ARCHIVÉ -  Transcription

 

 

 

 

 

 

 

              TRANSCRIPT OF PROCEEDINGS BEFORE

             THE CANADIAN RADIO‑TELEVISION AND

               TELECOMMUNICATIONS COMMISSION

 

 

 

 

             TRANSCRIPTION DES AUDIENCES DEVANT

              LE CONSEIL DE LA RADIODIFFUSION

           ET DES TÉLÉCOMMUNICATIONS CANADIENNES

 

 

                          SUBJECT:

 

 

 

Applications to Provide an All Channel Alert Service /

demandes visant la fourniture d'un service

d'alerte tous canaux

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HELD AT:                              TENUE À:

 

Conference Centre                     Centre de conférences

Pontiac Room                          Salle Pontiac

140 Promenade du Portage              140, Promenade du Portage

Gatineau, Quebec                      Gatineau (Québec)

 

May 3, 2006                           Le 3 mai 2006

 

 

 

 

 

Transcripts

 

In order to meet the requirements of the Official Languages

Act, transcripts of proceedings before the Commission will be

bilingual as to their covers, the listing of the CRTC members

and staff attending the public hearings, and the Table of

Contents.

 

However, the aforementioned publication is the recorded

verbatim transcript and, as such, is taped and transcribed in

either of the official languages, depending on the language

spoken by the participant at the public hearing.

 

 

 

 

Transcription

 

Afin de rencontrer les exigences de la Loi sur les langues

officielles, les procès‑verbaux pour le Conseil seront

bilingues en ce qui a trait à la page couverture, la liste des

membres et du personnel du CRTC participant à l'audience

publique ainsi que la table des matières.

 

Toutefois, la publication susmentionnée est un compte rendu

textuel des délibérations et, en tant que tel, est enregistrée

et transcrite dans l'une ou l'autre des deux langues

officielles, compte tenu de la langue utilisée par le

participant à l'audience publique.

               Canadian Radio‑television and

               Telecommunications Commission

 

            Conseil de la radiodiffusion et des

               télécommunications canadiennes

 

 

                 Transcript / Transcription

 

 

                             

   Applications to Provide an All Channel Alert Service /

         demandes visant la fourniture d'un service

                    d'alerte tous canaux

 

 

 

 

BEFORE / DEVANT:

 

Michel Arpin                      Chairperson / Président

Joan Pennefather                  Commissioner / Conseillère

Helen del Val                     Commissioner / Conseillère

 

 

 

 

 

ALSO PRESENT / AUSSI PRÉSENTS:

 

Chantal Boulet                    Secretary / Secrétaire

Peter McCallum/                   Legal Counsel /

Reynolds Mastin                   Conseillers juridiques

Gerard Bergin                     Manager, Broadcast

Technology / Gestionnaire

de technologie en

radiodiffusion

 

 

 

 

 

HELD AT:                          TENUE À:

 

Conference Centre                 Centre de conférences

Pontiac Room                      Salle Pontiac

140 Promenade du Portage          140, Promenade du Portage

Gatineau, Quebec                  Gatineau (Québec)

 

May 3, 2006                       Le 3 mai 2006

 

           TABLE DES MATIÈRES / TABLE OF CONTENTS

 

 

                                                 PAGE / PARA

 

PHASE IV

 

 

REPLY BY / RÉPLIQUE PAR:

 

Bell ExpressVu                                    731 / 3934

 

Canadian Broadcasting Corporation                 742 / 3996

 

Pelmorex Communications Inc.                      760 / 4094

 

 

                 Gatineau, Quebec / Gatineau (Québec)

‑‑‑ Upon resuming on Wednesday, May 3, 2006

    at 0903 / L'audience reprend le mercredi

    3 mai 2006 à 0903

3927             LE PRÉSIDENT : À l'ordre, s'il vous plaît.  Order, please.

3928             Madame la Secrétaire.

3929             LA SECRÉTAIRE : Merci, Monsieur le Président.

3930             We will now proceed to Phase IV in which applicants can reply to all interventions submitted on their application.  Applicants appear in reverse order.

3931             We would then ask Bell ExpressVu to respond to all the interventions that were filed to their application.  You will have 10 minutes for this purpose.

3932             Mr. Frank.

3933             MR. FRANK:  Thank you very much.

REPLY / RÉPLIQUE

3934             MR. FRANK:  Good morning.  We will be very brief this morning.  It wasn't clear to us last night whether we would actually be appearing in this stage or not but when we were invited we decided that it would be a good idea to come this morning.

‑‑‑ Laughter / Rires

3935             MR. FRANK:  Anyway, let me simply say that it is crystal clear to us that there is broad support for a universal ‑‑ and when I say universal, I mean right across the board ‑‑ emergency alerting service in Canada.

3936             There are obvious public benefits and there is a public need for this type of service.  That is obvious given the events of the last five or six years:  changing weather, national disasters, terrorism, et cetera, et cetera.  So the need and the support is there.

3937             We think the best way forward is through dialogue and cooperation amongst all the parties, with the goal of developing a universal and cost‑effective service.

3938             In our mind what has come out of the last few days are the key questions of when and what, if any, should be the regulatory framework.

3939             You have our submission on whether to license or not.  You also have our strong preference for an open and non‑exclusive licensing framework if in your wisdom you choose to go that particular way.

3940             As to timing, I think the answer to that, as soon as reasonably possible the baseline protocols should be in place through the CANALERT process.

3941             The government and the CRTC should, in our mind, clearly delineate that the authorized emergency agencies are responsible for the content and it is up to the broadcasters to deliver the message to their viewers, listeners and subscribers.

3942             It should be reinforced that we do not opposed either of the applicants joining us at this hearing.  Rather, we do oppose, however, the request by Pelmorex for sole supplier and end‑to‑end status.

3943             As I said at the beginning, our goal is to provide a universal, cost‑effective service to all of our subscribers across the country.  We think we know our system and our underlying technology the best and we think we are in a position to deliver on that promise as soon as practical.

3944             Now, I will just pass the microphone over to my colleague David Elder who has a few more specific issues to raise.

3945             MR. ELDER:  Thank you, Chris.

3946             We have heard over the last two days that there are a number of serious issues that need to be addressed before a viable national emergency alerting system is likely to become a reality:  issues about who is entitled to issue warnings and who has authority to screen them or recall them; issues about the liability of issuers, aggregators and distributors; issues about appropriate message formats and delivery; important issues, mission‑critical issues.

3947             But, with respect, many of these issues simply fall outside the Commission's expertise and jurisdiction.  Some like the liability issue may only be fully resolved by legislation.

3948             Many of these issues are already being discussed and hopefully will eventually be resolved within the Industry Canada‑sponsored CANALERT framework which features participants from the broadcasting industry as well as key government agencies with expertise in emergency preparedness.

3949             In our intervention on Monday we opined how text alerts did not constitute broadcasting and I don't intend to repeat those arguments here.

3950             Certainly, a national emergency alerting system is a desirable thing with incalculable benefits to public safety and security.  And yes, perhaps we have been without it too long.  Perhaps the CANALERT process and related working groups are taking too long, notwithstanding the hard work and diligent participation by many private and public sector stakeholders, many of whom you have heard from in this hearing.

3951             However, the lack of a national emergency alerting system is, with respect, not a problem that is appropriately the Commission's to fix.  The creation of such an entity does not fit squarely within the objectives of the Broadcasting Act which is focused more fundamentally on the creation, funding and exhibition of Canadian content and the development of Canadian creative talent rather than on matters of public safety.

3952             The Commission is at the end of the day a creature of statute and the statute is not telling the Commission that it is charged with kick‑starting an emergency alert service, leapfrogging the government departments who are properly tasked with creating and implementing such a service.

3953             Certainly, the Commission has a role to play when it comes to authorizing broadcast undertakings to participate in an emergency alerting service.

3954             In this regard, Bell ExpressVu urges the Commission to amend section 70 of the BDU Regulations, as discussed in our previous submissions, in order to pave the way for the warning system or systems that may eventually be developed and implemented.

