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Broadcasting Decision CRTC 2018-263

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References: 2017-160 and 2017-160-1

Ottawa, 2 August 2018

Various licensees
Across Canada

Public record: 1011-NOC2017-0160
Public hearing in the National Capital Region
16 October 2017

Renewal of licences for various terrestrial broadcasting distribution undertakings that will expire in August 2018 – Introductory decision

The licences for various broadcasting distribution undertakings (BDUs) are being renewed for a new licence term starting on 1 September 2018.

The key determinations addressed in this decision relate to the following:

The determinations set out in this decision and other determinations specific to the various terrestrial BDUs are implemented in the individual licences and renewal decisions for those BDUs, also issued today.The terms (including the licence expiry dates), conditions of licence, expectations and encouragements for the BDUs are also set out in those decisions.

Introduction

  1. In Broadcasting Notice of Consultation 2016-147, the Commission announced a two-phase process for the renewal of the licences for the broadcasting distribution undertakings (BDUs) listed in Appendix 1 to that notice. The scope of the first phase was limited to reviewing licensees’ practices regarding the small basic service and flexible packaging requirements; imposing conditions of licence relating to the Wholesale Code, the Television Service Provider (TVSP) CodeFootnote 1 and participation in the Commission for Complaints for Telecom-television Services Inc.Footnote 2 (CCTS); and renewing BDU licences on a short-term basis (see Broadcasting Notice of Consultation 2016-197). In the second phase, the Commission examined, among other things, compliance with requirements relating to the small basic service and flexible packaging options; community channels; accessibility; contributions to Canadian programming; the development of a set-top box-based audience measurement system; and requests to add, amend or delete conditions of licence (see Broadcasting Notice of Consultation 2017-160).
  2. In Broadcasting Decision 2016-458, the Commission imposed on BDUs conditions of licence relating to the Wholesale Code, the TVSP Code and participation in the CCTS, and set out a list of best practices for BDUs to follow to help Canadians form their own value proposition for television services, regardless of what services or products they choose. Further, the Commission stated that it would monitor, among other things, how BDUs promote and offer the small basic service and pick-and-pay and small package options, and would take any necessary remedial action when it examined the renewal of the licences for most BDUs in 2017.
  3. In Broadcasting Decision 2016-458, the Commission renewed certain of the BDU licences from 1 December 2016 to 30 November 2017; others were administratively renewed from 1 September 2017 to 30 November 2017 in Broadcasting Decision 2017-20. The Commission administratively renewed the licences from 1 December 2017 to 31 May 2018 in Broadcasting Decision 2017-159; and from 1 June 2018 to 31 August 2018 in Broadcasting Decision 2018-182. Accordingly, the BDU licences are being renewed for a new licence term starting 1 September 2018.
  4. The Commission received numerous interventions both in support and in opposition to various aspects of the applications received, as well as general comments.

Issues

  1. In this decision, the Commission sets out its determinations relating to the following:
    • community programming;
    • the potential imposition of conditions of licence relating to best practices for the small basic service and flexible packaging options;
    • the pricing of standalone services;
    • the set-top box audience measurement system and progress of the industry working group;
    • accessibility;
    • the potential inclusion of unpaid public service announcements in the local availabilities of non-Canadian services;
    • whether the Commission should review policies and practices regarding the carriage by BDUs of discretionary services in high definition format;
    • the potential incorporation of protective provisions for programming services set out in the Wholesale Code into suspensive conditions of licence;
    • compliance by application-based BDU platforms with regulatory requirements for licensed BDUs; and
    • the launch of Internet Protocol-based distribution systems.
  2. A list of the BDUs for which the licences are being renewed is set out in the appendix to this decision. In Broadcasting Decisions 2018-263 through 2018-270 also issued today, the Commission sets out its determinations relating to issues specific to those BDUs. The terms (including the licence expiry dates), conditions of licence, expectations and encouragements for the BDUs are also set out in those decisions.

