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Decision CRTC 2001-757
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Ottawa, 14 December 2001 |
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World Television Network/Le Réseau Télémonde
inc. (WTM)
Across Canada 2000-2155-1 |
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19 June 2001 Public Hearing
National Capital Region |
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WTM is to be licensed as a new, national, Category 2 specialty television
service for digital distribution; the applicant’s request for guaranteed
access to analog distribution on cable is denied
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The Commission will license WTM as a
national, Category 2 specialty service authorized for digital distribution.
As proposed by the applicant, the service will have as its target a
mainstream audience of all Canadians, and will offer a variety of programming
from Canada and around the world, including foreign news, public affairs,
film and entertainment that is not offered to Canadians by existing services
in the broadcasting system. WTM described the purpose of its programming as
being to facilitate insight, understanding and integration by providing
viewers with direct windows on the people of Canada and the world.
Non-Canadian programs, collectively described by WTM as "world programming",
will be aired in the language of origin. The service will be distributed as
three separate feeds of the same programming, one with subtitles in French
for reception across the country, and two with English-language subtitles –
one for carriage in Eastern Canada and a time-shifted version for Western
Canada. |
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The applicant proposed a distribution model
that would have virtually guaranteed the service carriage, in a high
penetration tier or package, on the analog offering of all but the smallest
distribution systems. WTM based its request for such regulatory treatment on
the premise that its service would be of exceptional importance to the
achievement of the multicultural objectives outlined in section 3(1)(d)(iii)
of the Broadcasting Act. |
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The Commission’s majority is not convinced
that the proposed service would be of such exceptional importance as to
warrant the carriage requested in the prevailing circumstances. It has
accordingly denied the applicant’s carriage request. The Commission
nonetheless acknowledges that the proposed service would complement existing
mainstream, multilingual and third-language services. Accordingly, the
Commission will license WTM, but as a Category 2 service, whose distribution
would be subject to negotiations between the licensee and distributors, and
whose carriage would be as a discretionary service, available on a digital
basis only. |
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The Commission’s approach to Canadian cultural diversity
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1. |
Section 3(1)(d)(iii) of the
Broadcasting Act is Parliament’s expression of its multicultural
objectives for the Canadian broadcasting system. This section states that the
system should: |
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…through its programming and the employment opportunities arising out of
its operations, serve the needs and interests, and reflect the
circumstances and aspirations, of Canadian men, women and children,
including equal rights, the linguistic duality and multicultural and
multiracial nature of Canadian society and the special place of aboriginal
peoples within that society.
|
2. |
The Commission has taken numerous
steps in pursuit of the Act’s multicultural objectives, including steps to
ensure the provision of ethnic programming, aboriginal programming and
mainstream programming reflective of Canada’s multicultural reality. |
3. |
In 1999, following cross-country consultations,
the Commission completed its review of its ethnic broadcasting policy (Public
Notice CRTC 1999-117). |
4. |
Today, ethnic programming is available on ethnic
television stations in each of Toronto and Montréal, and 14 ethnic radio
stations across Canada. Ethnic communities are also served by the SCMO
(subsidiary multiplex communications operations) of a number of FM stations,
and by the programming of numerous community and campus radio stations. In
addition, the Commission has licensed five ethnic analog specialty services,
as well as 42 ethnic Category 2 specialty services for digital distribution.
Some ethnic programming is also offered by conventional radio and television
services. On 15 October 2001, the Commission considered two applications for
new ethnic television stations to serve Vancouver, and should issue decisions
concerning them in the new year. |
5. |
Aboriginal Peoples Television Network (APTN), a
general interest, satellite-to-cable programming undertaking presents a wide
range of Aboriginal programming. This Aboriginal programming is in addition
to that provided by several stations operating under the Commission’s Native
Radio Policy, mostly in communities in northern Canada. It is soon to be
complemented by the services of radio stations in Toronto, Ottawa, Calgary
and Vancouver that will operate as components of the Aboriginal Voices Radio
Network. |
6. |
Earlier this year, the Commission issued a call
for applications to provide new over-the-air radio services that would
reflect the diverse languages and cultures of the population of the Greater
Toronto Area. It also launched a process to develop a policy framework for
specialty audio services that would target underserved audiences in the
Toronto area and elsewhere across Canada. |
7. |
Although the Canadian broadcasting services
noted above assist greatly in meeting the objectives of section 3(1)(d)(iii)
of the Act, more can be done. Ultimately, in the Commission’s view, it is
also the responsibility of all broadcasters to reflect the multicultural
nature of Canadian society. As stated in the Commission’s policy framework
for Canadian television (Public Notice CRTC
1999-97): |
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The Commission will expect all conventional television licensees (at
licensing or licence renewal), to make specific commitments to initiatives
designed to ensure that they contribute to a system that more accurately
reflects the presence of cultural and racial minorities and Aboriginal
peoples in the communities they serve. Licensees are expected to ensure
that the on-screen portrayal of all minority groups is accurate, fair and
non-stereotypical.
