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11/12/99 14:33 416 340 7005 CITY TV CHUM TELEVISION 299 Queen Street West Toronto, Ontario Canada M5V 2Z5 Tel (416) 591-5757 Fax (416)340-7005 November 12,1999 Secretary General Canadian Radio-television & Telecommunications Commission 1 Promenade du Portage, Terrasses de la Chaudiere, Central Building, Hull, Quebec J8X 4B1 Dear Secretary General: Re: Notice of Public Hearing CRTC 1999-10 ISSUE NO.1 - December 6,1999 Item Number 15 Application (199812524) by JAN PACHUL, for a broadcasting licence to carry on an English-language low power television programming undertaking at Toronto. This intervention is filed in opposition to the application. CHUM'S objections are threefold: 1) The application to establish a Low Power Television station ("LPTV") does not conform to the Commission's published policies1 governing the licensing of LPTV programming undertakings, to the extent that Toronto is not an "under served" community, because local programming is provided by many over-the-air broadcasters and existing Broadcasting Distribution (cable television) undertakings provide essentially the same types of community programming proposed by the Applicant; and 2) The LPTV station would trigger mandatory analogue carriage on the "basic band" in respect of distribution undertakings serving Toronto, Richmond Hill, and Vaughn, by virtue of Section 17 (1) of the Broadcasting Distribution Regulations. These distribution undertakings include the Shaw and Rogers cable systems as well as the LOOK-TV MMDS microwave system. Each of these undertakings has limited channel capacity. The licensing of an additional over-the-air television service, for distribution on "analogue basic-band cable" at this time, is contrary to the Commission's distribution expectations for specialty services; and, 3) The licensing of a new television station for Toronto without a "call for applications" is contrary to the Commission's long-standing practices, and the application does not meet the television licensing objectives set forth in the new TV Policy (Public Notice CRTC 1999-97). 1 Public Notice CRTC 1987-8 Public Notice CRTC 1986-176; Details of the intervention 1. The application does not conform to the CRTC's LPTV licensing policy: The application to establish an LPTV station does not conform to the Commission's published policies governing the licensing of programming undertakings to the extent that Toronto is not an "under-served" community, because local programming is provided by many over-the-air broadcasters. Furthermore, existing Broadcasting Distribution (cable television) undertakings also provide essentially the same types of community programming proposed by the Applicant. A review of Low Power Television licensing was conducted by the CRTC in 1957 and the policy was published in "Public Notice CRTC 1987-8 Regulations Respecting Television Broadcasting". The Commission stated: "The policy outlined herein is applicable to low power television operations in remote or under served communities. rather than "community television" as per Public Notice CRTC 1986-176. The policy is not therefore intended to apply to an off-air community television service adjacent to a major urban area, such as that of CHOY-TV (Television Communautaire de Saint-Jerome Inc.) operating in Saint-Jerome, Quebec." In the previous 1986 Public Notice (1986-176), the Commission characterized "community television" in the following words: "The Commission is proposing a new policy on Community Television. This policy would allow for the authorization of local over-the-air television operations in remote or under served communities which are not large enough to support a full range of Canadian over-the-air or cable services (i.e. operations that would exist in areas normally served by Part Ill licensees as defined in the Cable Television Regulations)." In the 1987 LPTV Policy2, there were a number of additional criteria laid down governing eligibility for an LPTV license: "For the purpose of considering applications for low power television undertakings, such an undertaking should meet the criteria which follow: ___________________________________________________________________________ 2 Public Notice CRTC 1987-8 3commercial stations licensed to serve Toronto are: CBLT, CBLFT, CFTO, CITY, CFMT, 4 CHCH-TV (ONTV) and CIII-TV- (Global) and CITS (crossroads Television Service), are regional television programming undertakings which provide service to Toronto. ___________________________________________________________________________ "a) The undertaking should serve a community which has no competing local or regional television service. A competing local or regional off-air television service shall be considered to be a service which is currently providing television programming to the community in question and is selling television advertisements in the community in question on a regular basis. b) The community should have no local community cable channel operating on a regular basis at the time of application. c) The undertaking should be a service which is delivered through a low power transmitter (i.e. less than 50 watts on VHF or less than 500 watts on UHF). In exceptional circumstances, however, the Commission may consider applications for delivery by a higher power transmitter that uses a frequency allotted to the region. d) The undertaking should be characterized by the local nature of its ownership, its programming and the market it is designed to serve." The application by Jan Pachul does not meet criteria a) or b) of