Community programming

  1. As set out in section 3(1)(i)(iii) of the Broadcasting Act (the Act), the programming provided by the Canadian broadcasting system should include community programs. Community programming, whether produced by a BDU or by members of the community served by the BDU, provides a reflection of local realities that few other television services currently provide. It is one way the broadcasting system supports the activities of thousands of community and amateur sports associations across Canada. It is also a source of information regarding municipal politics outside major centres, which is essential to achieving full democratic participation.
  2. Licensed BDUs that elect to distribute community programming must ensure that they are doing so in accordance with the sections of the Broadcasting Distribution Regulations (the Regulations) relating to this type of programming and to contributions to local expression, Canadian programming and community television. The conditions relating to the community channel that are applicable to exempt BDUs are set out in Broadcasting Order 2017-320.
  3. These licensed BDUs are also required to adhere to the Community Television Policy,Footnote 3 which sets out measures to ensure that Canadians continue to have access to local programming that reflects their needs and interests by, among other things, establishing levels of exhibition and expenditures for local community television programming and community access television programming, as discussed below.
  4. The Regulations define “local community television programming” (local programming) as programming that is reflective of the community served within a licensed area and that is produced either a) by the licensee in the licensed area, by the members of the community served in the licensed area or by a community television corporation residing in the licensed area; or b) by another licensee in a licensed area within the same municipality as the licensee referred to in a) above, by the members of the community served in that licensed area or by a community television corporation residing within that licensed area. To ensure community reflection, licensed and exempt BDUs must devote a minimum of 60% of the programming broadcast during each broadcast week to local programming.Footnote 4
  5. The Regulations define “community access television programming” (access programming) as programming produced by an individual, group or community television corporation residing within the licensed area of a cable distribution undertaking.Footnote 5 By turning the passive viewer into an active participant, access programming facilitates expression at the local level and, therefore, plays an important role in fostering a greater diversity of voices and alternative choices. To ensure citizen access, licensed BDUs must devote a minimum of 50% of the programming broadcast during each broadcast week to access programs,Footnote 6 and direct a minimum of 50% of all direct programming-related expenditures to the production and acquisition of access programming.Footnote 7 Exempt BDUs are not subject to expenditure requirements, but must devote a minimum of 30% of the programming broadcast during each broadcast week to access programs. Given that access programming is by definition local programming, it can be included in the calculation to achieve the 60% exhibition threshold for local programming.
  6. In regard to community programming, the Commission has addressed issues relating to the following:
    • complaints regarding compliance with local and access programming requirements;
    • the possible inclusion of certain information on the public record for the present proceeding;
    • whether certain types of programs qualify as local or access programming;
    • the scheduling of access programming throughout the broadcast day;
    • reporting on hours of original programming broadcast on community channels;
    • the community channel monitoring exercise; and
    • various requests by parties regarding community programming that were previously addressed by the Commission.
Complaints regarding compliance with local and access programming requirements
  1. In late 2015 and early 2016, the Commission received several complaints alleging that community channels operated in various markets by certain licensed and exempt BDUs were in non-compliance with requirements relating to local and access programming.Footnote 8 Some of the complaints included a study that analyzed a one-week period of the programming grids for a large number of community channels located in various areas throughout Canada. According to the complainants, the study demonstrated that the community channels in question were not exhibiting the required amounts of local and access programming.
  2. In letters dated 28 July 2016 (to the Canadian Association of Community Television Users and Stations (CACTUS), Nowpolling.ca Society and CSUR la télé, or CSUR) and 1 August 2016 (to Independent Community Television-Montreal, or ICTV), the Commission indicated that the complaints would be examined as part of the present proceeding.
  3. Consistent with those letters, the interventions and documents that were filed in the context of the above complaints were placed on the public record of the present BDU licence renewal proceeding. Some interveners requested that the Commission issue separate decisions to deal with each of the complaints as part of the present proceeding.
  4. BDUs, in their replies, requested that the Commission dismiss the complaints on a variety of grounds, including arguments that the study was based on an inaccurate understanding of the actual areas served by community channels, that the programming grids analyzed were inaccurate or incomplete, and that the study was based on inappropriate interpretations regarding what should or should not be considered access and local programming.
  5. With the exception of CSUR, the complaints regarding community channels were based on the complainants’ analysis of the programming grids that were acquired on the related community channel websites. In addition to the concerns raised by BDUs regarding the reliability of such an analysis, CACTUS identified several shortcomings with its own analysis that caused difficulties in properly categorizing community channel programming. Among other things, it could not always accurately identify the areas served by a particular community channel, and the study often had to rely on Internet searches to determine how a particular program was made and who may have been involved in the production. For its part, ICTV requested that its own findings be verified by the Commission through logs to be provided by Videotron G.P.Footnote 9 (Videotron).
  6. The Commission considers that while the complaints exposed possible issues with community channel programming, the conclusions drawn by the complainants were, in many cases, based on incomplete or inaccurate sets of data or inappropriate assumptions. For example, the BDUs that are the subject of the complaints provided evidence that the study included programming that never aired on the community channels in question, of instances where evaluations were based on programming grids that did not correspond to the undertaking in question, and of instances of evaluations for community channels that did not exist.  
  7. The Commission takes seriously the allegations raised by the complainants. However, given the issues regarding the data provided by the complainants, the Commission finds that it would not be possible to use this data to accurately measure with any certainty BDUs’ compliance relating to the operations of their community channels. The important issues raised by the complainants, coupled with the shortcomings in the data and methodology, constitute a key reason why the Commission engaged its own comprehensive community channel monitoring exercise, as explained in greater detail below.
  8. Accordingly, the Commission finds it appropriate to use the logs and audio-visual recordings that it requested in the context of the present proceeding to evaluate community channel compliance during the current licence term. The information contained in those submissions provides a more complete and accurate record on which to examine possible non-compliance. Not only do those logs and audio-visual recordings cover the majority of the community channels referred to in the complaints, they provide greater amounts and varying types of data. Further, given that the Commission has had the opportunity to follow up with BDUs on their submissions, the information they contain is more accurate and complete than the information provided by complainants. Moreover, the logs and audio-visual recordings provided by BDUs were put under public scrutiny since interested persons were invited to comment on what was submitted. Finally, parties to the public hearing had the opportunity to discuss with Commission members the information contained in the logs.
  9. In light of the above, the Commission will not issue a specific decision on each of the above complaints and is closing these processes. Any findings of non-compliance relating to the community television practices of the licensees up for renewal that the Commission makes as a result of the materials placed on the record of this proceeding are set out in the renewal decisions, and appropriate measures to address them are being imposed as required.
Possible inclusion of certain information on the public record for the present proceeding
  1. At the public hearing, CACTUS requested that the results of its examination of BDU programming grids that were posted on a particular website be included as part of the record of this proceeding. At the hearing, the Commission informed CACTUS that only materials tangibly filed on the public record are taken into consideration by the Commission in making its decisions, and consequently directed CACTUS to file as an undertaking any information that it wanted the Commission to consider.
  2. On 27 October 2017, CACTUS filed an undertaking in which it provided a summary of the additional assessments that it carried out after its initial intervention to the licence renewal proceeding. It also reiterated its request that the Commission consider the information posted on a particular website in making the determinations in this proceeding.
  3. In its final reply, Rogers Communications Canada Inc. (Rogers) submitted that the content posted on a website that CACTUS requested form part of the record of the proceeding can be modified at any time. Rogers argued that it is unreasonable and unfair to expect that any BDU should have to respond to this volume of new information, which may be modified without notice or explanation.
  4. In making decisions, the Commission generally relies on evidence tangibly filed on the public record of a proceeding and on which parties have been provided with an opportunity to comment. CACTUS has not denied that the information on the website would be subject to potential change at any time. If the content of this website were to be considered by the Commission in this proceeding, it could not guarantee that all parties would have a sufficient opportunity to comment on all of the information found on the website at any given time. In the Commission’s view, this would raise unacceptable concerns of procedural fairness.
  5. In light of the above, the Commission has not considered the information on the website in question – to the extent that it has not been filed separately with the Commission as part of CACTUS’s interventions or undertakings – in making the determinations set out in this and related BDU renewal decisions.
Types of programs that qualify as local or access programming
  1. As noted above, “access programming” is defined as programming produced by an individual, group or community television corporation that resides within the licensed area of a cable distribution undertaking, but that is not employed by the BDU operating the community channel on which such programming is being broadcast. During the proceeding, various concerns were raised in regard to whether certain programs broadcast by licensees on their community channels could qualify as local or access programming. Where relevant, details are provided in the individual licence renewal decisions. In regard to the concerns, the Commission has addressed the following:
    • programming produced by elected officials;
    • magazine-style program segments;
    • Canadian Hockey League games; and
    • the eligibility of media professionals to request access to the community channel.
Programming produced by elected officials
  1. CACTUS was opposed to the categorization by Cogeco Connexion Inc.Footnote 10 (Cogeco) of some of its programs hosted by mayors and submitted that programs involving elected officials are not community programming but should instead be considered “government productions.” In this regard, CACTUS referred to section 30(1) of the Regulations, which categorizes “information programs funded by and produced for a federal, provincial or municipal government or agency or a public service organization” and “community programming” as separate types of programming.
  2. BDUs generally disagreed with CACTUS’s claims. For example, Cogeco replied that there is nothing in the Regulations or in the Community Television Policy that specifically prohibits mayors or elected officials who reside within the service area of a BDU from requesting access.
  3. The Commission considers the fact that a program may have a mayor or other elected official as either an access requester or an active participant does not, on its own, make that “a program funded by and produced for a federal, provincial or municipal government.” Access programming on the community channel is an appropriate forum in which to discuss matters of municipal and local relevance, and it is reasonable to expect that a mayor, for instance, may be an individual who is knowledgeable in that regard. Accordingly, there is nothing preventing an elected official who resides within a BDU’s service area from requesting access to the community channel. Further, as long as a particular program conforms to all related provisions in the Regulations and the Community Television Policy, the Commission will generally not consider the fact that a program involves an elected official to disqualify it from consideration as community programming.
Magazine-style program segments
  1. A magazine-style program is a program for which an envelope (containing a title and interstitials) is created and in which one or several segments to fill out the program’s scheduled running time are inserted. For the various undertakings of a given BDU, the envelope can remain the same, whereas the segment or segments can vary, and are categorized by the BDU as access programming, local programming, or some other type of programming, depending on where or how they were produced. CACTUS, among other interveners, argued that magazine-style programs should not be counted as access programming as the magazine-style format is a “corporate format,” thereby indicating that the original idea for the program did not originate from the community member requesting access, which is inconsistent with the criteria set out in the Commission’s definition of access programming.
  2. Overall, BDUs maintained that such programs had been correctly categorized. Bragg Communications Inc., carrying on business as Eastlink (Eastlink), for example, noted that while it did create the envelope for Podium TV (e.g., title and credit sequences, and theme music) used on many of its community channels, it argued that the content of each episode was distinct and under the creative control of different community members.
  3. The Commission has never explicitly indicated whether BDUs can count magazine-style programs, or the segments contained within them, towards access or local programming requirements. In its view, using pre-established formats (or envelopes) may be the best way to present some types of access and local projects that, for example, are of an unusual length or cover varying unrelated subject matter and, therefore, do not necessarily correspond to what would typically be considered a standard program. Moreover, not having to use resources to develop new music and opening credits, or to conform to a particular format, among other things, provides more flexibility for members of the community to participate in the community channel.
  4. In light of the above, the Commission determines that as long as the segments of a magazine-style program meet the criteria for access programming and/or local programming, those segments can be counted as such by BDUs.
  5. The Commission reminds BDUs that, for logging purposes, they will be required to retain information that identifies the segment in question as either access programming or local programming.
Canadian Hockey League games