3955             We don't really know at this point what our emergency warning system may look like.  So it only makes sense to give BDUs the flexibility to accommodate whatever the final product will be.

3956             The company equally urges the Commission to refrain from selecting one particular undertaking or vendor to be the sole alert aggregator and distributor.  This is, of course, what the Commission would effectively be doing if one undertaking were to be granted mandatory carriage pursuant to paragraph 9(1)(h) of the Broadcasting Act.  If one undertaking has mandatory carriage, why would any BDU receive alerts from anyone else?

3957             Choosing one aggregator/distribution of alerts over all others may tie the hands of the working groups that are currently in discussions to design and implement an emergency alerting system by limiting them to a single distributor where they might have preferred a multi‑party model.

3958             It may place the financial responsibility for maintenance of the system on BDU subscribers when government funding might have been available, avoiding the need for such a surcharge.

3959             In short, in authorizing only one aggregator/distributor, the Commission would be making fundamental policy decisions respecting matters of public safety and security, a subject area that is at best at the fringes of the Commission's jurisdiction.

3960             I thank you for your time and we are happy to take your questions.

3961             THE CHAIRPERSON:  Commissioners?  No.

3962             Mr. Counsel.

3963             MR. McCALLUM:  Just a couple of very fast ones.

3964             Just on the liability issue.  There has been a lot of discussion through intervention process on the liability issue and I just wondered if you had any further thoughts about the liability issue if the Commission were favourably disposed towards granting the condition of licence that Bell ExpressVu is seeking in this process.

3965             MR. ELDER:  Well, if we are authorized, we receive the necessary authorization to undertake what we have applied for, I think we would certainly be looking to the aggregators or the originators of messages that would be received by our system to be, at a minimum, providing us with an indemnification contractually as part of the arrangements we would make with them.

3966             Over and above that, I think we would be looking to government to legislate some kind of a limitation of liability for all those in the chain involved with providing an emergency warning system.

3967             I really think that that is the best way to provide a meaningful limitation of liability that a court would uphold and that would provide real protection.

3968             MR. McCALLUM:  Does the notion of forced tuning all channels to one channel also help to attenuate possible liability because viewers are no longer watching the programming on a programming undertaking?  So I wonder if that is one measure that assists.

3969             MR. FRANK:  Well, it seems to me ‑‑ I mean there is still potential liability.  I mean a lot of the liability, it seems to me, would rest with incorrect messages, delivery of messages to the wrong areas, omitting to deliver a message to a particular area, and all of those issues remain in a forced tuning environment.  So no, I don't see a big difference in terms of potential liability.

3970             MR. McCALLUM:  Thank you.

3971             Just one further question about your comment that you wish to use your own technology.

3972             If Pelmorex or even the CBC provided a receiver, at your headend, that delivered alerts with the associated address code, would Bell ExpressVu be able to take responsibility for alerts from that point on?

3973             MR. FRANK:  Let me give you a very general answer to that because I am not the chief technology officer of Bell ExpressVu.

3974             It is my understanding that both of those applicants are willing to work with the BDU to find the most effective interface at a reasonable cost.  So I would commit from our perspective that we would work with whomever to undertake that goal and I would expect that we would find a solution that would adequately meet the task.

3975             MR. McCALLUM:  Thank you.

3976             Thank you, Mr. Chair.

3977             THE CHAIRPERSON:  Mr. Frank, if the Commission was to grant only one licence to one supplier ‑‑ I know that Mr. Elder alluded to that question in his reply but which one should we choose?

3978             MR. FRANK:  As long as the grant of licence was on a basis that allowed us to negotiate with that distributor fairly so that we could achieve our goal of cost‑effectiveness, we don't have a preference.

3979             Clearly, we have stated that we don't believe that there should be a sole source supplier and that is the underlying reason ‑‑ one of the underlying reasons, excuse me.

3980             It is difficult to respond comprehensively to a hypothetical question, especially one that is not within our stated objective.

3981             THE CHAIRPERSON:  And if it was you that was granted such a licence and with a mandatory distribution, will you be working with all the other BDUs and broadcasters ‑‑ will you make the undertaking to work with the broadcasters and the distributors to provide a national service?

3982             MR. FRANK:  In a general sense, sir, I will commit on behalf of the company to work with other broadcasters and other distributors.

3983             But our licence is Bell ExpressVu‑specific.  We would be willing to talk with other BDUs to help develop a cost‑effective solution but I don't think there is going to be one solution that would fit all BDUs.

3984             I think our technologies are quite, quite different, and to be clear, our application is focused on Bell ExpressVu, the satellite service and on our wireline operations.

3985             THE CHAIRPERSON:  And what are your views if the Commission was making no decision until Industry Canada, CANALERT had completed their work?

3986             MR. FRANK:  Well, we are committed to work with the rest of our broadcasting colleagues to bring such a service to the market as quickly as possible.  I think that work would go on even if the Commission didn't render a decision or if the Commission's decision took some time to be published.  The work will continue, with the end objective of putting a service in place.

3987             THE CHAIRPERSON:  Now, Mr. Elder, you alluded to the liability limitation and asked that a legislative determination be made.  How long do you think such legislative changes will take before being capable to be put in place?

3988             MR. ELDER:  Well, that is a very good question, sir, and I think the prudent answer from me would be, hopefully, as soon as possible given the priority of the issue at hand.

3989             But I have no insight into how quickly this new government might work on that particular issue other than we have been told by Industry Canada that this is a priority issue.  It is one of the, I think, five pillars of the government's current policy agenda.  So hopefully, it would happen quickly.

3990             THE CHAIRPERSON:  Well, thank you very much, Mr. Frank.  Thank you very much, Mr. Elder.

3991             We will move to the second applicant.

3992             THE SECRETARY:  Thank you, Mr. Chairman.

3993             I would now invite CBC/Radio‑Canada to come forward to reply to the interventions that were filed on their application.

‑‑‑ Pause

3994             THE SECRETARY:  I would ask if you would just identify yourself for the record and you have 10 minutes for your presentation.  Thank you.

3995             M. GUITON : Merci.

RÉPLIQUE / REPLY

3996             M. GUITON : Bonjour.  Encore une fois, avec moi, sont mes collègues madame Cody‑Rice et monsieur Gauthier.

3997             In the intervention phase of this proceeding, you have heard comments, notably from Pelmorex, on a number of issues and I would like to just address a few of those right now.

3998             First of all, there is a question about EAS technology and its capabilities.  I would just like to take two minutes to set the record straight on this issue.

3999             Our implementation of EAS would include the CAP protocol.  This is not theoretical.  Vendors already exist that supply fully functional CAP‑compatible EAS decoders.

4000             In the space of half an hour on the internet following comments made in this proceeding, we identified three commercial suppliers of fully functional CAP‑compatible EAS decoders.  We encourage the CRTC to do its own research that it is readily available to reassure itself that this is the case.

4001             Consequently, the statement by Pelmorex that what was presented on our video is not possible with EAS technology is simply false.  Everything you saw and heard in that demonstration is possible through CAP‑compatible EAS decoders.

4002             Again, we suggest that the Commission can readily confirm this through available sources of information and through contact with EAS suppliers and U.S. emergency authorities.

4003             To assist the Commission in this regard, we have prepared, and appended to our remarks, a brief summary of EAS terminology and its structure.

4004             More fundamentally, however, we need to step back from this technology discussion about what is the best technology for the transport of alerts.

4005             CBC/Radio‑Canada believes that public alerting in Canada cannot be built on the imposition of a single proprietary technology.  Effective public alerting will depend on the participation of multiple distribution platforms, broadcasters, cable, satellite, cellular, telephony, ISPs, and the technology required will have to suit the particular nature of each platform.

4006             Public alerting, therefore, requires the implementation of multiple technologies and those distribution platforms should be able to source authorized alert messages in a variety of ways.

4007             The most efficient and cost‑effective way to facilitate public alerting across these various platforms is through the adoption of commercially available and non‑proprietary technologies.  We believe public alerting must be technologically agnostic.

4008             Pelmorex, on the other hand, is advocating that the CRTC mandate the adoption by BDUs of its proprietary technology.  We strongly believe that is the wrong approach for public alerting in Canada.