Public Notice CRTC 1987-8 given that there are no fewer than ten local and regional television services which provide service to Toronto (including programming produced locally). Five3 local "over-the-air commercial television stations have been licensed to serve Toronto, each of which originates local programming. There are three additional "over-the-air" regional commercial television stations4, and two non-commercial educational television services5, which originate programming from Toronto. In addition, the cable systems serving the Toronto area operate full-time community programming services, as well as other local origination channels. The Pachul application also fails to meet LPTV licensing criteria d), to the extent that a significant amount of its programming service appears to be "bartered"6 rather than locally produced by the programming undertaking. Although a significant proportion of the applicant's programming would appear to be locally produced or acquired locally, the application contains genres of programming which are already available in the Toronto market. For example, the "Creature Feature", which appears to consist of older science fiction movies," are available on SPACE: THE IMAGINATION STATION. Science Fiction programming is also available on CHUM's stations Citytv, CKVR which serve the Greater Toronto Area ("the GTA"), as well as other commercial over-the-air stations, CFTO-TV (CTV) CIII-TV (Global), CHCH-TV (ONT"V), and other Canadian programming undertakings. ___________________________________________________________________________ 5 Non-commercial Stations CICA-TV( TVOntario) & TVOntario French Language Service 6 references to bartered programming contained at: Sched. 26, Sched 27, ___________________________________________________________________________ The Pachul application also proposes to duplicate community-based programming which is available in Toronto. For example, a sizeable amount of programming "might' consist of coverage of Toronto City Council meetings, which is available via Rogers Cablesystems. Based upon the documentation filed with the application, it is not evident that the coverage of the City Council meetings would be actually produced by Pachul, or would be acquired from existing "pool" cameras. Furthermore, the letter from the City of Toronto7 makes no binding commitment in respect of City Hall meeting coverage. 2. The licensing of an additional commercial television service, at this time, would result in mandatory distribution on "analogue basic-band cable. Licensing a new television service is in conflict with the Commission's expectation of equitable carriage for remaining licensed specialty services and premature in view of the Commission's ongoing "licensing framework" proceeding. Several years ago, the definition of a "local television station", was amended to take into account LPTV operations. Section 1 of the Broadcasting Distribution Regulations (the "BD Regulations.") states: "local television station", in relation to a distribution undertaking, means a licensed television station that (a) has a Grade A official contour that includes any part of the licensed area of the undertaking; or (b) has, if there is no Grade A official contour, a transmitting antenna that is located within 15 km of the licensed area of the undertaking." Filed as Appendix "A,' to this intervention, is a map which is drawn in conformity with Section 1(b) of the Broadcasting Distribution Regulations illustrating the "zone" (extending 15 km from the location of the transmitter of the proposed LPTV station) within which the LPTV station would be deemed to be a "local television station". The order of distribution priority for television stations set out in the Broadcasting Distribution Regulations is set forth as follows: 17. (1) "Except as otherwise provided in subsections (3) to (6) condition of its licence, a licensee shall distribute the following its basic service, in the following order of priority: (a) the programming services of all local television stations owned and operated by the Corporation; (b) the educational television programming services received over the air or by satellite or microwave relay, the operation of which is the responsibility of an educational authority designated by the province in which the licensed area of the undertaking is located; ___________________________________________________________________________ 7 Public Examination File Page 56 Letter from J. Abrams to J. Pachul dated July 16,1999 ___________________________________________________________________________ (c) the programming services of all other local television stations:" The proposed LPTV station, would rank as a "local station" on any cable system which had any part of its service area within 15km of the LPTV station's transmitting antenna (see map filed as Appendix "A"). The Broadcasting Distribution Regulations also state: (2) A licensee of a cable distribution undertaking shall distribute the services in subsection (1) beginning with the basic band of its undertaking. The term "basic band" is defined at Section 1 of the Broadcasting Distribution Regulations as follows: "basic band" means the 12 analog cable channels that are commonly identified by the numbers 2 to 13 and that are used in the frequency bands 54 to 72 MHz, 76 to 85 MHz and 174 to 216 MHz." Pursuant to the Broadcasting Distribution Regulations, the proposed LPTV station would be accorded mandatory carriage on the "basic-band" analog channels 2-13, of the basic television service the following systems serving the