Tag Archives: CRTC

| Radio

CJMS 1040 goes off the air … and then back on the air

Having been denied their licence renewal by the CRTC, CJMS 1040 AM in St-Constant spent the last six hours of its licence term on Monday reminiscing about its past and talking to country music artists and others about what the station has done but also about its plan to become an online-only streaming station.

At 12:00:38, the host was cut off mid-sentence saying goodbye, and there was just dead air.

But by Tuesday morning, there was audio again at 1040 AM, as if nothing had happened.

Owner Jean Ernest Pierre told me in a brief email he received authorization late Monday to continue operating. He didn’t expand on that.

As I explain in this story for Cartt.ca, CJMS’s filings with the Federal Court of Appeal were deficient, so had not yet been accepted as of Thursday. The CRTC said it was aware of the appeal (and lack of decision). “The Commission is monitoring the situation and will take additional steps if necessary,” a spokesperson said.

According to the filings provided by the court, Groupe Médias Pam (which is CJMS’s official licensee) is arguing that the CRTC unfairly took into account licence violations committed by the station’s previous owner and failed to show “procedural fairness” that would have called for progressive discipline before refusing to renew a licence.

The station raised the same argument at the hearing, but the CRTC countered in its decision that “when the licensee acquired the station in 2014, the licensee was informed of CJMS’s previous non-compliance.”

Indeed, in that 2014 decision allowing Pierre to buy CJMS from previous owner Alexandre Azoulay for $15,000, the CRTC said this:

The Commission emphasizes the importance it places on a licensee’s fulfillment of its regulatory obligations. It is the licensee’s responsibility to ensure that it is aware of and respects its regulatory obligations at all times. In this case, Groupe Médias must comply with the terms and conditions of licence set out in Appendix 1 to this decision, with the CJMS code of ethics set out in Appendix 2 and with the orders set out in Appendix 3 and Appendix 4. The Commission reminds Groupe Médias that in addition to complying with the appendices to this decision, it must comply with the Regulations at all times.

The commission does not explicitly state that violations by previous owners are taken into account when evaluating whether a station should lose its licence, but Pierre had to be aware the station was on thin ice, with short-term licence renewals issued in 2014 and again in 2018.

In arguing for a stay of the CRTC’s decision, CJMS notes the precedent of cases involving Toronto’s CKLN-FM 88.1 and the Aboriginal Voices Radio Network. One of the filings even accidentally refers to CKLN where it should refer to CJMS.

In both those cases, the court did halt enforcement of the CRTC’s decision, but in both those cases it eventually sided with the CRTC and those stations were forced off the air.

You can read the CJMS appeal documents here.

UPDATE (Sept. 11): The station went off the air again on Thursday. A Facebook post says it’s a temporary shutdown for maintenance, but that’s some suspicious timing.

UPDATE (Nov. 25): On Sept. 14, the Federal Court of Appeal issued an order maintaining CJMS’s licence and suspending the CRTC’s non-renewal decision until the court decides whether to proceed with the appeal. Judge J.D. Denis Pelletier wrote:

Le dossier de requête visant un sursis intérimaire est acceptée pour dépôt — La demande de sursis intérimaire de la décision CRTC 2020-239 est accordée — La licence de radiodiffusion de l’entreprise de programmation de radio commerciale de langue française CJMS Saint-Constant (Québec) est réputée demeurer en vigueur depuis son expiration, jusqu’à ce que soit décidée la requête visant la permission de pourvoir en appel la décision du du conseil … – Le tout sans frais.

| Radio

CRTC gives Haitian radio station CPAM 1410 another chance

Almost a month after refusing to renew the licence of country music station CJMS 1040 for failure to abide by its licence conditions, the CRTC has ended the suspense of what it would do for sister station CPAM Radio Union (CJWI) 1410, which was brought before the commission on the same day to answer the same apparent compliance issues.

In a decision published Thursday, the commission has decided to give that station another chance, renewing its licence for two years and imposing special conditions including three mandatory orders (even though it found the station in breach of two of its three previous mandatory orders), a requirement to broadcast their non-compliance, and a de facto fine of $2,836 (for the harm done to the Canadian music industry by not playing enough Canadian music).