4009             So why is the CBC/Radio‑Canada proposing the adoption of EAS for itself and its availability as a backbone service for other distribution platforms such as cable and satellite?  There are three reasons.

4010             First, we have carried out detailed trials and have extensively studied EAS technology in Canada.  We understand its capabilities very well and we have determined how it can best be implemented to maximize those capabilities.

4011             In that regard, I would only just like to note, one other point is that Industry Canada is fully aware of EAS technology and is considering EAS as one option within its CANALERT initiative.  This point was evidenced in our application when we made reference to Industry Canada's presentation to the Broadcaster Working Group.

4012             The second reason for imposing EAS technology is that we believe cross‑border coordination in public emergencies is important.  EAS is the alerting technology in use in the United States and it will continue to form the foundational transport technology of emergency alerting in that country.

4013             As I indicated on Monday, in November of last year the FCC released its first report and order on EAS.  As a result of that report, the FCC has decided to require the adoption of EAS by emerging digital platforms such as digital cable, DTV, DBS, DAB, and SDARS.  That issue has been decided.

4014             What the FCC is now looking at are the protocol issues and that brings us to our third reason for proposing EAS.  In its further report, the FCC is now looking at the issue of protocols to enhance the capabilities of its EAS system, having decided that EAS is the way they will go.

4015             Specifically, the FCC has acknowledged that the CAP protocol is compatible with EAS and is asking whether CAP is the right protocol for the United States.  It is asking, and I quote from the FCC:

"Should we require the adoption of CAP for EAS alerts?"  (As read)

4016             Clearly, the FCC has confidence in EAS as a transport system for public alerts both today and in the future.

4017             On another matter, some interveners, including Pelmorex, have raised the issue of the cost by comparing our estimated capital costs with the estimate capital costs for the Pelmorex system.  These interveners have missed the point of our proposal.

4018             It is our view that BDUs should be able to choose how to implement public alerting and in making that choice, cost will no doubt be a factor.  Any number of providers having possibly lower costs than any participant in this hearing may emerge in the future.

4019             However, it is worth being reminded that the lower capital costs estimated by Pelmorex are a function of the monopoly model it proposes.  The CRTC has seen this type of proposal before where applicants seek a mandated monopoly to sustain their business and it has dealt with them appropriately.

4020             In our view, enabling choice is the most effective way to ensure that public alerting in Canada develops in the most cost‑effective and efficient manner possible.

4021             I would just like to pass the lead to my colleague Miss Cody‑Rice for a moment to provide you an additional comment.

4022             MS CODY‑RICE:  I would like to address briefly the issue of liability.

4023             The question of liability has been repeatedly raised in these proceedings and the broadcasters intervening yesterday indicated that they had the impression that as no one is assuming liability, they will be the only ones liable if a lawsuit occurs.  This is inaccurate and the CBC wishes to be very clear about this.

4024             The question of liability is the province of the courts and not the CRTC.  Of course, each element in the alerting system is responsible for its own performance but if an error occurs, liability will be determined as a question of law.

4025             But in advance of such an event, it would be imprudent and inappropriate for any of the entities before the Commission to assume liability.  This may prejudice their position at a later date in a court proceeding.

4026             We are not in charge of the question of liability, nor is this Commission.  It is the operation of law and of the courts which will determine it.

4027             It is understandable that various elements in the system would like legislation that limits or resolves liability, or alternatively, they would like an indemnification, particularly from government, who is originating ‑‑ or CANALERT, who may be originating the signal ‑‑ or the message, rather.

4028             The responsibility for a public alert is an important one and a lawsuit could be potentially devastating.  If a broadcaster is sued, it no doubt will draw in as defendants everyone in the line of authority, up to and including CANALERT itself and possibly the CRTC if the CRTC has licensed the alert provider.  What we say here today cannot relieve any of us of our legal responsibilities.

4029             M. GUITON : We would be pleased to answer any further questions you have for us at this time.  Merci beaucoup.

4030             THE CHAIRPERSON:  Mr. Legal Counsel.

4031             MR. McCALLUM:  Yes, just one further point on the liability.

4032             From the Commission's perspective, of course, it is 3(1)(h) of the Act that the Commission wants to know if it can be addressed, which is:

"All persons who are licensed to carry on broadcasting undertakings have a responsibility for the programs they broadcast."

(As read)

4033             From the Commission's perspective, the concern is, is that section respected with respect to emergency alerts where the party carrying the alert, either CBC and the broadcasting distribution undertaking which are part of the chain, specifically don't want to be responsible for the content of the alert that they receive.

4034             So I wanted to see if you have any further comments, having heard the interveners, about that preoccupation.

4035             MS CODY‑RICE:  Well, the question to be decided, I think, by the Commission itself is whether this is alphanumeric or programming.  That is the first question and we did not get involved in that discussion because we are not making an application to be licensed.

4036             So that is a jurisdictional question for the Commission and I think if the Commission is of the view that it is programming, then they need to speak to CANALERT.

4037             You are aware, no doubt, that in the Elections Act there is a provision where although broadcasters have to carry political messages, the CRTC goes to the arbitrator or the election official just after the writ is dropped and sends out guidelines to all broadcasters.

4038             I think that the Commission, if it wanted to ensure that, would have to deal with the originator of the message, CANALERT.

4039             On the question of a ‑‑ let us say there were a lawsuit, and that seems to be the concern about people.  If it were ‑‑ we may say in the legislation that the broadcaster is responsible for the message but if it turns out that the broadcaster, in fact, didn't have control of the message and the BDUs interrupted the program and the broadcasters had no say, I don't think any court would find the broadcasters liable.  I think they would find other people in the chain who could have stopped the message.  That is number one.

4040             Number two, with respect to liability, when you ask if you are responsible for what you do, that is a slightly different question from are you liable for what you do.  Of course, we are all responsible for what we do but liability attaches if there has been negligence or if there has been wilful wrongdoing, so that although we are responsible for what we do, if through some act of God or totally unpreventable error, a wrong message went out, no one will be found liable by a court.

4041             It happened, it is unfortunate, but you are not liable because you didn't do anything wrong or fail to do something you should have done.

4042             MR. McCALLUM:  Okay, thank you.

4043             CBC doesn't have a particular view ‑‑ if the Commission decided to give a signal that the CBC's proposal is a good one, would you have any view as to, if you implement alerts in the manner that you propose, whether the signal that you carry would be a programming service or alphanumeric?

4044             MS CODY‑RICE:  Well, I think it is ‑‑ well, when you look at the test that is applied, and I think Rogers put forward that test very clearly yesterday, I think it is a stretch to say that for any other channel than The Weather Channel possibly that it is a programming service.

4045             MR. McCALLUM:  Thank you.

4046             I guess one question ‑‑ yesterday, there was the budget, of course, and I wondered if you had any news of any sort from the budget.

4047             M. GUITON : Yes.  We have quickly looked at it.  There is funding for, I believe, something called public security, and what is involved in that, we just don't know at this point in time.

4048             In fact, I was just waiting for a call before we started because I haven't been able to identify the amount of money that has been set aside for this public security item.  So it is unclear at this point.

4049             But I would add, as I mentioned on Monday, that whether it is in the budget or not is really immaterial from our point of view because we believe CANALERT, in terms of developing the protocols, is still going ahead and that work is still going to continue.  That is not work that was necessarily going to be funded outside of the budget.

4050             The money that was being identified prior to the new government, as I mentioned on Monday, the $90 million that was mentioned outside the budget was funding for ‑‑ almost seed money for different groups such as broadcasters, BDUs, cellulars, to help them engage in developing new technologies.

4051             The CANALERT project itself in terms of protocols will go ahead even without any specific mention in the budget, as I understand it.

4052             MS CODY‑RICE:  I would just like to clarify something I said in case I wasn't quite clear.

4053             When I say that with respect to The Weather Channel, that may be seen as a programming service because it may be programming related to the kind of programming they do.  But if a Pelmorex alert is carried on CBC or any other channel where you are breaking away from a drama show, for example, I think it is difficult to say that it is a programming service with respect to those channels.