Greater Toronto Area ("GTA"). System Total: Households/Subscribers Rogers Toronto ------------374,458 Rogers Downsview----------12,788 Rogers York-----------------86,231 Rogers Etobicoke------------87,350 Shaw Scarboro-------------- 64,942 Shaw Richmond Hill---------125,511 Total: 951,280 Households Carriage would also be "triggered" as a local station on LOOK-TV, the MMDS licensee which serves these communities. The Commission is aware of the limitations on available analogue channel capacity in the Greater Toronto Area. In the licensing of CITS-TV (Crossroads Television System) to serve Toronto, Burlington, Hamilton and Oakville (Decision CRTC 98-123 April 8, 1998), the CRTC stated: "The Commission notes that any new, over-the-air television station would be entitled, under the provisions of the Broadcasting Distribution Regulations (the regulations), to carriage on the basic band (channels 2- 13) of local cable companies. However, each applicant stated that it would be prepared to waive that right, provided that cable distributors place the signal of its proposed service on a cable channel no higher than 36. The Commission has examined the potential impact of a new religious television station in the Toronto/Hamilton market and acknowledges that the addition of a new local television signal will require some alteration of cable channel placements in the Toronto/Hamilton region." Since April 1998 the matter of channel capacity has become even more acute in the GTA, with the addition of the TVA Network and APTN as priority television services on analogue "basic" cable and (wireless) digital MMDS service, and the distribution of remaining licensed specialty services STAR!, CLT, ROB and Talk TV. Earlier this year, in Public Notice CRTC 1999-198 the Commission called for comments on a licensing framework for new pay and specialty Services. The CRTC addressed the issue of limited analogue channel capacity where it stated: "The Commission recognizes that the capacity of cable systems to carry programming services using analog technology is limited. Further, since most analog cable systems are not fully addressable, this technology restricts the ability of cable operators to offer many different packages of services to satisfy various consumer interests." Approximately nine months earlier, in Public Notice CRTC 1995-79 (dated 30 July 1998), the Commission announced that it would postpone its consideration of the applications for new English-language pay and specialty television services until it completed a separate process to examine what appropriate licensing framework could be established for such services. This decision was taken, in large part, because of the limited number of vacant analog channels available on cable systems. Due to the use of "negative trap" (analogue) tiering technology, by cable systems throughout the GTA, there is virtually no analogue channel capacity below channel 59, which could be utilized to accommodate an additional "over the air" LPTV broadcast signal. Addition of the LPTV service would likely displace an existing television service currently distributed below channel 28.9 Several of the English-language specialty services licensed in 1996 were not accorded access on analog channels as of 1 September 1999, despite the fact that digital cable has not been deployed to the extent defined under section 18(3) of the Broadcasting Distribution Regulations. CHUM submits that licensing the Applicant's LPTV service, and thereby compelling analogue carriage of the service in the GTA on the basic band would be premature in advance of the final decision in respect of the Commission's "licensing framework". Licensing the Applicant's LPTV station, compelling priority carriage of the service, is not in the public interest, in view of the outstanding carriage and distribution issues in respect of the remaining English language specialty services. ___________________________________________________________________________ 8 3 February 1999 9 "negative trapping" commences at Channel 29 on the Rogers Toronto systems. ___________________________________________________________________________ 3. The licensing of a new television station for Toronto without a "call" is contrary to the Commission's long-standing procedures. The application does not meet the television licensing objectives set forth in Public Notice 1999-97. As stated above in Section 1 of this intervention, the application does not fall within the Commission's licensing criteria for "LPTV" or "Community" television services. The Applicant, Mr. Pachul, submitted the application utilizing the Commission's pre-printed forms10, which are normally used in the licensing of commercial television services. The licensing of a commercial television station to serve a major Canadian metropolitan area, without a "call for applications" would be contrary to the Commission's usual procedures. For more than fifteen years, the Commission has adhered to a practice of issuing a "call" for applications where it has received an unsolicited application for new commercial television service in major metropolitan areas. Notably, the Commission issued calls in 1996 in Alberta11 (Edmonton & Calgary), and in British Columbia (Vancouver/Victoria) 12; The Commission also issued calls in 1986 in Atlantic Canada (Halifax, Saint John, Fredericton and Moncton) 13 and in 1955 the Commission issued a call in Saskatchewan (Regina and Saskatoon).14 A competitive proceeding was held in 1996 and 1997, in respect of the licensing of a religious television station to serve