyssey and ATN South Asian Television. The expiry dates for these licences are set out in the appropriate appendices to this decision.

The Commission also sets out its determinations relating to Canadian programming expenditures, expenditures on programs of national interest, Canadian programming exhibition requirements, the licensing of Canadian films, independent production and terms of trade agreements, as well as the length of the licence term for the various services.

Finally, the Commission:

denies the request to remove limits on certain program categories for iChannel;
denies the requests for amendments to or relief from the standard accessibility requirements for Super Channel, The Brand New ONE: Body Mind Spirit Love Channel, Fairchild TV, Talentvision and ATN South Asian Television;
approves the requests regarding the broadcast of advertising for Fairchild TV, Talentvision, Odyssey and ATN South Asian Television;
approves the request to operate under the same terms and conditions of licence in effect under the current licence term, with the exception of the standard conditions applicable to pay and specialty Category A services, for Odyssey; and
amends certain conditions of licence, expectations and encouragements to address issues for the various services.

Introduction

1. The Commission received applications to renew the broadcasting licences for the following independent pay and specialty Category A services, which expire 31 August 2013:^{Footnote 1}

Licensee	Application number and date received	Service
Allarco Entertainment 2008 Inc., the general partner, as well as limited partner, with C.R.A. Investments Ltd. (the limited partners), carrying on business as Allarco Entertainment Limited Partnership (Allarco)	2012-1037-7 24 August 2012	Super Channel
Stornoway Communications General Partnership Inc. (the general partner) and 1403318 Ontario Limited (the limited partner), carrying on business as Stornoway Communications Limited Partnership (Stornoway)	2012-1165-6 13 September 2012	iChannel
OUTtv Network Inc.	2012-1177-1 13 September 2012	OUTtv
ZoomerMedia Limited (ZoomerMedia)^{Footnote 2}	2012-1191-1	The Brand New ONE: Body Mind Spirit Love Channel (ONE)
Fairchild Television Ltd. (Fairchild)	2012-1064-0 29 August 2012	Fairchild TV
Fairchild Television Ltd. (Fairchild)	2012-1216-7 26 September 2012	Talentvision
Odyssey Television Network Inc. (Odyssey Television)	2012-0871-0 20 July 2012	Odyssey (formerly OTN1)
South Asian Television Canada Limited (ATN)	2012-1169-8 13 September 2012	ATN South Asian Television (SAT)

2. The Commission received numerous interventions in this proceeding, almost all of which related to mandatory distribution of services under section 9(1)(h) of the Broadcasting Act (the Act). The Commission addressed mandatory distribution in Broadcasting Regulatory Policy 2013-372. The public record for this proceeding can be found on the Commission’s website at www.crtc.gc.ca under “Public Proceedings.”

3. The Commission notes that these pay and specialty Category A services are owned by independent broadcasters that are not part of a large ownership group, and play an important role in the provision of diverse Canadian programming that serves the needs and interests of communities across the country. In rendering its determinations, the Commission’s intent is to ensure that these independent services continue to contribute to the achievement of the objectives of the Act, including the following:

each programming undertaking shall make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation and presentation of programming, unless the nature of the service provided by the undertakings, such as specialized content or format or the use of languages other than French and English, renders that use impracticable, in which case the undertaking shall make the greatest practicable use of those resources (section 3(1)(f));

the Canadian broadcasting system should encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis concerning Canada and other countries form a Canadian point of view (section 3(1)(d)(ii)); and

the programming provided by the Canadian broadcasting system should be varied and comprehensive, providing a balance of information, enlightenment and entertainment for men, women and children of all ages, interests and tastes (section 3(1)(i)(i)).

4. The Commission’s determinations also implement a number of recent policy changes, such as those set out in the standard conditions of licence, expectations and encouragements for specialty and pay television Category A services.^{Footnote 3} The Commission’s intent is to ensure that licensing and regulation, particularly in regard to smaller independent services, is as flexible, responsive and targeted as possible to allow television services to adapt to the changing communications environment. Moreover, the renewal of these independent services will ensure that Canadians continue to have access to diverse programming from a wide range of television services and that the programming offered will meet the needs and interests of Canadians.

Commission’s analysis and decisions

5. After examining the applications in light of applicable regulations and policies, the Commission considers that the issues it must address relate to the following:

proposed amendments to Canadian programming exhibition requirements;
proposed amendments to Canadian programming expenditure (CPE) requirements;
the licensing of Canadian films;
requirements relating to independent production and terms of trade agreements;
the removal of limits on certain program categories;
reductions to or relief from the standard accessibility requirements;
the broadcast of advertising;
request to operate under the same terms and conditions;
expectations relating to closed captioning for certain services;
other matters relating to conditions of licence, expectations and encouragements for the various services; and
non-compliance and the length of the licence term.

Amendments to Canadian programming exhibition requirements

6. Stornoway, licensee of iChannel, and OUTtv Network Inc., licensee of OUTtv, requested reductions in their requirements to broadcast Canadian content during the broadcast day from 65% to 55% on iChannel and from 65% to 50% on OUTtv, respectively. ZoomerMedia, licensee of ONE, requested a reduction in its requirement to broadcast Canadian content during the evening broadcast period from 60% to 50% on ONE.

7. These licensees argued that the size of their operations limits their ability to acquire a sufficient volume of timely, high quality and competitive Canadian programming in contrast to their vertically integrated competitors. They added that the proposed amendments would allow them to concentrate on the production of the highest quality of Canadian programming possible instead of emphasizing quantity.

8. The Commission agrees with the licensees’ arguments and notes that iChannel, OUTtv and ONE’s current Canadian programming exhibition requirements are higher than those of most Category A services. It further notes that the proposed levels would be consistent with the requirements of other such services.

9. In light of the above, the Commission approves the licensees’ requests to reduce the Canadian programming exhibition levels from 65% to 55% during the broadcast day for iChannel and from 60% to 50% during the evening broadcast period for ONE. In regard to OUTtv Network Inc.’s request, the Commission considers that a 50% exhibition requirement is an insufficient contribution to the Canadian broadcasting system, as mandated by the Act. The Commission considers that OUTtv should be subject to the same Canadian content requirement of 55% during the broadcast day as iChannel. The Commission therefore approves in part OUTtv’s request to reduce its service’s Canadian programming exhibition requirement. Conditions of licence to that effect are set out in Appendices 2, 3 and 4.

Amendments to CPE requirements

10. The Commission notes that CPE requirements for pay and specialty Category A services are not uniform throughout the Canadian television sector. The level of spending on Canadian programs is tailored to a service’s nature of service and projected revenues (including subscriber revenues). Varying levels can also be attributed to the fact that the applicants themselves propose different levels at the time they file an application for a new service and that these proposals serve as a baseline to the levels approved by the Commission. In the group-based policy, the Commission indicated that it would consider requests for reductions in CPE for specialty services at licence renewal, due to its decision to no longer permit licensees to count licence-fee “top-ups” paid by the Canada Media Fund (CMF) as an eligible Canadian programming expenditure.

Super Channel

Licensee’s proposal

11. Allarco made several requests to amend the conditions of licence regarding CPE that were approved by the Commission in Super Channel’s original licensing decision.^{Footnote 4} In each broadcast year, the licensee is currently required to expend at least $1 million on regional outreach programs and $2 million on script and concept development, in addition to its required CPE. Allarco proposed to devote, as part of Super Channel’s CPE, at least $500,000 to regional outreach programs and $500,000 to script and development, in each broadcast year. Allarco stated that its proposal demonstrates its commitment to regional outreach and to script and concept development as no other pay television licensee is currently subject to such a requirement.

12. Super Channel is currently required to spend the equivalent of 32% of its previous broadcast year’s broadcasting revenues on Canadian programming. Instead of being subject to a fixed CPE requirement throughout the licence term, the licensee proposed that its CPE be set according to the previous year’s number of subscribers. Allarco indicated that if the Commission were to impose a fixed CPE requirement for its next licence term, its CPE requirement should be reduced by 5% to take into account CMF licence-fee top-ups. As such, its CPE requirement would be 27%. The licensee stated that the amended condition of licence would provide it with the same flexibility as that granted to existing regional pay television services. Allarco claimed that before their last licence renewals, these services had a CPE level based on the number of their subscribers, which helped them grow their businesses.

13. Allarco is also currently required to invest in Canadian programming an amount equal to its operating profit after tax for that year and to devote 60% of its CPE to the acquisition of Canadian programs. The licensee proposed that those conditions of licence be deleted so that it would have the same flexibility as that granted to existing regional pay television services.

14. With respect to making calculations for the purposes of its CPE conditions of licence, Allarco requested to be allowed to continue to use the cash accounting method for the next licence term.