4054             MR. McCALLUM:  Thank you.

4055             Thank you, Mr. Chair.

4056             THE CHAIRPERSON:  Thank you, Mr. Counsel.

4057             I will ask you the same ‑‑ I understand that you didn't file an application, you are here to seek that we amend the Regulation, but in the eventuality that the Commission comes to a decision that they will authorize only one supplier, which one should they choose?

4058             M. GUITON : We have no doubt it should be ourselves but, to be honest, the point we would make ‑‑ again, I think the same point was made by Bell ExpressVu this morning ‑‑ is that that would not be the way we would like to see the Commission go.

4059             We would like to see this as an open process and, certainly ,the idea of mandating a single supplier, in our view, is simply bad policy.

4060             It would get the Commission bought into a specific technology.  It would get the Commission into trying to impose a technology on all sorts of different providers and we are just not, I don't think, at a point in time where we are knowledgeable enough or we have the expertise to say that that is a valuable way to go.

4061             It is always better to have choice to enable people to adapt to new situations, as technologies emerge, for themselves.

4062             So our view would be ‑‑ as we say in our proposal, our preference is that you allow these things to emerge on a non‑mandated basis.

4063             THE CHAIRPERSON:  But if the Commission was to come to the conclusion that it will make it mandatory and it will be your service, will you be ready to come back to apply to provide that service?

4064             M. GUITON : If the Commission was to make it mandatory and was to make it our service, then I think there is another element that we have to add to that equation.

4065             If we had not yet received CANALERT funding, then the service that we would be providing to BDUs would be the satellite service, the satellite uplink service plus the National Arm Centre.

4066             We have provided costing information to you further to your undertaking to us indicating what that aspect would cost.  It would be much cheaper than the proposal that we put on the table because it would not include the radio component and we would be prepared ‑‑ perfectly well prepared to go to BDUs and to try and negotiate with them for the rollout of that service and recover the financing from them.

4067             As you may have seen by looking at that undertaking, the costs are quite minimal, less than a penny per sub, half a penny per sub if all BDUs are involved.  If not all BDUs are involved, it would rise somewhat to a couple of pennies but it is not significant at all.

4068             THE CHAIRPERSON:  And if the Commission was not to make any decision for some time on these applications, at least until the CANALERT discussions reach some conclusions, do you have any comments on that?

4069             M. GUITON : Our position has always been that CANALERT should go first.  This process ‑‑ to be honest, this has been very helpful for CANALERT, I believe.  As you saw yesterday, a number of people suggested that they weren't aware of the CANALERT process and the broadcast committee.

4070             THE CHAIRPERSON:  Now, they can say ‑‑

4071             M. GUITON : I am looking forward to seeing them at the next meeting.

4072             THE CHAIRPERSON:  Yes.

‑‑‑ Laughter / Rires

4073             M. GUITON : It is a very important process.  It is moving ahead.  We the broadcasters have put forward important proposals to CANALERT, to Industry Canada.  We are waiting for Industry Canada to come back to us with some response on those.

4074             Our view is entirely that it is not harmful for you to wait because it is very important that CANALERT get this thing done right, get it done right first.

4075             And just in passing, if I may ‑‑ I am probably taking too much time and I may be going in different places but I found it very interesting ‑‑ and I am saying this not as the Chair of the Working Committee, it is just a personal view.  I found it very interesting yesterday when Environment Canada appeared before you.

4076             The Environment Canada official indicated that in the City of Windsor, in the extended summer months, there were in the order ‑‑ I believe he said 75 alerts.  That amounts to an alert every two days over five months.

4077             Personally, I think if that is going on in CANALERT, we have got a problem and that is the type of thing that ‑‑ why broadcasters have to come forward and participate and why CANALERT has to be done right before we really get into this.

4078             On the one hand, we have emergency officials who quite sincerely and quite rightly are doing their job.  On the other hand, we have broadcasters who are trying to temper that by defining emergencies in the right way.

4079             An emergency every two days over five months, in my mind, is going to undermine the credibility of an emergency system.

4080             MS CODY‑RICE:  I just have one comment to add to that and that is because changing a regulation takes a long time and because no matter what is done, that regulation needs to be changed if one wants to have an effective public alerting system, then I don't think it hurts to begin the process of changing the regulation, so that by the time that CANALERT is ready, one doesn't have to wait another year or two years until the regulation is changed in order to effect this change.

4081             THE CHAIRPERSON:  And if ‑‑ I am directing my question to you, Mr. Guiton.

4082             As the Chair of the CANALERT Working Group, will you be recommending liability limitations within ‑‑

4083             M. GUITON : Yes, we have done so.  We have made that recommendation ‑‑

4084             THE CHAIRPERSON:  Already.

4085             M. GUITON : The committee has made a recommendation to the industry groups participating in CANALERT that we need to resolve this, we need to get this thing moving forward, and as I mentioned, we are waiting for Industry Canada, in the CANALERT context, to come back to us with responses to our suggestions in that regard.

4086             THE CHAIRPERSON:  You were just saying that amending a regulation takes time.  Amending legislation or creating new legislation, does it take the same time or more time?

4087             MS CODY‑RICE:  Well, that is a political question and I think that the fastest way to limit liability would be to have an indemnification from the government.  That is a matter of contract, so that you could do that quite quickly.  I agree that amending legislation is ideal but it does take quite a long time.

4088             THE CHAIRPERSON:  Thank you very much.  Thank you, Mr. Guiton.  Mr. Gauthier, thank you.

4089             M. GUITON : Merci.

4090             LE PRÉSIDENT : Madame la Secrétaire.

4091             LA SECRÉTAIRE : Merci, Monsieur le Président.

4092             I would now invite Pelmorex Communications to come forward to respond to all the interventions that were filed to their application.

4093             LE PRÉSIDENT : Monsieur Morrissette, à votre convenance.

RÉPLIQUE / REPLY

4094             M. MORRISSETTE : Monsieur le Président, members of the Commission, good morning.

4095             Joining me this morning at our table is Paul Temple to my right; Alysia Charlton to his right; Luc Perreault to my left; Legal Counsel Scott Prescott; Tawnie McNabb; Jean‑Pierre Boulanger; and Marc Bernier.

4096             Before we begin, you gave us homework and it was filed Tuesday morning with all the documents that you requested.

4097             We are here today to address the interventions supporting and opposing, written and oral.

4098             Rogers, ExpressVu and Telco say we are not needed.  They can move forward independently and voluntarily.

4099             That is a scenario for an unmanaged free‑for‑all where 1,000 users try to connect with several hundreds of BDUs with many different standards and technologies.

4100             Our role will be to simplify things for emergency authorities and BDUs, making the essential contacts and managing the system so the right message gets to the right people in the right format in less than a minute.

4101             While Rogers and ExpressVu may have large systems with the technical support and economies of scale to design and implement alerting technology themselves, over 1,000 small distributors do not, and emergency authorities also need help coordinating their access to distributors.

4102             You heard from Vidéotron that aggregating information is exactly what Pelmorex does today and we are good at it.  We have been at it since 1988 and we have been doing it with our technology and thousands of headends.

4103             Our service at a single price for all subscribers in large and small systems solves the problem of equipment affordability for small cable systems.

4104             Our initiative also ensures ongoing accountability for system upgrades and testing.  That responsibility would rest in a single set of hands ‑‑ ours.

4105             You asked who would be responsible for any problems that arise under the Broadcasting Act.  Unequivocally, it would be us, the licence holder.

4106             Rogers and Telco claim that our technology is being forced on them, that it is invasive and incompatible.

4107             For analog systems, we set out 20 different options in our documentation and we can do various types of broadcast alerts, pop‑up, banner, crawl or full page.  BDUs can pick what works for them.

4108             The Telco intervention was mistaken in their assertion that our proposal is analog only.  We provided a variety of digital solutions in our documentation.

4109             The real‑world test is that we sat down with Vidéotron and developed a solution that worked for them.  That is how we plan to work with others.

4110             BDUs also said they were concerned about having our equipment in their headends.  In fact, headends are full of third‑party equipment from SA to GI to our own PMX boxes already and it all works well.

