Tag Archives: CRTC

BTLR panel report sides with much more regulation of online media

We can talk about making Netflix charge GST, or phasing out ads from the CBC, or the various proposed changes to telecom policy that will have a huge financial impact for the industry but be largely invisible to end users, but the real headline out of the Broadcasting and Telecommunications Legislative Review Panel report released on Wednesday is this: A big expansion of government regulation in media.

I’d say this wasn’t a surprise looking at the backgrounds of the panel members, but that would be unfair. The panel was made up of legal experts with experience all over the industry, including with telecommunication providers who would be largely against these kinds of additional regulatory burdens. And, frankly, it was a surprise that they would push for this much additional regulation.

Certainly, going boldly in the other direction wasn’t an option. The terms of reference that guided the panel made it clear that the government hasn’t changed its objectives in terms of getting the industry to promote Canadian content, ensuring diversity and accessibility, protecting local news and the CBC, and ensuring that additional costs won’t be assumed (directly) by the consumer. If you have issues with those objectives, take it up with the government, not the panel.

And in any case, those 97 recommendations are in the hands of that same federal government, and it will be up to them to decide which of those recommendations to follow and which to ignore. Those recommendations that are less politically popular should get filtered out at that stage, as well as those that would be too disruptive to take the political risk.

The recommendations are summarized in various news stories about the report (CBC, Globe and Mail, Wire Report, iPolitics, Cartt.ca, The Logic, Global News, Postmedia, Toronto Star)

Here are some highlights of what the panel has proposed:

Streaming and online media

  • Make all online media subject to government oversight. Not just Netflix, but Facebook, Google, Apple, even news media websites. While they would not have to be licensed by the CRTC, the larger ones would have to at least register (and have many of the same obligations), and report confidential information. (A suggested order would make this apply only to those with more than $10 million in Canadian revenue a year.)
  • Require “curators” (media providers with editorial control over their media) to devote a portion of their content budgets to Canadian programming. (Or impose a levy where such a quota is inappropriate.)
  • Require “aggregators” and “sharers” (those without editorial control) to give a portion of their Canadian revenues to the Canadian system, including news.
  • Make foreign streaming services subject to sales tax. Quebec and Saskatchewan already do this at the provincial level, and Canadian streaming services are already subject to this, so it was kind of a no-brainer.
  • Allow the CRTC to collect data (including recommendation algorithms) from media producers and publish that data in aggregate form.
  • Require “media content undertakings” to devote portions of their catalogues to Canadian content and ensure a certain prominence to Canadian content, including in things like app stores.
  • Monitor and if necessary intervene in large media companies’ use of “Big Data” that may have privacy implications for Canadians.
  • (Carefully) establish liability for digital providers for harmful content distributed using their systems, while protecting freedom of expression.

CBC/Radio-Canada

  • Phase out all advertising within five years.
  • Set up a five-year funding guarantee for the CBC instead of having it set its budget based on parliamentary appropriations that can change with every federal budget.
  • Add “taking creative risks” to CBC’s mandate.
  • Remove specific references to radio and television from CBC’s mandate.
  • Move away from the CRTC licensing CBC’s individual services

Internet service providers

  • No new ISP tax. The panel recommended against the idea of taxing internet service directly to support Canadian media.
  • Require the CRTC to, if they deem it necessary, implement “measures to improve affordability for marginalized Canadians from diverse social locations.”

Telecommunications

  • A much larger role for the CRTC in establishing rules for how telecoms do business with each other and interconnect.
  • Give the CRTC power over “passive infrastructure” like street furniture to make it easier for telecom companies to install equipment.
  • More power to the CRTC to regulate access to telecommunications infrastructure inside large apartment and condo buildings to ensure competition.
  • Require the CRTC consult municipalities before granting permission to install telecom facilities.
  • Expand the CRTC’s jurisdiction to cover all “electronic communications services” being provided in Canada, regardless of if they’re Canadian-owned or have a presence here.
  • Direct disputes over tower sharing to the CRTC.

News media

  • Expand the federal journalism tax credit to include broadcast media.
  • Require sharing and aggregation websites like Facebook and YouTube to provide “links to the websites of Canadian sources of accurate, trusted, and reliable sources of news with a view to ensuring a diversity of voices” and require “prominence” of such links.
  • Require social media platforms abide by regulated terms of trade that balance “negotiating power” with news producers so news producers are compensated for their content being shared online.

The CRTC

  • Rename the commission the Canadian Communications Commission (which sounds a lot like a “Canadian FCC”).
  • Give the commission more powers to do market research and regulate proactively rather than based solely on industry applications.
  • Allow the commission to issue conditional and interim broadcasting decisions, fine broadcasters, and issue ex parte decisions where warranted.
  • Reduce the maximum number of commissioners to a chair, one vice-chair and seven other members, down from the current 13 total, and have all members based out of the Ottawa region.
  • Create a Public Interest Committee of experts that would “provide advice as part of the decision-making process.” The panel cites the OFCOM Consumer Panel in the U.K. as a model.
  • Create and fund an accessibility advisory committee.
  • Allow sharing of confidential information between the commission and the Competition Bureau as well as the Privacy Commissioner.
  • Synchronize rules related to powers and procedures between the telecom and broadcasting side.
  • Establish a firm 120-day deadline to review a decision when asked through an appeal by a party to it.
  • Strengthen rules that provide funding for public interest interventions in CRTC proceedings.