15. Finally, in support of its requested amendments, Allarco stated that it had experienced difficult financial challenges since it began operating the only national, English-language pay service and that it had accumulated a significant deficit over the current licence term.

Interventions

16. The Alberta Media Production Industries Association (AMPIA), Spotlight Television Inc. (Spotlight), the Documentary Organization of Canada (DOC) and the Canadian Media Production Association (CMPA) opposed the proposed reductions in CPE and the proposed amendments to regional outreach and script and concept development. AMPIA argued that those amounts do not represent a meaningful investment in the regions that Allarco promised to support in its original licence application. Spotlight submitted that Allarco neither provided reasonable grounds in support of its proposed reductions nor demonstrated that it would not have the means to fulfill its obligations in the future. Spotlight, DOC and the CMPA pointed out that the proposal would reduce the requirements that originated from its original licence application and were cited by the Commission as reasons for granting Allarco a licence as part of a competitive licensing process. These interveners also expressed concern that if the Commission were to accept these changes, Allarco would no longer offer the service that it was originally licensed to operate.

Commission’s analysis and decisions

17. The Commission notes that while other pay television services are not currently subject to conditions of licence relating to regional outreach or script and concept development, they must nevertheless meet certain requirements and expectations to the same effect, as set out in Corus Entertainment Inc.’s (Corus) and Astral Media inc.’s (Astral) group-based licence renewal decisions.^{Footnote 5}> The Commission also agrees with the interveners that Allarco was licensed to operate a national pay television service as a result of a competitive licensing process and that the conditions of licence that Allarco proposed to amend were an important factor in the licensing of Super Channel.

18. After examining the licensee’s compliance with these obligations and based on the data it submitted as part of its annual returns, the Commission finds that the licensee failed to meet its obligations for the 2008-2009 to 2011-2012 broadcast years, over which time the licensee accumulated a significant shortfall.

19. The Commission’s standard practice is to deny applications seeking to amend conditions of licence for which the licensee is in a situation of non-compliance. It is concerned with Allarco’s non-compliance and the fact that a number of these proposed amendments regard commitments made by Allarco at the time of the licensing of its Super Channel service. The Commission is therefore disappointed with Allarco since it based its licensing decision on these commitments and that Allarco is now seeking significant reductions.

20. However, given that Super Channel will continue to contribute to the creation of new Canadian programs and to the creative sector, though to a lesser extent, and maintain an independent voice in the pay television sector, the Commission approves the licensee’s request that Super Channel be granted a reduction in its requirements relating to regional outreach and script and concept development. Conditions of licence to that effect are set out in Appendix 1.

21. With respect to Super Channel’s non-compliance, notwithstanding its financial challenges, the Commission notes that Super Channel made these commitments as part of a competitive process. As such, the Commission is of the view that the licensee should be required to pay a portion of the shortfall. As a result, Allarco is directed to pay $6 million over the next licence term.

22. To implement this requirement, the Commission requires the licensee to pay $1.5 million in each broadcast year to a total of $6 million over the next licence term. Further, to be consistent with the ratio of expenditures that is currently required for both initiatives, $500,000 must be spent on regional outreach programs and $1 million must be spent on script and concept development in each broadcast year of the next licence term. The Commission reminds the licensee that these shortfall payments are in addition to the required expenditures on regional outreach programs and script and concept development for the upcoming licence term as described above. Accordingly, a condition of licence regarding the payment of the shortfall is set out in Appendix 1.

23. Further, the Commission requires that the licensee submit annual reports detailing the amounts credited toward the payment of the shortfall and the initiatives that received funding to ensure that it complies with its requirement to pay the entire $6 million shortfall over the next licence term.

24. As it pertains to conditions of licence requiring that specific amounts be invested in or used to acquire Canadian programs, the Commission notes that as part of the licence renewal for other pay television services, similar conditions of licence were considered to be part of a licensee’s CPE requirements and were replaced with the standard condition of licence regarding CPE. Given its high deficit, Super Channel has been unable to invest any profit in Canadian programs and could benefit from increased flexibility while continuing to contribute the creation of new Canadian programs and the creative sector. The Commission therefore approves Allarco’s request to delete those conditions of licence.

25. With respect to Allarco’s request that the CPE requirement for its service be based on the number of subscribers, the Commission notes that Movie Central and The Movie Network (TMN) were subject to a similar subscriber-based CPE methodology until it imposed a fixed CPE percentage on those services at their last licence renewals, as set out in Broadcasting Decisions 2011-446 and 2012-241. The Commission notes that it changed its methodology given that both services had reached the highest level of CPE at the time of their licence renewals and since it decided to impose a CPE requirement based on their respective CPE obligations excluding their respective CMF licence-fee top-up.

26. The Commission notes that Allarco requested a 5% reduction to its CPE to take into account its CMF top-ups. However, considering Super Channel’s historical CMF top-ups, the Commission is of the view that a CPE reduction of 4% might be more appropriate for Super Channel, resulting in a 28% CPE.

27. Although a 28% CPE requirement for Super Channel would be consistent with the guidelines set out in Broadcasting Regulatory Policy 2010-167 to adjust the CPE of services to take into consideration the elimination of CMF top-ups as eligible CPE, the Commission notes that the licensee is seeking regulatory relief for its regional outreach programs and script and concept development requirements. It also notes that other pay services not subject to regional outreach program and script and concept development requirements and are currently subject to higher CPE requirements. While Movie Central and Encore Avenue are subject to a 31% CPE requirement, Family Channel, TMN and TMN Encore are subject to a 30% CPE requirement. To be consistent with those services’ requirements and given the reduced expenditures recommended above, the Commission denies Allarco’s request for Super Channel to be subject to a CPE requirement based on the number of subscribers and instead imposes a 30% CPE requirement on that service. A condition of licence to that effect is set out in Appendix 1.

28. Finally, as mentioned above, Allarco requested to use the cash accounting method for the purposes of calculating CPE. The Commission notes that in Broadcasting Decision 2011-446, it imposed conditions of licence requiring Corus to report its CPE on an accrual basis instead of by a cash method. As of their last licence renewal, all other pay television services are required to calculate expenditures included in their CPE on an accrual basis, with the exception of equity investments in Canadian feature films. Those services were given three years to transition from cash to accrual accounting. Allarco did not justify why it should be allowed to continue to use the cash outlay method. To ensure consistency between pay services, the Commission denies Allarco’s request and requires that it use the accrual method of accounting by the end of the third year of the licence term. A condition of licence to that effect is set out in Appendix 1.

OUTtv

Licensee’s proposal

29. OUTtv Network Inc. proposed to reduce the minimum proportion that OUTtv is required to devote to CPE from 49% to 35% for the next licence term. It argued that OUTtv has been experiencing financial difficulties over its last licence term and that, had it been operating under a 35% CPE requirement, it would have achieved a modest financial return. The licensee indicated that a reduction in its CPE requirement would allow OUTtv to become profitable and sustainable and to better compete with services owned by vertically integrated licensees, which benefit from the flexibility of the group-based licensing approach.

Commission’s analysis and decisions

30. The Commission notes that although the licensee reported losses from 2008 to 2011, its financial situation has improved over the years. The licensee reported a substantial increase in its number of subscribers between 2008 and 2012 as well as in its total revenues. It also reported that the service achieved a modest profit in 2012.

31. The Commission further notes that the licensee projects stable growth in its total revenue over its next licence term, but projects financial losses for the last two years of the licence term, as it expects its total expenses to grow at a faster pace than its revenue. In that regard, the Commission is of the view that the licensee has not provided rationale for such a growth pattern in its total expenditures.

32. At 49%, OUTtv currently has one of the highest CPE requirements among the Category A services. Given that this service is independently owned by a licensee that does not operate any other television services, the Commission finds it appropriate to grant a certain amount of relief. However, it considers that a reduction to 35% is not warranted in light of the service’s profitability and projected continued growth. The Commission notes that the median CPE requirement of the 56 existing specialty Category A services is 40%. Moreover, to be consistent with the Commission’s approach to no longer permit licensees to count licence-fee “top-ups” paid by the CMF as an eligible CPE, the Commission imposed on it a CPE level of 41%, which represents its current CPE requirement minus the average CMF licence-fee top-up it received over the last three years of its current licence term. In light of the above, the Commission imposes on OUTtv a CPE level of 40%. A condition of licence to that effect is set out in Appendix 3.