4111             MR. PRESCOTT:  Certain interveners have suggested that the Commission lacks the jurisdiction under the Broadcasting Act to approve the Pelmorex ACA Application.  The interveners' legal analysis is flawed.

4112             An administrative agency's jurisdiction is determined by its statute.  You can't look at a regulation or a policy statement issued in respect of an unrelated matter to determine the scope of that agency's mandate.  You have to read the statute.

4113             The Broadcasting Act states in section 5 that:

"The Commission shall regulate and supervise all aspects of the Canadian broadcasting system."

(As read)

4114             This includes Pelmorex's unique programming undertaking that will operate ACA and the distribution networks operated by BDUs.

4115             The Act also authorizes the CRTC to regulate the activities of programming undertakings, which, by definition, transmit programs.  The Commission does not license channels, it licenses undertakings.

4116             Contrary to the assertions of some interveners, it is clear that the definition of "program" includes alphanumeric text and that alphanumeric text only ceases to be programming when it becomes the predominant feature of a programming service.

4117             Therefore, since Pelmorex is transmitting programming when it broadcasts ACA alerts, the Commission clearly has the jurisdiction to regulate both the broadcast and distribution of Pelmorex's proposed alerting system.

4118             The fact that the ACA portion of the programs that are broadcast by The Weather Network and MétéoMédia will be visible on other channels does not turn those programs into a separate non‑programming service.

4119             As noted, the Commission does not license channels, it licenses undertakings.  ACA will be offered as part of an existing and unique programming undertaking that is already specifically authorized to broadcast localized text messages as part of its licensed programming services.

4120             There is, therefore, no doubt the Commission has the jurisdiction to regulate a public alerting system that is operated as part of an existing licensed programming undertaking.

4121             MR. TEMPLE:  You have heard excuses from some interveners who have called for delay.  Some use CANALERT as a pretext to wait.  CANALERT has not asked us to wait.  Others assume a role for CANALERT in providing a clearinghouse for alerts and would want to wait for that too.

4122             We certainly support CANALERT's initiative to bring parties together and to establish codes, standards and protocols for alerting to ensure a coherent approach for Canada.  As Rogers noted yesterday, this is CANALERT's primary role.  It does not appear that CANALERT has any intention of reinventing the wheel on alerting technology or delivery.

4123             If you approve Pelmorex's licence amendment, a national alerting system will become a reality.  When CANALERT has finalized its work, we will implement it.  In the meantime, we will build on our 18 years of weather alerting and our more recent work with the provinces of New Brunswick and Quebec.

4124             CANALERT will continue to participate on our advisory board through Industry Canada representation.  We will continue to rely on provincial and municipal experts representing all areas of the country.

4125             Every single user group such as the provinces of Ontario and New Brunswick told you the provision of an ACA service is overdue.  They want it done now and the consequences of delay are more severe than the consequences of an immediate start.

4126             Rogers has questioned whether Pelmorex has sufficient experience in the design and manufacturing of equipment.

4127             We have designed and manufactured several generations of our own PMX equipment.  These boxes are in 1,300 headends across Canada, including all of Rogers.  In addition, our first‑generation ACA boxes went through and passed Rogers' lab testing prior to the field tests 10 years ago.

4128             With regards to the broadcasters' concerns, we have addressed them fully in our written comments.  Other interveners have been more eloquent.

4129             MS CHARLTON:  Written and oral interventions expressed concerns about pricing.  Commissioner Pennefather and Counsel McCallum discussed a possible 6‑cent rate and a sliding scale with us.

4130             So we reviewed our original model and developed a solution that addresses both your concerns about profitability and our need to cover our costs.  We took our original model and adjusted the rate downwards from 8 cents to 6 cents starting five years after the launch of the first systems.

4131             We have provided you with revised financial projections for this scenario.  Its implications are:

4132             A 17 per cent PBIT margin in year seven ‑‑ cumulatively, average PBIT is 10 per cent;

4133             Net return on fixed assets in year seven will be 24 per cent and cumulatively will be 13 per cent.

4134             We are comfortable with this model.

4135             MR. MORRISSETTE:  At this stage I would like to acknowledge and thank the 700‑plus interveners who supported the Pelmorex ACA Application.  Nearly 100 municipalities took the time to write and dozens included supporting resolutions passed by their councils.

4136             We had hundreds of e‑mails from individuals in addition to support from provincial and national associations with safety mandates and we are appreciative of those who made the extra effort to join us yesterday and share their local expertise.

4137             The public wants better alerting and so do emergency authorities.

4138             In closing, Pelmorex's philosophy is to create win‑win solutions and this is how we have designed our approach to public alerting.

4139             We knew we had to meet the needs of the public and balance the concerns of three stakeholder groups:  emergency authorities, broadcasters and distributors.  We believe that our proposal creates an excellent balance.

4140             We have met the needs of the Canadian public with a system that maximizes the delivery of alerts across the country through mandatory alerting and a business model that makes participation affordable in small communities.

4141             Emergency authorities want a system that is dependable, provides a single point of contact and can hit the ground running, and we provide it.

4142             Broadcasters are concerned about disruptions and we minimize these by providing the capability for crawls rather than solely forced tuning.

4143             BDUs want something designed to meet their specific needs and we have demonstrated our capacity to deliver in every case.

4144             These features have a cost and a risk to us but we have compromised by lowering our price after year five.

4145             Once a regulatory decision is made, people of good faith will get together and make it happen.  Our leadership, technical expertise, alerting experience and demonstrated commitment to consultation show we can work with all parties to ensure that Canada has the best alerting system possible.

4146             Thank you.

4147             THE CHAIRPERSON:  Thank you, Mr. Morrissette.

4148             We have discussed a lot with all of the applicants the significance of the system for BDUs, for television broadcasters, but what about radio?  This word has not been pronounced very often during the last three days.

4149             What about radio?  How will they get alerts, say, from your service?

4150             MR. MORRISSETTE:  Well, the focus, you are absolutely right, of the proceeding has been an ALL CHANNEL ALERT service through BDUs to provide the message on all channels.

4151             While discussing that, we have committed to make the message available to all broadcasters, over the air of broadcasters, both television and radio, concurrently with a dispatch of messaging to BDUs.

4152             MR. TEMPLE:  Just further, if it helps the Commission.

4153             One thing ‑‑ if our licence amendment and proposal is accepted, one thing we could easily do, if it facilitates warnings on radio, is we can simply put up an EAS signal, if that is what they want, in addition to ours.

4154             I was listening earlier to the comments by CBC that if the funding wasn't forthcoming they could still put up the signal for BDUs, and in fact anybody can do that.

4155             I mean it is just some bandwidth and if our proposal is approved we will have an operation centre there, so if they want us to duplicate warnings and put it up for EAS on radio, if that works well for radio, then that is fine.

4156             Our proposal is centred around serving BDUs but the incremental cost of adding some bandwidth and reformatting the CAP message into an EAS message for radio, if that is what works best for them, is not a problem.

4157             So if that helps radio and that is more helpful than sending messages to the newsrooms, I think, as we indicated, we are here to try and work with the other parties to get the best system going and, to us, the anchor system is being able to serve BDUs.

4158             MR. MORRISSETTE:  If I could just add.  Initially, we launch a service and it is as we have described but it is going to be a moving target, an evolving service whereby, through constant ongoing dialogue and consultation, you identify issues and opportunities and move towards resolving them.

4159             Quite frankly, as Mr. Temple just indicated, clearly, we would hope to work with the radio industry and over‑the‑air television industry to identify opportunities to accelerate and enhance alerting through their services.

4160             THE CHAIRPERSON:  Any further comments?  No?

4161             MR. TEMPLE:  I was distracted.

‑‑‑ Laughter / Rires

4162             MR. TEMPLE:  My apologies.

4163             THE CHAIRPERSON:  Okay, that is fine.

4164             MR. TEMPLE:  Jean‑Pierre wants to explain how it would work and he is probably better doing it than I.

4165             M. BOULANGER : Sans aller dans des détails techniques, dans notre plan initial, sans parler de l'approche EAS, notre approche est principalement basée sur du logiciel.

