Notice No. DGTP-007-04

Industry Canada

Radiocommunication Act

Notice No. DGTP-007-04 – Proposed Clarification to the Government Satellite-use Policy for the Delivery of Broadcasting Services

Intent

1.The intent of this Gazette Notice is to seek comments on a proposal to amend the policy concerning the use of Canadian satellite transmission facilities for the delivery of satellite broadcasting services to the public as authorized by the Canadian Radio-television and Telecommunications Commission (CRTC) under the Broadcasting Act. This Notice addresses an exceptional situation where specialized satellite facilities are needed to deliver particular satellite broadcasting services and in the instance where no Canadian satellite facilities are, or expected to be, available to deliver such services.

Background

2. In October 2003, the Departments of Industry and Canadian Heritage received a request from the CRTC to clarify the government satellite-use policy for the transmission of Canadian programming services in Canada, in particular digital radio by satellite. The CRTC had received an application to establish subscription satellite radio service using one of two U.S. satellite networks operating in the S-band (2320-2345 MHz). More specifically, the CRTC is seeking a clarification of the 1995 satellite-use policy, which was enunciated during the proceedings for the distribution of Direct‑to‑Home (DTH) satellite services. (Footnote 1)

3. In 1995, the CRTC and others identified a need for the Government to clarify its satellite policy concerning the use of Canadian satellite facilities for the transmission of Canadian programming service to the public, and in particular for Direct-to-Home (DTH) satellite distribution services.  A policy statement was particularly important at the time as one of the DTH applicants was to make use of a Canadian satellite facility for the distribution of all its programs while another applicant was proposing to use only a U.S. satellite facility. A main consideration at the time, while having regard to certain telecommunications and broadcasting policy objectives, was not to confer any significant advantage to one satellite broadcaster over the other, in terms of satellite capacity, availability and transmission costs.

4. Industry Canada and Canadian Heritage issued the 1995 satellite-use policy referred to above clarifying the use of Canadian satellite facilities as it applies to broadcasting undertakings. Two main provisions were established as follows: 

• the undertaking should make use of Canadian satellite facilities to carry (i.e. receive and/or distribute to Canadians) all Canadian programming services but may use either Canadian or non-Canadian satellite facilities to carry foreign originated services that are intended primarily for foreign audiences and are authorized, in whole or in part, for distribution by the CRTC; and
   
• under no circumstances should an undertaking use exclusively foreign satellites for the distribution of its services to Canadians. However, in the case of emergencies leading to lack of availability of Canadian or foreign satellite facilities, back-up agreements between the two countries [Canada-United States] would be utilized.

5. The satellite-use policy statement reflected the 1995 environment where the Canadian fixed-satellite market was not open to competition and a number of DTH applicants were competing for access to the limited Canadian fixed-satellite facilities, in addition to potential use of foreign satellites.The policy also reflected the objective in the Broadcasting Act that "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". At that time, a satellite relay distribution undertaking was also required to rely on Canadian satellite facilities to network distant Canadian programming signals to cable head-ends.

6. The government satellite-use policy, outlined in the provisions above, did not contemplate a situation where Canadian specialized satellite facilities would not be available to deliver a particular broadcasting service, such as subscription digital radio by satellite.

7. On December 23, 2003, the CRTC announced in Broadcasting Public Notice CRTC 2003-68 that it had received an application for a broadcasting licence to carry on a satellite audio distribution undertaking for direct reception by subscribers and consequently, called for applications from any parties wishing to seek authority to provide subscription broadcasting distribution service, or some other form of multi-channel subscription radio programming undertaking.

8. By the February 16, 2004 deadline, the CRTC received two satellite radio broadcasting applications to use the U.S. satellite transmission facilities to carry, in part, some Canadian programming services. These two satellite radio networks operate in the S-band (2320-2345 MHz) which has been allocated by the International Telecommunication Union (ITU) to a number of countries, including the United States. Canada has not sought a country broadcasting satellite allocation to develop its own satellite radio facilities in the S-band. The CRTC also received a stand-alone terrestrial subscription radio broadcasting application.

9. On July 8, 2004, the CRTC issued a notice indicating that a public hearing will commence on November 1, 2004 to examine the three subscription radio applications.

Discussion

10. The government’s general objective has been to promote the availability of a range of satellite facilities to provide advanced and efficient telecommunications and broadcasting services to Canadians. Canada has opened its telecommunications market for both fixed-satellite and mobile-satellite services and has committed to continue this policy under the World Trade Organization (WTO) Agreement on basic telecommunications. In 1998, Industry Canada released a policy framework to open the Canadian fixed‑satellite telecommunications market to competition. The policy framework indicated that this included the transport of broadcasting services such as, the transport of program feeds for news gathering, the delivery of network programs to affiliates, and the delivery of programming services to distribution undertakings. However, the policy also indicated that "the telecommunications services covered by the [WTO] agreement exclude ‘telecommunications services supplied for the transmission of services regulated under the Broadcasting Act where such services are intended for direct reception by the public.’ More specifically, Direct-to-Home (DTH) broadcasting services whether they use fixed satellites or direct broadcast satellites (DBS) are excluded from this agreement." (Footnote 2) The policy then essentially re-stated the 1995 satellite-use policy mentioned above.

