Petition to the Governor-in-Council

1. I, Jan Pachul (Star Ray TV) of Toronto, Ontario am filing this petition to Her Excellency the Governor-in-Council, concerning Broadcast Decision CRTC 2000-340 of August 21, 2000, and its Application Number 199812524.

2. In Decision CRTC 2000-340, the Commission denied my application for a broadcasting license for an English-language low power television programming undertaking at Toronto. A copy of said decision is attached to this petition (Attachment 1).

3. In May 1997 I proposed to the CRTC an exemption from the Broadcast Act for a three year technical and marketing trial to "demonstrate the viability of local advertiser supported community channels on low power UHF." The CRTC declined to grant me an exemption request but instead invited me to apply for a broadcasting license. The following quote is taken from a November 18, 1997 letter written by the CRTC to myself: "The Commission will be pleased to consider a licence application for a community service that is clearly Canadian in content and contributes to the objectives of the Broadcasting Act. To assist you in this regard, we have enclosed blank copies of application forms for a new Programming Undertaking."

4. In December 1998 I applied for a low power television broadcasting license from the CRTC. 43 interventions were filed in support of the application from the viewing public. Five opposing applications were filed by major broadcasters and industry groups these included: Rogers Cablesystems, Chum Television, CTV Network, Canadian Cable Television Association, and Canadian Association of Broadcasters. No opposing interventions were received from the public.

5. On December 10, 1999 the CRTC conducted a hearing for the my application before Andree Wylie Chairperson, David McKendry Commissioner, Andree Noel Commissioner, Barbra Cram Commissioner, Jean-Marc Demers Commissioner.

6. After waiting over eight months on August 21, 2000 I was denied a licence by a 3-2 majority vote. The majority decision contained many false representations and did not respect the Broadcasting Act in any manner. The two dissenting commissioners David McKendry and Barbara Cram gave strong evidence that the application was supportive of the Broadcasting Act, provided a need for the 20% of the community who don't have cable, and placed all the risk on the applicant. They also believed the application was not duplicating existing services or outside of existing Low Power Television policy. McKendry and Cram's full comments clearly determine that the rejection decision was not based on CRTC policy or public interest, but on the interests of the 5 industry opponents.

7. In Item 12 of the decision the majority commissioners state:" The Commission agrees that low-power stations such as the one proposed by Mr. Pachul have the potential to fill an important programming niche by providing a community-oriented programming service that relates more directly to local neighbourhoods within large metropolitan areas." If the majority Commissioners agreed that my proposal was fulfilling an important programming niche, why was the application denied?

8. The only reference to the Broadcasting Act in the majority decision is as follows:

"20. Nevertheless, the Commission considers that low-power community stations operating alongside existing over-the-air television stations in urban areas or in smaller communities have the potential to make a contribution to the goals set out in the Broadcasting Act, especially with respect to the provision of local community-based programming." If the Commissioners agreed that my proposal has the potential to make a contribution to the goals set out in the Broadcasting Act, why was the application denied?

9. My application calls for 100% Canadian content during prime time and 80% overall. I further made a commitment of 75% locally acquired programming content at the hearing. This is a substantially greater commitment to local and Canadian content than any other private Toronto broadcaster. To many producers Star Ray TV represents the only hope they have of airing their productions in the Toronto market. In discussions with local independent producers, lack of access to mainstream Toronto media has been a reoccurring theme.

10. My commitment to 100% Canadian content during prime time with a majority of local programming aired during prime time adds to the diversity and variety of programming in Toronto. Other television stations air most of their local content during non prime time hours. I have further increased diversity by scheduling foreign content while other stations are airing their local programming. I have decided not to produce local news because I felt that news was an unnecessary duplication of programming already available in the market. Instead I have scheduled feature films at 11 pm and 12 noon in order to provide an alternative to news programming appearing at these times on most stations in the market.

"(t) distribution undertakings (I) should give priority to the carriage of Canadian programming services and, in particular, to the carriage of local Canadian stations." With 100% Cancon programming during prime time (Prime Time for Canadians), 75% locally acquired programming, and 80% Canadian content overall, Star Ray TV would meet the test of being a "local Canadian station." It would appear from the above Broadcasting Act statement that denial of a license on the basis of cable coverage violates the Act's provisions.