4166             Donc, nous avons un signal sur le satellite... parles plus fort?

4167             LE PRÉSIDENT : J'entends très bien, moi.  Je suis bien équipé.  J'entends...

‑‑‑ Rires / Laughter

4168             M. BOULANGER : L'implication de livrer, autrement dit, l'alerte dans un newsroom, que ça soit pour radio ou les broadcasters de télévision, ne nous oblige pas de mettre une pièce d'équipement, un decoder character generator, comme on appelle le ACA unit, pour les câblos.

4169             Dans ce cas‑là, ce qu'on proposait de faire, c'était simplement de développer un logiciel ‑‑ on a déjà un prototype ‑‑ qu'on place sur un PC normalisé, et avec certaines options.

4170             Ou bien vous voyez le texte à l'écran.  Si vous avez un file audio, un wav, vous pouvez le jouer.  Vous pouvez le prendre et faire ce que vous voulez avec.  On allait même aller jusque dire d'avoir des contacts pour indiquer prenez la sortie si vous le voulez et y avoir un mode automatique quand il n'y a quelqu'un pour passer le rendu audio.  Il y a plusieurs façons de le faire.

4171             LE PRÉSIDENT : Donc, il y a une solution?

4172             M. BOULANGER : Ah, il y a plusieurs solutions.

4173             LE PRÉSIDENT : Oui.

4174             Monsieur le Conseiller juridique.

4175             MR. McCALLUM:  Thank you.

4176             It is helpful that you have provided an 8‑cent going to 6‑cent model this morning.  And that is in analog, I take it?

4177             MR. TEMPLE:  It is the full proposal.  It is our original ‑‑

4178             MR. McCALLUM:  The original proposal, yes.

4179             MR. TEMPLE:  ‑‑ proposal which always provided service to analog and digital.

4180             MR. McCALLUM:  Right.  I just wondered if you had developed a model that would do 6 cents and 4 cents in the modified digital proposal that we discussed with you earlier on.

4181             MR. MORRISSETTE:  We also looked at the possibilities of that model.  The risk profile of an analog optional model is very different and much higher risk and the end result is that we were not able to modify the pricing on the proposal that was made.

4182             MR. McCALLUM:  I am just wondering, with the indulgence of the Chair, if a work‑up of what it would look like in the digital model with the rate going from 6 cents to 4 cents in year six would be possible.  I understand that it would create more negative numbers but I wondered if a work‑up could be possible.

‑‑‑ Pause

4183             MR. MORRISSETTE:  Yes, we could run some models but as I indicated, this is not a model that, given the risk profile involved, that would be acceptable for us.

4184             I should mention that in the model that we provided to you this morning, that at the end of year seven, the negative cumulative cash flow increases from somewhat over $1 million to $4.7 million negative at the end of that period.

4185             What also happens is that the ‑‑ and which also increases the negative IRR for the period, and these, as you know, have been our main benchmarks.

4186             These results are basically ‑‑ well, there is a number of factors but at the end of the day it just shows our commitment to this project and the fact that we are prepared to do what we have to do to take on this responsibility.

4187             MR. TEMPLE:  We will provide any model you ask of us, it is just that we wanted to make clear that it wouldn't be something we would be able to work with.

4188             MR. McCALLUM:  Sure.  With that caveat, if it is useful to the panel, we could have you file that by, say, tomorrow morning.

4189             THE CHAIRPERSON:  Yes.  Agreed.

4190             MR. McCALLUM:  With the understanding that that is not a model you favour.  I mean ‑‑

4191             MR. TEMPLE:  That is correct.

4192             THE CHAIRPERSON:  I think we understood loud and clear that you could develop any model that we wish to see but obviously the model that you have tabled this morning is the one on which you want us to make our decision.

4193             MR. McCALLUM:  Thank you.

4194             MR. MORRISSETTE:  If I can just comment that, I guess, there are two alternatives, analog optional, digital mandatory, and that is a 6‑cent model across the board.

4195             The second one that we tabled this morning is the original proposal modified to reflect that five years after the launch of the first system that we would be prepared to reduce the rate at that time to 6 cents and it reflects basically that by that time the analog world would have significantly been reduced and we would be moving towards a substantially digital environment.

4196             THE CHAIRPERSON:  But as Vidéotron said yesterday, even in their own system, they think by the year 2009 they will still have pockets of analog services ‑‑ analog systems, I should say.

4197             MR. MORRISSETTE:  That is correct.

4198             MR. TEMPLE:  To make it clear too, we would continue to serve analog subscribers for as long as there were analog subscribers.  It is just that the rate would go down, recognizing the fact that less capital equipment would be going into the field, which, I think, was something we were trying to address earlier.

4199             MR. McCALLUM:  Thank you.

4200             As you know, a number of distributors stated that they would prefer to use their own technology.  This could mean that you would provide, for example, a receiver and the associated address codes, and the distributor would be responsible from that point forward.

4201             Do you have any comments on that possibility, that possible scenario?

4202             MR. TEMPLE:  That is possible.  It is the Tower of Babel kind of model.  I mean that could be done but then ‑‑ as I think we tried to address in our reply comments earlier, for a large entity like Rogers, that might be possible but then you are dealing with a multiplicity of systems, you are dealing with a multiplicity of people who don't have the resources as a Rogers might have.

4203             It might be great for Rogers but for the emergency alerting, they still have to figure out in that world who ‑‑ there is no one taking ownership of the process.  No one owns the process.  It is just I will send stuff out and hope that it is going there; and I am going to put my stuff in and if I get a message, I guess something will happen.

4204             That is exactly what ‑‑ I think a lot of the feedback we got when we went out and talked to people is what they don't want.  It is one thing to have standardized protocols but someone has to look after the system.

4205             One of the problems with EAS in the U.S. is no one takes ownership of it.  It is ‑‑

4206             MR. McCALLUM:  In that scenario ‑‑ I just wonder if that were the scenario, would large systems like Rogers then take it forward from that and put in their own equipment, and smaller systems say, okay, you know, you, Pelmorex, you supply the rest of it.  I just wondered if it would play out like that.

4207             MR. TEMPLE:  That goes back to could we have multiple service providers and unless there is a critical mass of ‑‑ there is no business model.

4208             MR. McCALLUM:  I see.  So that sort of model doesn't really work for you.

4209             MR. TEMPLE:  I mean it would be analogous to saying, as I think we discussed earlier, can BDUs just pick their service supplier.

4210             I think we tried to indicate that that business model wouldn't work for us because all you would need is two large MSOs to say I am not interested in you and the whole foundation of trying to have a blended cost for large and small and provide the same level of service to everyone just disappears.

4211             MR. MORRISSETTE:  If I can just make a few additional comments.

4212             Moving to the digital solutions, these are software‑based and there is nothing proprietary there.  This is a question of working with the distributor case‑by‑case to resolve the software development matters to permit ACA.

4213             I would like Jean‑Pierre Boulanger to just comment in that regard because in many instances the software would probably be developed by the BDU.

4214             Jean‑Pierre.

4215             M. BOULANGER : Merci, Pierre.

4216             Je vais vouloir revenir sur le côté analogue aussi.

4217             Sur le côté digital, que ça soit DTH ou que ça soit telco, toutes les imputations digitales, ce qu'on a dit, c'est ce qu'on a dit, on veut travailler avec les gens pour trouver la meilleure solution, la faire la plus simple à faire.  On a déjà des bonnes idées et tout ça.

4218             En bout de ligne, pour être honnête, nous, on est prêt à aller et développer le logiciel pour eux autres et avec eux autres.  S'ils préfèrent le faire, il n'y a pas de problème là.

4219             Ce qui est important, c'est que les interfaces soient bien définies, puis que les choses soient bien testées.  On est ouvert sur tous les aspects à faire ce travail là avec eux autres.  Ils le font, on le fait, on en fait en partie, en autant que ça soit fait ensemble.

4220             Pour revenir sur la question analogue, je crois qu'il y a une certaine ‑‑ comment dire ‑‑ misunderstanding, si je peux dire ça de même.

