Broadcasting Decision CRTC 2020-359

Reference: Part 1 application posted 11 July 2019

Ottawa, 27 October 2020

Newfoundland Broadcasting Company Limited
St. John's, Newfoundland and Labrador

Public record for this application: 2019-0545-7

CJON-DT – Licence amendment

The Commission approves an application by Newfoundland Broadcasting Company Limited to amend the condition of licence relating to described video (DV) for CJON-DT (NTV).

The amended condition of licence will require NTV to provide DV programming on all English- and French-language programming that is broadcast during prime time with the exception of U.S. programming received without DV less than 24 hours prior to air. NTV will be required to monitor the impact of this issue, which will be reviewed at their next licence renewal.

NTV is also encouraged to consult with DV stakeholders and to engage with the Described Video Working Group formed as a result of Broadcasting Regulatory Policy 2019-392 to see how it can contribute, and is required to report annually to update the Commission on their participation in the Working Group.

Background

Paragraph 3(1)(p) of the Broadcasting Act stipulates that programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available for the purpose. Along the same lines, in Broadcasting and Telecom Regulatory Policy 2009-430, the Commission stated that persons with disabilities should be able to access programming with described video (DV) from both the public and private sectors in French and English.
In Broadcasting Regulatory Policy 2015-104, the Commission stated that it would implement a tiered approach to the provision of DV. This approach would ramp up DV requirements over time in accordance with the size and resources of broadcasters.
In that same policy, the Commission required that, by September 2019, broadcasters who were already subject to a DV requirement increase the amount of DV they broadcast from four hours per week to providing DV for all prime time hours (7 p.m. to 11 p.m. each day of the week). All other small broadcasters, who were not already required to provide DV, were also required to begin providing a minimum of four hours of DV a week. More specifically, it stated:
The licensee shall, by 1 September 2019, provide described video for all English- and French-language programming that is broadcast during prime time (i.e., from 7 p.m. to 11 p.m.) and that is drawn from program categories 2(b) Long-form documentary, 7 Drama and comedy, 9 Variety, 11(a) General entertainment and human interest and 11(b) Reality television, and/or is programming targeting preschool children (0-5 years of age) and children (6-12 years of age).
In March 2019, the Commission launched Broadcasting Notice of Consultation 2019-67 as a result of an application by Bell Media Inc. (Bell), Corus Entertainment Inc. (Corus) and Rogers Media Inc. (Rogers) requesting that the Commission amend their condition of licence that requires prime time programming to be broadcast with DV. Specifically, Bell, Corus, and Rogers requested an exception to that condition of licence to be allowed to air non-Canadian programs received less than 72 hours prior to broadcast without DV.
In December 2019, the Commission issued Broadcasting Regulatory Policy 2019-392 in which it approved amendments to the conditions of licence, but placed greater limits on the exception to the DV requirement than those proposed by Bell, Corus, and Rogers. Accordingly, their amended conditions now state that:
The licensee shall, by 1 September 2019, provide described video for all English- and French-language programming that is broadcast during prime time (i.e., from 7 p.m. to 11 p.m.) and that is drawn from program categories 2(b) Long-form documentary, 7 Drama and comedy, 9 Variety, 11(a) General entertainment and human interest and 11(b) Reality television, and/or programming targeting preschool children (0-5 years of age) and children (6-12 years of age) with the exception of U.S. programming received without described video less than 24 hours prior to air. Such programs will be broadcast with described video for any repeat airings scheduled greater than 24 hours from delivery.

Application

Newfoundland Broadcasting Company Limited filed a Part 1 application to amend the condition of licence regarding the provision of DV, so that CJON-DT (NTV) be granted the same condition of licence as Bell, Corus, and Rogers in Broadcasting Regulatory Policy 2019-392. The licensee indicated that it is directly affected by the issues relating to the large vertically integrated broadcasters as it obtains most of its 7:00 to 11:00 PM primetime programming through a program supply agreement with Global (owned by Corus).

Interventions

The Commission received interventions in opposition from two individuals and from the CNIB Foundation.
The three interveners asked the Commission to reject NTV’s request, citing the importance of DV for Canadians with a visual disability. The CNIB Foundation further submitted that it believes the tiered approach used by the Commission to implement DV in Canada is realistic and achievable. It submitted that a broadcast day where 100% of programming is described should be the goal, however, it did recognize this will take some time. It further stated that if Canadian broadcasters worked together to procure and produce DV, a cost-effective solution could be found.
The Commission notes that these interventions were filed on a previous version of the licensee’s application, in which it requested relief from this condition of licence entirely, and asked to return to its previous condition of licence to provide 4 hours of DV per week, citing expenses as a large factor. The licensee later amended its application to request the same relief as that granted to Bell, Corus, and Rogers in Broadcasting Regulatory Policy 2019-392. No interventions were submitted after the licensee updated its application.