Production funds

  • Combine the Canada Media Fund and Telefilm Canada, which finance TV and movie production, respectively.
  • Redirect cable and satellite companies’ required contributions to the Canada Media Fund be redirected to certified independent production funds, like the Bell Fund, Fonds Quebecor, Shaw Rocket Fund etc.

Devices

  • Make it illegal to “operate devices, equipment, or components to receive unlawfully decrypted subscription programs” online (borrowing from the anti-satellite-piracy law).
  • Make the minister of industry responsible for ensuring “communications devices and their operating systems respect security requirements, protect users’ privacy, and incorporate accessibility features.”

That’s a lot. Even if there are exemptions for small businesses, this new regulatory regime would cover a large part of the online industry. And if these new laws and the regulations that stem from them aren’t very carefully implemented, there could be a lot of undesired side-effects, including many online businesses blocking out Canada because they don’t think it’s worth going through the regulatory burden.

And even those who will participate because there’s so much money at stake (like Netflix) will certainly balk at some of the regulatory obligations like submitting their algorithms to audits. When the CRTC tried to get some basic information out of Netflix as part of its Let’s Talk TV proceeding five years ago, Netflix flat-out refused, and the commission had no power to force the company to comply, so it just gave up. Stronger laws could change that (especially if other countries have similar laws), but expect a lot of resistance.

There’s also a lot unclear about how this will affect those currently licensed by the CRTC. The proposal would change the objectives of the Broadcasting Act, and (though this isn’t laid out explicitly) remove the requirement that Canadian broadcasting be Canadian-owned. That could have serious implications if, say, it allows Bell and Corus to be bought by American media giants.

The federal government has said it plans to have legislation by the end of the year. I look forward to seeing how much of this radical change it has the stomach for, especially in a minority parliament.

Quebecor’s shifting arguments against Tou.tv

It will come as no surprise to you that Quebecor and Canada’s public broadcaster are not the best of friends. Quebecor’s controlling shareholder and CEO, Pierre Karl Péladeau, has complained about it many times in the past. (He also complains about La Presse, Bell, the Quebec Liberal Party, the Quebec government and others.)

This week, Quebec’s largest telecom and media company filed a complaint with the CRTC demanding that it order CBC/Radio-Canada to shut down its Tou.tv Extra streaming service. Not all of Tou.tv, just the $7/month premium version that charges for premium content.

I examine the application in this article for Cartt.ca subscribers. In short, Quebecor is arguing that:

  • As a public broadcaster, it’s improper for CBC/Radio-Canada to charge for access to content paid for by taxpayers, and goes against its mandate.
  • Since it licenses some content from other broadcasters (Télé-Québec, V, Canal Vie, TV5 and others), it is a de facto TV provider and should be licensed as such, including obligations to spend 5% of its revenue on Canadian programming funds.
  • Its deal with Telus giving Telus’s customers free access to Tou.tv Extra is an illegal undue preference and against the rules for digital media broadcasters.
  • CBC’s last licence renewal in 2013 included a note from the CRTC that said it does not charge for access to its streaming service (Tou.tv Extra launched in 2014), which Quebecor argues is a de facto condition of acceptance.

Quebecor lays it on pretty thick in the application, saying CBC/Radio-Canada is “short-circuiting the Canadian broadcasting system with taxpayer money” and “creating two-tier public television: enriched content, exclusives and offers first to the better off, and regular content and reruns to the masses.”

In a procedural letter, the CRTC says that issues related to CBC’s mandate should be dealt with in the CBC licence renewal proceeding, which is currently under way. Other issues of fairness can be dealt with in the context of an “undue preference” proceeding, which it will examine.

I could point out some of the obvious counter-arguments to Quebecor’s argument (Tou.tv Extra does not offer live streaming of cable channels, only some of their content on demand; there is no condition of licence requiring it to be free; it’s basically the same model as Quebecor’s own Club Illico; the deal offered to Telus was offered to others as well including Videotron, who choose not to take it; even if there is undue preference, it does not mean Tou.tv Extra needs to cease its operations), but what struck me today as I was doing some Google searching is a post I wrote 10 years ago just after Tou.tv first launched, when Péladeau complained about it then. Here’s a paragraph I excerpted from an open letter he wrote:

Furthermore, the CBC has launched the Tou.tv website without consulting the industry, a move that jeopardizes Canada’s broadcasting system by providing free, heavily subsidized television content on the Internet without concern for the revenue losses that may result, not only for the CBC but also for other stakeholders, including writers and directors.

So, in 2010 Péladeau argued that Tou.tv threatened the broadcasting system by not charging a fee.

And in 2020 Péladeau argues that Tou.tv Extra threatens the broadcasting system by charging a fee.

You have to give this to Péladeau: He’s got quite the ability to argue. It must be fun working in his regulatory affairs department.

CRTC rules Bell TV unfairly packaged TVA Sports

So Quebecor was right all along.

Kinda.

In a decision published on Thursday, the CRTC ruled that Bell TV unduly showed preference to its related channel RDS to the detriment of competitor TVA Sports by choosing to put the former in its most popular package in Quebec, but not the latter.