ONE

Licensee’s proposal

33. ZoomerMedia, licensee of ONE, proposed to reduce the minimum proportion of yearly broadcast revenues that it is required to devote to CPE from 41% to 30% for the next licence term. The licensee argued that the requested reduction is necessary to better compete with the services owned by vertically integrated entities that were granted extensive flexibility with regard to their CPE requirements. It further argued that this amendment would assist it in responding to the needs of its viewers as well as adapting to the ever-changing media landscape.

Commission’s analysis and decisions

34. The Commission notes that ONE has reported modest profits after four consecutive years of reported double-digit profit before interest and tax margins and has recorded a consistent growth in its total revenues in the last five years. In the Commission’s view, the service appears to be in a stable financial position. As noted above for OUTtv, the Commission finds it appropriate to grant a certain amount of relief to ONE since it is owned by an independent licensee. However, the Commission considers that a reduction to 30% is not warranted in light of the service’s overall financial health. Given that the median CPE requirement of the 56 existing specialty Category A services is 40% and in light of the Commission’s decision regarding OUTtv, the Commission imposes on ONE a minimum CPE level of 40%. A condition of licence to that effect is set out in Appendix 4.

Licensing of Canadian films

35. The Commission notes that Allarco did not propose a commitment in regard to the licensing of Canadian films for its service Super Channel. As part of the licence renewal of the regional pay television services owned by Corus and Astral, and in response to interveners’ concerns that Canadian pay services broadcast a decreasing amount of Canadian feature films, the Commission indicated that it expected these licensees to continue to license all Canadian feature films that are appropriate for their services. As such, it expects that Allarco continue to license all Canadian feature films that are appropriate for Super Channel to ensure consistency of approach between all Canadian pay television services. An expectation to that effect is set out in Appendix 1.

Requirements relating to independent production and terms of trade agreements

36. In its intervention, the CMPA proposed that a requirement should be imposed on Category A services that are part of this proceeding to ensure that not less than 25% of all Canadian programs broadcast by the licensee, other than news, sports, and current affairs programming are produced by non-related or independent production companies (i.e., independent producers). The CMPA also requested that all licensees that have a requirement to broadcast independently produced programs also be required to adhere to a terms of trade agreement.

37. The Commission notes that all Category 1 (now Category A) services, including iChannel, OUTtv and ONE, that were approved as part of the licensing of new digital pay and specialty services, as set out in Public Notices 2000-171 and 2000-171-1, were subject to a standard condition of licence requiring that a minimum percentage of programming be produced by independent production companies. The Commission imposed that condition of licence to ensure that all Category 1 services made appropriate contributions to the independent production sector.

38. As noted by the CMPA in its intervention, the objective that Category A services provide appropriate contributions to the independent production sector still applies. Therefore, the Commission finds it appropriate that iChannel, OUTtv and ONE be subject to this condition of licence during the next licence term. Conditions of licence to that effect are set out in Appendices 2, 3 and 4.

39. With respect to the terms of trade agreements, the Commission is of the view that a key purpose of these agreements is to level the playing field between independent producers and large broadcasting ownership groups, the latter of which frequently have greater bargaining power. Given that the playing field for negotiations between independent producers and independent broadcasters is already relatively level, the Commission does not consider it necessary to require small, independent broadcasters to adhere to a terms of trade agreement.

Removal of limits on certain program categories for iChannel

40. In Broadcasting Public Notice 2008-100, the Commission determined that it would permit Category A services to draw programming from all program categories, thereby providing them with greater flexibility with regard to their nature of service conditions of licence. However, the Commission established a standard limitation of 10% of the broadcast month for the following categories:

2(b) Long-form documentary;
6(a) Professional sports;
7 Drama and comedy;
7(d) Theatrical feature films aired on television;
7(e) Animated television programs or films; and
8(b) and (c) combined – Music video clips and Music video programs.

41. The simplified and streamlined rules that govern nature of service definitions and program categories ensure that changes do not permit Category A services to morph into other established programming genres and thus become directly competitive with other Category A services. The Commission also notes that where a licensee is currently permitted to broadcast more than these standard limitations, it may continue to do so.

42. Stornoway proposed to increase the maximum amount of programming that may be drawn from category 7 each broadcast week from 10% to 15% on iChannel, a specialty Category A service whose programs focus exclusively on public affairs and must be offered within a context of issues of public interest and/or concern. In support of its request, the licensee argued that issue-oriented dramas and feature films on iChannel sustain a loyal audience and that increased flexibility regarding drama and comedy programming would strengthen the service’s overall appeal.

43. The Commission notes that iChannel may currently devote no more than 8% of all programming broadcast each broadcast week to programming drawn from category 7, except in a broadcast week where the licensee broadcasts two feature films. In those broadcast weeks, the licensee may increase the amount of programming devoted to programming drawn from category 7 to 10% of the broadcast week to accommodate the broadcast of two feature films (category 7(d)).

44. The Commission considers that permitting iChannel to devote 15% of the broadcast week to drama or comedy programming would significantly alter its nature of service and would be inconsistent with its determinations set out in Broadcasting Public Notice 2008-100. Accordingly, the Commission denies the licensee’s request to increase the amount of programming that can be drawn from category 7 each broadcast week to 15% on iChannel.

Requests for reductions to or relief from the standard accessibility requirements

45. In Broadcasting Regulatory Policy 2011-443, the Commission established standard conditions of licence, expectations and encouragements for pay and specialty Category A services. The licensees confirmed that they would abide by these requirements. However, several licensees requested amendments to or relief from some or all of the accessibility conditions of licence, citing various reasons. ATN requested relief from all accessibility conditions of licence for its ethnic, third-language service SAT. It argued that its service’s programming does not lend itself to closed captioning, described video and audio description as is it predominantly in Hindi. ATN noted that only 10% of its programming is in English and that the small amount of English-language content does not warrant the infrastructure required for closed captioning, given its small audience and low profitability relative to captioning costs. It added that much of the English-language programming is live and that the mention of exotic last names and place names in heavily accented English make achieving speed and accuracy standards difficult.

46. Fairchild requested relief from the requirements related to closed captioning and described video for its ethnic Category A services Fairchild TV and Talentvision, stating that the programming does not lend itself well to those requirements given that it is not broadcast in English or French.

47. Allarco requested an amendment to the described video condition of licence to obtain the flexibility needed to average the number of hours of closed captioning over the broadcast year.

48. Finally, ZoomerMedia requested relief from requirements relating to the provision of audio description and described video for its service ONE, stating that its programming does not lend itself well to those requirements given the type of programming broadcast on the service.

49. The Commission has consistently stated that requests for amendments or exceptions to standard conditions of licence must be accompanied by detailed financial evidence, particularly in Broadcasting and Telecom Regulatory Policy 2009-430. In its application, ATN referenced two quotes that it had obtained from captioning providers. The Commission notes, however, that the information provided included not only SAT, but also South Asian News, ATN Asian Sports Network and Cricket Channel One, and that the latter three services provide exclusively English-language programming. The Commission therefore considers that the information provided by ATN inaccurately reflects the true costs associated with the captioning of the English-language programming provided by SAT. It also notes that there are various ways of providing closed captioning (including outsourcing to an outside closed captioning provider) and that the licensee does not have to purchase new equipment or hire additional staff to ensure compliance with that condition of licence.

50. With respect to ATN’s argument that captioning would be difficult given that much of its programming is live and often involves the mention of exotic last names and places in heavily accented English, the Commission notes that these circumstances are not unique to SAT and that it considered these issues during the proceeding leading up to the implementation of closed captioning quality standards. At that time, the Commission determined that neither the provision of live programming nor the use of exotic names justified allowing the provision of lower quality closed captioning. The Commission is therefore of the view that the licensee provided insufficient evidence to justify an exception to that standard condition of licence.

51. As regards Allarco’s request regarding described video, the Commission expressed its view in past decisions^{Footnote 6} that the standard condition of licence relating to described video will ensure that people who are blind or visually-impaired have access to described programming throughout the broadcast year, on a weekly basis. In those decisions, the Commission concluded that there was insufficient evidence to warrant averaging the described video requirement over the broadcast year, which would negatively impact viewers who are blind or visually-impaired. In this instance, Allarco asked for the flexibility to do so without providing any evidence to support its request.

52. Finally, the Commission considers that ZoomerMedia and Fairchild did not provide sufficient rationale in its requests to warrant exceptions to the standard accessibility conditions of licence.

53. In light of the above, the Commission denies the requests by ATN, Fairchild, Allarco and ZoomerMedia for amendments to or relief from the standard accessibility requirements. Therefore, the licensees will be subject to the standard conditions of licence, expectations and encouragements relating to accessibility for pay and specialty Category A services as set out in Broadcasting Regulatory Policy 2011-443 in the next licence term. Conditions of licence to that effect are set out in Appendices 1, 4, 5, 6 and 8.