Commission’s analysis and decision

Having examined the public record for this proceeding in light of applicable regulations and policies, the Commission considers that the issues it must examine are the following:
- How much programming is potentially at issue?
- What efforts has the licensee undertaken since Broadcasting Regulatory Policy 2015-104 to meet its prime time DV condition of licence?
- Is the proposed amendment appropriate to effectively address the licensee’s issues?
- How can the Commission ensure that the requirement continues to meet the needs of DV users?

How much programming is potentially at issue?

The licensee submitted that the amount of affected content is similar in scope to that considered in Broadcasting Regulatory Policy 2019-392, given NTV’s program supply agreement with Global. The affected programs are first live run, near live or embargoed programs.

What efforts has the licensee undertaken since Broadcasting Regulatory Policy 2015‑104 to meet its prime time DV condition of licence?

The licensee submitted that it is unable to negotiate the availability of DV when buying rights for first run programing from the U.S. The licensee further submitted it would likely be able to meet the condition of licence if Corus were able to, given that it receives most of its programming through its program supply agreement with Global, but, as a standalone station, it has even less bargaining power than the larger broadcasting companies to negotiate with U.S. studios. Though the Commission acknowledges that as a small independent broadcaster, the licensee has less negotiating power than Bell, Corus or Rogers, the Commission considers that the licensee did not provide evidence of actual efforts to influence its suppliers to support its assertions.

Is the proposed amendment appropriate to effectively address the licensee’s issues?

While the licensee did not submit any specific information about the resources or time needed to provide DV for programming, the Commission notes that NTV faces the same challenges in delivering DV for live, near-live or embargoed programming as the licensees in Broadcasting Regulatory Policy 2019-392. As the Commission’s understanding of these challenges has not changed as the result of this proceeding, the Commission considers that granting relief from DV requirements during primetime for NTV would be appropriate for first run programming arriving from the U.S. without DV less than 24 hours prior to air time.

How can the Commission ensure that the requirement continues to meet the needs of DV users?

In Broadcasting Regulatory Policy 2019-392, the Commission noted the Closed Captioning Working Group that was formed and supported by the English Broadcasters Group, and encouraged Bell, Corus, and Rogers to hold regularly occurring consultations with DV stakeholders consistent with this approach, for the purpose of collaboratively developing solutions to address the issue requiring the 24 hours exception granted by the Commission in this policy. Further, it required them to file progress reports with the Commission every six months until their next licence renewal.
The Commission considers that it would be appropriate to likewise encourage the licensee to participate in these Working Group discussions. In order to monitor the role of small broadcasters in these discussions, the Commission requires NTV to file a report with the Commission on its contributions to the Working Group every year until its next licence renewal. The reports are to be provided to the Commission no later than 3 December 2021 and 3 December 2022. The reports will be made available on the Commission’s website and will be reviewed during the proceeding to renew NTV’s licence, which expire in 2023.
In order to fully assess the impact of the amendment to this condition of licence, the licensee is expected to keep logs detailing the receipt date of all U.S. programs received without DV and broadcast in prime time, including U.S. programming received without DV prior to the 24 hours exemption threshold that the licensee was required to describe. The logs should be submitted to the Commission at the time of its licence renewal as part of NTV’s licence renewal application.

Conclusion

In light of all of the above, the Commission approves the amendment to Newfoundland Broadcasting Company Limited’s condition of licence related to the provision of DV during prime time. The changes to the condition of licence are in bold:
The licensee shall, by 1 September 2019, provide described video for all English- and French-language programming that is broadcast during prime time (i.e., from 7 p.m. to 11 p.m.) and that is drawn from program categories 2(b) Long-form documentary, 7 Drama and comedy, 9 Variety, 11(a) General entertainment and human interest and 11(b) Reality television, and/or programming targeting preschool children (0-5 years of age) and children (6-12 years of age) with the exception of U.S. programming received without described video less than 24 hours prior to air. Such programs will be broadcast with described video for any repeat airings scheduled greater than 24 hours from delivery.

The Commission requires the licensee to file a report with the Commission on its contribution to the Described Video Working Group every year until the next licence renewal. The reports are to be provided to the Commission no later than 3 December 2021 and 3 December 2022.

Reminder

The Commission reminds the licensee that it is an exceptional measure and that it should make every effort possible to exhaust all avenues to procure the programs and/or episodes with DV.
For programming that is subject to the exception, a logo is to be displayed at the start of the first airing and an audio notification is to be provided indicating that repeat broadcasts will be aired with full DV at a future time.

Encouragement

The Commission encourages the licensee to consult with DV stakeholders and participate in the Working Group discussions as set out by the Commission in Broadcasting Regulatory Policy 2019-392.

Expectation

The Commission expects the licensee to keep logs detailing the receipt date of all U.S. programs received without DV and broadcast in prime time, including U.S. programming received without DV prior to the 24 hours exemption threshold that NTV were required to describe. The Commission further expects this information to be included in NTV’s renewal application so that the impact of this exception can be assessed as the Commission intends to revisit this issue at the time of NTV’s licence renewal. NTV’s licence expires in August 2023.

Secretary General

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