Toronto-Hamilton. Cognizant of the fact that broadcast frequencies are public property and more particularly broadcast frequencies are a scarce commodity, the Commission, in issuing calls for new television service, has required applicants to respond to a number of key licensing criteria. Those criteria usually include 15: "1. The contribution that the proposed service will make to achieving the objectives established in the Broadcasting Act and, in particular, to the production of local and regional programming. ___________________________________________________________________________ 10 "Application to Obtain a Licence to Carry on a Programming undertaking Television Station 11 Call for applications to serve Calgary, Lethbridge, Edmonton and Red Deer (Public Notice CRTC 1996- 18 dated 7 February 1996); 12 call for applications to serve Vancouver and/or Victoria (Public Notices CRTC 1996-41 and CRTC 1996-41-1 dated 22 March and 29 April 1996); 13 call for applications to serve Halifax, Saint John, Fredericton and Moncton (Public Notice CRTC 1986- 5) 14 Third English-language Television Service in Saskatchewan (Decision CRTC 85-756) 15 Licensing criteria set out in Public Notice CRTC 1996-41 Call For Applications For Broadcasting Licences To Carry On (Television) Programming Undertakings To Serve Vancouver And/Or Victoria, British Columbia. ___________________________________________________________________________ 2. The expected audience of the proposed service and its impact on the audiences of existing programming undertakings operating in this respective region. 3. The proposed expenditures and the means by which the applicant will foster, develop and provide exposure to Canadian talent, including local and regional talent. 4. An indication of possible shared investment or co-operative program buying arrangements with Canadian or foreign broadcasters. 5. An analysis of the markets involved and potential advertising revenues, taking into account the results of any survey undertaken supporting the estimates, as well as the impact on advertising revenues of existing television/radio stations operating in this respective region. 6. A marketing plan, if any, for the development and distribution of the new service taking into account any potential for satellite distribution. 7. Clear evidence of financial viability consistent with the requirements established in the applicants financial estimates, including clear evidence of additional financing readily available should the estimated revenues not materialize." The Toronto market represents the largest English-speaking population area in Canada and Toronto is also city served by the largest number of Canadian English-language "over-the-air" services. For a minimal capital investment of approximately seven thousand dollars16 Mr. Pachul would gain priority carriage of a commercial television station into nearly 1 million households in the GTA. CHUM submits that the investment in facilities and programming17 in this application, is disproportionate to the importance of the Toronto television market. If there is a demonstrated need for additional over-the- air television services, CHUM submits that the Commission should issue a call for applications, and proceed in its normal fashion. It is CHUM's submission that the Pachul application fails to address, let alone meet, the Commission's normal licensing criteria for television stations serving large metropolitan areas. There is no market research filed, which demonstrates consumer demand for the programming of the new television service. The budgets allocated for Canadian program production are so low, as to raise questions concerning viability of the service, and the quality of the programming which would be produced, particularly, in light of the number of hours of local programming which is promised in the application. ___________________________________________________________________________ 16 Section 8.1 and 8.2 of the Application at Page 32-34 of the Public Examination File 17 Total programming costs listed at $180,000 Year 1 at Section 9.1 (public exam file page 31) ___________________________________________________________________________ In summary, the LPTV station would not contribute to the objectives of the Broadcasting Act, and does not adequately address the Commission's objectives set forth in the 1998-1999 Television Policy Review (Public Notice CRTC 1999-97)18. Pursuant to the new Television Policy "all licensees will be required to demonstrate, in their applications, how they will meet the demands and reflect the particular concerns of their local audiences, whether through local news or other local programming." The Applicant has failed to demonstrate how the establishment of the new television service will meet these objectives. In view of the foregoing comments, CHUM respectfully submits that the licensing of the new television service is not in the public interest and the application should be denied. CHUM does not wish to appear at the December Public Hearing. A copy of this intervention has been served upon the applicant Yours truly, Peter Miller Vice President Business & Regulatory Affairs CHUM Television ________________________________________________________________ Enclosure - Appendix "A" (map) cc: Mr. Jan Pachul 18 Public Notice CRTC 1999-97 "Building On Success - A Policy Framework For Canadian Television" APPENDIX "A" TO THE INTERVENTION OF CHUM LIMITED MAP ILLUSTRATING LOCAL" TELEVISION STATION PERIMETER DRAWN 15 KM FROM PROPOSED LPTV TRANSMITTER SITE AS PER BROADCAST DISTRIBUTION REGULATIONS |