12. In Schedule I (attachment 2) of the application I made the following commitments regarding training:

"We plan on develop training programs allowing newcomers to the television business to participate and unemployed professionals to upgrade to the digital era.

We will provide ongoing weekly training on two levels; professional upgrades to current digital methods, and beginner level that starts with the basics of camera operation. The emphasis will be hands-on experience." The denial of my application deprived our coverage area of badly needed high technology training and hands on experience.

13. Another proposal I made in the application was service to the hearing impaired:

"In 1992 the Canadian Hard of Hearing Association commissioned a study into the difficulties experienced by the hard of hearing in viewing and listening to broadcast television. It should be noted that about 90% of the hard of hearing have sufficient hearing ability to listen to broadcasts with assistance devices. The problems most cited were louder commercials, background music and sound effects, static, and rushed speech. We will use audio processing to smooth audio levels and remove static. Our programming will be designed to be friendly to the hearing impaired. Eventually advanced voice recognition software will permit effortless closed captioning. As the Canadian population ages, the need for service to the hard of hearing grows." The hearing impaired in the denial of my application lost access to a station that was willing to address their unique problems.

14. In the denial of my application the City of Toronto lost an important resource in disaster communications and planning. In the application I had made an commitment for sustained emergency broadcasting during a crisis or a significant global event. I made this statement in the application:

"We have a plan for sustained emergency operation in case of a natural or man made disaster. We have made provisions for easy conversion to generator power, a bunker like control room, extensive downlink and communication capabilities. With the disruption of land lines low power over the air UHF broadcasting may provide the only sustainable TV pictures. Familiar local faces delivering the facts will be a comfort to citizens undergoing extreme danger and adversity."

15. The "Easy Access" concept found in the Schedule F (attachment 3) of the application and was designed to facilitate and promote community access. None of the proposed programming is available on any of the 9 Toronto market television broadcasting undertakings. Many of the individuals who have proposed shows have previously been denied access by other undertakings. Star Ray TV was constructed by thousands of volunteer hours of labour provided by local residents.

16. There are several false representations contained in the my decision, these are highlighted bold: The decision:" The proposed station would have provided a service designed for residents of an area of Toronto known as "The Beaches". The applicant's proposal, however, even as modified at the hearing, is predicated on the station's signal receiving mandatory cable carriage in portions of Metropolitan Toronto well beyond the applicant's intended service area.

For the reasons set out in greater detail below, including the apparent inconsistency between the intensely local focus of the proposed programming service and the applicant's business plan, which is predicated on mandatory cable carriage well beyond the area for which the service is intended, the Commission has denied the application.

1. The applicant, Mr. Jan Pachul, proposed to establish a low-power community-oriented television station on UHF channel 15 to serve four wards in the City of Toronto. These wards, which include about 129,000 households, primarily encompass an area of Toronto known as "The Beaches."

"7.4 Define briefly the area to be served, with specific reference to major communities within the service area.

7.5 Indicate to which of the communities the undertaking's principal marketing activities are directed.

As a basis for advertising revenue calculations and marketing analysis, elaborate on the following elements:

Our target audience resides in four City of Toronto Wards: 23,24,25,26. The total population of this area is 329,000 with 129,000 households. Target household income is $3,165,740,000. Most of our programming was conceived to be of interest to a local general audience. Specifically targeted ages for some of our programming are ages 5 to 19 and 35 plus. Target area population of 5 to 19 year olds is 44,300 and of 35 plus is 176,100.

Service Contour	Population	Households
Grade A
Grade B	1,227,345	481,311
Principal Marketing Area	329,040	129,035

10.1.3 Describe projected cable distribution as a priority signal (cable licensees): Shaw and Rogers' cable in Toronto, Look MDS in Toronto"

18. The "Beaches" according to my application is one of several neighbourhoods I had proposed to cover in my original application. The "Beaches" area is limited to only 2.5 KM south east and west of the transmitter site. I had proposed to cover as our target marketing area wards 23, 24, 25, and 26. A check with the City of Toronto website shows the Northwestern limit of Ward 23 at Bathurst and Eglinton Streets, a distance of 11.5 KM with the southwestern limit of Ward 24 at Bathurst Street and Lake Ontario, a distance of 11 KM. Ward 26 has a Northeastern limit of Victoria Park Ave. and Mortimer Streets, a distance of 1 KM and a southeastern limit of Lake Ontario, a distance of 2.5 KM. Commissioner MacKendry did not misrepresent the coverage area in his opinion referring to the area as: " the community of East Toronto, including the Beaches and Riverdale neighbourhoods, in Toronto, Ontario1" with a reference to the 4 wards cited in the application.