|
8. |
Accordingly, in response to the decisions issued
following the group television renewal hearings earlier this year, CTV, TVA
and CanWest Global have submitted corporate plans detailing their commitments
to ensure that they improve the portrayal of Canada’s cultural diversity in
all of their programming. In recent decisions renewing the licences of
various specialty services, the Commission directed the licensees to submit
similar corporate plans. Further, the Commission has called upon the Canadian
Association of Broadcasters (CAB) to create a task force whose goal is to
sponsor research, identify "best practices", and help define the issues and
present practical solutions to ensure that the Canadian broadcasting system
reflects all Canadians. The CAB’s action plan is to be filed in January of
2002. |
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The Commission’s analog distribution policy
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9. |
In Public Notice CRTC
1996-120 dated 4 September
1996, the Commission announced the licensing of more than 20 new specialty
services. Eight of these (four French-language and four English-language
services) were authorized under terms that entitled them, upon launch, and
subject to available channel capacity, to distribution on analog channels.
For the other licensed services, however, the Commission determined that they
would not have a right to carriage by distribution undertakings until the
earlier of: the deployment of digital technology by a distributor, or 1
September 1999. |
10. |
In Public Notice CRTC
1997-33 dated 27 March 1997, the
Commission announced its timetable for consideration of various other
applications for new specialty and pay television services. Among other
things, the Commission emphasized that: |
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…applications proposing new English- and French-language services that
are premised on carriage on basic service, or on a high penetration
discretionary tier, must justify such distribution on the basis of
agreements with distributors or on the basis of evidence demonstrating the
exceptional importance of the proposed service to the achievement of the
objectives of the Broadcasting Act.
|
11. |
Subsequently, in Public Notice CRTC
2000-6 dated 13 January 2000,
and following a full public review, the Commission announced its licensing
framework for new pay and specialty services. The Commission emphasized the
limited analog capacity available on distribution systems, the many
advantages of digital over analog distribution, and the importance of
promoting the deployment of the new technology. It added: |
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To provide incentives for Canadian viewers to switch to digital
technology, and given the limitations of analog capacity, the Commission
will now license a range of pay and specialty services for digital
distribution only. (emphasis added)
|
12. |
In the five years since September
1996, the Commission has authorized only one English-language specialty
service for distribution on an analog basis. In Decision CRTC
2000-217 dated 4 July 2000, the
Commission licensed Food Network Canada (FNC) as a Canadian replacement for
the U.S. service TV Food Network, on the basis that only those cable
licensees who had carried the U.S. service on an unscrambled analog channel
be required to distribute the new Canadian service on the same unscrambled
analog tier. This placed no new demand on channel capacity, and ensured the
seamless introduction of an additional Canadian service to the system. |
13. |
The Commission, over the same
five-year period, has licensed five French-language specialty services for
carriage on an analog basis. Four of these were approved in May 1999 and were
justified, in the Commission’s view, on the grounds of the greater
availability of channel capacity in Francophone markets and the smaller
number of licensed French-language services available to viewers. The fifth
French-language service permitted analog distribution was La Télé des Arts,
now known as ArTV (Decision CRTC 2000-386
dated 14 September 2000). It was approved one year following the Commission’s
report to the government on the establishment of a national French-language
arts television service (Public Notice CRTC
1999-187), in which the
Commission stated that such a service could make a significant contribution
to achieving the objectives of the Broadcasting Act. |
14. |
Since 1996, with the exceptions
described above, the Commission has not considered or approved any
application for a new specialty service predicated on analog distribution on
a high penetration tier. As noted, the Commission’s purpose in adopting this
approach has been to avoid disruption to the system and to subscribers in the
prevailing distribution context, and to encourage the transition from analog
to digital distribution. |
15. |
In Decision CRTC
2000-393 dated 21 September 2000, the
Commission, by majority vote, denied an earlier proposal by WTM for a new
specialty service. The service was to be programmed in a manner very similar
to that described in the current application. The proposal was predicated on
broad distribution by cable systems across Canada on a dual status
basis. This means that it would have been distributed on an analog channel as
part of the basic service by all Class 1 cable undertakings, and by all Class
2 cable undertakings choosing to carry the service. Alternatively, with the
agreement of both the distributor and the service provider, it could have
been carried on an analog channel of a discretionary tier. In its denial, the
Commission stated, among other things, that: |
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…at a time of pressure on the availability of analog channel capacity on
most cable distribution undertakings, and of increased expectation by
consumers that they will have a greater ability to choose the specialty
services they receive, the Commission has not been convinced that it is in
the public interest to grant the proposal the distribution status the
applicant required for its implementation.