Broadcast of advertising

54. ATN and Odyssey Television currently have conditions of licence limiting the amount of time that can be devoted to advertising to eight minutes per hour on their respective ethnic Category A services SAT and Odyssey. ATN and Odyssey Television requested an increase in the amount of time that may be devoted to advertising to 12 minutes per hour for SAT and Odyssey, in accordance with the standard conditions of licence for specialty Category A services. Fairchild requested to maintain the authority to broadcast up to 6 minutes of local advertising per hour for its ethnic Category A services Fairchild TV and Talentvision. Finally, ZoomerMedia requested authority to broadcast additional minutes of advertising on ONE calculated in accordance with Broadcasting Public Notice 2004-93, arguing that it could provide it with more opportunities to monetize its service.

55. In its intervention, Rogers Broadcasting Limited (Rogers) opposed the requests by Fairchild and Odyssey Television, arguing that the licensees did not provide any rationale as to why they should be allowed to broadcast more advertising and to continue to broadcast local advertising. It added that the practices of these national ethnic services are detrimental to Rogers’ conventional ethnic service OMNI. Moreover, Rogers requested that the Commission remove Fairchild’s authority to broadcast local advertising on its two services.

56. The Commission notes that ATN and Odyssey Television proposed to limit advertising to eight minutes per hour in their original licensing application. Since that time, the Commission has allowed specialty Category A services to broadcast up to 12 minutes per hour of national advertising. Accordingly, the Commission approves ATN and Odyssey Television’s requests to increase the amount of time that can be devoted to advertising from 8 to 12 minutes per hour. Conditions of licence to that effect are set out in Appendices 7 and 8.

57. The Commission notes that Fairchild TV and Talentvision have been allowed to broadcast local advertising since their licensing. It also notes that Fairchild’s requests for these two services are consistent with the Commission’s practice to generally approve applications filed by licensees of ethnic specialty services to broadcast up to six minutes per hour of local advertising. In these circumstances, the Commission maintains Fairchild TV and Talentvision’s authority to broadcast up to six minutes of local advertising per hour. Conditions of licence to that effect are set out in Appendices 5 and 6.

58. With respect to ONE, the Commission notes that it approved the same request for all Category A and B services that broadcast drama programming owned by the large ownership groups either as part of the group-based licence renewal proceedings or further to subsequent applications. The Commission considers it appropriate to treat ONE in the same manner and thus approves its request to broadcast additional minutes of advertising calculated in accordance with Broadcasting Public Notice 2004-93. A condition of licence to that effect is set out in Appendix 4.

Undertakings that wish to operate under the same terms and conditions

59. The Commission notes that Odyssey Television indicated that it wished to operate its Category A service Odyssey under the terms and conditions of licence in effect under the current licence, while also agreeing to be subject to the provisions and standard requirements applicable to pay and specialty Category A services.

60. Accordingly, the Commission imposes on Odyssey the standard conditions of licence, expectations and encouragements applicable to specialty Category A services in addition to the requirements in effect under the current licence as set out in Appendix 7.

Expectations with respect to closed captioning

61. In Public Notice 2000-171, the Commission set out the expectation that all English-language Category 1 (Category A) and Category 2 (Category B) services should close caption 90% of their programming by the end of the licence term. Since that time, the Commission has established new requirements relating to closed captioning, including a requirement to close caption 100% of their programming, which have become part of the standard conditions of licence imposed on all television services.^{Footnote 7}

62. The Commission notes that OUTtv Network Inc. and Stornoway failed to meet their expectations with respect to closed captioning for the 2011-2012 broadcast year for their respective services, OUTtv and iChannel. Although the Commission is disappointed in the licensees’ failure to meet that expectation, it notes their commitments to abide by the standard requirements, including those relating to closed captioning for the next licence term. If issues relating to closed captioning persist, the Commission may at that time consider what additional regulatory actions it will take to ensure that the programming is accessible to Canadians who are deaf or hard of hearing.

Other matters

63. The Commission requires the licensees to adhere to the standard conditions of licence applicable to pay and specialty Category A services. The licensees agreed to this approach. The Commission also adds program categories to and increases the limits on programming drawn from those program categories for the services OUTtv, iChannel and ONE, consistent with determinations set out in Broadcasting Public Notice 2008-100. Conditions of licence, expectations, encouragements and definitions in this regard are set out in the various appendices to this decision.

Non-compliance and length of licence term

64. In determining the appropriate licence term, the Commission has assessed the licensees’ compliance with their regulatory requirements over the course of the past licence term. The Commission has relied principally on the logs and records submitted by licensees to evaluate compliance with their conditions of licence and requirements. The Commission has also taken into consideration:

any explanations provided by licensees concerning errors or discrepancies in their logs;
frequency of the non-compliance;
the number of instances of non-compliance;
whether measures were taken to address the non-compliance; and
the nature of the non-compliance.

65. The Commission has examined all instances of non-compliance on a case-to-case basis.

66. With respect to Allarco’s failure to meet Super Channel’s regional outreach programs and script and concept development expenditure requirements for the 2008-2009 to 2011-2012 broadcast years, the Commission considers this non-compliance to be significant and severe in nature. In light of the circumstances, the Commission considers that the appropriate regulatory measure is a short-term renewal. As such, the Commission renews the broadcasting licence for Super Channel for a period of four years.

67. The Commission also notes that Stornoway failed to adhere to the condition of licence for iChannel relating to the exhibition of Canadian content for the 2010-2011 broadcast year. It also notes that iChannel’s shortfall in the broadcast of Canadian programming was significant. In response to clarification questions about its programming practices, the licensee indicated that it had recently hired a Vice-President of programming with experience in programming and regulatory affairs and had created a new staff position to provide additional oversight. Despite coming into compliance, the licensee nevertheless failed to respect a very fundamental requirement. Accordingly, the Commission finds Stornoway in non-compliance with its condition of licence relating to the exhibition of Canadian programming for the 2010-2011 broadcast year. In light of the above, the Commission considers that the appropriate regulatory measure is a short-term renewal. As such, the Commission renews the broadcasting licence for iChannel for a period of five years.

68. Moreover, the Commission notes that ZoomerMedia failed to meet the condition of licence for ONE pertaining to the program categories from which it may draw its programming for the 2009-2010 and 2010-2011 broadcast years. The licensee indicated that since acquiring the service in 2010, it has instituted safeguards and has come into compliance. Since the non-compliance occurred under the previous owner and the new licensee has operated the service responsibly, the Commission considers it appropriate to renew the broadcasting licence for ONE for a full seven years.

69. Given that there were no instances of non-compliance for OUTtv, Fairchild TV, Talentvision, Odyssey and SAT, the Commission considers it appropriate to renew the broadcasting licence for these services for a full seven years.

Conclusion

70. In light of all of the above, the Commission renews the broadcasting licences for the independent pay and specialty Category A services Super Channel, iChannel, OUTtv, ONE, Fairchild TV, Talentvision, Odyssey and ATN South Asian Television for the periods specified above. The terms and conditions of licence for these services are set out in the appropriate appendices to this decision.

Program logs

71. Section 7(2) of the Speciality Services Regulations, 1990 and section 4(2) of the Pay Television Regulations, 1990 state that, except as otherwise provided under a condition of its licence, a licensee shall furnish to the Commission, within 30 days after the end of each month, the program log or machine-readable record of its programming for the month.

72. The Commission reminds licensees that according to these regulations, the logs for the services that form part of the present decision shall at all times be kept in an acceptable form, which means that they must be accurate, exact and precise.

73. The Commission will provide an annual assessment of the licensee’s compliance with its regulatory requirements. This evaluation will be sent to the licensee before the end of the broadcast year following the year being evaluated. This will allow the licensee to verify that it is in compliance with its requirements for the year being evaluated.

74. It is important that licensees ensure that their program logs are in compliance throughout the year because the Commission will not re-evaluate the licensee’s compliance for the year in question.

Secretary General

Appendix 1 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the pay Category A service Super Channel

Terms

The licence will expire 31 August 2017.

Conditions of licence

1. The licensee shall adhere to the standard conditions of licence for pay television Category A services set out in Standard conditions of licence, expectations and encouragements for specialty and pay television Category A services, Broadcasting Regulatory Policy CRTC 2011-443, 27 July 2011, as amended from time to time.

2. In regard to the nature of service:

(a) The licensee shall provide a national English-language general interest pay Category A service, with programming intended for all audiences.

(b) The licensee may distribute programming from all categories of programming set out in item 6 of Schedule I to the Pay Television Regulations, 1990, with the exception of programming from categories 1 News, 4 Religion, 5(a) Formal education and pre-school, 5(b) Informal education/Recreation and leisure and 14 Infomercials, promotional and corporate videos.