19. The coverage map (attachment 4) of our on the air signal included with the application shows an approximate radius of 12 KM in northeast and northwest directions with less coverage south of the transmitter location.

20. The evidence shows that the cable coverage proposal made by me at the hearing is in no way "well beyond the applicant's intended service area." The application shows a modest proposal for cable coverage consisting of " Shaw and Rogers' cable in Toronto, Look MDS in Toronto." The business plan was based on the population within the contours of the on-the-air coverage map. There is no "apparent inconsistency" between the business plan and the coverage area.

21. The decision: "7. Although the applicant proposed to serve only a small sector of Toronto, he based his business plan on the premise that the station would be treated in the same manner as a regular "high-power" television station for the purposes of the regulations, and that its signal would thus benefit from cable carriage across a much wider area."

22. I never based my business plan on this "high power" premise which would mean that I would enjoy cable coverage in a 35 KM radius of our broadcast site. The above copy of the application are the only statements made about cable coverage in the application. This is another false representation.

23. The Decision: 9. In reply to concerns about mandatory cable carriage, Mr. Pachul made an alternative proposal that included two parts. First, he indicated that he would waive his right to carriage on the basic band (channels 2-13) and would accept placement on any unencoded high cable channel, such as channel 67. Second, instead of required carriage by all cable systems whose service areas include territory within a 15 kilometre radius of his transmitter, he would accept carriage by all systems whose service areas include territory within a 12 kilometre radius of his transmitter. The Commission notes that such a scenario would still result in mandatory carriage of the signal well beyond The Beaches area.

24. The bold sentence above is a repeat of the same false representation. The evidence from the application shows I proposed to cover the eastern area of "New Metro Toronto" not just the "Beaches" area which is only a arc of 2.5 KM south of the transmitter site.

25. The decision: Interveners indicated that, not only would the station reach close to a million households in Toronto, it would also, due to the interconnection of cable systems, be received in areas as far removed from The Beaches area as Mississauga and Brampton, a distance, in the latter case, of more than 35 kilometres.

26. The above intervener statement is a false representation of Rogers Cablesystems technical capabilities made by Collette Watson at December 10, 1999 hearing:

"9829 MS WATSON: But the fact that it falls into the Toronto, Peel licence now, that means I have to put it on in Mississauga.

9830 COMMISSIONER CRAM: Yes. So although there is no off-air coverage in Mississauga as a result of the mandatory nature of the BDU regs, there would be coverage in Mississauga. Is that correct?

9831 MS WATSON: Right, because it touches our head-in that feeds the Toronto, Peel licence. So the head-end which is at 855 York Mills Road is just at 401 and Leslie. It's in the east end of the city. The 15 kilometre radius touches that and then that means we have to deliver it to Brampton which is like 40 minutes away down the highway.

9832 COMMISSIONER CRAM: If on-air, if this was also carried in Toronto, York and Toronto, Downsview, would that approximate the coverage of the off-air?

9833 MS WATSON: All of our 1.1 million subscribers in the GTA are fed pretty much. We have broken them up into three kind of head-ends. So Newmarket would be excluded, Oshawa and Ajax which are on the other side of Shaw, and then everything else is fed out of 855 York Mills. So pretty much 900,000 of our customers would get this.

9834 COMMISSIONER CRAM: Okay. What I am trying to do is fit your licences into the coverage of the off-air in an approximate way, and if I did that, would that only be the two licences Toronto, York and Toronto, Downsview?

9835 MS WATSON: No, Toronto, Peel as well. 9836 COMMISSIONER CRAM: Without Mississauga? 9837 MS WATSON: Well, as soon as it traces into the circle, it doesn't matter how deeply into the circle it goes, it has to go on.

9838 COMMISSIONER CRAM: And how deep does it go into the Peel-Mississauga circle? 9839 MS WATSON: It doesn't, but it hits the Toronto, Peel licence. So because it hits the Toronto end of it, it goes into Peel."

27. At the website for Rogers Television: www.rogerstelevision.com separate community channels are listed for Toronto, Mississauga, and Brampton.