It gives Bell until Feb. 5 to tell the commission how it will rectify the situation. The two obvious options are to either add TVA Sports to the package, or take RDS out of it.

Like most TV providers, Bell offers discretionary channels on an à la carte basis, but most people have them as part of larger packages. With Bell, these larger packages are organized in tiers: Good, Better and Best in English, and Bon, Meilleur and Mieux in French. The data show that the lowest-end package of that group is by far the more popular. In Quebec, about 90% of subscribers with one of these packages has the “Bon” package, which has RDS but not TVA Sports.

Bell had argued that its contract with Quebecor only required TVA Sports to have similar packaging to RDS2, and that even that clause doesn’t apply anymore. Quebecor, meanwhile, argued that TVA Sports has greatly transformed since it launched in 2011, and is now on par with RDS, particularly since it picked up the national rights to NHL games.

The CRTC sided with Quebecor, and said “Bell deprived TVA Sports of a significant number of subscribers and several millions of dollars per year of subscription and advertising revenues, resulting in a significant loss of income.”

Quebecor’s back-of-the-envelope calculations suggested that if Bell TV treated TVA Sports the same as RDS (including paying the same per-subscriber rate), TVA Sports would not be in deficit. The rate isn’t part of this decision, but rather was decided as part of final offer arbitration in a separate case (Quebecor is mad about that one too, since the CRTC sided with Bell).

This apparent unfairness was the major reason Quebecor decided in April to cut the TVA Sports feed from Bell, until ordered by the court to re-establish it.

We’ll see what Bell does to rectify the situation. Quebecor would obviously prefer more subscribers to TVA Sports, but Bell could choose to take RDS out of the “Bon” package instead, especially if it can get away with grandfathering those who already have it.

Bell complaint dismissed

In a separate decision also released Thursday, the CRTC also sided with Quebecor in a case over packaging of Super Écran on Videotron. The decision, in response to a Bell complaint, found that Videotron did treat Super Écran differently from Quebecor’s own Club Illico when it removed Super Écran from the “Premium” group of channels, but that there was insufficient evidence that Super Écran suffered financially because of it.

Videotron’s pick-your-own-package model, which is the main way they’re selling TV services these days, invites customers to choose a certain number of channels. Separate from that are “Premium” services that cost more. Most Videotron packages allow one or two “Premium” selections from a list of services, that used to include Super Écran and The Movie Network (now Crave), plus Super Channel, the over-the-top service Club Illico, and a package that includes FX, AMC and U.S. super stations.

Videotron removed Super Écran and Crave from the “Premium” offer after Bell increased its per-subscriber fee. It argued it was just too expensive to continue to be a throw-in like that. Instead, you have to search under “other specialties” to find them among the ethnic channels and pay an extra $17 (Super Écran) or $20 (Crave/HBO) a month.

The decision seems to suggest the issue could be revisited if Bell can prove there was significant financial impact on Super Écran as a result of this change.

Supreme Court overturns CRTC order banning ad substitution during Super Bowl

After three years of Canadian cable TV subscribers having access to American ads during the Super Bowl, we’ll be going back to the previous system after all.

On Thursday, the Supreme Court of Canada ruled that the CRTC exceeded its authority when it issued an order that required cable and satellite TV companies to not substitute U.S. feeds with Canadian ones during the Super Bowl, in response to demands from Canadians to be able to watch the U.S. Super Bowl ads.

The 7-2 decision explicitly leaves open the possibility that the CRTC could use its authority under other sections of the Broadcasting Act to possibly reach the same result. The most obvious way would be under article 4(3) of the Simultaneous Substitution Regulations, which state that the CRTC can declare a condition whereby simultaneous substitution would not be in the public interest, and prohibit it accordingly.

But that won’t happen before the next Super Bowl less than two months away.

Specifically, the court found that article 9(1)h of the Broadcasting Act, the same article that allows the CRTC to require TV distributors to include certain channels in their basic packages and collect fees from every subscriber for them, “does not empower the CRTC to impose terms and conditions on the distribution of programming services generally,” and since the order the CRTC issued in 2016 does not require these companies to distribute the Super Bowl, its wording is invalid.

The article states that the CRTC may “require any licensee who is authorized to carry on a distribution undertaking to carry, on such terms and conditions as the Commission deems appropriate, programming services specified by the Commission.”

The majority found that this wording can’t be stretched to give the CRTC a bunch of powers it doesn’t say it has. The CRTC can order providers to carry certain channels, but that’s not what the Super Bowl order does.

This is notably the third time that an order issued under article 9(1)h has been rejected for this reason. Previous orders invalidated the CRTC’s “value for signal” regime that would have required providers pay for local TV stations, and a requirement for TV providers to abide by the Wholesale Code.

The court did not make decisions on other arguments, such as whether the CRTC has the power to regulate individual programs, or whether the CRTC’s order conflicts with the Copyright Act.

The two dissenting judges found that Bell and the NFL had not met their burden to prove that the CRTC decision was unreasonable, and generally deferred to the CRTC and its expertise in interpreting the section of the Broadcasting Act it was citing. It also found the CRTC’s decision was not invalidated by the Copyright Act.

The decision probably only accelerates a process that was coming anyway, as the Canadian government had already agreed as part of negotiations on a new trade agreement with the U.S. and Mexico to overturn the CRTC’s order.

