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Re: Reply to Intervention by Canadian Association of Broadcasters 1. I object to the use of CTRC Public Notice 1987-8 Regulations Respecting Television Broadcasting and arguments flowing from this document in this intervention for the following reasons: A) The intent of Public Notice 1987-8 is totally and outrageously misrepresented in this intervention. B) Public Notice 1987-8 in no shape or form represents "four criteria that define a low power undertaking." Being one that has been quite familiar since 1994 with CTRC 1987-8, I am most offended by the CAB's claim that these criteria represent a definition of a low power undertaking or that such definition is contained anywhere in this document. C) The criteria quoted in this intervention are entirely out of context. The four criteria cited in this intervention refer to the circumstances under which low power undertakings would enjoy preferential treatment in order to effect the promotion of television in remote communities. These criteria absolutely do not apply to any other low power undertaking. Let's review the first few paragraphs of CTRC Public Notice 1987-8 pertaining to low power television: "IV. POLICY ON LOW POWER TELEVISION IN REMOTE COMMUNITIES I. Introduction In Public Notice CRTC 1986-176 the Commission proposed a new policy designed to encourage off-air community television operations in remote or underserved 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 III licensees as defined in the Cable Television Regulations, 1986). In the course of the public process leading to the hearing of 30 September 1986, the Commission received detailed written comments from the Ministry of Communications of the Province of Quebec, the Ministry of Transportation and Communications of the Government of Ontario, the Regroupment des Organismes Communautaires de Communications du Québec (ROCCQ) and the Association Canadienne de la Radio Television de Langue Française (ACRTF). Brief, generally supportive comments were made by the CTV Network and CFCN-TV Calgary. The Commission has considered all of the comments received and herein is announcing a new policy in respect of low power television in remote communities (remote stations). .Although television viewers in many parts of the country are able to secure a considerable array of television services by means of off-air, cable and satellite signals, there are a significant number of Canadian households still unable to receive a full range of services. For some time the Commission has been seeking means of promoting the extension of television services to remote and underserved communities. The objectives outlined in such documents as the Report of the Committee on Extension of Service to Northern and Remote Communities(1980) and The Costs of Choice(1985), with respect to the distribution of satellite broadcasting services in underserved communities, reflect the Commission's continuing efforts to ensure access to a wide range of television services by communities in all regions of Canada. The Commission intends to adopt a flexible approach to the provision of additional, off-air, community-based television services in remote and underserved regions. In assessing any applications for such low power, community-based operations, the Commission will take into account an applicant's ability and intention to adhere to the guidelines specified below. (ii) The policy outlined herein is applicable to low power television operations in remote or underserved 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 operating in... For the purpose of considering applications for low power television undertakings, such an undertaking should meet the criteria which follow:" This document obviously refers to criteria under which the Commission would encourage and promote remote low power television stations and offer regulatory flexibility to applications. Notice the CTRC states also "The policy outlined herein is applicable to low power television operations in remote or underserved communities, rather than "community television" as per Public Notice CRTC 1986-176." At no point in CTRC 1987-8 is it stated that this document applies to any other low power undertakings or are low power undertakings defined in any way as claimed by CAB. This regulatory flexibility is further clarified: "The Commission recognizes that, in many cases, it may be difficult for operators of low power television services in remote and underserved areas to meet all the requirements of the television regulations. To encourage the development of such services, the Commission will, upon application, consider approving specific conditions of licence which would replace certain portions of the following sections of the new regulations Canadian programs Logs and Records (Section 10) Advertising Material (Section 11) (vi) By means of this policy, the Commission wishes to encourage the development of services designed and operated by local communities in remote or underserved areas to meet their own needs. However, the Commission encourages prospective applicants to be guided by the principles set out in this document." At no time did I ask for regulatory flexibility for myself and Star Ray TV. We completed the same application that any applicant in a urban area would complete. The nature and character of Star Ray TV is that of a big city television station, and we do not need any regulatory flexibility to effectively compete with existing competitors nor have we ever approached the CTRC for any special treatment. We do need the reduced expense of a low power transmitter, but isn't this preferable to no transmitter at all like cable stations? In our case superior broadcast site planning and design minimizes the effect of lower power. Viewers of our experimental UHF broadcast station VX9-AMK where surprised by quality of the reception and signal of our low power transmissions. The true nature of CTRC 1987-8 is further amplified by a 1994 letter from Peter Foster from the CTRC to Jan Pachul (Appendix 1) which I will now quote in part:: " Further to our telephone conversation yesterday, please find enclosed the application forms and a package of reference material to apply for a new television programming undertaking. Please note that, as outlined in the attached pages from Public Notice 1987-8, while Commission policy does allow for regulatory flexibility for Low Power Television broadcasting (LPTV) in remote and under-served areas, LPTV stations in all other communities are subject to the general television regulations. Therefore, if you are applying to establish a new television service in Toronto, all of the Commission's applicable regulations and policies should be taken into consideration, regardless of the power of the proposed undertaking." I reiterate:The claim by CAB that this document is " the Commission's policy with respect to low power television undertakings" is an outrageous misrepresentation of this document. 