  1. The Canadian Hockey League (CHL) is an umbrella organization that is composed of three member leagues: the Western Hockey League, the Ontario Hockey League and the Quebec Major Junior Hockey League. In its intervention, CACTUS questioned the categorization by some BDUs of certain CHL games broadcast on their community channels as access programming. It argued that it was unlikely for a community member to have had creative control over such productions in a way that was envisioned by the Commission when it defined access programming.
  2. In general, BDUs stated that they were broadcasting hockey games in compliance with the Community Television Policy. Rogers submitted, for example, that the league requested access and that each team has editorial control over the programming aired on Rogers TV.
  3. The Community Television Policy specifies that the key criterion for defining access programming is that creative control is in the hands of a community member, i.e., an individual or group residing within the licensed area of a terrestrial BDU. That policy further sets out that access programming should not be of a commercial nature, to the benefit of the person requesting access or a sponsor.
  4. In the Community Television Policy, the Commission clarified that the broadcast of programs featuring amateur sports, including those covering the activities of major junior leagues such as the CHL and its constituents, are permitted for broadcast on the community channel. The Commission did not specify, however, whether CHL games could qualify as access programming.
  5. For a CHL game to meet the criteria for access programming, the creative control of the program would need to remain in the hands of the community member who requested access. Since the production behind the broadcast of CHL games is generally complex and involves partnerships between the teams and BDUs, the possibility of a community member having the requisite degree of creative control is unlikely. As such, although CHL games that take place in the area served by an undertaking’s community channel may qualify as local programming, it is less likely that they would meet the criteria for access programming.
  6. The Commission considers that this was not clearly set out in the Community Television Policy. Accordingly, for the purposes of calculating amounts of access programming broadcast during the current licence period, the Commission has accepted as access programming CHL games broadcast in the area where the game in question took place. However, as of 1 September 2018, BDUs will generally no longer be permitted to count such games as access programming in those areas. They will, however, be permitted to count them as local programming where the specific program meets the necessary criteria.
Eligibility of media professionals to request access to the community channel
  1. CACTUS and ICTV noted that, in various cases, BDUs had granted access to the community channel to community members who were also media professionals (for example, local radio hosts, individuals who are or were seemingly employed by a broadcaster, or freelance workers who previously had access to the broadcasting system to a certain extent). In the interveners’ view, such cases should not count as access programming.
  2. In the 2010 community television policy (see Broadcasting Regulatory Policy 2010-622-1), the Commission did not explicitly exclude media professionals from being eligible to request access to the community channel. However, in 2016, in the Community Television Policy, the Commission clarified that an access program “must originate from a community member who is neither employed by a BDU nor a media professional who is known to the public or who already has access to the broadcasting system.”
  3. In response to CACTUS’s allegations that the use of media professionals by BDUs was contrary to the Community Television Policy, Cogeco indicated that the programming monitored as part of this proceeding was produced before the Commission clarified its position on media professionals in the Community Television Policy.
  4. The Commission notes that two of the sample weeks (during January and May 2016) used in the community channel monitoring exercise pre-date the publication of the Community Television Policy, whereas the other sample weeks (in August and September 2016) follow that policy’s publication by only two and three months, respectively. Consequently, there would not have been enough time for a community channel to revamp all of its programming in order to reflect the new policy. The Commission therefore finds that the clarifications set out in the Community Television Policy are not directly applicable to the weeks monitored as part of the present proceeding.
  5. Further, in Broadcasting Decision 2015-31, the Commission found Videotron, in regard to the operation of its Montréal area community channel MAtv, in non-compliance with regulatory requirements relating to access and local programming. Specifically, the Commission found that a significant portion of MAtv’s access programming used media professionals, with very little access being given to community members.
  6. The situation leading to that decision revealed a pattern whereby access was predominantly granted to media professionals, including to personalities well-known across the province of Quebec. This is significantly different than situations observed for BDUs in the present proceeding, in terms of both frequency and severity. While the Commission clearly concluded in that prior case that the extent of Videotron’s use of media professionals was a barrier to access for citizens, the same cannot necessarily be said about the practices of the BDU licensees that were part of the present proceeding, including Videotron.
  7. Given that the weeks monitored pre-dated or immediately followed the Commission’s clarifications relating to media professionals and that none of the practices monitored revealed a pattern comparable to that observed in the prior case of Videotron, the Commission considers that for the purposes of this process, it would not be appropriate to disqualify the specific programs targeted by the complaints from eligibility for being considered access programming. However, consistent with the Community Television Policy and the manner in which the expression “media professionals” is interpreted by the Commission in that policy, going forward, programs originating with media professionals will generally not be considered access programming.
Scheduling of access programming throughout the broadcast day
  1. In the Community Television Policy, the Commission stated that access programming should be scheduled in a reasonable manner throughout the broadcast day, including during the peak viewing period (i.e., 7 p.m. to 11 p.m.), and that the ratio of original to repeat programs should generally be the same for access programs as it is for other community programming. The Commission further stated that programming produced by independent community services and programming produced by local not-for-profit community television corporations (TVCs) would be considered access programming.
  2. The Fédération des télévisions communautaires autonomes du Québec (FTCAQ), in regard to Videotron, requested that the Commission impose a condition of licence requiring the licensee to assign TVC-produced programs a more prominent time slot in the broadcast schedule. In its reply, Videotron stated that its sole obligation is to make 20% of its schedule available for programming produced by TVCs.
  3. The Community Television Policy does not require access programming to be scheduled in a particular manner throughout the broadcast day. Further, the FTCAQ did not provide specific evidence that Videotron’s TVC programming is not being scheduled in a reasonable manner. Accordingly, the Commission does not consider it appropriate to impose a condition of licence in this regard. Nevertheless, the Commission reminds all BDU licensees that they should schedule access programming in a reasonable manner throughout the broadcast day, including during the peak viewing period.
Reporting on hours of original programming broadcast on community channels
  1. In the annual returns that licensees must submit to the Commission by 30 November for the broadcast year ending the previous 31 August, BDU licensees are required to report on form 1020 the total number of hours of original programming broadcast each broadcast year. This information makes it possible for the Commission to compare the amount of money spent by a community channel on original programming in relation to the amount of such programming broadcast, thereby allowing the Commission to determine the effectiveness of funds spent.
  2. In their annual returns for the 2015-2016 broadcast year, Eastlink, Rogers, Shaw Cablesystems Limited and Shaw Cablesystems (VCI) Limited (Shaw) and Videotron all reported the total number of hours of programming rather than the total number of hours of original programming. When questioned on this reporting, all four licensees confirmed that, going forward, they would abide by the required practice and indicated that they have put measures in place to ensure that future submissions of form 1020 will reflect only the hours of original programming broadcast on their community channels.
  3. The practice of reporting the total number of hours of programming rather than the total number of hours of original programming by a community channel makes it difficult for the Commission to determine the effectiveness of the funds spent on original programming since there is no way to compare the amount of money spent in relation to the amount of original programming broadcast by a BDU or within a community or geographic area. Further, the lack of consistency across BDUs makes it impossible to compare the performance in this regard for the community channels of the larger operators.
  4. In light of the above, the Commission considers that it would be appropriate to require the above licensees to ensure that the number of hours of programming reported in the annual return for their community channels include only the number of hours of original programming broadcast. A condition of licence to that effect is set out in the licence renewal decisions for Eastlink, Rogers, Shaw and Videotron. The imposition of this condition of licence will help ensure that the licensees follow through on the commitments they made during this proceeding to file the required information going forward.
Community channel monitoring exercise
  1. In the Community Television Policy, the Commission stated that the community television sector would benefit from a more systematic and standardized evaluation of compliance by BDUs with requirements relating to their community channels. To this end, the Commission announced that it would periodically require BDU licensees to submit logs and audio-visual recordings, and would choose a sample of community channels from which it would analyze logs and annual returns.
  2. The Commission first implemented this measure as part of the current proceeding to analyze the compliance by community channels that were the subject of the above noted complaints.Footnote 11 Specifically, it initiated a monitoring exercise in October 2016 by requesting a sample of the logs and audio-visual recordings of programming broadcast by community channels operated in most of the licensed and exempt BDU service areas referred to in the complaints. The material submitted by the BDUs was reviewed by the Commission and placed on the public record of this licence renewal proceeding for comment.
  3. Although for the most part this exercise provided the Commission with reliable information to assess the compliance of community channels, the Commission sought and received comments and proposals from different parties during the proceeding on how to improve the monitoring of community channels.
  4. In regard to future monitoring, CACTUS submitted that to enable members of the local service areas to assess compliance, BDUs should constantly make available and accessible on their community channel websites, and update at least monthly, information such as the following:
    • service area maps, to allow subscribers and the general public to interpret local and access claims and categories;
    • local and access requirements that apply to the service area;
    • names of parties provided with access, their role with respect to a particular production, and their address;
    • the supervising BDU producer;
    • the location of production;
    • sponsorship received for the program;
    • the number of program proposals received and produced;
    • the geographic focus of episodes;
    • hours of original programming;
    • amount and types of training offered;
    • the number of volunteers working on productions;
    • whether BDUs have elected to redirect money collected in the licensed area to another licensed area; and
    • whether BDUs have elected not to operate a community channel.
  5. BDUs considered that CACTUS’s proposals for additional reporting requirements and public disclosure exceed what is necessary to assess compliance and would require significant resources from BDUs, which would compromise their ability to focus resources on the creation of local and access programming. They proposed instead that the Commission standardize the programming log reporting requirements, and that any logging and reporting requirements should be implemented in a way that is sensitive to the administrative burden they represent. They also considered that the privacy of access producers should be maintained as much as possible.
  6. In light of the information received, the Commission has addressed the following issues relating to the monitoring exercise:
    • information to be included in the monitoring exercise;
    • the confidentiality of access producers’ personal details;
    • the need for a follow-up proceeding;
    • future monitoring; and
    • the use of community channels’ websites to post monitoring information.
Information to be included in the monitoring exercise
  1. The Commission considers that some of the information that CACTUS proposed be collected for subsequent monitoring exercises is not necessary for assessing compliance. For example, there is no requirement relating to the supervising BDU producer or the geographic focus of specific episodes. The Commission is of the view that other information proposed by CACTUS regarding additional reporting requirements and public disclosure exceed what is necessary to assess compliance. Further, the Commission shares the BDUs’ view that this would require significant resources from them, thereby compromising their ability to focus resources on the creation of local and access programming.
  2. Moreover, BDUs are authorized to receive sponsorship, to redirect money collected in the licensed area to another licensed area, or not to operate a community channel. The provision of information relating to the above would therefore not assist in monitoring compliance. In addition, other information is already available in other documents or reports (information relating to, among other things, existing local and access requirements, locations served by an undertaking, the number of program proposals received, the number of volunteers and of training sessions offered to volunteers, and hours of programming produced). The inclusion of such information as part of a monitoring exercise would therefore be unnecessary and redundant.
  3. The Commission considers, however, that it would be appropriate to include in the monitoring exercise other information proposed by CACTUS (for example, production locations and the names of parties who are provided with access and their role with respect to a particular production, which is information of the same type requested of BDUs as part of the first monitoring exercise). Such information would help the Commission assess whether the programs broadcast on various community channels qualify as access and/or local programming and, therefore, whether these community channels are operated in compliance with their respective requirements.
  4. In light of the above, for the next monitoring exercise, the Commission will request BDU licensees to complete a programming grid that contains the following information:
    • the main community served by the community channel, corresponding to the service area of the licensed BDU;
    • the dates covered by the program grid;
    • the name of the program broadcast;
    • the language(s) in which the program was broadcast. If the program includes more than one language, the portion (i.e., percentage) of the program broadcast in each language;
    • the broadcast date;
    • the start and end times for the program;
    • the length of the program broadcast;
    • whether the program was broadcast with closed captioning, audio description, and/or described video (not applicable to exempt undertakings);
    • original or repeat programming (one of the following to be selected):