The renewal comes despite the commission finding that “the licensee seems to lack both the willingness and the knowledge required to operate the station in compliance.”

So what was the big difference between the two stations? Why was one renewed and the other not? Partly because of their history (CJMS had more issues dating from before it was taken over by CPAM), but partly because the CRTC felt that the Haitian station made an effort to solve its issues with the commission:

However, after hearing the licensee during the public hearing, the Commission acknowledges that, despite its belated efforts, the licensee contacted Commission staff many times to obtain clarifications on its music programming obligations. The Commission notes that the licensee appears to now better understand the nature of the music categories and the appropriate manner to compile them. Further, the licensee mentioned multiple time to the Commission during the public hearing that it, if in doubt, it would contact the Commission to verify its understanding.

Although the licensee has a history of severe and repeated non-compliance, it demonstrated a willingness to continue operating CJWI in compliance and proposed additional corrective measures to try to comply with its obligations.

Of course, CPAM also owns CJMS and I don’t see how its efforts to save CJWI are more significant. The history (CJMS had been threatened with licence revocation before) is probably the more important factor, and the fact that CJWI serves a marginalized community can’t be overlooked. Had it been a simple commercial station the commission may have had less patience.

A two-year renewal and mandatory orders suggest this may be CJWI’s last chance to satisfy the commission. If the same issues come up next time, they’re probably looking at non-renewal, no matter how much the community may care about it.

In the meantime, as I’m writing this, CJMS is still on the air, with two days left in its licence. Programming director Jocelyn Benoit says the station will continue as an online-only broadcast as of Sept. 1, and has renamed its Facebook group and page from “CJMS 1040” to “CJMS 2.0”.

| Radio

CRTC orders CJMS 1040 AM to shut down Aug. 31

After more than a decade of the station failing to meet its licence obligations, the CRTC decided Friday it has had enough, and refused to renew the licence of St-Constant country music station CJMS 1040 AM. As a result, it will no longer legally be allowed on the air after Aug. 31.

The decision reads:

In light of the severity and recurrence of the current instances of non-compliance; of the station’s history of non-compliance and the licensee’s actions, which demonstrate a poor understanding of its conditions of licence and regulatory obligations, or a lack of willingness to respect them; of its inability to implement the necessary measures to ensure compliance; and of its disregard for the Commission’s authority and for its responsibilities as a broadcaster, the Commission is convinced that the imposition of conditions of licence or of mandatory orders, a suspension, or a short-term licence renewal would not be effective measures. Consequently, the Commission finds that not renewing the licence is the only appropriate measure in the circumstances.

In a separate decision also released Friday, the commission also refused to renew the licence of troublesome station CFOR-FM Maniwaki.

CJMS, which launched in 1999, has a long history of licence compliance issues, and might have had the licence revoked in 2013 had its owner of the time, Alexandre Azoulay, not agreed to sell it to Jean Ernest Pierre, owner of Haitian station CJWI (CPAM 1410). When CJMS was last asked to appear before the commission, Azoulay surprised the commissioners by blaming his father’s dementia for the compliance issues.

There’s also the fact that Michel Mathieu, a broadcast consultant who was the original licensee of CJMS, filed a strongly-worded intervention demanding the CRTC pull the license.

The decision should worry Pierre about the future of CJWI, which like CJMS has a long list of compliance issues and was the subject of mandatory orders that appeared to be insufficient to keep it in line. But CJWI has more original programming and is more vital to its community than CJMS, and the fact that the CRTC didn’t issue a decision Friday, giving the stations exactly one month before they were to shut down, suggests it might be given one last chance.

CJMS could appeal the decision, by asking the federal government to intervene or by asking the federal court to overturn the decision if it can find some error in law. Pierre told the Journal de Montréal he’s looking at options. But neither are likely to succeed. Instead, if someone wants to start a new commercial radio station serving St-Constant, there’s a transmitter that can probably be bought for pretty cheap.