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WTM’s proposed analog distribution model and its inconsistency with
Commission policy
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16. |
As mentioned above, WTM’s current application
had proposed that its service be made available to subscribers of all but the
smallest distribution undertakings across Canada. In the case of Class 1 and
2 cable systems, WTM requested that the subtitled feed in the official
language of the majority be distributed on a modified dual status
basis. This carriage status would require distribution on an analog channel,
as a discretionary service, by all Class 1 cable undertakings, and by Class 2
cable undertakings choosing to carry the service. Alternatively, a service
granted modified dual status carriage may, with the agreement of both the
distributor and the service provider, be distributed on an analog channel as
part of the basic service. The applicant also proposed that, as a
discretionary service, WTM be carried either as part of the highest
penetration discretionary tier or on a discretionary tier having at least 60%
penetration. Further, WTM proposed that the other feed, namely that
containing subtitles in the official language of the minority, be carried as
a digital service by these larger cable distributors, and delivered to
subscribers on an optional basis. |
17. |
At the hearing, WTM discussed various options
for carriage of the service by licensees of direct-to-home (DTH) and
multipoint distribution services (MDS) undertakings, and by licensees of
Class 3 cable systems. In the case of Class 3 undertakings (i.e. those
generally with fewer than 2,000 subscribers), it proposed that carriage of
the service be at the licensee’s option. WTM requested in its application
that DTH and MDS undertakings be required to distribute the feed of the
service containing subtitles in the language of the majority. In the case of
DTH systems, it was proposed that this feed be included in the package of
services having the greatest number of services in the language of the
majority. WTM further proposed that MDS systems either include the service in
a package having at least 60% penetration or deliver it to all subscribers
whose existing service package consists of three or more services in the same
language. |
18. |
The Commission notes that the
distribution model proposed by WTM would give the applicant broader carriage
rights than any analog service, other than those that have been accorded dual
status. For English-language and ethnic services, the Commission has not
guaranteed the distribution of a specialty service on a specific tier on
cable or in a specific DTH package. Because of the scarcity of available
analog channels, the distribution status requested by the applicant would
oblige most cable operators to remove or displace an existing service. This,
in turn would increase the cost of the tier where WTM costs more than the
service it is replacing.* Because granting WTM modified dual
status also raises the possibility of the service negotiating with cable
distributors for its carriage as part of the basic service, it also gives
rise to further concerns, such as affordability of basic service and the
subscriber’s right to choice among services. |
19. |
The onus was thus clearly on WTM to
convince the Commission that the proposed service would be of such
exceptional importance to the achievement of the multicultural objectives of
the Broadcasting Act as to warrant distribution of the service on an
analog channel. In the current distribution environment, it would be
extremely difficult for a proposed service to lay a convincing claim to being
of such exceptional importance in relation to the Act's multicultural
objectives, unless it is one devoted to programming focused on the needs and
interests, the circumstances and aspirations, primarily and predominantly,
of Canadians. |
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WTM’s programming plans
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Non-Canadian programming
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20. |
WTM’s proposed non-Canadian programming,
referred to by the applicant as its "world programming" component, is to
focus on films, drama and variety programming, and "bring recognition to
world cultures". As proposed, non-Canadian content will make up as much as
60% of the overall broadcast year in year one, decreasing by 5% per year, to
a maximum of 50% by year three, and to 40% by year five. Non-Canadian