And, of course, there are still other ways to watch the U.S. Super Bowl ads.

Bell lays out its plans for $20-million purchase of V network

Bell Media is proposing to bring V’s local news broadcasts in-house, but otherwise isn’t putting much substantive on the table to convince the CRTC it should be allowed to acquire the V network of television stations in Quebec for $20 million.

The CRTC published the application on Tuesday, setting a hearing date of Feb. 12 in Montreal to hear the application. Bell is proposing to buy the five V stations (CFAP-DT Quebec City, CFJP-DT Montreal, CFRS-DT Saguenay, CFKS-DT Sherbrooke and CFKM-DT Trois-Rivières), plus digital assets like Noovo.ca, but leave the specialty channels Elle Fictions (formerly MusiquePlus) and MAX (formerly Musimax) to a yet-to-be-named company owned by the current owners of V.

V’s affiliate stations in Gatineau, Abitibi, Rimouski and Rivière-du-Loup, owned by RNC Media and Télé Inter-Rives, are unaffected by the transaction, and Bell says it intends to renew its affiliation agreements with them when they expire in 2020.

In the brief included in the application, Bell and V say the conventional TV network is continuing to lose money, despite the ratings gains it has generated and the synergies from owning two specialty channels (which Bell had to sell off to get its acquisition of Astral Media approved in 2013). Groupe V Média says it has lost almost $7 million in the past two years.

“For a small independent broadcaster in the Quebec market, these losses cannot be supported and have begun to have an impact on its other services,” the application says.

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CRTC questions Bell TV’s community programming practices

Four years after the CRTC found Videotron failed to comply with its obligations related to community television programming, the commission is taking a very critical look at Bell Canada’s community TV services, with questions suggesting it is concerned Bell is inappropriately redirecting funding that was supposed to go to community TV in small Atlantic Canadian communities toward large productions out of Toronto and Montreal that are essentially spinoff shows of commercial productions that air on Bell Media TV channels.

In a notice of consultation posted last month, the commission published applications for licence renewal for Bell Fibe and Bell Aliant TV services in Atlantic Canada, Ontario and Quebec. The applications, which include 42 documents, shows repeated rounds of questions over two years about Bell’s community TV operations, which operate under the Bell TV1 brand (formerly Bell Local).

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CRTC renews OMNI for three years, rejects 6½ other proposals to replace it

The CRTC has reached a decision on what will replace OMNI. And it’s OMNI.

In a decision released Thursday, accompanied by a press release, the commission found that “Rogers’ proposed service, along with its associated commitments, best meets the needs and interests of Canada’s diverse population and the criteria established by the Commission, and is the most likely to ensure an exceptional contribution to the fulfillment of the objectives of the (Broadcasting) Act.”

The commission will therefore renew OMNI’s licence, but with “no expectation of renewal” beyond that, and only for three years, until 2023, when the mandatory distribution status of OMNI and other services with that status like CPAC, APTN and AMI, will be reviewed at the same time.

In its application, Rogers proposed that the new OMNI would have half-hour daily national newscasts in six languages: Spanish, Tagalog, Arabic, Punjabi, Mandarin and Cantonese, and local newscasts (for Toronto, Alberta and Vancouver) in Punjabi and Mandarin. Rogers told me it also planned to replace the current national Italian newscast, produced out of Montreal, with regional ones in Montreal and Toronto. The licence doesn’t specify the languages of programming, leaving that decision up to Rogers.

OMNI, which has TV stations in Toronto (two), Calgary, Edmonton and Vancouver, is broken up into four regions: B.C., Prairies, East (Ontario and Atlantic Canada) and Quebec. The Quebec feed is administered by ICI (CFHD-DT), an independent ethnic TV station in Montreal that was born out of Rogers’ conversion of CJNT into City Montreal. Though Rogers doesn’t directly control ICI, the two are closely connected.

Most of the other applicants didn’t propose regional feeds, over-the-air transmitters or local programming.

The commission has set the mandatory wholesale fee for the new OMNI, which begins Sept. 1, 2020, at $0.19 per month, up from its current $0.12 per month (but still less than some other applicants had proposed.) Rogers had requested a rate that started at $0.19 but ramped up to $0.21, but the CRTC found that $0.19 was sufficient. The decision states that the choice of OMNI was in part because of the proposed wholesale rate and the “balance” of that versus the programming commitments made.

OMNI’s commitments will be higher than they currently are, and higher than originally proposed as well:

  • Canadian programming expenditures: 60% of gross revenues (up from 50% originally proposed and 40% currently)
  • Canadian content on the schedule: 70% of the broadcast day (6am to midnight) and 70% from 6pm to midnight (up from 55% currently)
  • Programs of National Interest (scripted drama/comedy, documentary, award shows): 5% of revenues (up from 2.5% currently), all of which must go to independent production companies
  • Independent productions: 12 hours a week on each of the B.C., Prairies and Eastern feeds (including 2 hours produced from each of Manitoba/Saskatchewan and Atlantic Canada), and 14 hours a week of local original independent productions on ICI.
  • 100% ethnic programming (up from 80% proposed and currently) on the Rogers-controlled feeds, and 90% on ICI.
  • 80% third-language programming (up from 50% proposed and currently) on the Rogers feeds, and 60% on ICI.
  • Programming for 20 different ethnic groups and 20 different languages a month (same as currently; 18 and 15 respectively on ICI), with a limit of 16% for any one foreign language.
  • Six hours a week of original local newscasts in Vancouver, Calgary/Edmonton and Toronto (an improvement off local current affairs show obligations).
  • Six daily first-run national half-hour newscasts, seven days a week, in six different languages (up from four languages currently).
  • At least 40% of gross revenues spent on news.
  • Provide for ICI: 3 hours of original, local, ethnic programming in French each week and 1.5 hours of original, local, French-language programming and 30 minutes of local original English-language programming each week.