28. Rogers Cablesystems at their website www.rogerscable.com lists different channel listings in the following areas of interest: Brampton, Downsview, Etobicoke, Mississauga East, Mississauga West, Parkdale, Peel Region, and Toronto.

29. The evidence shows that Rogers Cablesystems has at least eight areas where the available channels can be added or removed in the area claimed by Ms. Watson that the channel selections cannot be altered.

30. The decision: 17. Mr. Pachul's application targeted a local neighbourhood in Toronto. He proposed an intensely local programming service of specific interest to that area, as opposed to the broader metropolitan area that he indicated would be necessary for him to reach through carriage on cable. In the circumstances, and given the current pressures on the availability of analog channels on most cable systems, the Commission does not consider that mandatory cable carriage of the proposed service would be appropriate.

32. The decision: 18. Moreover, the Commission is concerned by the apparent inconsistency between the intensely local focus of the proposed programming service and the applicant's request for mandatory cable carriage well beyond the area for which the service is intended.

34. The majority commissioners appear to be using a "double standard" when assessing an applicant's business plan. As noted by Commissioner MacKendry in his dissenting opinion: "Innovation is a risky business that can create an unfair lack of perceived viability by the Commission and others at the application stage. The Commission has acknowledged this problem in its approach to licensing Category 2 digital specialty services. The Commission ‘will not consider the viability of Category 2 services, their business or marketing plans, or the rates to be charged by them. This will ensure that highly experimental or innovative services will not be excluded due to a lack of perceived viability.'

29 I would apply this approach to Mr Pachul's application for an innovative LPTV station, particularly in light of Mr Pachul's demonstrated ability to operate an LPTV station and the lack of risk to the broadcasting system if his proposed station does not succeed."

The majority Commissioners are doing to me what precisely the Commission tried to avoid in the licensing of digital services exclude a "highly experimental or innovative" service "due to lack of perceived viability."

35. I was willing to take the license UHF only without cable and neither of the opposing interveners at the hearing had objected to an over the air only service when asked by the Commission. I was just stating the obvious about impacts to the business plan. If I was willing to entertain the risks of such an operation why was I not given even the option of an UHF only license?

36. Mathew Fraser, a former CRTC employee and presently a professor at Ryerson University published a series of exposes on CRTC commissioners and the denial of my application in the National Post. In the article "High-power cabal snuffs out low-power television" (attachment 5) published August 29. 2000 Mr. Fraser notes his opinion as to the real reason my application was denied:

"On Aug. 21, the CRTC issued a decision closing down Mr. Pachul's low-power TV station. The CRTC's bureaucratic rationale was expressed in predictably opaque language, citing concerns about frequency management, cable carriage arrangements and conformity with existing regulations. The real reason, however, was that a clutch of big Canadian broadcasters with antennas in the Toronto market feared Mr. Pachul's upstart TV station might steal commercial revenues and, worse, could trigger a contagion of similar low-power TV stations across the country.

Mr. Pachul's setback is a sad defeat for "local" expression at a time when big media interests are exploiting concerns about "globalization" to win regulatory approval for industry consolidation. It's also symptomatic of Canada's over-regulated, paternalistic and cliquish broadcasting system, in which the logic of monopoly invariably prevails over pluralism, competition and free expression. The CRTC, while piously evoking the values of "diversity" to justify other agendas, once again has demonstrated its time-honoured reflex of blocking new market entrants.

In Canada, the CRTC -- whatever it may claim officially -- remains opposed to low-power broadcasting, especially in urban areas where signals threaten the interests of major broadcasters."

37. Together, major media corporations and the majority Commissioners have worked to block any attempts to diversify the type and size of television players. The denial of my application derogates from the attainment of a number of fundamental objectives of the broadcasting policy for Canada as set out in Section 3 of the Broadcasting Act. The majority decision does not advance the broader public interest and is based on a number of false representations. Although my application had 43 interventions that supported the dire need for such an outlet, the 5 interventions by the commercial industry (Canadian Cable Television Association, Rogers Cablesystems Limited, the Canadian Association of Broadcasters, Chum Television and CTV Inc.) forced a rejection.

38. In submitting this Petition I, Jan Pachul respectfully urge the Governor-in-Council to set aside Decision CRTC 2000-340 and send my application back to the CRTC for reconsideration.

Petition to Her Excellency the Governor-in-Council

Concerning Broadcast Decision CRTC 2000-340