    (1) original exhibition of a program that has been distributed by another BDU licensed by the Commission; or
    (2) original, first-run program (original exhibition of a program that has not been distributed by another BDU licensed by the Commission); or
    (3) repeat exhibition of a program;

    • type of program (program category):

    (A) local community television programming (licensee-produced);
    (B) access programming produced by a member of the public with the assistance of a BDU (community-produced programs, assisted by the licensee);
    (C) access programming produced by local not-for-profit TVCs and community-produced programs, unassisted by the licensee;
    (D) other community programming (programs produced by other BDU licensees);
    (E) announcement promoting broadcasting services, or government and public service announcements; and
    (F) bulletin board.

  1. The above programming grid must also be accompanied by calculations of the total amount of time devoted to the broadcast of each program category. In addition, it must be accompanied by a questionnaire grid, setting out the following information:
    • the name of the program broadcast (must match the name in the program grid);
    • a short description or a short synopsis of the program broadcast;
    • the category of the program broadcast (must match the category in the program grid);
    • the location (municipality) where the program was produced and identification of the BDU for which it would be considered local and/or access programming;
    • the access requester: whether the program is category B (access programming produced by a member of the public with the assistance of a BDU) or C (access programming produced by local not-for-profit TVCs, identification of the community member(s) who gained access);
    • details regarding the role (for example: actor, producer, director, etc.) of the access requester in the program broadcast;
    • an attestation that the access requester resides in the service area; and
    • explanations regarding how the program meets the criteria for the selected category (for example, how a program categorized as local community television programming reflects the community served by the community channel).
Confidentiality of access producers’ personal details
  1. CACTUS submitted that the names of parties provided with access, their role with respect to a particular production, and their addresses should be published. Certain BDUs submitted that the privacy of individuals granted access should be maintained to the greatest extent possible, and that information that could compromise their privacy should only be filed with the Commission in confidence rather than publicly.
  2. The Commission agrees with CACTUS that the names and roles of individuals granted access should not be kept confidential, as such information usually already appears in the opening or closing credits of programming exhibited on television. As such, filing it publicly with the Commission would not impact an individual’s privacy. Accordingly, for subsequent monitoring exercises, the Commission will collect information about the names of parties provided with access and their role with respect to a particular production, and make such information public.
  3. In regard to personal addresses, a simple confirmation that the access producer is a resident of that service area would be sufficient to assess whether the access producer resides in a particular service area, without having to deal with information that could potentially be considered confidential. However, the Commission will request formal proof of residence should there be a legitimate doubt that an access producer is a resident of a particular service area.
Need for follow-up proceeding
  1. Both Rogers and Cogeco proposed that the Commission initiate a follow-up written proceeding to examine ways to standardize logging and reporting requirements. Rogers added that such a proceeding should not be an invitation for parties to re-open the reporting requirements recently set out in the Community Television Policy, but should simply address ways to streamline those requirements.
  2. Although a follow-up proceeding is one way the Commission may collect information with the goal of standardizing requirements, most of the issues surrounding standardization are strictly of a technical nature (e.g., the software used to generate the information) and do not raise policy issues. In the Commission’s view, it would be more appropriate for Commission staff to hold discussions directly with licensed BDUs to work towards standardizing logging and reporting requirements for community channels.
  3. The format used in the initial monitoring exercise (and slightly adapted during the exercise), with possible minor modifications, may serve as an appropriate starting point for the monitoring of linear community channels going forward (i.e., where the program is broadcast on a schedule established by the community channel). However, it may not serve as an appropriate starting point for the monitoring of licensees that distribute community programming on an on-demand basis (where the viewer is able to choose the time to watch a program), which were not included in the first monitoring exercise. For example, programming grids – a central tool for monitoring linear community channels – do not apply to programming distributed on-demand. The Commission would therefore need to adopt a different approach for the monitoring of on-demand community programming. In its view, a public process that addresses the monitoring of such programming would assist the Commission in developing tools appropriate for the task. Accordingly, the Commission intends to initiate at a future date a public proceeding regarding an approach for monitoring licensees that distribute community programming on an on-demand basis.
Future monitoring
  1. In the Commission’s view, while a monitoring exercise on the scale of that undertaken in this proceeding may have been necessary in light of the significant number of complaints received, it would be unreasonable to perform monitoring exercises on the same scale on a regular basis. The amount of data that was collected proved resource intensive not only for the Commission, but also for BDUs and other interested parties.
  2. Instead, a regular monitoring exercise focusing on a smaller number of channels and using data from a smaller number of sample weeks would allow the Commission to further the objectives set out in the Community Television Policy relating to the implementation of a more systematic and standardized evaluation of compliance by community channels with regulatory requirements.
  3. The Commission also considers that BDUs that participate in the yearly monitoring exercise should generally be selected at random. However, in certain circumstances, such as for BDUs that have previously been found to be in non-compliance, it may be appropriate to monitor them more closely during the next licence term.
Use of BDUs’ websites to post monitoring information
  1. During the hearing, parties were questioned on the appropriateness of mandating the posting of programming information on BDUs’ own websites. CACTUS expressed support for this approach, suggesting that certain types of information should constantly be made available and accessible on those websites. However, BDUs generally opposed this approach, arguing that the objective of their websites should be to provide information to potential viewers in specific areas, not to demonstrate compliance with regulatory requirements.
  2. The Commission agrees that BDU websites may not be the most appropriate tool for publishing compliance information. Rather, the Commission considers that when it is appropriate to do so, information collected through Commission monitoring exercises should be posted on its own website. Accordingly, the Commission will not also require BDUs to post programming information on their websites.
  3. However, certain BDUs have adopted practices that can help viewers and members of the community better understand the role of the community channel and the type of programming offered. For example, Videotron identifies access programming as a “Community Project” in the program description section of MAtv’s website, using a banner to identify the individual requesting access and to invite community members to submit program ideas. Videotron also identifies programming produced by TVCs.
  4. In light of the above, BDUs are encouraged to clearly identify access programs on their websites, both as a way to inform viewers about this type of programming and as a way to promote access opportunities.
Requests regarding community programming that were previously addressed by the Commission
  1. Certain parties to this proceeding made requests regarding community programming that the Commission had already addressed in the Community Television Policy. These include the following proposals, which would constitute significant changes to the Community Television Policy:
    • a reversal of the Commission’s policy that allows licensed terrestrial BDUs to devote all (in metropolitan markets) or part (in non-metropolitan markets) of their allowable local expression contribution to designated local television stations for the production of local news;
    • a requirement for BDUs to produce and exhibit local news at appropriate levels to reflect the public interest, rather than reallocate funds away from community channels;
    • the creation of a fund derived from BDU contributions to Canadian programming that would support public library participation in the production of community programming; and
    • the authorization for community channels to sell advertising.
  2. The Commission’s determinations regarding the above were made following a recent and comprehensive policy proceeding during which it carefully considered all of the interventions from parties that participated. Certain of these proposals would necessitate policy changes that would require a more in-depth analysis than what is possible during a proceeding to renew the licences for certain BDUs. In any event, there is insufficient evidence on the record of this proceeding to support the view that these changes are necessary in the circumstances. Consequently, and consistent with its determinations set out in the Community Television Policy in regard to the above, the Commission denies the above-noted requests.

Imposition of conditions of licence relating to best practices for small basic service and flexible packaging options

  1. In Broadcasting Decision 2016-458, the Commission set out various best practices for the small basic service and flexible packaging options to be followed by BDUs in Canada. These relate specifically to consumer awareness and communication; access to services; the tied selling of television and Internet services; bundling discounts; and added costs to the basic service. As noted in that decision, the best practices promote choice for Canadians, and aim to allow Canadians to form their own value proposition for television services, regardless of what services or products they choose.
  2. In their joint intervention, the Consumers’ Association of Canada and the Public Interest Advocacy Centre (CAC-PIAC) proposed that the best practices set out in Broadcasting Decision 2016-458 be imposed as conditions of licence for BDU licensees, given their contention that not all BDUs are following the established best practices.
  3. CAC-PIAC provided a limited number of examples where certain alleged practices of BDUs were not in line with the best practices. For example, they submitted that TELUS Communications Inc.’s (TELUS’s) basic service subscribers did not yet have access to certain online options, and that Bell Canada in Manitoba (formerly MTS Inc.) and Saskatchewan Telecommunications (SaskTel) did not offer bundling discounts to small basic service subscribers.
  4. In reply, TELUS stated that it would be making the necessary system changes in order to make online options available to all subscribers. In regard to concerns that it does not offer any bundling discounts to small basic service subscribers, SaskTel submitted that when a service provider is offering a service at less than its cost, as in the case of SaskTel’s small basic offering, it is unreasonable to suggest that it is unfair for a BDU to exclude the small basic service from bundling discounts.
  5. In the Commission’s view, CAC-PIAC did not generally demonstrate that there was a systemic failure to implement the best practices such that it was having a negative impact on subscribers or was inconsistent with the Commission’s policy on choice for Canadian television consumers set out in Broadcasting Regulatory Policy 2015-96.
  6. Moreover, the Commission considers it significant that the volume of complaints it has received regarding BDUs has dropped considerably since it set out the list of best practices. In addition, it appears that the majority of BDUs have adopted these practices without more stringent regulatory requirements being imposed.
  7. In light of the above, the Commission does not consider it necessary or appropriate to impose on BDUs conditions of licence relating to the above-noted best practices.

Pricing of standalone services

  1. In Broadcasting Regulatory Policy 2015-96, the Commission required all licensed BDUs to offer all discretionary services on both a pick-and-pay basis and in small, reasonably priced packages by December 2016. At that time, it did not consider that further regulatory intervention regarding the retail price of individual programming services or other packages was warranted to achieve the objective of affordability.
  2. In their joint intervention, CAC-PIAC expressed the concern that the policy objective of offering greater choice to consumers may, in some cases, be impeded by the pricing of discretionary services on a standalone basis.
  3. BDUs replied that their current offers meet the Commission’s regulatory requirements. They submitted that there is no evidence to suggest that the current retail pricing is the result of commercially unreasonable practices, or that would otherwise justify a change to its longstanding approach of letting the competitive market determine the retail rates for discretionary services. Cogeco added that higher prices for individual programming services stem from the lower penetration levels resulting from the increased flexibility provided to consumers.
  4. In Broadcasting Decision 2016-458, the Commission reminded consumers that, in a pick-and-pay environment, some channels may be more expensive on an individual basis because they will no longer be part of a large package that is more widely distributed. The mere fact that some services appear to be more expensive on an individual basis is not sufficient to conclude that the overall pricing of standalone services is impeding the objective of choice.
  5. In light of the above, the Commission finds that no further action regarding the retail price of individual discretionary services offered on a standalone basis is required at this time.