The licence also requires Rogers to:

  • Limit U.S. programming to 10% of the schedule each month
  • Maintain advisory councils for each regional feed, and require they approve the programming schedules and independent producers
  • Spend $60,000 a year on “scholarship initiatives that support ethnic and third-language post-secondary students majoring in journalism,” as chosen by the advisory councils
  • Maintain operation of the five over-the-air OMNI stations throughout the licence period
  • Solicit local advertising only in markets where OMNI over-the-air stations operate
  • Derive no profit from OMNI, and reinvest any surplus back into OMNI

Rogers will have until Sept. 1, 2020, to put those increased commitments into place. Until then, the existing licence still applies.

Shockingly, the CRTC’s decision includes absolutely zero analysis of the seven other applications to replace OMNI with a different service. It merely states that it had to choose one and OMNI was the best one. Did the commission feel the Ethnic Channels Group’s idea of multiple audio feeds in different languages was feasible? Was it impressed by the ambitious goals set by Amber Broadcasting? Did it think the application from Montreal-based non-profit ICTV was realistic? We have no idea. The other applicants are only mentioned once, in a listing of the applications at the beginning of the decision.

With the increase in the wholesale rate, here’s how much of your monthly TV bill will go to mandatory services, starting in September 2020:

English-language markets:

  • APTN: $0.35
  • AMI-audio: $0.04
  • AMI-tv: $0.20
  • CPAC: $0.13
  • OMNI Regional: $0.19
  • RDI: $0.10
  • TV5/Unis: $0.24
  • The Weather Network/MétéoMédia: $0.22
  • Vues et Voix (formerly Canal M): $0.04
  • TOTAL: $1.51

French-language markets:

  • APTN: $0.35
  • AMI-audio: $0.04
  • AMI-télé: $0.28
  • CPAC: $0.13
  • CBC News Network: $0.15
  • OMNI Regional: $0.19
  • TV5/Unis: $0.28
  • The Weather Network/MétéoMédia: $0.22
  • Vues et Voix (formerly Canal M): $0.04
  • TOTAL: $1.68

Meanwhile, the CRTC has administratively renewed the licence for ICI until 2020, which will simplify things as far as new conditions of licence related to its agreement with OMNI.

UPDATE: Rogers has issued a statement saying it is happy with the decision and will announce more specific plans “in the coming months.”

Leclerc abandons purchase of Radio X and 91,9 Sports after CRTC sets condition on transaction

The CRTC has said no to Leclerc Communication’s request to own three French-language FM radio stations in Quebec City, but approved the $19-million deal for it to acquire CHOI-FM (Radio X) in the provincial capital as well as CKLX-FM (91,9 Sports) in Montreal, for which it also acquired a licence amendment to convert from a sports format into a music one based off its WKND brand.

Though the overall deal has been approved, under the CRTC’s conditions, Leclerc would need to sell one of its other stations — WKND 91,9 or Blvd 102,1 — in order to buy CHOI and still comply with the ownership rules in Quebec City. The ownership rules limit an owner to two stations in one market in one language on one band.

And Leclerc has said it won’t sell its stations. So its own media are reporting that the entire deal is off, and its owner confirmed to La Presse that it won’t proceed with the transaction.

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CRTC issues court order to force TVA Sports to keep signal on Bell TV, suspends licence if it cuts off again

Pursuant to Wednesday’s emergency hearing on Quebecor’s decision to pull TVA Sports of Bell TV, on Thursday the CRTC issued a mandatory order requiring TVA Sports to comply with regulations about dispute resolution and keep its signal on Bell TV. It also suspended TVA Sports’s licence, though that suspension only applies if it cuts Bell TV off again, and only for the period during which the signal is cut off.

The mandatory order is being registered with the federal court, which means if TVA defies it, it will be subject to contempt of court proceedings, and faces large fines.

The commission rejected TVA’s main legal argument, that the regulations imposing arbitrated settlements of carriage disputes are not allowed under the Broadcasting Act (emphasis in the original):

TVA’s position that the Commission does not have the jurisdiction to set terms and conditions of affiliation agreements is inconsistent with the broad power given to the Commission by Parliament to make regulations to resolve any dispute by way of mediation or otherwise. Given that terms and conditions, including rates, are fundamental to the resolution of carriage disputes, the interpretation urged on the Commission by TVA Group would render the regulation-making power set out in section 10(1)(h) empty of meaning, an absurd result that cannot have been Parliament’s intention.