programming is to remain at a maximum of 50% during the evening broadcast
period of 6:00 p.m. to midnight, throughout the licence term. |
21. |
The Commission acknowledges the ability of
foreign programming to provide information about, and entertainment from,
other cultures. Its rightful presence within the program schedules of
Canadian broadcasters is confirmed in part by section 3(1)(i)(ii) of the
Broadcasting Act, which states that: "…the programming provided by the
Canadian broadcasting system should…be drawn from local, regional, national
and international sources". At issue, however, is whether non-Canadian
programming can help achieve the multicultural objective of the Act’s section
3(1)(d)(iii) quoted above, given the importance it places on reflecting the
multicultural and multiracial nature of Canadian society. The
Commission does not believe that foreign programming, in and of itself, can
serve this purpose, particularly if it is selected for its importance in
other countries rather than its importance to Canada. |
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Canadian content
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22. |
As mentioned above, although WTM’s proposed
Canadian content would increase to 55% and 60% in years four and five
respectively, it would not attain an overall minimum level of 50% until the
third year of operation. Moreover, while it was proposed that Canadian
content over the course of the licence term would remain at 50% during the
evening broadcast period, the applicant’s program schedule made no provision
for the broadcast of any Canadian content during the peak viewing hours of
8:00 p.m. to 11:00 p.m. Instead, these hours are reserved for "world drama"
and "world cinema". |
23. |
The Commission finds the maximum level of 50%
Canadian content proposed for the evening broadcast period, the absence of
any Canadian content during the peak evening viewing hours, and the
preponderance of foreign programming, at least in the early years of
operation, to be significant limitations on the ability of the service to
reflect Canada’s multicultural reality. |
24. |
The Commission considers that an examination of
the substance of the applicant’s Canadian programming further erodes its
argument that the service, as proposed, would be of exceptional importance to
achieving the objectives of the Broadcasting Act. According to WTM,
several of its Canadian programs are to "reflect the creative dynamics
generated in the cultural interface within Canada". (emphasis added)
The applicant’s descriptions of the vast majority of these programs, however,
do not support this conclusion. For example, while Cabaret is to be
set in Toronto, and while WTM stated at the hearing that the program would
feature new Canadian performers, it is described in the application, in
greater detail, as aiming to "showcase performance art from around the
world". Books in Print is to feature "the best of international non
English/French language literature from book festivals in Europe and South
America", while World of Art, as this title implies, is to be an
"exploration of world art". |
25. |
Other proposed Canadian productions, such as the
current affairs programs Canada and the World, World Regional Sport,
World Journal International Business and World Sport, will
consist largely of clips of foreign news and public affairs programming.
These programs are to include in-studio guests, and are to provide a Canadian
analysis of foreign news events. There appears to be a strong reliance in the
programming on the interpretation of Canada’s multicultural reality through
international events, and very little focus on Canada’s multicultural reality
itself. The Commission is not convinced that these programs would make a very
strong or meaningful contribution to an understanding of Canada’s
multicultural landscape. |
26. |
Based on the descriptions provided by WTM, there
are three programs that the Commission considers will have the reflection of
Canadian multiculturalism as their predominant themes. These are: Original
Voices, offering "First Nation perspectives from First Nation producers";
Intercom Community Magazines, which is to provide diverse Canadian
communities with a "national platform to deal with the specific issues, ideas
from their community"; and Day and Night, presenting "a chronicle of
the daily lives and meeting places in urban and rural centres that will bring
a new understanding to the audience of the cultural diversity of Canada".