Set-top box audience measurement system and progress of the industry working group

  1. In Broadcasting Notice of Consultation 2014-190, the Commission stated that data from set-top boxes (STBs) may be used to measure viewing levels of programs more accurately than currently available means. It therefore considered that the use of such data could allow the Canadian television industry to effectively respond to changes within the industry and to the needs and interests of viewers. In regard to the collection of STB data, the Commission stated the following:
    The collection of STB data is an area in which [vertically integrated] companies may have an advantage to the extent that they share STB data received from their BDUs with the television programming services that they also own. Large broadcasters also have access to a large amount of useful and relevant data from existing audience measurement services such as BBM.Footnote 12 In contrast, smaller services and those targeting niche audiences, especially those not operated by [vertically integrated] companies, may not have access to equivalent data either from STBs or from BBM.
  2. In Broadcasting Regulatory Policy 2015-86, the Commission required the industry to form a working group to co-operatively develop an STB-based audience measurement system that would, among other things:
    • permit broadcasters to make more informed programming selections and scheduling decisions;
    • provide broadcasters with new opportunities to effectively monetize advertisements;
    • place BDUs in a better position to tailor the services offered and the content of packages;
    • place the Canadian broadcasting industry on a more equal footing with the international and online video markets; and
    • ensure that the privacy of individuals is protected.
  3. Formed in April 2015, the STB Working GroupFootnote 13 has been developing a national audience measurement system based on STB data. BDUs that appeared at the hearing considered that this working group has made significant progress towards developing an STB-based audience measurement system. For its part, the Canadian Broadcasting Corporation (CBC) considered that the STB Working Group was on a positive track, and is moving forward at a reasonable pace.
  4. None of the parties appearing at the hearing, including programming services and BDUs, indicated that any changes were necessary to the above-noted objectives set out in Broadcasting Regulatory Policy 2015-86. Further, several BDUs expressed their confidence in the timelines filed in their 20 September 2017 progress report (i.e., that a system could be operational by 30 September 2018). Certain BDUs stated, however, that the project is complex and involves the participation of several parties that, in some cases, have divergent interests.
Proposed conditions of licence relating to STB data
  1. Both the Independent Broadcast Group (IBG) and the CBC proposed that BDUs be required to adhere to conditions of licence relating to the collection and provision of STB data. In this regard, the IBG stated that if BDUs are collecting STB data, they should be providing it to a third-party audience measurement aggregator by no later than 1 December 2018.
  2. The IBG and the CBC further proposed that BDUs also be required to adhere to a suspensive condition of licence (i.e., a condition of licence that would only come into effect should a deadline set out in the first condition of licence not be met) if a specific precondition was not met by BDUs relating to accessing STB data already being collected and used by BDUs. In this regard, the IBG and the CBC submitted that if STB data is currently being collected and used by BDUs, a programming service should be able to request the data that pertains to its own service. In their view, this condition of licence could be suspended as long as BDUs take reasonable steps to share such information with programming services voluntarily.
  3. According to the CBC, it would be appropriate to impose such requirements only on those BDUs for which the licences are currently being renewed, as the present proceeding covers the vast majority of BDUs that are able to collect and return STB data. It considered that the present proceeding shows that BDUs collect STB data for a variety of uses and have shared data with other entities, including related entities, which makes the collection and use of such data both feasible and desirable. The CBC added that BDUs do not appear to have charged either related or third-party programming services for STB data or reports where they have been provided, which suggests that it is “fair and reasonable” for BDUs to provide such data to individual programming services on such terms (i.e., at no cost).
Replies
  1. BDUs that appeared at the hearing did not propose alternate language for the proposed conditions of licence relating to STB data. Instead, they unanimously opposed the imposition of conditions of licence that would require BDUs to provide data to a third-party aggregator (such as Numeris) in order to develop a STB-based audience measurement system, or require them to have such a system in place by a specific deadline.
  2. Certain BDUs considered that such conditions of licence are neither necessary nor appropriate. In Rogers’ view, they would be unwieldly and overreaching, and would leave the BDU with little control over whether the requirements could be met. Shaw argued that a condition of licence relating to participation in the STB Working Group does not represent a regulatory measure that is either efficient or rationally connected to its purpose, and should therefore be rejected.
  3. Shaw further argued that such a condition of licence could significantly undermine innovation – those that have not invested in STB data collection could reasonably be deterred from making such investments. Cogeco proposed that the Commission refrain from imposing any condition of licence relating to the implementation of a STB audience measurement system given that, among other things, a condition of licence would be ineffective due to the inability of a single licensee to ensure the success of this collective project.
  4. In Rogers’ view, the proposed conditions of licence would only be feasible if i) the data is provided on a full cost-recovery basis; ii) the data is provided on a periodic basis (rather than continuously), or on an ad hoc basis; and iii) there is a third-party aggregator agreed upon by the industry. It argued that requiring participation on a regular basis would require tremendous resources on the part of BDUs. Rogers further argued that since the proposed conditions cannot be met at the present time, they should not be implemented.
  5. In regard to the IBG’s proposal that BDUs should provide STB data to programming services, Videotron objected to the proposed language since BDUs would not be compensated for this information. TELUS stated that it did not object to the proposed suspensive condition of licence so long as it is limited to aggregated STB data that it has already collected, and only if such data is requested by the programming service.
  6. Eastlink argued that it would be premature to issue any condition of licence until the work of the STB Working Group is completed. Similarly, Bell Canada noted that the STB Working Group and Numeris have only agreed to advance a proof of concept, and that it is entirely possible that Numeris will decide not to advance beyond this step. It stated that if a condition of licence requiring the provision of STB data to programmers is required, language that addresses the concept of “cost recovery and frequency of data requests” should be added to the condition of licence to be imposed.
Commission’s analysis and decisions
  1. The objectives underlying the implementation of a STB-based audience measurement system, set out in Broadcasting Regulatory Policy 2015-86, remain valid. Further, the Commission still considers that an STB-based audience measurement system has the potential to increase the number of programming services provided with data and to provide even more accurate data, compared to the existing audience measurement system provided by Numeris. Neither BDUs nor programming services proposed that these objectives be changed. Further, given that a national STB-based audience measurement system is not yet in place, the concerns raised in Broadcasting Notice of Consultation 2014-190 regarding the advantage that vertically integrated companies may have over non-vertically integrated programming services, due to the access they have to large amounts of useful data, have not yet been addressed, despite the efforts of the STB Working Group.
  2. Nevertheless, the development of an STB-based audience measurement system faces multiple challenges, including those relating to the divergent interests of BDUs and programmers. Even interests among different types of programmers may vary: whereas larger programmers appear to want access to detailed, raw data from BDUs so that they can perform their own analyses, smaller programming services are seeking to have access to subscriber figures not currently provided by the existing Numeris system. Furthermore, both large and small BDUs stated that they want to be compensated for costs associated with collecting and formatting STB data, although they did not provide evidence of what such costs might entail.
  3. In addition, on 20 September 2017, the STB Working Group filed a status report with the Commission, which included a projected date of 30 September 2018 for the implementation of an STB national measurement system. On 30 January 2018, the STB Working Group filed an updated progress report that included a revised date of 30 September 2019 for the implementation of the STB national measurement system.
  4. In light of the above, to address these issues, the Commission is of the view that it would be appropriate for it to impose requirements on vertically integrated BDUs relating to the collection and provision of STB data. This would be consistent with concerns over the advantages afforded to vertically integrated entities through collecting and sharing STB data with their related programming services.
  5. As noted above, the IBG and the CBC proposed specific language for potential conditions of licence, while the BDUs participating in the process did not propose alternate language, despite being given the opportunity to do so. The conditions of licence proposed by the IBG and the CBC would require BDUs both to provide STB data to a national aggregator for the purposes of audience measurement and to provide data specifically relevant to individual programming services to those services. In the Commission’s view, it is not necessary to impose both of these requirements such that they would operate simultaneously.
  6. Given that almost three-quarters of terrestrial BDU subscribers are currently served by one of the vertically integrated terrestrial BDUs, if these BDUs were required to provide STB data to a national audience measurement system, there would be a sufficiently large pool of data available to this system from which a representative sample could be drawn. The audience measurements that such a system could produce would address the concerns of programmers seeking more detailed information.
  7. Further, the development of a national STB-based audience measurement system has taken a significant amount of time. In the Commission’s view, given the stated objectives of such a system, establishing such as system as soon as is practicable would prove beneficial to the broadcasting system. Given the time that has elapsed since the formation of the STB Working Group, the Commission no longer considers it to be appropriate for that working group to proceed in the absence of firm deadlines.
  8. The Commission therefore finds it appropriate to require vertically integrated BDUs to provide STB data to a national STB-based audience measurement system by no later than 30 September 2019, so as to coincide with the STB Working Group’s revised date for the implementation of the STB National Measurement Service.
  9. In light of the above, the Commission is imposing on each of the vertically integrated terrestrial BDUs the following condition of licence:
    Where the licensee collects set-top box data regarding programming services it distributes, it shall, by no later than 30  September 2019, provide this data to a national set-top box-based audience measurement system.
    For the purposes of this condition of licence, “set-top box data” means viewership data that is obtained by the licensee through a set-top box or by comparable means, but does not include any portion of such data that would allow the recipient of the data to identify a particular subscriber or household.
  10. In order to address the possibility that a national STB-based audience measurement system cannot be established by the 30 September 2019 deadline, the Commission also considers it necessary to impose an additional condition of licence on vertically integrated BDUs, on a suspensive basis. This condition of licence, which will only take effect should the above deadline expire without any such system becoming operational, will ensure that even in such a scenario, Canadian programming services still have access to more detailed viewership information. Accordingly, the Commission is also imposing on those BDUs the following suspensive condition of licence:

    Where the licensee collects set-top box data regarding programming services it distributes, it shall, upon the written request of a Canadian programming service, provide that programming service with the set-top box data regarding that programming service, in the form of raw data or reports, within 30 days,

    1. at no cost; and
    2. up to a maximum of two times per broadcast year, unless otherwise agreed to by the parties.