(c) The licensee shall not devote more than 5% of its programming schedule during each semester to programming from categories 6(a) Professional sports and 6(b) Amateur sports, with a maximum of 20 hours in any week.

(d) The licensee shall devote at least 50% of its programming schedule during each semester to dramatic programs.

3. In each year of the licence term, the licensee shall devote to the distribution of Canadian programs not less than:

(a) 30% of the time from 6:00 p.m. to 11:00 p.m. (Eastern time); and

(b) 25% of the remainder of the broadcast day.

For the purpose of this condition, a 150% credit will be given for time during which the licensee distributes a new Canadian production that commences between 6:00 p.m. and 11:00 p.m. (Eastern time) or, in the case of a new Canadian production intended for children, at an appropriate viewing hour between 6:00 a.m. and 9:00 p.m., and the licensee will receive such a credit for each subsequent showing in the specified time periods of such a production within a two-year period from the date of first showing by the licensee.

4. In each broadcast year, the licensee shall devote to the distribution of Canadian dramatic programs not less than 50% of the time that it is required to devote to the distribution of Canadian programs.

5. With respect to Canadian programming expenditures:

(a) The licensee shall expend, on the acquisition of, or investment in, Canadian programs, 30% of its revenue for the previous broadcast year.

(b) In any broadcast year of the licence term excluding the final broadcast year, the licensee may expend an amount on Canadian programming that is up to 5% less than the minimum required expenditure for that broadcast year, as set out and calculated in accordance with this condition of licence.

(c) Should the licensee avail itself of this flexibility in any broadcast year, it shall expend in the next broadcast year of the licence term, in addition to the minimum required expenditure for that broadcast year, the full amount of the previous broadcast year’s under spending.

(d) In any broadcast year of the licence term, the licensee may expend an amount on Canadian programming that is greater than the minimum required expenditure for that broadcast year as set out and calculated in accordance with this condition of licence; in such case, the licensee may deduct:

(i) from the minimum required expenditure for the next broadcast year of the licence term, an amount not exceeding the amount of the previous broadcast year’s overspending; and

(ii) from the minimum required expenditure for any subsequent broadcast year of the licence term, an amount not exceeding the difference between the overspending and any amount deducted under paragraph (i) above.

(e) Notwithstanding the above, during the licence term, the licensee shall expend on Canadian programming, at a minimum, the total of the minimum required expenditures as set out and calculated in accordance with this condition of licence.

6. Included in the expenditures required under condition of licence 5, the licensee shall expend on regional outreach programs at least $500,000 in each broadcast year.

7. Included in the expenditures required under condition of licence 5, the licensee shall expend on script and concept development, including bursaries for writers, excluding overhead costs, at least $500,000 in each broadcast year.

8. In addition to the expenditures required under conditions of licence 5, 6 and 7, the licensee shall expend as payment of the shortfall on its expenditures on regional outreach programs an amount equal to $500,000 and $1 million, respectively, on script and concept development in each broadcast year until the end of the current licence term which expires on 31 August 2017. The total amount to be paid equals $6 million.

9. The licensee shall submit annual reports to the Commission detailing the amount spent on the payment of the shortfall on expenditures on regional outreach programs and on script and concept development as well as on the initiatives that received funding, concurrently with the filing of its annual returns on 30 November of each broadcast year, until the total amount of the shortfall has been paid.

10. In making the calculations required for the purposes of conditions 5 to 8, the licensee shall use only the accrual method of accounting, with the exception of equity investments in Canadian feature films, for which cash outlays may be taken into account and for which the licensee shall provide proof of payment on a yearly basis. In order to fulfill conditions 5 to 8, the licensee may have the first three years of the licence term to align its spending with its expenditure requirements as calculated using an accrual method. The accrual method must be fully implemented and in effect for the broadcast year ending 31 August 2016. A reconciliation must be included with the annual return for each of the first three years of the licence term detailing the amount of Canadian programming expenditures incurred under the accrual method and reconciling this amount with that incurred under the cash method.

11. The broadcasting undertaking licensed hereby is designated as a Category A service.

For the purpose of the conditions of licence:

“broadcast day” means a 24-hour period beginning at 6:00 a.m. Eastern time.

“broadcast year" means each twelve-month period beginning on 1 September in any year.

“expend” and “expenditure” means actual cash outlay.

“expend on acquisition” means:

a) expend to acquire exhibition rights for the licensed territory, excluding overhead costs;

b) expend on script and concept development, excluding overhead costs; or

c) expend on the production of filler programming, as defined in section 2 of the Pay Television Regulations, 1990, including direct overhead costs; and

“expenditure on acquisition” has a comparable meaning.

“expend on investment” means expend for the purposes of an equity investment or an advance on account of an equity investment, but not overhead costs or interim financing by way of a loan; and “new Canadian production” means:

(a) a Canadian dramatic program

(i) which exceeds 75 minutes in duration and in relation to which all financial expenditures made by the licensee were made prior to the commencement of principal photography or taping and in which principal photography or taping was completed after 1 January 1985; and

(ii) which is intended for children and exceeds 22:30 minutes and in relation to which all financial expenditures made by the licensee were made prior to the completion of principal photography or taping.

(b) and which is a program that has never been broadcast in English in the licensed territory.

“revenue” means revenue from residential and bulk cable, SMATV and DTH BDU subscribers as well as any return on an investment in programming.

“script and concept development expenditures” means those expenditures, excluding overhead costs, that are incurred prior to the commencement of pre-production and before the financing of the project is in place. Spending on programs that are assured of going to air at the time of the expenditure are not considered as script and development expenditures.

“semester” means each six-month period beginning on 1 September and 1 March.

Expectations

The standard expectations applicable to this licensee are set out in Appendix 1 to Standard conditions of licence, expectations and encouragements for specialty and pay television category A services, Broadcasting Regulatory Policy 2011-443, 27 July 2011, as amended from time to time.

The Commission expects the licensee to license all Canadian feature films that are appropriate for the service.

Encouragements

The standard encouragements applicable to this licensee are set out in Appendix 1 to Standard conditions of licence, expectations and encouragements for specialty and pay television category A services, Broadcasting Regulatory Policy 2011-443, 27 July 2011, as amended from time to time.

Appendix 2 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the specialty Category A service iChannel

Terms

The licence will expire 31 August 2018.

Conditions of licence

1. The licensee shall adhere to the standard conditions of licence for specialty Category A services set out in Standard conditions of licence, expectations and encouragements for specialty and pay television Category A services, Broadcasting Regulatory Policy CRTC 2011-443, 27 July 2011, as amended from time to time.

2. In regard to the nature of service:

(a) The licensee shall provide a national English-language Category A specialty service that will focus its programming exclusively on public affairs. The service shall not broadcast news coverage or cover live events. All programs will be offered within a context of the issues of public interest and/or concern.

(b) The programming must be drawn exclusively from the following categories, as set out in item 6 of Schedule I to the Specialty Services Regulations, 1990:

2   (a) Analysis and interpretation
    (b) Long-form documentary
3   Reporting and actualities
4   Religion
5   (a) Formal education and pre-school
    (b) Informal education/Recreation and leisure
6   (a) Professional sports
    (b) Amateur sports
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
    (e) Animated television programs and films
    (f) Programs of comedy sketches, improvisation, unscripted works, stand-up comedy
    (g) Other drama
8   (a) Music and dance other than music video programs or clips
    (b) Music video clips
    (c) Music video programs
9   Variety
10 Game shows
11 (a) General entertainment and human interest
    (b) Reality television
12 Interstitials
13 Public service announcements
14 Infomercials, promotional and corporate videos

(c) The licensee shall devote no more than 20% of all programming broadcast over the broadcast day and the evening broadcast period measured during each broadcast semester to programming drawn from category 3.

(d) No more than 8% of all programming broadcast during each broadcast week shall be devoted to material drawn from category 7, except in a broadcast week where the licensee broadcasts two feature films. In those broadcast weeks, the licensee may increase the amount of programming devoted to material drawn from category 7 to 10% of the broadcast week in order to accommodate the broadcast of two feature films (category 7(d)).

e) No more than two feature films (category 7(d)) shall be broadcast during each broadcast week and shall be offered only within the context of an issue being explored by the service.

(f) The licensee shall devote no more than 10% of all programming broadcast over the broadcast day and the evening broadcast period measured during each broadcast semester to programming drawn from category 10.

(g) The licensee shall devote no more than 10% of all programming broadcast over the broadcast month to programming drawn from category 6(a).