Pierre Karl Péladeau’s arguments about how TVA isn’t getting enough carriage fees, or how Bell has been unfair, or how TVA Sports’s future is threatened, are not addressed in the CRTC decision, because they are outside the scope of the proceeding. They will be dealt with in the undue preference complaint and mediation or arbitration proceedings between the two groups.

(For more on the arguments for and against TVA, see this post.)

The commission stopped short of its more serious threats, to suspend or even revoke TVA Sports’s licence. Even a temporary suspension during the NHL playoffs would have been devastating to TVA Sports, and probably led to its shutting down.

But it did reprimand TVA for its behaviour in this case:

the Commission is gravely concerned with TVA Group’s disregard for the Commission’s authority. Given the inflexible behaviour displayed by the licensee in respect of its regulatory obligations and the lack of a firm commitment to correct the situation, the Commission cannot be assured that TVA Group will respect its regulatory obligations going forward.

Quebecor issued a statement saying it will respect the decision, but the problem remains and it will seek other legal avenues, including a legal challenge to the CRTC’s authority.

Bell issued a statement saying it was happy with the decision.

If you want to get the full content of Wednesday’s hearing, the transcript is here and CPAC’s video is archived here.

Meanwhile, a request for a class action lawsuit has been filed, seeking $100 million, or $250 for each subscriber of TVA Sports on Bell TV who was left without the service for 47 hours last week.

TVA Sports defies CRTC, cuts off Bell TV customers as part of carriage dispute

Updated April 12 with court ruling and TVA Sports returning to Bell TV

Four days after it threatened Bell subscribers with on-air messages, TVA pulled TVA Sports from Bell TV on Wednesday at 7pm, as scheduled, the start time for the NHL playoffs.

Bell immediately announced that it would make Sportsnet, Sportsnet One and Sportsnet 360, which with CBC and City comprise all the channels carrying NHL playoff games, free for subscribers “temporarily.”

Quebecor, meanwhile, issued a statement saying it was disappointed it couldn’t reach a deal.

On Thursday, the CRTC announced that it was calling Groupe TVA to a hearing in Gatineau on April 17 to explain itself, and threatened to either issue a mandatory order (which would be enforceable in federal court) or even suspend TVA Sports’s broadcasting licence in light of the decision to ignore its warnings about pulling service during a dispute.

In court, as Bell tried to get a court injunction for TVA to stop what it’s doing, Quebecor lawyers offered a truce, to bring back the channel at 6pm and maintain it until April 23 as the two sides negotiate with the help of the CRTC. Bell accepted on condition that TVA Sports accept a court order requiring the re-establishing of the signal, but Quebecor refused that condition.

On Friday, the court granted Bell’s request for an injunction, ordering TVA Sports re-established on Bell TV by 6pm, but did not order Quebecor to cease its “Fair Value” campaign, which Bell says is false and defamatory. TVA complied with the request, and TVA Sports returned to Bell TV by 6pm.

In addition to ensuring Bell TV subscribers could get access to NHL playoff games, Bell Media acquired the rights to two additional Montreal Impact MLS games, another TVA Sports exclusivity, so they can be broadcast on TSN. That pushed the date of the next Impact game only broadcast on TVA Sports to April 28. Bell TV had said it would make TSN also available for free for Montreal Impact fans.

History

Bell customers got a pretty scary-looking message during the Canadiens-Maple Leafs game Saturday night on TVA Sports: The sports channel, which has the French-language rights to all NHL playoff games, will be removed from Bell TV as a way for Bell to “punish” those subscribers.

TVA also aired the graphic during La Voix, Quebec’s most popular TV show, on Sunday.

TVA airs a message attacking Bell during La Voix on Sunday, April 7, 2019.

Bell said not only is this message not true, it would be against CRTC regulations. The CRTC wrote to both parties twice to say that during their dispute, TVA is required to keep offering its channels to Bell and Bell is required to keep distributing them.

TVA said it doesn’t care, it’s pulling its signal anyway. Which means this dispute will quickly escalate in the legal and regulatory sphere.

Except it’s already escalated there, because this is a battle being fought on multiple fronts:

  • An existing CRTC process in which TVA complains of unfair treatment (currently in the reply phase)
  • A TVA lawsuit against Bell demanding compensation for its unfair packaging
  • A Bell request for injunction against TVA demanding the signal be returned
  • An emergency CRTC hearing called for next week in which TVA has been ordered to explain itself
  • Direct negotiations between Bell and TVA to reach a deal on carriage
  • TVA’s media campaign and Bell’s press releases in response, fighting in the public arena
  • Pierre Karl Péladeau’s lobbying of federal politicians to make changes to the CRTC’s dispute resolution process
  • Programming changes at Bell Media and packaging changes at Bell TV to mitigate the loss of TVA Sports for Bell customers

How long Bell customers will actually be without TVA Sports is anyone’s guess. But TVA says it’s prepared to do whatever it takes.

(You can read more about my interview with TVA chief operating officer Martin Picard in this story at Cartt.ca, but I have lots of details below about the conflict.)

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Bell Media wants to shut down 28 more CTV transmitters

UPDATE: The CRTC has approved Bell Media’s request.

Two years after requesting to shut down more than 40 over-the-air retransmitters of CTV and CTV2 stations as part of its licence renewal, Bell Media has applied to the CRTC to shut down more than 28 more of them, saying they have little viewership, provide no original programming and are expensive to maintain.