    The application of the foregoing condition of licence is suspended until 30 September 2019 and, thereafter, so long as a national set-top box-based audience measurement system is operational.
    For the purposes of this condition of licence, “set-top box data” means viewership data that is obtained by the licensee through a set-top box or by comparable means, but does not include any portion of such data that would allow the recipient of the data to identify a particular subscriber or household.

  1. In regard to the condition of licence set out in paragraph 115, the Commission intends, where necessary, to monitor the compliance of vertically integrated BDUs with the requirement to provide STB data to a national STB-based audience measurement system by reference to the objectives for such a system as set out by the Commission in Broadcasting Regulatory Policy 2015-86. Specifically, in line with the findings set out in paragraph 159 of that regulatory policy, the Commission considers that these BDUs must provide information to the system that, in terms of the amount and the frequency at which it is provided, is sufficient to:
    • permit broadcasters to make more informed programming selections and scheduling decisions;
    • provide broadcasters with new opportunities to effectively monetize advertisements;
    • place BDUs in a better position to tailor the services offered and content of packages;
    • place the Canadian broadcasting industry on a more equal footing with the international and online video markets; and
    • ensure that the privacy of individuals is protected.
  2. In regard to the suspensive condition of licence set out in paragraph 116, the Commission expects vertically integrated BDUs and Canadian programming services to negotiate the specific terms for this arrangement, including the form in which the data is provided (e.g., reports or raw data) as well as the type of data to be provided. This will permit different types of programming services to address the different particular concerns they may have relating to their reception of such data.
  3. The IBG and the CBC, in proposing a condition of licence requiring the provision of STB data to programming services, did not specifically propose how frequently or at what cost the data should be provided. In addition, they proposed that the condition of licence be suspended as long as BDUs are taking reasonable steps to share such data voluntarily. While the Commission acknowledges that it would be appropriate for the programming services to negotiate certain details regarding the provision of this data, it does consider it necessary to provide certain clear parameters for the suspensive obligation. If this condition of licence does come into effect, its language will ensure that programming services have a clear right to this data, at set intervals, and on a basis where cost cannot be used to discriminate unjustly against non-affiliated programming services.
  4. Further, the information to be provided to programming services should be intelligible and provide an accurate portrayal of a programming service’s audience. Data should be based on universally used metrics for audience measurement such as, but not limited to, total aggregate viewing minutes, average minute audience, and the number of unique viewers over a minimum four-week period (or a longer period of time if deemed necessary and agreed to by parties). Further, the Commission considers that the transfer of data between BDUs and programming services should occur at least twice a year, if requested, to align with the frequency for the publication of Numeris’s Diary data.
  5. In regard to the requirement in the suspensive condition of licence that raw data or reports be provided to programming services at no cost, the CBC’s claim regarding the lack of compensation for BDUs by related or third-party entities for the provision of STB data or reports was neither countered nor disputed by BDUs. Although certain BDUs indicated that they wished to be compensated for costs and negotiate the terms under which STB data would be provided to programming services, the record of this proceeding does not indicate that they have been compensated for such data in the past or, if they incur costs, what these might be.
  6. These conditions of licence will apply to all vertically integrated BDUs for which the licences are being renewed, including that of Bell Canada in Manitoba. However, they will also apply to Bell Canada’s other terrestrial BDUsFootnote 14 for which the licences were not up for renewal in the present proceeding given that they are set to expire 31 August 2019.Footnote 15 As five years have expired since the most recent renewal of those BDU licences, the Commission has the authority to impose the above conditions of licence on those BDUs at this time.Footnote 16
  7. The above conditions of licence will not apply, however, to direct-to-home undertakingsFootnote 17 as they do not have the ability to return data from their STBs due to the technical limitations of satellite technology. Further, since the potential for BDUs to give an advantage to related programming services does not arise with independent BDUs (such as those operated by TELUS, Cogeco, Eastlink and SaskTel), the above conditions of licence will not apply to them. Nevertheless, the Commission encourages all BDUs not subject to those conditions of licence to continue to participate in support of the development of a national STB audience measurement system, and to make data available to such a system or to programming services upon request.
  8. In the Commission’s view, in light of the above, the conditions of licence being imposed constitute an appropriate means of implementing important objectives of the broadcasting policy for Canada, including those set out in sections 3(1)(d)(i), 3(1)(d)(iv), 3(1)(e) and 3(1)(s)(ii) of the Act. Among other things, they will help to ensure that key contributors to the Canadian broadcasting system, including BDUs and Canadian programming services, whether independent or vertically integrated, have access to accurate, detailed viewership information in order to inform their decisions and respond to the needs of their subscribers.

Accessibility

  1. In Broadcasting Regulatory Policy 2015-104, the Commission noted the challenges facing Canadians who are blind or have a visual impairment, or who have fine motor skill disabilities, in regard to accessing content. It stated that Canadians with disabilities should have more access to accessibility features (such as closed captioning, described video and audio description) and a seamless experience when accessing their content of choice. It further stated that accessible remote controls, STBs and electronic program guides must be made available for these Canadians.
  2. In regard to this proceeding, the Commission has addressed the following issues relating to accessibility:
    • requested exceptions to a closed captioning condition of licence;
    • the tracking and reporting of the number of accessible devices in the marketplace;
    • the closed captioning of advertising, sponsorship messages and promos inserted into local availabilities; and
    • amendments to and deletion of accessibility-related expectations and encouragements.
Exceptions to the closed captioning condition of licence
  1. In the Community Television Policy, the Commission determined that licensed BDUs would be required, by condition of licence, to close caption 100% of original licensee-produced programming by the end of their next licence term. In addition, licensed BDUs would be expected to ensure that 100% of original access programming (i.e., access programming that has not already been broadcast) is closed captioned by the end of their next licence term.
  2. In the current proceeding, BDUs generally submitted that changes in the funding of community channels stemming from the Community Television Policy could make the requirement to close caption 100% of original licensee-produced content difficult, although most agreed to the condition of licence and expectation set out in that policy. Videotron and Shaw requested specific exceptions to the proposed condition of licence, with support from FTCAQ, the Conseil Provincial du Secteur des Communications du Syndicat Canadien de la Fonction Publique, Télévision Communautaire Frontenac, Rogers, Eastlink and Cogeco. These proposed exceptions are more fully addressed in Videotron’s and Shaw’s individual licence renewal decisions.
  3. The closed captioning of programming is of particular importance to Canadians who are deaf or hard of hearing, as it enables them to be aware of the wide range of ideas and perspectives that make up the rich fabric of Canadian society.
  4. The closed captioning condition of licence and expectation, as set out in the Community Television Policy, are intended to come into effect for BDUs by the end of the licence term granted in this proceeding, so as to provide them with sufficient time to ramp up their production of closed captioning and to improve their processes to make them more efficient and affordable. During that time, it is likely that improvements in closed captioning technology will make it more affordable for BDU licensees to close caption programming.
  5. In light of concerns raised on the record regarding changes to the funding models of community channels brought about by the Community Television Policy, to ensure that all licensees are provided with a similar opportunity to improve their processes and adapt their business models, and to thereby ensure that all original licensee-produced programming is closed captioned by the set deadline, the Commission finds that all licensees should have a common date on which this requirement will come into effect. Accordingly, it is the Commission’s intention that the closed captioning condition of licence will take effect 31 August 2025, seven years following the coming into effect of the renewed licences.
  6. For BDUs that have been granted full seven-year licence renewal terms, the condition of licence relating to the closed captioning of original licensee-produced programming, as well as the expectation relating to the closed captioning of access programming, will take effect by the end of their new licence term, as intended by the Commission in the Community Television Policy. The Commission expects that the requirement set out in that condition of licence as well as the expectation will then be carried forward into the following licence term.
  7. For BDUs that have been granted shorter licence terms, the Commission intends to impose the condition of licence and expectation at the time of their next licence renewals, such that they will take effect seven years from the issuance of the renewed broadcasting licences from this proceeding.
Tracking and reporting of accessible devices
  1. In Broadcasting Regulatory Policy 2015-104, the Commission set out its intention to impose on BDUs, by condition of licence, a set of annual reporting requirements that would detail, among other things, the availability of STBs and remote controls to customers of BDUs, and their accessibility features; the penetration of accessible STBs and remote controls with the BDU’s customer base; and the number of accessibility-related queries received by the BDUs along with the number of such queries successfully resolved.
  2. Eastlink requested an exception to the above requirement as it relates to penetration rates. It noted that it does not currently track the penetration of accessible remote controls, in part because it does not charge customers for those remotes. Eastlink did not object to reporting requirements on the availability of accessible remotes and STBs. For its part, Bell Canada stated that it does not currently track the penetration of accessible remotes and STBs but that it could update its tracking system to do so. Other BDUs agreed to the imposition of a condition of licence to that effect, as proposed by the Commission.
  3. In the Commission’s view, physical inventory should generally be tracked in some manner by BDUs, even when equipment is made available free of charge. Although this may require BDUs to modify their systems, or implement new systems, the Commission’s intention in regard to the above-noted reporting requirements was made clear to BDU licensees in Broadcasting Regulatory Policy 2015-104. Moreover, the measures will further important policy objectives. Accordingly, the Commission will require all BDU licensees, by condition of licence, to include in their annual returns information relating to the following:
    • the availability of accessible STBs and remote controls, and their accessibility features;
    • the penetration of accessible STBs and remote controls with the BDU’s customer base; and
    • the number of accessibility-related queries received by the BDUs, and the number successfully resolved.
Closed captioning of advertising, sponsorship messages and promos inserted into local availabilities
  1. Local availabilities are periods of advertising time (normally two minutes per hour) in non-Canadian specialty services that are used for the promotion of first-run, original Canadian television programs and services offered by BDUs. Throughout the renewal process, licensees were asked to provide additional information regarding, among other things, a possible condition of licence relating to the closed captioning of advertising, sponsorship messages and promos inserted in local availabilities.
  2. Both Eastlink and Access Communications Co-operative Limited stated that they would be able to adhere to a requirement to close caption advertising, sponsorship messages and promos inserted in local availabilities only if they were able to recover associated costs.
  3. During the proceeding, BDUs also raised more general concerns over challenges relating to closed captioning, including cost and the changes to the funding models for community television resulting from the Community Television Policy. In light of these challenges, the Commission considers it appropriate to provide BDU licensees with flexibility in regard to the above. Accordingly, the Commission will expect BDUs for which the licences are being renewed in this proceeding to close caption any advertising, sponsorship messages and promos inserted in local availabilities, rather than require them to do so by condition of licence.
Amendments to and deletion of accessibility-related expectations and encouragements
  1. The Commission’s current policy regarding accessibility, set out in Broadcasting and Telecom Regulatory Policy 2009-430, includes a framework of conditions of licences, requirements, expectations and encouragements relating to the provision of closed captioning, described video, and audio description, as well as requirements, expectations and encouragements relating to customer facing information.
  2. As part of this proceeding, and in order to ensure the substance of this policy is carried forward into the upcoming licence term, the licensees up for renewal agreed to adhere to a standardized set of accessibility-related conditions of licence and expectations. These relate, for example, to making information available in alternative formats to subscribers regarding, among other things, the programming and services offered and the channel line-up; ensuring that subscribers are able to identify programming with described video in the electronic programming guide; promoting disability-specific products and services; and making websites and call centres accessible.
  3. In addition, BDU licensees currently subject to an encouragement relating to the accessibility of their STBs will no longer have that encouragement as it is superseded by the requirement in this regard set out in section 7.3 of the Regulations. That section was added to the Regulations pursuant to the Commission’s determination in this regard made in the context of the Let’s Talk TV proceeding and set out in Broadcasting Regulatory Policy 2015-104.
  4. In light of the above, all licensees for which the licences are being renewed in this proceeding will now be subject to the same set of conditions of licence and expectations relating to accessibility.