None of these three programs, however, has been entered in WTM’s proposed
schedule for broadcast during peak evening viewing hours. In fact, most of
the original and repeat broadcasts of these programs are scheduled to air
either before 9:00 a.m. or after 11:00 p.m. |
27. |
The Commission’s majority, for all of these
reasons, has not been convinced that the service proposed by WTM would be of
such exceptional importance to the achievement of the objectives of the
Broadcasting Act as to warrant its mandated distribution on an analog
channel as proposed. The Commission does find that the proposal would
complement existing services, however, and will license WTM as a Category 2
service authorized for distribution as a discretionary service on a digital
basis only, and subject to the further terms and conditions set out below. |
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Terms and conditions of licence
|
28. |
The majority of the Commission approves a
category 2 specialty television service to be known as World
Television Network/Le Réseau Télémonde inc.). A licence will be issued and
effective at such time as the applicant confirms in writing that it is ready
to begin operation. This must take place no later than three years
from the date of this decision. Any request for an extension to that deadline
requires Commission approval and must be made in writing before that date. |
29. |
The licence, when issued, will expire 31 August
2008 and will be subject to the condition set out below concerning the nature
of service, to the conditions set out in the licence to be issued, as well as
to those terms and conditions generally applicable to Category 2 services, as
set out in Public Notice CRTC
2000-171-1. |
30. |
As explained in that notice, with respect to
such matters as Canadian content, Canadian program expenditures and closed
captioning, and consistent with the requirements imposed on other Category 2
specialty services, licence conditions have either not been imposed or are
generally far less onerous than the applicant’s own commitments. |
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Nature of service licence condition
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31. |
In the Commission’s view, the description of the
nature of the service contained in WTM’s written application should be more
specific if it is to serve as the basis for a condition of licence. At the
hearing, the applicant indicated that it would accept and adhere to an
abridged description similar to that set out in a) below. Accordingly, by
condition of licence: |
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a) The licensee will provide a national service with both English- and
French-language feeds. The service will be dedicated to providing news,
public affairs, film and entertainment programming from Canada and around
the world in the original language of production and will reflect Canadian
and global cultural diversity. Through the extensive use of subtitles in
English and French, the service will be widely accessible to Canadian
viewers.
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b) The programming must be drawn exclusively from the following
categories, as set out in Schedule 1 to the Specialty Services
Regulations, 1990: 1, 2a, 2b, 3, 4, 5b, 6a, 6b, 7a, 7b, 7c, 7d, 7e, 7f,
7g, 8a, 8b, 8c, 9, 10, 11, 12, 13 and 14.
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c) A maximum of 10% of the programming in the broadcast week may be
drawn from program category 6 (sports).
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d) A maximum of 20% of the programming in the broadcast week may be
drawn from program category 7c (specials, mini-series or made-for-TV
films).
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e) A maximum of 35% of the programming in the broadcast week may be
drawn from program category 7d (theatrical feature films aired on TV).
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f) A maximum of 20% of the non-Canadian programming aired in each
quarter of the broadcast year may be produced in any one language.
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g) Programming produced in Great Britain or the U.S. may, in each case,
account for a maximum of 5% of the non-Canadian programming aired in each
quarter of the broadcast year.
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h) A maximum of 10% of the non-Canadian programming aired in each
three-month period commencing 1 September, 1 December, 1 March and 1 June
of the broadcast year may originate in any single country other than Great
Britain and the U.S.
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Secretary General |
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This decision is to be appended to the
licence. It is available in alternative format upon request, and may also be
examined at the following Internet site:
http://www.crtc.gc.ca |
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Dissenting Opinion of Commissioner Martha
Wilson |
1. |
I disagree with the majority on this decision. I
would have granted World Télémonde (WTM) a licence for a modified dual status
service. This means that WTM would be distributed on an analog channel as a
discretionary service unless WTM and a distributor agreed that the service
would be carried on basic. I would not have granted WTM any additional access
rights, i.e., their English service would have modified dual status access in
Anglophone markets and their French service would have modified dual status
access in Francophone markets. As a result, they would be carried by all
Class 1 cable undertakings and by Class 2 cable undertakings choosing to
carry the service. I would not stipulate on which tier the service was to be
carried, nor would I grant additional access rights for the English service
in Francophone markets and vice versa. Nor would I require carriage on MDS
undertakings. This, I believe, would be a reasonable compromise in terms of
giving the service a real opportunity to survive and respecting the scarcity
of analog channel availability for cable undertakings and the scarcity of
spectrum availability for MDS undertakings. |
2. |
What drives me to this view is the sea change in
the demographics of this country over the last ten years and what I believe
is a need for "bridge" programming in the Canadian broadcasting system. In
the applicant’s words, bridge programming, aimed at a mainstream audience in
both official languages through the use both of subtitles and commentary and
analysis, would "facilitate insight, understanding and integration by
providing viewers with direct windows on the people of Canada and the world."
