ARCHIVED - Broadcasting Decision CRTC 2015-542

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Reference: Part 1 application posted on 28 July 2015

Ottawa, 9 December 2015

Ethnic Channels Group Limited
Across Canada

Application 2015-0769-1

Request to amend the exemption order for discretionary TV services serving fewer than 200,000 subscribers

The Commission denies an application by Ethnic Channels Group Limited requesting that the Commission amend the exemption order for discretionary television services serving fewer than 200,000 subscribers to require that exempt third-language undertakings devote 15% of each week to Canadian programs rather than 15% of the broadcast year and the evening broadcast period (6 p.m. to midnight).

Application

Ethnic Channels Group Limited (ECGL) filed an application requesting that the Commission amend the exemption order for discretionary television services serving fewer than 200,000 subscribers set out in Broadcasting Order 2015-88 by maintaining the Canadian program exhibition requirement for third-language services set out in Appendix 2 to Broadcasting Order 2012-689.
Specifically, the applicant proposed that exempt third-language undertakingsbe required to devote 15% of each week to Canadian programs rather than 15% of the broadcast year and the evening broadcast period (6 p.m. to midnight) as set out in Broadcasting Order 2015-88.
In support of its application, ECGL stated that the Canadian programming exhibition requirement set out in Broadcasting Order 2015-88 would result in a greater regulatory burden for exempt third-language services, contrary to the Commission’s stated intention of not imposing greater regulatory obligations on such services. For its 60 exempt third-language services in particular, ECGL submitted that this obligation would require the broadcast of approximately 20,000 hours of Canadian programming during prime time on an annual basis (0.15 x 6 hours x 365 days x 60 services). It also noted that a new scheduling requirement would be highly disruptive for subscribers.
Finally, ECGL noted that the definition of third-language services in the new exemption order omits any mention of the languages of the Aboriginal peoples of Canada and proposed that such a reference be added to the order.
The Commission did not receive any interventions regarding this application.

Commission’s analysis

The requirement for the broadcast of Canadian programs set out in Broadcasting Order 2015-88 differs from that set out in Broadcasting Order 2012-689 due to the introduction of a new requirement relating to the evening broadcast period. In Broadcasting Regulatory Policy 2015-86, the Commission stated that certain exhibition requirements, such as evening exhibition requirements, may be effective in helping to achieve the objectives set out in sections 3(1)(e) and (f) of the Broadcasting Act (the Act). The Commission also took steps to align such requirements with the viewing habits of Canadians. Specifically, by introducing an exhibition requirement for exempt third-language services during the evening broadcast period, it sought to ensure that Canadian programs continue to be available to Canadians in the traditional linear environment and that these programs are given a chance at success by being scheduled when most linear viewing occurs.
With respect to the regulatory burden, the overall number of Canadian programming hours required each year for exempt third-language services will not increase under Broadcasting Order 2015-88 relative to the previous exemption order. Measuring this requirement over the broadcast year (as opposed to the week) will give such services the flexibility to broadcast fewer hours of Canadian programs on some days and in some weeks and more on others. Additionally, as regards the new evening broadcast period requirement, ECGL will not be required to produce or acquire 20,000 hours of new Canadian programs since Broadcasting Order 2015-88 does not require exempt broadcasters to devote 15% of the evening broadcast period to original, first-run Canadian programs.
While ECGL stated that the evening exhibition requirement would be “injurious” to its services, it did not provide evidence as to how the requirement would affect its business apart from arguing that programming disruptions might lead its subscribers to seek out alternatives, such as online video services. Further, the Commission did not receive any interventions regarding this application, despite the fact that any change to the order would apply to all services exempted under the order. As such, there is no evidence on the record that other operators of exempt third-language services share the applicant’s concerns. The Commission also notes that licensed third-language services are required to broadcast Canadian programs during the evening period.
Further, the Commission’s timeframe for implementing Broadcasting Order 2015-88 provides exempt third-language services with time to adapt and make the necessary changes to their operations to comply with its requirements. Specifically, the new exemption order will become effective at the same time as the amendments to the Broadcasting Distribution Regulations announced in Broadcasting Notice of Consultation 2015-304. These amendments are scheduled to come into force on 1 March 2016. Given that the text of Broadcasting Order 2015-88 was published in March 2015, ECGL will have had one year to adapt to the requirements set out in that order.
In light of the preceding, the Commission considers that the overall regulatory obligations for exempt third-language services have not increased as a result of Broadcasting Order 2015-88 and that these requirements are consistent with the Commission’s intention not to impose greater regulatory obligations on such services.
Finally, regarding the applicant’s concerns about the omission of a reference to Aboriginal languages in Broadcasting Order 2015-88, this omission reflects the status quo. There are currently no Aboriginal-language exempt services. If a new Aboriginal-language service were to be proposed, the Commission could consider the obligations to which it should be subject at that time. The Commission would do so in light of the implications such an application would have on the achievement of the policy objectives of the Act.

Conclusion

Given its determinations above, the Commission is of the view that it is not necessary to amend Broadcasting Order 2015-88. Accordingly, the Commission denies the application by Ethnic Channels Group Limited to amend Broadcasting Order 2015-88.

Secretary General

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