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Broadcasting Decision CRTC 2006-197
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Ottawa, 23 May 2006
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Complaint by the Canadian Broadcasting Corporation concerning the
simultaneous distribution of multiple feeds of The Sports Network
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In this decision, the Commission finds
that The Sports Network Inc. breached its conditions of licence when it
broadcast NHL hockey games on the TSN specialty service using two
national feeds that were distributed simultaneously by broadcasting
distribution undertakings (BDUs). The licensee must ensure that it does
not permit the simultaneous distribution of separate feeds by BDUs
unless it obtains appropriate authorization. |
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Complaint
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1. |
On 17 January 2006, the Canadian
Broadcasting Corporation (CBC) filed a complaint with the Commission
alleging that The Sports Network Inc. (the licensee) had breached the
conditions of the licence of the specialty service The Sports Network (TSN)
by broadcasting NHL hockey games using two simultaneous, national feeds
on at least three occasions between October 2005 and December 2005.
These games were distributed by cable broadcasting distribution
undertakings (BDUs) on an analog as well as a digital basis. |
2. |
In the view of the CBC, conditions 1(a) and
1(d) of TSN’s licence do not permit the broadcast of two simultaneous
feeds that can be accessed in a given marketplace. These conditions of
licence read as follows: |
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1. (a) The licensee shall provide a national English-language
specialty service which shall consist of programming dedicated
exclusively to all aspects of sports, that is, programming covering
professional and amateur sports events, sports newscasts, magazine
shows, interviews, commentaries, documentaries, audience
participation programs, instruction and training programs that
promote physical fitness.
…
(d) The licensee may distribute separate regional programming in
place of its national service to affiliated distribution
undertakings provided that the hours devoted to such regional
programming do not exceed 10% of the licensee’s quarterly program
schedule.
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3. |
According to the CBC, the conditions set
out above do not allow the licensee to multiplex the TSN service and
effectively transform it from a single service into two services, even
on a temporary or occasional basis. The CBC therefore requested that the
Commission direct TSN to comply with its conditions of licence and, in
particular, to cease its practice of broadcasting two or more
simultaneous national feeds of NHL hockey games. |
4. |
In support of its position, the CBC cited a
Commission letter entitled Complaint by TSN Concerning Distribution
of Multiple Feeds of CTV Sportsnet by Direct-to-Home (DTH) Distributors
dated 7 May 1999 (the Sportsnet determination), in which the Commission
ruled that the simultaneous distribution of more than one of Sportsnet’s
regional feeds by a BDU was contrary to the terms of Sportsnet’s
licence. |
5. |
The CBC further argued that, if TSN were
permitted to multiplex its service in the manner described above, then
all specialty services should be permitted to do so as well. In the
CBC’s view, permitting all specialty services to multiplex their
services would constitute a radical change in the broadcasting
environment, since services that would normally be carried on a single
channel could evolve into multiple services operating under a single
licence. The CBC also considered that such an approach would raise
significant issues regarding access to BDU distribution capacity. |
6. |
As well, the CBC submitted that, if TSN
were permitted to multiplex its service in the manner described above,
it would obtain an unfair advantage in the market for programming
rights, enhancing its already dominant position in sports broadcasting
to the detriment of other broadcasters. Specifically, the CBC was of the
view that TSN would be in a position to acquire packages of rights that
include simultaneous sports events by paying a higher price for a
package than would otherwise be reasonable, since TSN could rely on a
national audience, and hence national advertising, for all of the
simultaneous sports events. The CBC considered that conventional
television stations would be especially disadvantaged under such an
approach, given their inherent inability to multiplex their services.
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Licensee’s reply
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7. |
In reply, the licensee argued that
condition 1(d) of TSN’s licence permits it to offer more than one feed
on a limited basis, that is, for up to 10% of the quarterly program
schedule, provided that the "split-feed" is comprised of "regional
programming." In the licensee’s view, there is no question that, after a
year without NHL hockey, the live broadcast of the season opening games
of five of Canada’s six NHL teams (Ottawa, Calgary, Edmonton, Vancouver
and Toronto) constituted programming of regional interest. |
8. |
In addition, the licensee submitted that
such an interpretation of condition of licence 1(d) is consistent with
the Commission’s previous characterization of TSN’s ability to offer
more than one feed and is in keeping with the concept of "regional
programming" utilized by the Commission in the context of Sportsnet’s
2004 licence renewal. |
9. |
In the licensee’s view, the provision of
two separate feeds of one network on a national basis is typical of the
distribution model used by direct-to-home (DTH) BDUs, whereby two or
more signals of the same conventional television network are often
offered to viewers as time-shifted distant signals. The licensee noted
that the CBC has itself benefited from this distribution model by
showing different NHL games on CBC East and CBC West feeds that are both
distributed nationally by DTH BDUs. |
10. |
Ultimately, in the view of the licensee, to
alter the current model at this time would deprive viewers of the
programming diversity they have come to expect in the digital
distribution environment, thereby hindering the transition to digital
distribution. Moreover, it would restrict TSN’s programming flexibility
in a manner that would put it at an unfair competitive disadvantage to
both the CBC and Sportsnet. |
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Commission’s analysis and determinations
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11. |
The Commission is of the view that the
Sportsnet determination provides guidance on the issue of the provision
of split-feeds of a broadcaster’s signal to a BDU that is relevant to
the current complaint. For the purpose of clarification, it is important
to distinguish between "split-feed" signals and "time-shifted" signals.