In this case, WTM would provide programming which would help the official
language groups better understand the various ethnocultural groups which
comprise a very large and growing part of our population. This would be
achieved by offering a significant amount of international programming not
now available in our broadcasting system along with Canadian programming
whose specific aim is to provide some context for understanding Canada’s
multicultural communities. This context would be provided both by programming
from the multicultural communities’ countries of origin and through Canadian
programming offering commentary and analysis to bridge understanding. |
3. |
The majority’s decision at paragraphs 2, 3 and 4
describes the steps the Commission has taken in pursuit of the
Broadcasting Act’s (the Act’s) multicultural objectives through
third-language programming. And they acknowledge in paragraph 7 that "more
can be done" including better reflection of Canada’s multicultural reality by
conventional broadcasters in conventional programming. I would suggest,
however, that this argument misses the essential point of the WTM
application. While there is a substantial amount of third-language
programming in the system, and while conventional broadcasters are turning
their attention to a more realistic reflection of Canada’s demographics in
their news and other Canadian programming, there is, in my view, a clear gap
between the two. On the one hand, we have conventional broadcasting channels
that serve and reflect the official language groups. On the other, we have
third language programming which serves the various ethnocultural communities
which have made this country their home – but this programming is not
accessible to the official language groups in terms of making the context and
the reality of Canada’s multicultural communities understandable. So what
kinds of programming services should there be in the system – available to a
wide number of Canadians – which help us to understand one another better? I
would suggest that the programming service applied for by WTM is one such
service. It may not be the only programming service that would fill this gap,
but it would be a beginning. |
4. |
The following chart illustrates my point: |
|
Conventional Television
|
Bridge Programming
|
Third-Language Television
|
Elements of the Canadian Broadcasting System |
CBC, CTV, Global, SRC, TVA, TQS, Canadian
specialty services, both analog and digital |
CFMT – some programming in English which
addresses Canadian multi-cultural realities |
CFMT, CJNT, Telelatino, Fairchild, Asian
Television Network, Odyssey, Talentvision, Category 2 digital services |
What they do or what they should do |
Reflects official language groups to themselves |
Reflects Canada’s official language groups
and multi-cultural groups to one another |
Reflects ethnocultural groups to themselves |
|
Some reflection of multicultural reality of
Canada |
Uses Canadian commentary and analysis in both
official languages to provide insight and understanding into the origins,
issues and orientations of Canada’s multi-cultural communities |
Reflects official language groups to the
ethnocultural groups |
|
Reflects official language groups to
ethnocultural groups who speak either of the official languages |
Uses international programming to provide a
context for understanding the origins, issues and orientations of Canada’s
multi-cultural communities |
|
|
|
Provides a bridge between generations of
ethnocultural Canadians where the "older" generation is third-language
speaking and the "younger" generation speaks one of the two official
languages. |
|
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Analog distribution and the argument for exceptional importance
|
5. |
There is little argument about the
scarcity of analog capacity in the current distribution environment, although
this is a reality only for cable distribution undertakings, not for
direct-to-home satellite undertakings (DTH). (MDS is a special case on its
own due to the limited spectrum available to it for delivery of programming
services.) Cable companies have upgraded or are in the process of upgrading
their plant to offer programming services on a digital basis bringing two
important things to the Canadian broadcasting system: the possibility for
consumers to choose more specifically the programming they receive, and the
ability of the broadcasting system to offer a much wider array of
programming. These are important goals and the Commission has done much to
support the roll-out of digital technology to Canadian homes. If a cable
company chooses to roll out this technology without upgrading its plant to a
full 750 MHz, then analog channels must be harvested in order to create
digital capacity. This situation – combined with the carriage on analog of
existing services, the removal of which could be disruptive to consumers – is
what results in analog scarcity. |
6. |
As outlined in the majority
decision, in 1997 (PN CRTC 1997-33), some time before digital distribution
was a reality for both cable undertakings and consumers, the Commission
articulated its approach to any further analog distribution of specialty
services. This approach took into account information about the roll-out of
digital supplied to it by the cable industry and other parties, and set out
the requirement that English or French specialty services proposing analog
carriage would have to justify this distribution "on the basis of agreements
with distributors or on the basis of evidence demonstrating the
exceptional importance of the proposed service to the achievement of the
objectives of the Broadcasting Act." (my emphasis) |
7. |
At closer look, this is an odd test. |
8. |
On the one hand, if the distributor
agrees to carry the service, it doesn’t seem to matter if the service is of
exceptional importance, only that the operator is willing to carry it on
analog. |
9. |
On the other hand, if the
distributor does not agree to distribution, the Commission applies an
exceedingly demanding test to decide whether or not the service achieves the
objectives of the Act. Where is the logic in this approach? If a distributor
agrees to analog carriage, then that’s fine? But if a distributor does not
agree to analog carriage, the Commission must meet a higher standard than the
distributor and may be reluctant to introduce into the system programming
that plays an important role by a test that leaves a fair amount of room for
subjectivity and could be difficult to meet for any individual service? |
10. |
In my view, this is a questionable
approach. Much has changed in the country and in the broadcasting system
since 1997 and the Commission must be able to respond to those changes with
some flexibility. Indeed, even after the approach to any further analog
carriage was articulated by the Commission, a number of American specialty
services were launched on analog discretionary tiers while licensed Canadian
specialty services were kept waiting for "the earlier of: deployment of
digital technology by a distributor, or 1 September 1999" (PN CRTC 1996-120).