The application published on Monday includes six transmitters Bell Media said it wanted to shut down in places like Swift Current and Flin Flon during the process to reconsider its licence renewal.

If this application is approved, Bell Media will have dropped from 126 transmitters for its CTV and CTV2 stations before 2016 to under 50.

“With the increased focus on the financing, production and distribution of programming content, signal distribution through a repeater network is becoming an increasingly lower priority and an outmoded business model as Canadians have other ways to access television programming,” Bell Media says in its application.

The shutdowns are being prompted by the federal government’s new DTV transition plan, which will require stations to change channels to free up spectrum that is being auctioned to wireless providers. Consistent with that plan, Bell plans for the shutdowns to occur mostly in 2021.

These are the transmitters Bell is proposing shutting down, along with their dates, their transmitter power (maximum ERP) and the population in their coverage area, according to Bell Media’s estimates.

Nova Scotia

Rebroadcasters of CJCH-DT Halifax and CJCB-TV Sydney (CTV Atlantic):

  • CJCB-TV-3 Dingwall, 3 December 2021 (64W, 785 people)
  • CJCH-TV-3 Valley Colchester County, 3 December 2021 (150W, 32,957 people)
  • CJCH-TV-4 Bridgetown, 3 December 2021 (58W, 3,823 people)

New Brunswick

Rebroadcasters of CKCW-DT Moncton and CKLT-DT Saint John (CTV Atlantic)

  • CKAM-TV-3 Blackville, 3 December 2021 (88W, 2,884 people)
  • CKAM-TV-4 Doaktown, 3 December 2021 (22W, 1,409 people)
  • CKLT-TV-2 Boiestown, 3 December 2021 (24W, 904 people)

Ontario

Rebroadcasters of CJOH-DT Ottawa (CTV):

  • CJOH-TV-47 Pembroke, 2 May 2020 (492,000W, 75,388 people)
  • CJOH-TV-6 Deseronto, 9 October 2020 (100,000W, 436,141 people)

Rebroadcaster of CKCO-DT Kitchener (CTV):

  • CKCO-TV-3 Oil Springs, 2 May 2020 (846W, 293,703 people)

Rebroadcaster of CKNY-TV North Bay (CTV Northern Ontario):

  • CKNY-TV-11 Huntsville, 9 October 2020 (325,000W, 174,627 people)

Rebroadcaster of CITO-TV Timmins (CTV Northern Ontario):

  • CITO-TV-2 Kearns, 3 December 2021 (325,000W, 88,472 people)

Manitoba

Rebroadcasters of CKY-DT Winnipeg (CTV):

  • CKYA-TV Fisher Branch, 16 July 2021 (62,000W, 15,759 people)
  • CKYD-TV Dauphin, 16 July 2021 (140,000W, 30,897 people)
  • CKYF-TV Flin Flon, 16 July 2021 (2,060W, 7,762 people)
  • CKYP-TV The Pas, 16 July 2021 (2,130W, 9,996 people)

Saskatchewan

Rebroadcasters of CKCK-DT Regina (CTV):

  • CKMC-TV Swift Current, 26 February 2021 (100,000W, 29,035 people)
  • CKMJ-TV Marquis (Moose Jaw), 26 February 2021 (98,000W, 87,838 people)

Rebroadcasters of CFQC-DT Saskatoon (CTV):

  • CFQC-TV-1 Stranraer, 26 February 2021 (100,000W, 36,546 people)
  • CFQC-TV-2 North Battleford, 26 February 2021 (30,300W, 39,686 people)

Alberta

Rebroadcasters of CFRN-DT Edmonton (CTV):

  • CFRN-TV-3 WhiteCourt, 26 February 2021 (17,900W, 32,832 people)
  • CFRN-TV-4 Ashmont, 26 February 2021 (26,650W, 23,673 people)
  • CFRN-TV-5 Lac La Biche, 26 February 2021 (8,656W, 9,149 people)
  • CFRN-TV-7 Lougheed, 26 February 2021 (21,000W, 9,752 people)
  • CFRN-TV-12 Athabasca, 26 February 2021 (3,300W, 9,621 people)
  • CFRN-TV-9 Slave Lake, 16 July 2021 (840W, 9,683 people)

British Columbia

Rebroadcasters of CFCN-DT Calgary, Alta. (CTV):

  • CFCN-TV-15 Invermere, 26 February 2021 (10W, 4,843 people)
  • CFCN-TV-9 Cranbrook, 26 February 2021 (446W, 43,765 people)
  • CFCN-TV-10 Fernie, 26 February 2021 (23W, 6,568 people)

The application requires CRTC approval because it amends licences for stations these transmitters rebroadcast from. But the CRTC hasn’t been pushing the networks to keep retransmitters running. Instead, it’s more focused on preserving local stations with original programming.

UPDATE: The application drew six interventions from individuals during the open comment period. Bell’s reply was a single page, reiterating why it has taken the decision and adding this:

While we appreciate the concerns expressed by the intervenors, we would like to reiterate that the majority of these shutdowns will not occur before February 2021.  Further, our Application is fully compliant with existing Commission policy.