Other country options

So if you’re a fan of country music in Montreal, where can you go for your fix? There aren’t any big commercial country stations here like in other Canadian markets, but you have options besides going online:

UPDATE (Aug. 29): It looks like for the time being the plan is to keep CJMS running as an online-only radio station once its licence expires. Program director Jocelyn Benoit posted on Facebook that it would continue streaming as of Sept. 1, and he renamed the station’s Facebook group and page from “CJMS 1040” to “CJMS 2.0”.

UPDATE (Sept. 1): CJMS went off the air at 38 seconds after midnight on Sept. 1. I recorded its final minute on air, which ended with announcer Jocelyn Benoit being cut off mid-sentence.

A new website is being worked on at cjms.ca.

| Radio

CJMS 1040 AM, CJWI 1410 AM fight for their lives in CRTC hearing

Jean Ernest Pierre is appearing in front of the CRTC on Wednesday hoping to save the two radio stations he owns.

Country music station CJMS 1040 AM and Haitian station CPAM Radio Union (CJWI 1410 AM) are two of the five stations that were told to appear at a CRTC hearing in Gatineau to justify their licence renewal applications, and explain why those renewals should not be for short terms or straight up denied because of their repeated non-compliance with their licence obligations. (The hearing, originally scheduled in person on May 12, will now be by teleconference June 16-18.)

Both CJMS and CJWI not only have short-term licences already, but both are subject to mandatory orders to require they remain in compliance with their obligations. Both stations have nevertheless had compliance issues, the commission says.

CJWI and CJMS had their licences renewed for two years in 2018 and three mandatory orders issued to each station after failure to comply with mainly paperwork-related issues.

For CJMS, which hasn’t had a compliant licence term since it was first licensed in 1998, “the Commission remains concerned that CJMS continues to be in severe and recurring non-compliance and that this is the fifth consecutive licence term in which the station has been found in non-compliance with regulatory requirements,” it said two years ago. Now, in its sixth licence term, it is still not compliant.

Compliance issues

CJMS

  • Missing financial statements for the 2018-19 broadcast year. Pierre blamed this on the accountant uploading a file that may have been too large for the CRTC’s server.
  • Inaccurate music lists, comparing the station’s auto-evaluation report with its music list for the period of Nov. 4-10, 2018. Pierre said some songs were miscategorized.

CJWI

  • Missing financial statements for the 2018-19 broadcast year. Pierre blamed this on the accountant uploading a file that may have been too large for the CRTC’s server.
  • Music quotas (based on a self-evaluation and music list for the period of July 7-13, 2019):
    • Too much popular music (31.32% vs. 30% maximum)
    • Too much francophone popular music (25.6% vs. 15% maximum)
    • Not enough world beat and international music (68.68% vs. 70% minimum)
    • Not enough of its world beat and international music selections were Canadian (15.8% vs. 35% minimum)
  • Inaccurate music lists (based on the same self-evaluation and music list). Pierre said music-related non-conformities were because some songs played in the system but were muted by the host and so never actually broadcast.

In addition to these, both stations are accused of failing to abide by mandatory orders requiring them to remain in compliance with their licence conditions.

Interventions

The applications prompted four interventions, all of which were sent by fax and seemed to share a similar format. Broadcast consultant Michel Mathieu, who co-founded CJMS, and three others said the commission should not renew the licences because of the compliance issues, and brought up additional ones, including that CJMS had been filled with “ethnic” programming from the Haitian station and that CJMS had been continuing to broadcast repeat programming hosted by Pascal Poudrier, who died two years ago.

Pierre called criticisms of Haitian-Canadians on CJMS “racist” and said conformity issues were due to “technical problems” and non-renewal of licences would be an extreme reaction to this.