I am not suggesting that cable undertakings should not have the flexibility
to develop programming packages that will appeal to consumers. Nor am I
suggesting that they shouldn’t have the flexibility to offer American
services which provide "lift" for the Canadian services if this will help
drive penetration (although viewership data consistently and clearly
indicates that the Canadian services garner far greater audiences than those
of the American services launched with them in 1997). I am suggesting that in
spite of the frameworks the Commission develops to respond to certain
realities in the distribution environment, there sometimes become apparent
clear gaps in the broadcasting system – in this case because of the radically
altered demographics of the country – and the Commission must be able to
"fill those gaps" without being held to a higher standard than those they
regulate. |
|
Disruption to consumers and the affordability of basic service
|
11. |
The majority decision supports its
argument against analog carriage of WTM based in part on the issues of
disruption to consumers, including the subscriber’s right to choice and the
affordability of basic service. These are important issues and I do not take
any of them lightly. However, I would argue that in an increasingly
competitive distribution environment, if the Commission believes that a
service should be granted analog carriage to fulfill a certain need in the
broadcasting system, then the best people to decide how to implement this
decision are the distributors themselves. Subscribership to DTH is growing
rapidly. Bell Expressvu, for example, announced in the last week that it had
reached one million subscribers and Star Choice has 670,000 subscribers.
Combined, this brings DTH penetration ever closer to the two largest cable
operators in Canada: Shaw (2.1 million subscribers) and Rogers (2.3 million
subscribers). At the same time, growth in cable penetration has remained
relatively flat in the last year and, indeed, some cable operators are
beginning to apply for deregulation of their basic rates because they’ve lost
5% of their subscribers to DTH and/or MDS. It would seem, then, that there is
sufficient market incentive for cable operators to minimize any action that
might drive their subscribers to the competitors without the Commission’s
intervention. |
12. |
I would argue, therefore, that while
these are important issues which the Commission should consider when
licensing any additional analog services, they must be weighed against the
need to have certain programming available in the system. Surely this is
exactly what the Commission concluded when it decided that APTN should be
licensed and should be granted basic carriage under Section 9(1)(h) of the
Act with a subscriber rate of 15 cents per month. And the Commission reached
a similar conclusion with respect to the national distribution of TVA and the
licensing of ArTV. I am not suggesting that the Commission should be at all
capricious in licensing analog services – and we certainly haven’t since 1997
– but there are and will be times before cable distribution is entirely
digital when the Commission may want to introduce a certain type of
programming into the system in order to achieve the objectives of the Act and
those situations may require analog carriage. |
|
Does WTM’s programming achieve the objectives of the act?
|
13. |
The majority argues that WTM’s
programming is not sufficiently Canadian to render it of exceptional
importance to the achievement of the multicultural objectives of the Act.