(h) The licensee shall devote no more than 10% of all programming broadcast over the broadcast month to programming drawn from categories 8(b) and 8(c) combined.

3. In each broadcast year or portion thereof, the licensee shall devote to the broadcast of Canadian programs 55% of the broadcast day and the evening broadcast period.

4. With regard to Canadian programming expenditures:

(a) In each broadcast year, the licensee shall expend on Canadian programs not less than 37% of the previous broadcast year’s gross advertising, infomercial and subscription revenues;

(b) In any broadcast year of the licence term, excluding the final year, the licensee may expend an amount on Canadian programs that is up to 10% less than the minimum required expenditure for that year set out in or calculated in accordance with this condition; in such case, the licensee shall expend in the next year of the licence term, in addition to the minimum required expenditure for that year, the full amount of the previous year’s under expenditure;

(c) In any broadcast year of the licence term, where the licensee expends an amount on Canadian programs that is greater than the minimum required expenditure for that year set out in or calculated in accordance with this condition, the licensee may deduct:

(i) from the minimum required expenditure for the next year of the licence term, an amount not exceeding the amount of the previous year’s over expenditure; and

(ii) from the minimum required expenditure for any subsequent year of the licence term, an amount not exceeding the difference between the over expenditure and any amount deducted under paragraph (i) above.

(d) Notwithstanding paragraphs (b) and (c) above, during the licence term, the licensee shall expend on Canadian programs, at a minimum, the total of the minimum required expenditures set out in or calculated in accordance with the licensee’s condition of licence.

5. No less than 25% of all Canadian programs broadcast by the licensee, other than news, sports, and current affairs programming (Categories 1, 2(a), 6(a) and 6(b)), shall be produced by non-related production companies.

6. The broadcasting undertaking licensed hereby is designated as a Category A service.

For the purpose of the conditions of licence:

“broadcast day” shall have the same meaning as that set out in the Television Broadcasting Regulations, 1987.

“broadcast semester” shall mean the total number of hours devoted by the licensee to broadcasting during the aggregate of the broadcast months in a six month period.

“broadcast year” means each twelve-month period beginning on 1 September in any year.

“non-related production company” is defined as one in which the licensee or any of its shareholders owns or controls, directly or indirectly, less than 30% of the equity.

Expectations

Encouragements

Appendix 3 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the specialty Category A service OUTtv

Terms

The licence will expire 31 August 2020.

Conditions of licence

2. In regard to the nature of service:

(a) The licensee shall provide a national English-language specialty Category A service that will offer news and information, current affairs, lifestyle and entertainment programming designed to meet the needs of the gay and lesbian community.

(b) The programming must be drawn exclusively from the following categories, as set out in item 6 of Schedule I to the Specialty Services Regulations, 1990:

1   News
2   (a) Analysis and interpretation
     (b) Long-form documentary
3   Reporting and actualities
5   (b) Informal education/Recreation and leisure
6   (a) Professional sports
    (b) Amateur sports
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
    (e) Animated television programs and films
    (f) Programs of comedy sketches, improvisation, unscripted works, stand-up comedy
    (g) Other drama
8   (a) Music and dance other than music video programs or clips
    (b) Music video clips
    (c) Music video programs
9   Variety
10 Game shows
11 (a) General entertainment and human interest
    (b) Reality television
12 Interstitials
13 Public service announcements
14 Infomercials, promotional and corporate videos

(c) The licensee shall devote no more than 10% of all programming broadcast during each broadcast week to programming drawn from categories 8(b) and 8(c) combined.

(d) The licensee shall devote no more than 10% of all programming broadcast during each broadcast month to programming drawn from category 6(a).

3. In each broadcast year or portion thereof, the licensee shall devote to the broadcast of Canadian programs a minimum of 55% of the broadcast day and 50% of the evening broadcast period.

4. With regard to Canadian programming expenditures:

(a) In each broadcast year, the licensee shall expend on Canadian programs not less than 40% of the previous broadcast year’s gross advertising, infomercial and subscription revenues;

(i) from the minimum required expenditure for the next year of the licence term, an amount not exceeding the amount of the previous year’s overexpenditure; and

(ii) from the minimum required expenditure for any subsequent year of the licence term, an amount not exceeding the difference between the overexpenditure and any amount deducted under paragraph (i) above.

6. The broadcasting undertaking licensed hereby is designated as a Category A service.

For the purpose of the conditions of licence:

“broadcast day” shall have the same meaning as that set out in the Television Broadcasting Regulations, 1987.

“broadcast year” means each twelve-month period beginning on 1 September in any year.

“non-related production company” is defined as one in which the licensee or any of its shareholders owns or controls, directly or indirectly, less than 30% of the equity.

Expectations

Encouragements

Appendix 4 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the specialty Category A service The Brand New ONE: Body Mind Spirit Love Channel

Terms

The licence will expire 31 August 2020.

Conditions of licence

2. In regard to the nature of service:

(a) The licensee shall provide a national English-language specialty Category A service providing programming that discusses, reveals and explores the interconnectedness between body, mind and spirit. The programming will include holistic approaches to wellness, but not traditional, Western medical theory or practices.

(b) The programming must be drawn exclusively from the following categories set out in item 6 of Schedule I to the Specialty Services Regulations, 1990:

2   (a) Analysis and interpretation
    (b) Long-form documentary
4   Religion
5   (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
    (e) Animated television programs and films
    (f) Programs of comedy sketches, improvisation, unscripted works, stand-up comedy
    (g) Other drama
8   (a) Music and dance other than music video programs or clips
    (b) Music video clips
    (c) Music video programs
10 Game shows
11 (a) General entertainment and human interest
    (b) Reality television
12 Interstitials
13 Public service announcements
14 Infomercials, promotional and corporate videos

(c) The licensee shall devote no more than 10 hours of programming during each broadcast week between 6:00 pm and midnight to programming drawn from category 7.

(d) Of the total of category 7 programming broadcast during each broadcast week, no more than 10 hours shall originate from the U.S.

(e) The licensee shall broadcast no more than one feature film during each broadcast week.

(f) The licensee shall devote no more than 5% of all programming broadcast during each broadcast week to programming drawn from each of categories 10, 12, 13 and 14.

(g) The licensee shall devote no more than 12% of all programming broadcast during each broadcast week to programming drawn from each of categories 2(b), 7 and 8.

(h) The licensee shall devote no less than 30% of all musical selections broadcast during each broadcast week to Canadian musical selections.

3. In each broadcast year or portion thereof, the licensee shall devote no less than 60% of the broadcast day, and no less than 50% of the evening broadcast period to the exhibition of Canadian programs.

4. With regard to Canadian programming expenditures:

(a) In each broadcast year, the licensee shall devote to the acquisition of or investment in Canadian programs no less than 40% of the previous broadcast year’s gross advertising, infomercial and subscription revenues;

(i) from the minimum required expenditure for the next year of the licence term, an amount not exceeding the amount of the previous year’s over-expenditure; and

(ii) from the minimum required expenditure for any subsequent year of the licence term, an amount not exceeding the difference between the over-expenditure and any amount deducted under paragraph (i) above.

(d)Notwithstanding paragraphs (b) and (c) above, during the licence term, the licensee shall expend on Canadian programs, at a minimum, the total of the minimum required expenditures set out in or calculated in accordance with the licensee’s condition of licence.

5. For the purpose of fulfilling the Canadian programming expenditure requirement, the licensee may not include any expenditure related to programming that has been funded out of the benefits package approved by the Commission with respect to the transfer of effective control of Vision TV Digital Inc. from Vision TV: Canada’s Faith Network/Réseau religieux canadien to ZoomerMedia Limited.

6. In accordance with its commitment, the licensee shall file with the Commission, concurrently with the annual returns, annual reports setting out the details of all expenditures related to the tangible benefits associated with the transfer of effective control of Vision TV Digital Inc. from Vision TV: Canada’s Faith Network/Réseau religieux canadien to ZoomerMedia Limited.

7. No less than 25% of all Canadian programs broadcast by the licensee, other than news, sports, and current affairs programming (Categories 1, 2(a), 6(a) and 6(b)), shall be produced by non-related production companies.

8. In addition to the 12 minutes of advertising material during any clock hour in a broadcast day permitted by standard condition of licence 8, the licensee may broadcast such additional minutes of advertising material calculated in accordance with Incentives for English-language Canadian television drama, Broadcasting Public Notice CRTC 2004-93, 29 November 2004, as amended from time to time.

9. The broadcasting undertaking licensed hereby is designated as a Category A service.

For the purpose of the conditions of licence, “broadcast day” and “broadcast year” shall have the same meaning as set out in Television Broadcasting Regulations, 1987.