The CRTC hearing into licence renewals of non-compliant stations begins June 16 with CICR-FM Parrsboro, N.S., and CKMN-FM Rimouski/Mont-Joli, Quebec, followed by CJWI and CJMS on June 17 and CFOR-FM Maniwaki on June 18. Mathieu has been invited to speak as an intervener on the 17th, following which Pierre will be given a chance to respond.

| Radio

CRTC approves Radio Classique 99.5 sale to Leclerc, conversion to pop music station

Montreal radio listeners who tune to 99.5 FM to hear classical music will soon have to find another source for those runes. On Friday, the CRTC announced it is approving a sale of CJPX-FM from Radio Classique to Leclerc Communication, which will turn it into a pop music with the same WKND brand it uses in Quebec City.

Radio Classique’s other station, CJSQ-FM 92.7 in Quebec City, will remain a classical music station, but I wouldn’t count on it surviving for long now that its big brother has been sold off. Radio Classique is also maintaining its online streaming.

The sale is valued at $4.89 million, with Leclerc having to pay an additional 6% of that value to go to independent funds per the CRTC’s tangible benefits policy.

Leclerc, which tried the same thing with CKLX-FM 91.9 in 2018 (a deal that failed when the CRTC said it couldn’t also buy CHOI Radio X in Quebec City), said it was happy with the decision, and will convert 99.5 to WKND “in the coming months.”

UPDATE (April 28): The CRTC has published the rationale behind the decision. It says there’s no diversity of voices concern since one independent owner has been replaced with another, and “the entry of Leclerc would maintain musical diversity in Montréal, although the musical offering would differ from that currently broadcast by the station.” It also noted that the station had not been profitable since 2014, and other broadcasters (Radio-Canada, Stingray and SiriusXM) also provide classical music programming, though none are on analog FM.

| TV

CRTC approves Bell’s purchase of V

In a decision released Friday afternoon, the Canadian Radio-television and Telecommunications Commission announced it has approved the acquisition of the V television network by Bell Media, filling one of the few remaining holes in Bell’s multi-platform empire.

The V network’s five owned-and-operated stations (it also has three affiliate stations that aren’t affected by the transaction) will become part of the Bell group as of Sept. 1, and have new conditions of licence, including an incremental increase to the amount of local programming and local news they are required to broadcast:

2020-21:

  • All stations: 5 hours local programming and 2.5 hours locally reflective programming per week

2021-22:

  • CFJP-DT Montréal and CFAP-DT Québec: 8.5 hours local programming and 4.25 hours locally reflective programming per week
  • Other stations (Trois-Rivières, Saguenay, Sherbrooke): Same as 2020-21

Bell has committed to exceeding those requirements.

The CRTC has also increased Bell’s requirements for Canadian programming, which were 35% for its French channels (RDS, Canal Vie, Vrak, Canal D et al) and 10% for V, up to 40% to for the combined group.

For Programs of National Interest (mainly expensive scripted programs), which became a point of contention in this proceeding, the CRTC has sided with critics that said Bell should be forced to keep it at 18% for the entire group instead of averaging the group between the 18% for its existing French-language channels and the 10% that V was previously subject to.

The CRTC calculated tangible benefits at $3.1 million, split between the Canada Media Fund (60%) and the Bell Fund (40%). The latter, a certified independent production fund, will spend the money solely on French-language initiatives.

Bell welcomed the decision, without giving any specifics on its plans. The company told the CRTC it would expect to get newsrooms back running at the V stations by next January, and those newsrooms would be independent from those run by CTV.

The acquisition also includes Noovo.ca, which is V’s online video hub and whose change of ownership does not require CRTC approval.

The specialty channels Elle Fictions (formerly MusiquePlus) and MAX (formerly Musimax) remain under the control of Maxime Rémillard and with the same minority shareholders including the Caisse de dépôt, Investissement Québec and the Fonds de solidarité FTQ. Another CRTC decision regroups them as their own separate group, whose name is to be determined.

UPDATE (May 7): Quebecor has filed notice in court that it may appeal the decision, once the CRTC releases its reasons.

| Media, TV

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.

| Media, My articles, Opinion

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.

| TV

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.

| TV

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.

| TV

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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| TV

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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| TV

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.”

| Radio

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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| TV

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.