Split-feed signals are multiple signals provided by a broadcaster that
offer different programming, where authorized and to a degree specified
by Commission authority. Time-shifted signals offer the same programming
at different times in order to provide BDU subscribers with multiple
opportunities to view the programming provided by a broadcaster. |
12. |
The Sportsnet determination resulted from a
complaint filed by TSN Inc. on 23 November 1998 respecting Sportsnet’s
simultaneous provision of all four of its regional feeds for
distribution by DTH BDUs. At that time, TSN Inc. submitted that, if
allowed to continue, this distribution, which, in its view, effectively
created three unlicensed specialty television services, would have a
negative impact on all Canadian broadcasters and confer an inappropriate
advantage on Sportsnet. |
13. |
In the
Sportsnet determination, the Commission cited Structural
Public Hearing, Public Notice
CRTC 1993-74,
3 June 1993, in which it determined that, although no special authorizations
would be required of pay television undertakings to multiplex their
programming on separate channels, licensees of other types of services
would be required to obtain such authorizations due to the capacity
constraints of BDUs. The Sportsnet determination confirmed that
licensees of specialty services must obtain explicit authorizations
to multiplex their services. |
14. |
The
Commission drew a distinction between authorizing separate feeds of
signals and allowing those separate feeds to be distributed
simultaneously by a specific BDU. Absent explicit authorization, a
specialty service may only provide one of its feeds, if more than one
exists, to be distributed by a BDU in a given region. |
15. |
The
Sportsnet determination also noted, however, that the Commission would
be prepared to consider an application by Sportsnet to authorize the
distribution of all four of its regional feeds in a single region on a
digital basis only. The Commission considered that such distribution
would provide DTH BDUs with the ability to distinguish themselves from
analog cable BDUs and provide an incentive for analog cable BDUs to
implement digital distribution more quickly. |
16. |
Subsequent
to the Commission’s determination, Sportsnet applied for, and in
CTV Sportsnet Inc., Decision CRTC 2000-10,
18 January 2000, received approval to deliver all four of its existing
regional feeds to individual BDUs on a digital only basis. Sportsnet
confirmed that the programming offered on the multiplexed signals
would not differ in any way from the programming provided on the existing
four regional feeds. |
17. |
In the context of the current complaint,
the Commission notes that the licensee
has the authority, granted by way of a condition of licence in
Licence amendments for TSN, Decision CRTC 97-290,
3 July 1997, to provide a limited amount of programming on a separate
feed. |
18. |
In its original application for the
authority to provide a limited amount of regional programming, TSN
stated: |
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This is an application by The Sports Network ("TSN") to amend its
licence to allow the Network to "split" the Network’s national feed on
occasion in order to simultaneously provide either
its national service or
separate programming of regional interest to its affiliated
distribution undertakings. The regional programming TSN is proposing
to offer would ... be available in place of
its national service at no extra fee to the subscriber or the
distribution affiliate. (emphasis added by the Commission)
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19. |
In the view of the Commission, the licensee
did not request the simultaneous distribution of two feeds by its
affiliated BDUs, nor did the Commission approve such distribution at
that time. |
20. |
Given the
distinction that the Commission has drawn between authorizing separate
feeds of a service and allowing those separate feeds to be distributed
simultaneously by a specific BDU, the Commission determines that the
licensee requires explicit authorization to permit its separate feeds to
be distributed simultaneously by a given BDU. |
21. |
Accordingly, the Commission finds that the
licensee breached its conditions of licence when it broadcast NHL hockey
games using two national feeds for simultaneous distribution by BDUs.
The licensee must ensure that it does not permit the simultaneous
distribution of separate feeds by BDUs unless it obtains appropriate
authorization. |
22. |
The Commission is of the view, however,
that it may be appropriate in certain circumstances to permit the
multiplexing of specialty services. Accordingly, it
would be prepared to consider an
application from the licensee to authorize the simultaneous distribution
by BDUs of its separate feeds in a single region on a digital basis
only. |
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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 in PDF
format or in HTML at the following Internet site: http://www.crtc.gc.ca
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