4221             L'approche analogue qu'on a, ce qu'on place chez le BDU, c'est certains équipements.  À la sortie de ce qu'on appelle le ACA unit, il y a des signaux de base qui sont très de base, vidéo, audio, et ce qu'on appelle des dry contacts, des contactes secs.

4222             C'est exactement les mêmes signaux qui sortent des AES decoder character generator, dans le sens que quand les BDU disent qu'on a un impact sur leur infrastructure, qu'on les empêche de l'organiser comme ils veulent, ce n'est pas vrai.  C'est la même chose dans les deux cas.

4223             Ils manipulent le vidéo ou l'audio depuis des années.  Ils connaissent mieux que nous leur infrastructure downstream, si je peux dire, de ça.  On a fourni dans nos documents techniques des scénarios typiques qui peuvent être considérés pour les différentes combinaisons.  On n'en force aucun.

4224             Donc, la notion de dire que nos équipements vont les empêcher et qu'ils devraient développer les leurs ne tient pas.

4225             Sur l'aspect de l'équipement de réception, nous, on a nos récepteurs.  Il y a ce qu'on appelle le character generator, le ACA unit.

4226             La raison qu'on a développé le nôtre, comparativement à choisir un comme les équipements AS, est très simple : le coût, la notion de la fiabilité, on a plus de protection, et la notion de la meilleure façon de manipuler l'anglais et le français.

4227             S'ils voudraient, effectivement, utiliser un autre équipement, il y a des possibilités de développer les interfaces.  Mais, pour être honnête, je n'en vois pas le besoin, étant donné que c'est nous qui le fournissons et qu'ils n'ont aucun coût à payer pour ça, et il n'y a pas d'impact sur leur infrastructure downstream, que ça soit un character generator acheté de quelqu'un d'autre ou de nous autres.  Il n'y en a pas.

4228             Me McCALLUM : Merci.  Ça nous aide.  Je vous remercie pour vos commentaires.

4229             Just changing topic and dealing with another matter.  The liability matter, as you know, was raised by a number of interveners and I wondered if you had any further comments on the liability matter and also whether the idea of forced tuning channels to one channel is a way to address it or not.

4230             MR. TEMPLE:  Well just ‑‑ I will let Scott speak to the liability issue in a minute.

4231             But just so the Commission does understand, we could very easily, as part of our proposal, simply force tune or retune everyone to our channels.  So when alert went on, we already display it.  So if it made everyone more comfortable, we could just make the box go to our channel.

4232             We never proposed that because obviously I didn't even have to ask my friends in broadcasting whether they would like their channel switched to mine and we were trying to work cooperatively with everyone, so we just never proposed it.

‑‑‑ Laughter / Rires

4233             MR. TEMPLE:  But if that is the only way to get around a regulatory or liability dilemma, then we would be pleased to offer our service and just have everyone automatically tune to our channel for the duration of the warning.

4234             Then when the warning is over, in most cases they will be returned to their previous channel but in some cases the consumer would have to retune themselves.

4235             It is for these kinds of reasons that we didn't propose that because we didn't think our colleagues in broadcasting would welcome it but it is certainly technically possible, it doesn't add to the cost of any of our models and if that is the way out of a dilemma, we are happy to do it.

4236             But in terms of liability, I will let Scott address that.

4237             MR. PRESCOTT:  The liability concern.  Pelmorex would be potentially liable for delivering the message.  The message creator would be liable if there is harm caused as a result of an incorrect message.

4238             But the broadcasters themselves who have raised liability would not in our model or, I think, in any of the other models that have been proposed here, would not have a potential for liability.  They would have no control over the process of alerting.  They couldn't be at fault.

4239             To have liability, you need to have fault, negligence, and they wouldn't have that.  So I don't see a potential for liability for broadcasters.  I think that point was made by the CBC earlier.

4240             The responsibility from the Broadcasting Act, as a licensee, Pelmorex will accept that responsibility for the signal and for the system and the content.

4241             Paul, I don't know whether you want to speak to insurance.

4242             MR. TEMPLE:  I think it has been mentioned we have lots of insurance in the model in terms of the details.  We can try to address them if you want.  I don't know if you want details.

4243             MR. McCALLUM:  Very briefly.

4244             MS CHARLTON:  Just to let you know that we work very closely.  This was an issue for us as well.  Obviously, we are not as large as Rogers and some of the others, so insurance is an issue for us.

4245             We worked very closely with our insurance broker, went through the program, what could happen, who would be liable, technically how this all works, and very similar to, again, what counsel for CBC said, there is liability and then there is negligence and there is a number of things that come into play.

4246             In general, again, the broadcaster we don't feel would be in any way caught up in this but if at some point, someone along the food chain, be it the provider of the message or us as the conduit were negligent in some way, then yes, we would be held liable.

4247             MR. MORRISSETTE:  If I can just add, also, as the head and controlling shareholder of Pelmorex, liability is indeed a very serious matter.

4248             There is no question that we would be working with CANALERT, government with respect to exploring liability indemnifications for this kind of public alerting service, and in our agreements with future message originators, we will be seeking an indemnity in that regard with regards to the message.

4249             In the meantime, as a means of moving forward, the extensive liability insurance coverage that Alysia just summarized is a very significant part of our budget and it is an attempt to identify an interim solution for this liability issue.

4250             MR. McCALLUM:  Thank you.

4251             Just one other thing.  As you would have heard through the intervention process, several of the interveners thought that the Broadcasting Public Notice 2004‑82 on interactivity should guide the Commission's thinking on whether this is an alphanumeric service or not.

4252             You were asked to address that, I think, in Phase I, and Mr. Prescott, I believe, suggested very strongly at that point that he thought that 2004‑82 would not apply and he gave reasons for it, and of course, we have that on the transcript.

4253             I just wondered if you could address each one of the three criteria that is set out in 2004‑82.  I think they are set out at paragraph 30 of that public notice, if you have it available.

4254             MR. PRESCOTT:  I do have it.  I do think that the Broadcasting Act is the one that dictates jurisdiction.  It was always said to me, even by my professor in law school in administrative law, that you have to read the statute to know the scope of jurisdiction of an administrative agency.

4255             But I won't go through ‑‑ I mean each ‑‑ the program‑related test the Commission has in 2004‑82, the first one is that the intention must be content seen by the same viewers as those who are watching the main program.

4256             It depends what the main program is, I guess, in this.  I mean arguably it could be that the intention would be that the main program would be the program on Pelmorex's own programming service, I would guess.  It is a difficult one.  It depends on how the main program is defined.

4257             In the main program, it certainly would be the intention of Pelmorex that the alert would be seen by viewers who were watching ‑‑ the main program at the time that the alert is issued would be the program that is being broadcast by The Weather Network or MétéoMédia.

4258             I think the other two are easier to achieve.  The alert would be sent out at the same time interval as the main program, and again, the program on Pelmorex' The Weather Network and MétéoMédia, and the program would have a substantial connection to the programming on the Pelmorex service ‑‑ would actually be visible on the Pelmorex service.

4259             The alphanumeric text that you would see as an alert would be available on The Weather Network and MétéoMédia at the same that it is available on every other channel.  So that would be the substantial connection and it is an integral part of the service.  Alerts are already an integral part of The Weather Network and MétéoMédia.  So that wouldn't change as a result of this.

4260             MR. McCALLUM:  Just on the third one, just to be sure, if the content was not weather‑related and, say, did not issue from, say, Environment Canada and wasn't related to a tornado or an avalanche or something but rather was something totally different such as, I don't know, a hazard material spill in Windsor, in your submission, does that still have a substantial connection to the main program?

4261             MR. PRESCOTT:  Well, it would ‑‑ the other part of our application is to amend the definition of the scope of the nature of the service to expand to include alerts of all kinds and not just Environment Canada alerts.

4262             So if that condition of licence were approved to expand the nature of the programming that could be offered on The Weather Network and MétéoMédia, I think it would, yes.