Expectations

Encouragements

Appendix 5 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the ethnic, third-language specialty Category A service Fairchild TV

Terms

The licence will expire 31 August 2020.

Conditions of licence

Except as otherwise provided in subparagraphs b) and c), the licensee shall not broadcast more than 12 minutes of advertising material during each clock hour, no more than 6 minutes of which may consist of local and regional advertising.

2. In regard to the nature of service:

(a) The licensee shall provide a national ethnic, third-language specialty Category A service, consisting of ethnic, third-language programming directed to the Chinese-speaking communities of Canada.

(b) The licensee shall devote to the broadcast of Canadian programs not less than:

(i) 40% of the time from 6:00 p.m. to 11:00 p.m.; and

(ii) 30% of the broadcast day.

3. The licensee may distribute separate local programming in place of its national service to affiliated broadcasting distribution undertakings, provided that the hours dedicated to such local programming do not exceed 7% of the licensee’s programming during each broadcast month.

4. With regard to Canadian programming expenditures:

(a) In each broadcast year of the licence term, the licensee shall expend on the acquisition of and/or investment in Canadian programs a minimum of 29% of the gross revenues derived from the operation of this service during the previous broadcast year.

(b) In each broadcast year of the licence term, excluding the final year, the licensee may expend an amount on Canadian programs that is up to 5% less than the minimum required expenditure for that year set out in and calculated in accordance with this condition; in such case, the licensee shall expend in the next broadcast year of the licence term, in addition to the minimum required expenditure for that year, the full amount of the previous year’s under-expenditure.

(c) In each broadcast year of the licence term, where the licensee expends an amount on Canadian programs that is greater than the minimum required expenditure for that year calculated in accordance with this condition, the licensee may deduct:

(i) from the minimum required expenditure for the following year of the licence term, an amount not exceeding the amount of the previous year’s over-expenditure; and

(ii) from the minimum required expenditure for any subsequent broadcast year of the licence term, an amount not exceeding the difference between the over-expenditure and any amount deducted under (i) above.

(d) Notwithstanding paragraphs (b) and (c) above, during the licence term, the licensee shall expend on Canadian programs, at a minimum, the total of the minimum required expenditures calculated in accordance with this condition of licence.

5. The licensee shall submit a report, by 30 November of each year of the licence term, containing data setting out the expenditures it has made to comply with the requirements specified in condition of licence 4 above.

6. The licensee shall submit a report by 31 August of each year of the licence term, updating the membership information on file with the Commission and outlining the activities of its advisory committees during the preceding year.

7. The licensee shall ensure that the policy guidelines that establish the mechanisms the licensee will use to ensure balance in programming, and in the procedures it will follow in dealing with the complaints by the public on this matter and on other aspects of its service, including the issue of violence, which were accepted by the Commission and made public, remain in place.

8. The licensee shall prohibit the participation as a director or as an officer of the licensee company, of any director, officer, nominee, employee or representative of Television Broadcasts Limited, Condor Entertainment B.V., their affiliates or subsidiaries, or of any person associated with these companies or with whom the licensee has entered into an agreement for the acquisition of programs.

9. The licensee shall provide the Commission with any changes to the names and biographical descriptions of the members of its board of directors filed with the Commission. The licensee shall notify the Commission before any change is effected in the composition of its Board of Directors, or in its ownership or in the ownership of its principal shareholder, Happy Valley Investments Ltd.

10. The broadcasting undertaking licensed hereby is designated as a Category A service.

For the purpose of the conditions of licence:

“broadcast day ” “broadcast month” and “broadcast year” shall have the same meaning as that set out in the Television Broadcasting Regulations, 1987.

“local advertising” is advertising that does not fall within the definitions of national and regional advertising, i.e. advertising to persons who provide goods or services in more than one market and/or province.

“clock hour” shall mean a period of 60 minutes beginning on each hour and ending immediately prior to the next hour.

“Expend on acquisition” shall mean:

(a) expend to acquire exhibition rights for the licensed territory, excluding overhead costs;

(b) expend on the following items associated with the production of a program:

talent fees (on air and other);
directly attributable salaries and benefits;
film and tape;
studio sets, properties and other production materials ;
use of remote and other production facilities ;
delivery of remote programs to the satellite uplink or main studio; and
any other matter directly related to the production of a program; or

(c) expend on the production of filler programming, as defined in section 2 of the Pay Television Regulations, 1990, including direct overhead costs.

“expend on investment” shall mean expend for the purposes of an equity investment or an advance on account of an equity investment, but not overhead costs or interim financing by way of a loan.

“Semester” shall mean each six-month period beginning 1 March and 1 September.

“officer” shall mean the chairperson, president, vice-president, secretary, treasurer, comptroller, general counsel, general manager, managing director or any individual who performs functions for the licensee similar to those normally performed by an individual occupying any such office, and each of the licensee’s five highest paid employees, including the above.

Expectations

The Commission expects the licensee to continue to demonstrate responsibility in the scheduling of its programming, taking into account time zone differences between where a program originates and where it is received.

The Commission expects the licensee to acquire programming from Canadian independent producers, wherever possible.

The Commission expects the licensee to ensure that the programming aired by Fairchild TV reflects all of Canada’s regions.

Encouragements

The Commission encourages Fairchild TV to provide opportunities for producers working outside the major production centres to supply programming for the service.

Appendix 6 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the ethnic, third-language specialty Category A service Talentvision

Terms

The licence will expire 31 August 2020.

Conditions of licence

2. In regard to the nature of service:

(a) The licensee shall provide a national ethnic, third-language specialty Category A service, consisting of programming directed to the Mandarin, Vietnamese and Korean speaking communities of Canada. The licensee shall devote to the broadcast of programming in the Mandarin, Vietnamese and Korean languages, not less than 60% of the total time:

(i) during which programming is broadcast on its undertaking, and

(ii) during the hours between 7:30 p.m. and 10:30 p.m.

(b) The licensee shall, in each broadcast year, devote to the exhibition of feature films in English, French or a native Canadian language not more than 25% of the total programming time permitted for the broadcast of programs in those languages.

(c) The licensee shall devote to programming in Vietnamese no less than 15 hours per week, including 3 hours of locally-produced programming.

3. The licensee shall devote to the broadcast of Canadian programs not less than:

(i) 33% of the time between 7:30 p.m. and 10:30 p.m.; and

(ii) 31.5% of the broadcast day.

4. With regard to Canadian programming expenditures:

(b) In each broadcast year of the licence term, excluding the final year, the licensee may expend an amount on Canadian programs that is up to 5% less than the minimum required expenditure for that year that are set out and calculated in accordance with this condition; in such case, the licensee shall expend in the next broadcast year of the licence term, in addition to the minimum required expenditure for that year, the full amount of the previous year’s under-expenditure.

(i) from the minimum required expenditure for the following year of the licence term, an amount not exceeding the amount of the previous year’s over-expenditure; and

(d) Notwithstanding paragraphs (b) and (c) above, during the licence term, the licensee shall expend on Canadian programs, at a minimum, the total of the minimum required expenditures calculated in accordance with this condition of licence.

5. The licensee shall prohibit the participation as a director or as an officer of the licensee company, of any director, officer, nominee, employee or representative of Television Broadcasts Limited, Condor Entertainment B.V., their affiliates or subsidiaries, or any person associated with these companies or with whom the licensee has entered into an agreement for the acquisition of programs.

6. The broadcasting undertaking licensed hereby is designated as a Category A service.

For the purpose of the conditions of licence:

“broadcast month” and "broadcast year" shall have the same meaning as that set out in the Television Broadcasting Regulations, 1987.

“broadcast day” shall mean a 24 hour day commencing at 6 a.m. each day, or any other period approved by the Commission.

“clock hour” shall mean a period of 60 minutes beginning on each hour and ending immediately prior to the next hour.

“expend on acquisition” shall mean:

(a) expend to acquire exhibition rights for the licensed territory, excluding overhead costs;

(b) expend on the following items associated with the production of a program:

talent fees (on air and other);
directly attributable salaries and benefits;
film and tape;
studio sets, properties and other production materials;
use of remote and other production facilities;
delivery of remote programs to the satellite uplink or main studio; and
any other matter directly related to the production of a program; or

(c) expend on the production of filler programming, as defined in section 2 of the Pay Television Regulations, 1990, including direct overhead costs.

“expend on investment” shall mean expend for the purposes of an equity investment or an advance on account of an equity investment, but not overhead costs or interim financing by way of a loan.

“semester” shall mean each six-month period beginning 1 March and 1 September.

Expectations

The Commission expects the licensee to acquire programming from Canadian independent producers, wherever possible, during the new licence term.