Paragraph 19 of the majority decision states that "In the current
distribution environment, it would be extremely difficult for a proposed
service to lay a convincing claim to being of such exceptional importance in
relation to the Act’s multicultural objectives, unless it is one devoted to
programming focused on the needs and interests, the circumstances and
aspirations, primarily and predominantly, of Canadians" (emphasis
added by the majority) |
14. |
Interestingly, the Act itself, in
its vision of the Canadian broadcasting system, does not set out the
requirement of "primarily and predominantly Canadian" for every single
programming service in that system. In fact, the words "primarily and
predominantly" in combination do not appear anywhere in the Act. While
the words "needs and interests" and "circumstances and aspirations" come from
Section 3(d) (which is the same Section which articulates the Act’s
multicultural objectives), the notion of "predominance" is found in Section
3(f). But even there, a clear exception is set out with respect to services
which have specialized content or format or which use languages other than
French or English. |
15. |
Section 3(f) states: |
|
f) each broadcasting undertaking shall make maximum use, and in no case
less than predominant use, of Canadian creative and other resources in the
creation and presentation of programming, unless the nature of the
service provided by the undertaking, such as specialized content or format
or the use of languages other than French and English, renders that use
impracticable, in which case the undertaking shall make the greatest
practicable use of those resources; (my emphasis)
|
16. |
It seems, then, that the majority
has drawn a conclusion which, it could equally be argued, is not explicit in
the Act. If it were, then there are many Canadian programming services which
would not measure up in terms of reflecting the Canadian reality, ethnic or
otherwise, and all of them have analog carriage. |
17. |
The majority also discusses the
Canadian content exhibition levels proposed by WTM and suggests that the
levels proposed are "significant limitations on the ability of the service to
reflect Canada’s multicultural reality". Let’s take a closer look at this
suggestion by comparing the exhibition levels of some of the existing analog
specialty services with those of WTM: |
Service
|
Overall Exhibition Requirement (%)
|
Evening Exhibition Requirement (%)
|
Bravo |
40% in 1994/95
50% in 1996/97
60% in 1998/99 |
40% in 1994/95
45% in 1996/97
50% in 1998/99 |
History Television |
Minimum of 30%
40% if 4 million subs
50% if 5 million subs |
33% |
Outdoor Life |
30% |
30% |
Space: The Imagination Station |
25% in 1997/98
30% in 1999/00
35% in 2001/02
40% in 2002/03 |
25% in 1997/98
30% in 1999/00
35% in 2002/03 |
Canal D |
30% in 1995/96
32% in 1997/98 on |
30% in 1995/96
32% in 1997/98 on |
Historia |
35% in year 1 rising to 45% in year 6 |
35% in year 1 rising to 45% in year 6 |
WTM (proposed) |
40% in year 1
50% in year 3
55% in year 4
60% in year 5 |
50% throughout the licence term |
18. |
Clearly the Commission has shown significant
flexibility in applying Canadian content exhibition requirements in order to
get certain types of programming into the system – just as the Act envisioned
we would do in Section 3(f). In several cases, we have allowed lesser levels
of Canadian content than those provided by conventional broadcasters or by
specialty services which lend themselves to higher levels (such as news and
lifestyle programming) because we felt it would strengthen the broadcasting
system, whether from a cultural or an economic point of view. |
19. |
And certainly no one would argue that specialty
channels such as Bravo and History which start out at 30% or 40% Canadian
content and grow to 50% or 60% over time are not capable of reflecting the
Canadian reality. Nor would they argue against the importance of having the
types of programming offered by Bravo and History in the Canadian
broadcasting system. But is it any more important than having programming
available which goes to one of the very principles which define the
fundamental nature of this country – equality, linguistic duality, the
importance of our aboriginal peoples, and multiculturalism? And further, how
are WTM’s proposed exhibition levels a significant limitation on its ability
to reflect Canada’s multicultural reality when an important part of that
reality has to do with understanding where our multicultural communities come
from, their countries of origin, and how those cultures have formed these new
Canadians? Surely exhibition levels on their own are not the only indicator
of whether or not a service is reflecting a certain reality. And why would
the Commission hold a programming service which would serve both the
mulitcultural communities and the official language groups and provide an
important "bridging" role at a time of demonstrated need to a higher
standard? |
20. |
I believe that at this time in our country we
need the kind of bridge programming proposed by WTM. Our country’s
demographics have changed dramatically in the last 10 years and there
is very little programming aimed at a mainstream audience which attempts to
provide an international context for this change or address the issues that
this kind of change raises. Is WTM the only service which should bring this
perspective to the Canadian broadcasting system? No. Has anyone else proposed
to do something like this in the last 10 years? No. Does WTM have to fill the
entire gap that exists in the system right now? No. It need simply fill a
part of it, just as any other Canadian specialty service does. But licensing
WTM and giving it a fighting chance to survive by granting
analog carriage would be a beginning, and it’s a decision I wish we had made. |
Date Modified: 2001-12-14 |