Inclusion of unpaid public service announcements in local availabilities of non-Canadian services

  1. In 2015, the Commission changed its general authorization regarding the use of local availabilities in order to, among other things, ensure that they are used to a larger extent to promote first-run, original Canadian television programs rather than programming services (see Broadcasting Regulatory Policy 2015-86).
  2. BDUs indicated that only a limited portion of this local availabilities capacity is currently being used to promote first-run, original Canadian television programs. Accordingly, based on the significant unsold inventory available, there was consensus among various parties, including programming services, that the Commission should once again allow BDUs to include unpaid Canadian public service announcements (PSAs) in local availabilities of non-Canadian services, as was the case before the Commission changed its general authorization in 2015.
  3. Rogers, Videotron, Cogeco and the IBG, among others, also proposed to reintroduce other elements that were eliminated from the local availabilities general authorization in 2015, such as the ability to promote Canadian radio and television programming services, rather than focus exclusively on the promotion of specific original programs.
  4. In the Commission’s view, local availabilities should be used primarily to promote first-run original Canadian television programs. Nevertheless, the Commission is of the view that it would be appropriate to once again authorize BDUs to insert unpaid Canadian PSAs within any unsold inventory of local availabilities that are made available for use by licensees. Such an authorization would not limit the possibility for Canadian programming services to promote their original programs, and would provide Canadian non-profit groups or organizations with access to additional promotional opportunities.
  5. In regard to the promotion of programming services, the Commission clearly set out in Broadcasting Regulatory Policy 2015-86 that “local availabilities should be used to a larger extent to promote original Canadian television programs in particular, rather than programming services or commercial advertisers or sponsors more generally.” Consequently, reverting back to the promotion of services rather than programs, as proposed by Rogers, Videotron and the IBG, would be contrary to the Commission’s local availabilities policy. Based on the evidence on the record of this proceeding, the Commission considers that a change to this aspect of the policy is not justified at this time.
  6. In light of the above, the Commission has amended the general authorizations for BDUs so that they will be authorized to insert unpaid Canadian PSAs in any of the unused inventory of local availabilities (either in the 75% portion reserved for the promotion of Canadian programs or in the 25% portion reserved for their own use), as long as they first offer at least 75% of the local availabilities inventory for the promotion of first-run, original Canadian television programs. The updated general authorization relating to local availabilities is set out in the appendix to Broadcasting Regulatory Policy 2018-271, also issued today.

Review of policies and practices relating to the carriage of programming services in high definition format

  1. Sections 18 and 19 of the Regulations set out requirements relating to access for television programming services operating in each official language market (specifically, to the distribution of English- and French-language discretionary services, including those operated by independent programming undertakings); ethnic discretionary services; programming services of community-based undertakings; and programming services of exempt programming undertakings (these do not include the conventional television stations that are offered as part of the basic service). Section 18(5) of the Regulations specifies that a BDU fulfils the above-noted requirements by distributing either the standard definition (SD) or high definition (HD) version of the services in question.
  2. Pelmorex Weather Networks (Television) Inc.Footnote 18 (Pelmorex) requested that the Commission review each BDU’s respective policies and practices regarding the distribution of discretionary services in HD format, given that decisions by BDUs to distribute, or not distribute, the HD format of a programming service would likely have a significant impact on viewership. It added that the Commission’s current policy enabling BDU licensees to distribute either the SD or the HD version of a programming service was set out in 2011, when roughly only a quarter of Canadian households had HD-capable STBs.
  3. Eastlink, Rogers and Videotron reported that the vast majority of their programming services are available in HD (or in 4K for Videotron). Shaw reported that 35% of programming services distributed in SD are also available in HD, but noted, as did Rogers and Videotron, that the amount of programming distributed in HD is partly dependent on the broadcast capacity available for each undertaking.
  4. There is a competitive advantage for BDUs to offer all of their content in HD. In regard to concerns that programming services are disadvantaged by not being distributed in HD, there are provisions in the Regulations that allow a service to file an undue preference complaint if it believes that there are specific circumstances that would warrant it. As such, the Commission considers that BDUs are sufficiently motivated to provide as much programming as possible in HD.
  5. Furthermore, any amendments to the Commission’s policy regarding the distribution of HD services by BDUs would require either the imposition of a specific condition of licence to that effect or an amendment to the Regulations. Such a decision should only be taken in the context of a broader policy proceeding where all BDUs would be permitted to provide comments.
  6. In light of the above, the Commission finds that no further action is needed in regard to the distribution of programming services in HD at this time.

Incorporation of additional Wholesale Code protections for programming services as suspensive conditions of licence

  1. The Wholesale Code governs certain aspects of the commercial arrangements between BDUs, programming undertakings, and exempt digital media undertakings. By setting the rules and parameters on matters to be considered by parties, and by establishing practices that would generally be considered reasonable or unreasonable, this code serves the Commission in the resolution of disputes.
  2. In Broadcasting Regulatory Policy 2015-438, the Commission expressed its intention to impose the Wholesale Code on all licensed distribution and programming undertakings by means of a condition of licence. In regard to BDU licensees, the following condition of licence was imposed on a significant portion of themFootnote 19 in the context of the renewal of their broadcasting licences in 2016:Footnote 20
    The licensee shall adhere to the Wholesale Code set out in the appendix to The Wholesale Code, Broadcasting Regulatory Policy CRTC 2015-438, 24 September 2015, in its dealings with any licensed or exempt broadcasting undertaking.
  3. In its intervention, the IBG noted that the Commission had indicated in the licence renewal decisions for the television services of large English- and French-language ownership groups (Broadcasting Decisions 2017-148 and 2017-143) that it would be applying safeguards against potential anti-competitive conduct by programming services, in the form of suspensive conditions of licence. In the IBG’s view, similar reasoning applies to the renewal of the BDU licences being reviewed by the Commission in the present proceeding. In their interventions, Blue Ant Media Inc., the CBC and Pelmorex supported the IBG’s proposal.
  4. In their replies, BDUs generally opposed the imposition of suspensive conditions of licence. Given that they had already agreed to adhere to a condition of licence requiring adherence to the Wholesale Code, BDUs considered that the IBG’s proposal was redundant.
  5. Unlike the BDU licensees up for renewal in this proceeding, BCE Inc.’s BDUs and the programming services of Bell Media Inc., Corus Entertainment Inc. and Rogers Media Inc. were subject to conditions of licence stemming from past decisions that had been imposed to address concerns over the exercise of market power and the impact of consolidation within the system.Footnote 21 In the most recent licence renewal decisions for the programming services (Broadcasting Decisions 2017-148 and 2017-143), the Commission considered that the record of that proceeding justified maintaining the existing conditions of licence that overlap with the Wholesale Code, while rendering them suspensive.
  6. The Commission is not convinced that the record of the present proceeding justifies applying this same approach to the BDUs up for licence renewal. Rather, the Commission finds that re-imposing the condition of licence requiring adherence to the Wholesale Code on the licensees is sufficient to address competitive issues related to distribution.