The Commission expects the licensee to ensure that the programming aired by Talentvision reflects all of Canada’s regions.

Encouragements

The Commission encourages the licensee to provide opportunities for producers working outside the major production centres to supply programming for the service.

Appendix 7 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the ethnic, third-language specialty Category A service Odyssey

Terms

The licence will expire 31 August 2020.

Conditions of licence

2. In regard to the nature of service:

(a) The licensee shall provide a national ethnic, third-language specialty Category A service, with programming intended for the Greek communities of Canada. The licensee’s programming shall consist entirely of ethnic programming of which, subject to subsection (b) below, a minimum of 90% will be in the Greek language and a maximum of 10% will be in the English or French language.

(b) On an exceptional basis during the news, public affairs or youth programs presented primarily in the Greek language, the licensee may distribute brief segments in the English or French language to accommodate interviews and other segments from persons unable to converse in Greek. All such non-Greek-language inserts shall be accompanied by a summary in the Greek language and shall not constitute more than 20% of any given program.

(c) The English- or French-language programming that falls within the exception permitted by subsection (b) shall not be counted towards the English- or French-language threshold set out in subsection (a) above.

3. With respect to Canadian programs:

(a) In each broadcast year, the licensee shall devote to the exhibition of Canadian programs not less than 16% of the broadcast day, and not less than 16% of the evening broadcast period.

(b) The licensee shall schedule its Canadian programs evenly throughout each broadcast day.

4. With respect to Canadian programming expenditures:

(a) In each broadcast year of the licence term, the licensee shall expend on the acquisition of and/or investment in Canadian programs a minimum of 27% of the gross revenues derived from the operation of this service during the previous broadcast year.

(b) In each broadcast year of the licence term, excluding the final year, the licensee may expend an amount on Canadian programs that is up to 5% less than the minimum required expenditure for that year that are set out and calculated in accordance with this condition; in such case, the licensee shall expend in the next broadcast year of the licence term, in addition to the minimum required expenditure for that year, the full amount of the previous year’s under-expenditure.

(i) from the minimum required expenditure for the following year of the licence term, an amount not exceeding the amount of the previous year’s over-expenditure; and

(d) Notwithstanding paragraphs (b) and (c) above, during the licence term, the licensee shall expend on Canadian programs, at a minimum, the total of the minimum required expenditures calculated in accordance with this condition of licence.

5. The broadcasting undertaking licensed hereby is designated as a Category A service.

For the purpose of the conditions of licence:

“broadcast month,” “broadcast year,” “clock hour” and “evening broadcast period” shall have the same meanings as those set out in the Television Broadcasting Regulations, 1987.

“broadcast day” shall mean a 24-hour day commencing at 6 a.m., each day, or any other period approved by the Commission.

Expectations

The Commission expects the licensee to demonstrate responsibility in the scheduling of programming intended for adult audiences, taking into account time zone differences between where a program originates and where it is received.

The Commission expects the licensee to ensure that the programming aired by Odyssey reflects all of Canada’s regions.

Encouragements

The Commission encourages the licensee to continue to acquire programming from Canadian independent producers.

The Commission encourages the licensee to provide opportunities for producers working outside the major production centres to supply programming for the service.

Appendix 8 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the ethnic, third-language specialty Category A service ATN South Asian Television

Terms

The licence will expire 31 August 2020.

Conditions of licence

2. In regard to the nature of service:

(a) The licensee shall provide a national ethnic, third-language specialty Category A service having as its target audience the South Asian communities of Canada. The licensee’s programming will consist entirely of ethnic programming of which a minimum of 75% will be third-language programming and a maximum of 25% will be English- or French-language ethnic programs.

3. In each broadcast year, the licensee shall devote to the exhibition of Canadian programs not less than 17% of the broadcast day, and not less than 8% of the evening broadcast period.

4. With regard to Canadian programming expenditures:

(a) In each broadcast year of the licence term, the licensee shall expend on the acquisition of and/or investment in Canadian programs a minimum of 15% of the gross revenues derived from the operation of this service during the previous broadcast year.

(b) In each broadcast year of the licence term, excluding the final year, the licensee may expend an amount on Canadian programs that is up to 5% less than the minimum required expenditure for that year set out and calculated in accordance with this condition; in such case, the licensee shall expend in the next broadcast year of the licence term, in addition to the minimum required expenditure for that year, the full amount of the previous year’s under-expenditure.

(c) In each broadcast year of the licence term where the licensee expends an amount on Canadian programs that is greater than the minimum required expenditure for that year calculated in accordance with this condition, the licensee may deduct:

(i) from the minimum required expenditure for the following year of the licence term, an amount not exceeding the amount of the previous year’s over-expenditure; and

(d) Notwithstanding paragraphs (b) and (c) above, during the licence term, the licensee shall expend on Canadian programs, at a minimum, the total of the minimum required expenditures calculated in accordance with this condition of licence.

5. The broadcasting undertaking licensed hereby is designated as a Category A service.

For the purpose of the conditions of licence, “broadcast day,” “broadcast month,” “broadcast year,” “clock hour” and “evening broadcast period” shall have the same meanings as those set out in the Television Broadcasting Regulations, 1987.

Expectations

The Commission expects the licensee to ensure that its programming reflects all of Canada’s regions.

The Commission expects the licensee to provide opportunities for producers working outside the major production centres to supply programming for the service.

Encouragements

The standard encouragements applicable to this licensee are set out in Appendix 1 to Standard conditions of licence, expectations and encouragements for Category B pay and specialty services – Corrected Appendices 1 and 2, Broadcasting Regulatory Policy CRTC 2010-786-1, 18 July 2011, as amended from time to time.

Footnotes

Footnote 1

The licences were administratively renewed until 31 August 2013 as a result of Broadcasting Decisions 2009-145, 2010-562 and 2011-417.

Return to footnote 1 referrer

Footnote 2

On 1 July 2013, ONE: The Body, Mind and Spirit Channel Inc., Christian Channel Inc., Vision TV Digital Inc. and 8567093 Canada Limited and ZoomerMedia Limited amalgamated to continue as ZoomerMedia Limited.

Return to footnote 2 referrer

Footnote 3

Broadcasting Regulatory Policy 2011-443

Return to footnote 3 referrer

Footnote 4

Broadcasting Decision 2006-193

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Footnote 5

Broadcasting Decisions 2011-446 and 2012-241

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Footnote 6

For example, Broadcasting Decision 2011-441.

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Footnote 7

[7] See Broadcasting Regulatory Policies 2010-786-1, 2011-442 and 2011-443.

Return to footnote 7 referrer

Date modified:: 2013-08-30

ARCHIVED - Broadcasting Decision CRTC 2013-468

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Various independent pay and specialty Category A services – Licence renewals

Introduction

Commission’s analysis and decisions

Amendments to Canadian programming exhibition requirements

Amendments to CPE requirements

Super Channel

Licensee’s proposal

Interventions

Commission’s analysis and decisions

OUTtv

Licensee’s proposal

Commission’s analysis and decisions

ONE

Licensee’s proposal

Commission’s analysis and decisions

Licensing of Canadian films

Requirements relating to independent production and terms of trade agreements

Removal of limits on certain program categories for iChannel

Requests for reductions to or relief from the standard accessibility requirements

Broadcast of advertising

Undertakings that wish to operate under the same terms and conditions

Expectations with respect to closed captioning

Other matters

Non-compliance and length of licence term

Conclusion

Program logs

Related documents

Appendix 1 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the pay Category A service Super Channel

Terms

Conditions of licence

Expectations

Encouragements

Appendix 2 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the specialty Category A service iChannel

Terms

Conditions of licence

Expectations

Encouragements

Appendix 3 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the specialty Category A service OUTtv

Terms

Conditions of licence

Expectations

Encouragements

Appendix 4 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the specialty Category A service The Brand New ONE: Body Mind Spirit Love Channel

Terms

Conditions of licence

Expectations

Encouragements

Appendix 5 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the ethnic, third-language specialty Category A service Fairchild TV

Terms

Conditions of licence

For the purpose of the conditions of licence:

Expectations

Encouragements

Appendix 6 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the ethnic, third-language specialty Category A service Talentvision

Terms

Conditions of licence

Expectations

Encouragements

Appendix 7 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the ethnic, third-language specialty Category A service Odyssey

Terms

Conditions of licence

Expectations

Encouragements

Appendix 8 to Broadcasting Decision CRTC 2013-468

Terms, conditions of licence, expectations and encouragements for the ethnic, third-language specialty Category A service ATN South Asian Television

Terms

Conditions of licence

Expectations

Encouragements

Footnotes