UPDATE (July 30): The commission has approved the request, saying it can’t force Bell Media to keep operating the transmitters:

… licences such as those held by Bell Media are authorizations to broadcast, not obligations to do so. This mean that, while the Commission has the discretion to refuse to revoke broadcasting licences, even on application from a licensee, it cannot generally direct a licensee to continue to operate its transmitters.

CRTC approves Quebecor’s acquisition of Évasion and Zeste TV channels

Quebec’s television industry is about to lose a voice.

On Monday, the CRTC approved the proposed acquisition of Groupe Serdy, owner of French-language specialty channels Évasion (travel) and Zeste (food) by Quebecor’s Groupe TVA for $21 million.

The acquisition was challenged by V, on the grounds that TVA already has too much power in the market, but the CRTC said the increased market share would be minimal, and in any case still lower than the 45% limit above which it would normally deny such applications.

The application to transfer the licences was supported by dozens of interveners, including many producers.

In addition to $1.8 million in tangible benefits, split between the Canada Media Fund, the Quebecor Fund and Telefilm Canada’s Talent Fund, the transaction will also result in an increase in Canadian spending quotas for both channels, as they’re integrated into the TVA group licence. Évasion must spend 40% of its revenues on Canadian content, while Zeste has no quota. As a condition of approval, both must now come up to the TVA group quota of 45%. And 15% of their revenues must be spent on “programs of national interest” (scripted drama and comedy, documentary and award shows) for the TVA group.

A similar transaction, involving Bell attempting to buy Historia and Séries+ from Corus, was blocked by the Competition Bureau.

Quebec City still isn’t ready for its first English-language commercial radio station, CRTC finds

Evanov Radio’s controversial plan to launch Quebec City’s first English-language commercial radio station will have to wait some more after being denied again by the CRTC.

In a decision released Thursday, the commission said the Quebec City radio market “cannot sustain an additional radio station at this time” and that the two applications for new stations — the other by Gilles Lapointe and Nelson Sergerie is for a French station — would be returned.

Evanov had previously tried a decade ago to convince the CRTC to move forward with an English music station in the provincial capital, but the commission denied its application in 2010, in a controversial decision that included a dissenting opinion.

The application is controversial because the other stations in the market argue that Quebec City’s English-language population is far too small to sustain a commercial radio station, so Evanov would instead target the francophone population. By being an English station, it would not be subject to the 65% French-language music rule, which would give it an unfair competitive advantage by allowing it to play more American and U.K. hit songs that are very popular among francophone audiences.

Evanov, who wants to launch a Jewel brand station in Quebec City, argues it wants to serve the anglophone community as well as the anglophone tourist market (though Quebec City already has an English tourist information station), and that it has experience in running radio stations in small markets.

The 2010 decision includes a detailed analysis of the anglophone market in Quebec City. But today’s decision only analyzes the market conditions overall, without commenting specifically on the appropriateness of an English radio station in Quebec.

The current applications for Quebec City actually date from 2016, but were put on hold when the CRTC ran low on French-speaking commissioners.

Under CRTC rules, it won’t consider new applications for Quebec City for the next two years. In December 2020, they can try again.

The news was better in neighbouring communities. In Sainte-Marie-de-Beauce, an application by Attraction Radio for a second music station there will go ahead. And in Portneuf, which is technically still the home of CHXX-FM (Pop 100.9), the commission will proceed with an application by Michel Lambert. Both raised concerns from the commercial broadcasters in Quebec City for fear that they might eventually target the Quebec City market. The Beauce application was also opposed by Groupe Radio Simard, which owns stations in Saint-Georges-de-Beauce.

The applications themselves haven’t yet been published, but should be soon. a public hearing is scheduled for Feb. 20 (to hear an application for Leclerc Communication to buy CHOI Radio X and 91,9 Sports from RNC Media), but these items will not require any oral presentations.

CRTC decision clears way for Kanesatake station to launch rebuild plan

CKHQ-FM Kanesatake in 2014.

There was a sigh of relief in Kanesatake on Monday that relations between the federal government and the Mohawk reserve wouldn’t be strained over a radio frequency coordination issue.

The Canadian Radio-television and Telecommunications Commission released a decision denying a licence application for a new Christian music radio station in Lachute. The application by LS Telecom proposed a 300-watt station at 101.7 MHz.

That same frequency is used by CKHQ-FM (Kanesatake United Voices Radio), a low-power (27W) community station serving the reserve about 25 kilometres away. And though the applicant’s engineers said (and the CRTC agreed) that the new station could co-exist with this existing one, because CKHQ is low-power it does not have a right to its frequency and could be forced to find a new one if a licensed station would receive interference. Because of Kanesatake’s proximity to Montreal, there aren’t other frequencies available that would be nearly as good, even for such a low-power station.

The Lachute station would also have limited CKHQ’s ability to seek an increase in power (though the CRTC says it “would not affect the ability of CKHQ-FM to serve its principal market” and “would not prevent CKHQ-FM from expanding to a regular power station”).

The Lachute application was denied, not because of concerns about CKHQ, but because of issues with the application itself. The commission seemed to think it was a bad application in general, that LS Telecom “did not provide a quality application and did not demonstrate an understanding of the regulations and policies for commercial radio and religious broadcasting.” But it particularly showed concern with the complete lack of news programming proposed, even after the CRTC reminded them that such a thing is expected of commercial FM radio stations, religious or not.

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