Compliance by application-based BDU platforms with regulatory requirements for licensed BDUs

  1. In its intervention, the IBG stressed the importance for application-based BDU platforms, such as Bell Canada’s Alt TV and TELUS’s Pik TV, to comply with the regulatory requirements that apply to licensed BDUs. In reply, Bell Canada stated that Alt TV is fully compliant with the Regulations. For its part, TELUS indicated that Pik TV provides an alternative to the more premium Optik TV packaging structure, and that Pik TV is offered on a limited basis and only in the markets in which Optik TV is available.
  2. Both Alt TV and Pik TV are offered pursuant to the existing BDU licences, and there is no evidence that either service is being offered in non-compliance with the Regulations or contrary to the intent of Commission policies that apply to those BDUs. Moreover, the IBG was not able to specify at the hearing any particular compliance issue for either Alt TV or Pik TV. Accordingly, the Commission does not consider that any further action is required in regard to such services at the present time. Should any issues arise in regard to the above, there are mechanisms in place, including the undue preference provisions set out in the Regulations, that would allow the Commission to address possible compliance issues.

Launch of Internet Protocol-based distribution systems

  1. During the oral hearing phase of the proceeding, Rogers, Shaw and Videotron were questioned on their plans to partner with a non-Canadian third party to launch Internet Protocol (IP)-based distribution systems. In particular, concerns were expressed in regard to the potential tied selling of television and Internet services and, because of the involvement of a non-Canadian entity, issues of control and privacy.
  2. Based on the record of this proceeding, the implementation by Rogers, Shaw and Videotron of such IP-based distribution platforms is only in its initial stages. At this time, Shaw subscribers to its IP-based service BlueSky TV are required to also subscribe to Shaw’s Internet service, and it appears that Rogers’ subscribers to its IP-based service will also be required, at least initially, to subscribe to Rogers’ Internet service. Videotron indicated that it was in the very early stages of considering an IP-based television service and was, therefore, unable to provide any further details concerning its implementation plans.
  3. Section 17.1 of the Regulations specifies that a licensed terrestrial BDU shall not charge more than $25 per month for its basic service (excluding equipment). In Broadcasting Decision 2016-458, the Commission expressed the preliminary view that the tied selling of television services and telecommunications services such as Internet by BDUs that are also large telecom service providers does not align with the intent of those sections of the Regulations. Further, the Commission considered that it would be contrary to the intent of the policy set out in Broadcasting Regulatory Policy 2015-96 for a large service provider to take advantage of its competitive position to tie its small basic service to the subscription of an additional service such as Internet.
  4. Both Rogers and Shaw submitted that without tying the BDU’s IP-based television service to the BDU’s affiliated Internet service, the functionality that makes these new IP-based platforms attractive to consumers is greatly reduced, although no evidence was provided demonstrating that such tying is a technical requirement. Both also submitted that while they roll out these new IP-based television services, they would continue to make their existing offerings available to consumers.
  5. As long as consumers are not deprived of the choices offered to them as set out in Broadcasting Regulatory Policy 2015-96, the Commission is not overly concerned over how these nascent premium service offerings are being rolled-out. In other words, as long as consumers have the option of subscribing to a small basic service on one of the platforms offered by these BDUs without also having to subscribe to an Internet offering, no further Commission action is necessary. However, as these new platforms evolve and become more mainstream, and as the platforms and offerings of the BDUs change, it may become necessary for the Commission to ensure that the policies set out in Broadcasting Regulatory Policy 2015-96 continue to be met.
  6. On the issue of control and privacy of consumer information, Shaw and Rogers indicated, in their answers to Commission undertakings, that they maintain complete control over all decisions relating to the requirements imposed on them as Canadian broadcasting undertakings and that the non-Canadian third-party partner in question would not have access to any of their customers’ personal information. No evidence was provided on the record of this proceeding that the offering of the IP-based distribution services will adversely affect BDUs’ control of their operations or increase the risk of the release of customers’ personal information.
  7. Consequently, the Commission will continue to monitor the evolution of these new services to ensure that BDUs continue to respect Broadcasting Regulatory Policy 2015-96 and comply with all other applicable policies and regulations.

Secretary General

Related documents

This decision is to be appended to the licence for each of the broadcasting distribution undertakings for which the licences are being renewed in this proceeding.

Appendix to Broadcasting Decision CRTC 2018-263

Terrestrial broadcasting distribution undertakings for which the licences have been renewed

Licensee name Application number and locations
2251723 Ontario Inc. 2016-0944-7
Barrie, Greater Toronto Area (including Ajax, Aurora, Bolton, Brampton, Caledon, Claremont, Etobicoke, Georgetown, King City, Markham, Milton, Mississauga, Nobleton, North York, Pickering, Richmond Hill, Scarborough, Toronto, Vaughan and Woodbridge), Hamilton-Niagara, Kingston, Kitchener-Waterloo, London, Oshawa, Ottawa, Peterborough, Sudbury, Thunder Bay, Windsor and their surrounding areas, Ontario
Access Communications Co-operative Limited 2016-0946-3
Regina (including White City), Saskatchewan
Atop Broadband Corp. 2016-0940-6
Majority of the Greater Toronto Area, Ontario

Bell Canada

Footnote 22

 2016-0943-9
Winnipeg and surrounding areas, Manitoba
Cogeco Connexion Inc. 2016-0951-2
Burlington, Hamilton/Stoney Creek, Kingston, Niagara Falls, Sarnia, St. Catharines and Windsor, Ontario
2016-0953-8
Drummondville, Rimouski, Trois-Rivières and their surrounding areas, Quebec
K-Right Communications Limited 2016-0938-0
Halifax and surrounding areas, Nova Scotia
Persona Communications Inc. 2016-0948-9
Sudbury, Ontario
Rogers Communications Canada Inc. 2016-0950-5
Allardville, Clair, Fredericton, Moncton, Rogersville and Saint John and surrounding areas, New Brunswick and Deer Lake and St. John’s and surrounding areas, Newfoundland and Labrador
2016-0949-7
Barrie, Hamilton, Kitchener, London, Newmarket, Oshawa, Ottawa and Toronto and surrounding areas, Ontario
Saskatchewan Telecommunications 2016-0934-8
Regina (including Pilot Butte and White City) and Saskatoon, Saskatchewan
Shaw Cablesystems Limited 2016-0959-6
Calgary, Alberta
2016-0936-4
Edmonton, Alberta
2016-0967-9
Fort McMurray, Alberta
2016-0960-4
Lethbridge, Alberta
2016-0961-1
Red Deer, Alberta
2016-0968-7
Coquitlam, British Columbia
2016-0978-6
Duncan, British Columbia
2016-0980-2
Kelowna, British Columbia
2016-0981-9
Langford, British Columbia
2016-0988-5
Nanaimo, British Columbia
2016-0990-1
New Westminster, British Columbia
2016-0991-8
Vancouver (North and West), British Columbia
2016-0995-0
Vancouver (Richmond), British Columbia
2016-0996-8
Victoria, British Columbia
2016-1000-0
White Rock, British Columbia
2016-1002-2
Winnipeg, Manitoba
2016-1007-2
Sault Ste. Marie, Ontario
2016-1008-0
Thunder Bay, Ontario
2016-0957-0
Saskatoon, Saskatchewan
Shaw Cablesystems (VCI) Limited 2016-1009-8
Edmonton, Alberta
2016-1010-6
Winnipeg, Manitoba

TELUS Communications Inc.

Footnote 23

 2016-0945-5
Calgary, Edmonton (including St. Albert, Sherwood Park, Spruce Grove and Stony Plain), Fort McMurray, Grande Prairie and Red Deer, Alberta
2016-0937-2
Kelowna, Nanaimo, Penticton, Prince George, Terrace, Vancouver (including Lower Mainland, Fraser Valley and Whistler), Vernon and Victoria, British Columbia

Videotron Ltd.

Footnote 24

 2016-0969-5
Gatineau (Aylmer, Gatineau, Hull) and surrounding areas, Quebec
2016-0952-0
Granby, Quebec
2016-0971-0
Québec and surrounding areas, Quebec
2016-0972-8
Montréal, Quebec
2016-0973-6
Montréal West, Quebec
2016-0964-5
Saguenay (Chicoutimi), Quebec
2016-0966-1
Sherbrooke, Quebec
2016-0970-3
Terrebonne, Quebec
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