11. In considering the CRTC request for a clarification of the government satellite-use policy the situation can be summarized as follows: 

• (a) Canada has no satellite facility capable of distributing digital satellite radio broadcasting and is unlikely to have such a facility in the future;
   
• (b) Canada has not secured with the ITU the required spectrum resources at the S-band to develop its own specialized satellites; and
   
• (c) Spectrum could be made available domestically to accommodate the provision of digital satellite radio broadcasting in Canada using US satellite facilities.

12. Also, spectrum could be made available to accommodate the provision of subscription terrestrial radio broadcasting in the L-band (e.g. part of the 1452-1492 MHz digital radio band and some adjacent spectrum).

Proposed Amendment to Satellite-use Policy

13. In view of the situation outlined above, the Departments of Industry and Canadian Heritage are of the preliminary view that potential digital satellite radio broadcasting services raise an exceptional circumstance. Without prejudice to the current licensing process announced in the CRTC’s Notice CRTC 2003-68, both departments acknowledge the need to clarify the satellite-use policy with regards to broadcasting undertakings and wish to propose that the policy provisions read as follows: 

1. the undertaking should make use of Canadian satellite facilities to carry (i.e. receive and/or distribute to Canadians) all Canadian programming services but may use either Canadian or non-Canadian satellite facilities to carry foreign originated services that are intended primarily for foreign audiences and are authorized, in whole or in part, for distribution by the CRTC;
2. in exceptional circumstances, where no Canadian satellite facilities are available, or likely to be available in a reasonable time frame, to accommodate specialized satellite delivery of a broadcasting service to the public e.g. satellite radio services including vehicular reception, the use of foreign satellite facilities is permitted to distribute Canadian programming services; and

   Note: Specialized satellite delivery in the context of this provision is meant to differentiate unique satellite transmission/reception, such as for vehicular reception, not achievable by conventional Canadian satellite facilities used for DTH, e.g. direct broadcast satellite and fixed satellite in the 12 GHz range.

3. in the case of emergencies leading to lack of availability of Canadian satellite facilities for broadcasting undertakings, back-up arrangements with foreign satellite operators could be utilized, on an interim basis, with appropriate authorization.

   (This proposed provision (iii) reflects the current satellite communications environment where satellite operators routinely enter into back-up arrangements to ensure continuation of services during emergencies, such as a satellite failure.)

14. Recognizing the need to provide the CRTC with guidance in the use of satellite facilities for new broadcasting services to Canadians, it is proposed to amend the satellite-use policy as prescribed above and written submissions are invited in that respect. Respondents are asked to provide their views on the proposed amendment, the reason for their position and how the public interest would be served.

15. Interested parties should submit their comments no later than November 29, 2004. Shortly after the close of the comment period, all comments received and any other relevant information will be posted on Industry Canada’s Spectrum Management and Telecommunications Web site at: http://strategis.gc.ca/spectrum.

Submitting Comments

Respondents are requested to provide their comments in electronic format (WordPerfect, Microsoft Word, Adobe PDF or ASCII TXT) to the following e-mail address: wireless@ic.gc.ca, along with a note specifying the software, version number and operating system used.

Written submissions should be addressed to the Director General, Telecommunications Policy Branch, Industry Canada, 300 Slater Street, Ottawa, Ontario, K1A 0C8.

All submissions should cite the Canada Gazette, Part I, publication date, the title, and the notice reference number (DGTP-007-04).

Obtaining Copies

Copies of this notice and documents referred to are available electronically on the Spectrum Management and Telecommunications Web site.

Official printed copies of gazette notices can be obtained from the Canada Gazette Web site at: http://canadagazette.gc.ca/index-e.html or by calling the sales counter of Canadian Government Publishing at (819) 941-5995 or 1 800 635-7943.

Issued under the authority of the Radiocommunication Act

October 21, 2004

____________________________
Larry Shaw
Director General
Telecommunications Policy

____________________________
René Bouchard
Director General
Broadcasting Policy and Innovation

Reference Documents

Footnotes

1. Letter to the CRTC dated June 14, 1995, from Harry Swain, Deputy Minister, Industry Canada, and Marc Rochon, Deputy Minister, Canadian Heritage.

2. See Annex C to the Policy Framework for the Provision of Fixed Satellite Services (RP-008), found on Industry Canada’s Spectrum Management and Telecommunications Web site.