4263             MR. McCALLUM:  Thank you.

4264             Mr. Chair, if I could just have one second to see if we have one more question or not.

4265             THE CHAIRPERSON:  Yes.

4266             While you are doing consultation with the other member of the staff, I have a question.

4267             Le représentant d'Environnement Canada, qu'on a entendu hier en fin de journée, nous a dit qu'ils émettaient chaque année environ 15 000 messages d'avertissement, dont beaucoup portent sur des événements qui doivent survenir et sur des dangers imminents comme les tornades et les orages.

4268             Il nous a aussi dit ‑‑ et monsieur Guiton en a fait référence ce matin ‑‑ que, dans la région de Windsor, ils émettaient au moins 75 alertes dans une courte période de cinq mois, et il a fait état aussi d'orages sur Toronto, où ils émettaient une trentaine d'alertes.

4269             Ma question est : Est‑ce que vous avez la même définition que Environnement Canada pour les alertes ou si on parle ici d'une situation... donc, est‑ce que les gens de Windsor verront 75 interruptions de leurs émissions pendant une période de cinq mois?

4270             M. MORRISSETTE : Je vais demander à monsieur Boulanger d'initier une réponse.

4271             M. BOULANGER : Je vais répondre en français, mais je vais utiliser quelques mots anglais.

4272             Ce que Environnement Canada a dit hier, c'est qu'ils émettaient 75 * warnings + et non pas * alertes +.  La définition est un peu différente.

4273             Dans notre implémentation actuelle que nous avons pour notre signal principal, MétéoMédia/The Weather Network, nous classifions les alertes dans quatre niveaux différents, et dans la catégorie des alertes que Environnement Canada émet ‑‑ et c'est discuté avec eux autres, c'est en entente avec eux ‑‑ il y a seulement deux types de warnings qui sont classés de niveau alerte qui tomberaient dans la définition d'ACA, les tornades et les thunderstorms with severe winds.

4274             Quand ils disent les 75, c'est des warnings.  C'est des choses comme des avis de givre au sol pour les jardiniers, ce genre d'affaire‑là.  Donc, il faut faire attention aux chiffres qu'on écoute.

4275             Les chiffres que Environnement Canada nous avaient fournis dans l'application précédente démontraient qu'en moyenne, il y a à peu près deux alertes majeures par site par année au Canada.  Donc, il faut faire bien attention de faire une distinction entre un advisory, un warning, et vraiment ce qui constituerait une alerte.

4276             MR. MORRISSETTE:  D'accord, ça clarifie.

4277             MR. McCALLUM:  Yes, just one follow‑up question, if I may.

4278             It is just on the digital mandatory/analog optional model, the material you filed, I think, first thing Tuesday morning.

4279             I think it is the line X4, "headend replacement costs," and perhaps also X3, "ACA analog headend units and ACA cards."

4280             In the digital mandatory model, does X3 or X4 include any provision for analog equipment?

‑‑‑ Pause

4281             MS CHARLTON:  If I understand your question correctly, in this model where analog is optional our assumption ‑‑ and this is where we got into the risk profile of this model ‑‑ our assumption is that the class 1s, with the exception of one large one, would still choose an analog option as well.  So they would do analog as well as digital.  So that is the analog equipment for the balance of the class 1 systems.

4282             MR. McCALLUM:  Thank you.

4283             Thank you, Mr. Chair.

4284             LE PRÉSIDENT : Merci, Monsieur le Conseiller juridique.

4285             Well, in your oral presentation you surely have answered clearly my two first questions.  So I will refrain myself to ‑‑

4286             You also had a discussion about liability limitations, and obviously, you expect that the government may pass some legislation to limit the liability, but as I said in earlier questions to the CBC that will be a fairly long process.  So if we are waiting for that process to happen, we may wait forever, I suspect.

4287             But what if the Commission was not to make any decision until the CANALERT Working Group has completed its work, would you have any comments on that?

4288             MR. TEMPLE:  I guess only the concern that we might be waiting for a long time.  I think they are doing wonderful work.

4289             I mean I am an active member of the Broadcast Public Alerting Working Group, which is one of the groups feeding information in, and even within that group there is no consensus on a lot of the issues.

4290             Among the provinces there is no consensus in terms of issues relating to who might have authority.

4291             I mean it is a lot of tough work and in many ways, I think our application is making people have to grapple with these issues.

4292             When we had our first advisory board meeting, we had people in and we were asking them questions that they had never thought about before and they are tough ones.

4293             I think our view is that if you want to get something done you have got to start, and approving our licence amendment and our proposal is going to get things started.

4294             There is no reason to wait for CANALERT but when CANALERT has finalized things, we are more than able and willing to implement them.

4295             And it may be piecemeal.  If we come to a conclusion on what an authorized user is but we haven't finalized what the training criteria is, well, let us move on that one element.

4296             But if we wait for the whole thing to get resolved, we could be waiting a long time and that is the concern that we have.  So we see no value in waiting till everything is all tied up in a nice bow.

4297             MR. MORRISSETTE:  If I can just add, it is not as though we are starting from ground zero, there are precedents that exist south of the border, or yesterday, Alberta, a very interesting experience there, other countries, the work that is already done by CANALERT, and by compiling all that we have the basis, the foundation to launch.

4298             The next steps are really to fine‑tune and add to that foundation and finish building the house but we are talking about a start‑up.

4299             We have also heard that the emergency situations are not going to wait.  They are going to still happen, lives will be at risk, and that is the priority here.

4300             We feel very comfortable that during the course of the year after licensing, if we were to be so fortunate to assume that responsibility, that we would undertake to resolve issues with these working groups.

4301             Obviously, the emergency service originators are the experts in emergency management and we work with them on our advisory board.  The collective experience and knowledge and expertise that helped shape a lot of our plans and proposals are just invaluable and that will continue.  It will accelerate.

4302             So we don't think that waiting for CANALERT ‑‑ the bottom line ‑‑ to finalize their work is in the public interest.  I think what is in the public interest is to get it started and get it done and work these groups in parallel to resolve issues.

4303             MR. TEMPLE:  If I might add, when we did the pilot with New Brunswick we had to deal with all these issues plus we had to figure out how to integrate with the com labs and that system, which we had never integrated, so that we could display it.  The whole thing took a month.

4304             So we figured out all the technical issues, we were running tests and agreed on the agreement as to who was going to do what, what a user what, what security they needed, what warnings would or would not be passed through, and it took us a month.

4305             And that is because we both sat down and we wanted to do it, and that is the whole point.  If you want something to happen and people are sitting around saying this is important, let us try and make it work, it will work and it will go fast.

4306             It may not be perfect ‑‑ you know, we made a proposal that it would be for imminent threat to life and property ‑‑ or property.  Now, if everyone has a hang‑up ‑‑ I am just using this as an example ‑‑ if the people have a hang‑up with "or property," well then let us take it off the table and move forward, and maybe after a year we will realize we have to put it back in.

4307             That is okay but in the meantime we have had a year of public alerting.  But if we wait until the debate on "and/or property" is sorted out and then the 400 other little debates that are going on, we are never going to have a system.

4308             THE CHAIRPERSON:  Mr. Morrissette, Mr. Temple, thank you to yourself and to your group for your input into this hearing.

4309             I think the secretary has something to say before I declare the end of the hearing.

4310             THE SECRETARY:  Yes, thank you, Mr. Chairman.

4311             Just for the record, the document that was filed this morning by Pelmorex Communications, which is the ACA financial model, 8 cents and 6 cents, will be placed on the applicant file and will be available for public examination.

4312             Finally, I would just like to indicate that there are a number of non‑appearing applications on the agenda of this public hearing.  Interventions were received on those applications.  The panel will consider the interventions along with the applications and decisions will be rendered at a later date.

4313             This completes the agenda of this public hearing.

4314             Thank you, Mr. Chairman.

4315             THE CHAIRPERSON:  Thank you, Mrs. Secretary.

4316             Thank you to everybody that came to the hearing.  Thank you to all the applicants and all the interveners who came with significant presentations.

4317             Now, we will enter into our deliberations.

4318             I am declaring this hearing over.

‑‑‑ Whereupon the hearing concluded at 1030 /

    L'audience se termine à 1030

 

REPORTERS

 

_____________________        _____________________

Lynda Johansson              Monique Mahoney

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