2. I Object to the use of CTRC-1986-176 Proposed Regulations Respecting Television and CRTC 1999-75 A proposed policy for community radio in this intervention and all the arguments flowing from these two documents in this intervention on the following grounds: A) Both are proposed regulations and have no effect or force. The last paragraph in CTRC 1986-176 contains the following disclaimer: "The Commission wishes to stress that its existing policies and regulations as well as the obligations assumed by licensees as conditions of licence, of course, remain in effect. The policies will continue to be applied and the regulations and conditions of licence will continue to be enforced until changes resulting from this review have been announced, or new regulations and conditions have been adopted." B) CRTC 1986-176 is mutually exclusive with CRTC 1987-8. The CTRC states in CTRC 1987-8 "The policy outlined herein is applicable to low power television operations in remote or underserved communities, rather than "community television" as per Public Notice CRTC 1986-176." It follows therefore the use of CRTC 1987-8 in the building of arguments would preclude the use of CTRC 1986-176 to bolster those arguments. The CAB's intervention assigns equal weight to both documents in it's arguments and completely ignores this disclaimer with respect to CTRC Public Notice 1986-176. C) CRTC 1999-75 is completely unrelated to low power television and community television. This document refers to community radio which has significantly reduced overhead and expenses in comparison to a television station. With technology now available, one could run a community radio station with one high powered PC computer and a cheap Ramsey FM transmitter and antenna. We have always applauded the proposed community channel regulations contained in Public Notice 1986-176 as forward thinking and innovative. We are dismayed that these regulations up to now have not been finalized. In 1997 Jan Pachul proposed to the CTRC 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 (Appendix 2)." This proposal for an exemption was an attempt to assist and provide the CTRC with data useful in the development of final community station regulations. The CRTC declined to grant our exemption request but instead invited us to apply for a broadcasting license. The following quote is taken from a November 18, 1997 letter (Appendix 3) written by the CRTC to Jan Pachul: "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." Since Public Notice 1986-176 contained proposed regulations that could be adopted in the future, these proposed regulations formed the basis for the development of the Star Ray TV concept. Let's examine how Star Ray TV fits these proposed regulations: CTRC 1986-176:" For the purposes of the proposed policy, a community television station is defined as a station characterized by the local nature of its ownership, programming and the market it is designed to serve. The Commission is proposing to favourably consider applications for a licence to operate a community television station that provides for management, operation, and programming primarily by and for members of the local community. The station's management should allow for community access and reflect the interests and special needs of the audience it is licensed to serve. In addition, the programming of a community television station should provide an alternative to that of existing services within the licensed service area." Star Ray TV is locally owned by Jan Pachul who lives one block from the station. The majority of the proposed programming is locally produced or acquired. The programing was developed as a result of an extensive community outreach activities underway for 3 years, which included coverage in a number of community newspapers, and on local CBC news, and targetted local non-profit and charitable agencies, representatives of the disabled, visible minority, women, and environmental communities, neighbourhood associations, independent producers, local politicians, the local small business community, housing co-operatives, and individual residents. The community has told us this is the programming it wants. Indeed several additional programs were proposed by the public in the interventions received and since the closing of interventions (Appendix 4). The "Easy Access" concept (Appendix 5) found in the application 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. CTRC 1986-176: "(iii) Role and Mandate The Commission will expect community television services to develop innovative and alternative forms of community-oriented programming that contribute to the diversity and variety of television services within their community. The Commission also expects community television operators to serve all members of the community by offering some programs which appeal to everybody, as well as programs which deal with matters of interest to specific elements of the community, such as neighbourhoods, surrounding towns, villages, and specific interest groups. The Commission does not expect community television services to operate over the full broadcast day in all cases. A community television station might include non-Canadian programs, such as feature films, in its schedule provided it meets the Commission's Canadian content requirements as well as all responsibilities in respect of community programming as outlined above." Our 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. We have further increased diversity by scheduling our foreign content while other stations are airing their local programming. We have decided not to produce local news because we felt that news was an unnecessary duplication of programming already available in the market. Instead we 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. CRTC 1986-176: "(iv) Financing and Ownership In general the Commission expects that on-going financing for such community television stations will derive from governments, public subscription campaigns and local advertising. Advertising will be permitted on any community television station as stipulated by the regulations for all television licensees. With respect to ownership, the Commission expects a community television operation to be owned and controlled by an organization whose membership is made up primarily of citizens of the community at large. However, the Commission does not wish to preclude cooperative efforts between existing licensees together with members of the community who wish to put forward a joint proposal. The Commission encourages potential applicants to be innovative when proposing ownership and management structures." We have proposed that independent producers remain at arms length from the station ownership and that producers have complete control of the content of their programming. The management of the station would become involved in the content only when complaints are received from the public or the content violates various CTRC regulations or the laws of Canada. The financing is proposed to be derived from advertising sales. The target advertisers are businesses with 5 or less employees or businesses that have been established 5 or less years. The targeting of small business will minimize any influence a large advertiser could exert on programming. We consider our co-operative "Easy Access" policy an innovative approach for the production and control of local programming by members of the public at large. 3. CONCLUSION Other than misrepresentation of and quoting various CTRC documents out of context, the CAB does not provide any reasons why the application by Jan Pachul should be denied. No evidence is presented by the CAB in regards to any impacts Star Ray TV "may have on the ability of existing licensees to fulfil their fulfill their regulatory requirements," the reason given by the CTRC for not proceeding with our previous application for an exemption from the Broadcast Act. The CAB completely ignores the fact that we were invited by the CRTC to apply for this licence as a result of our exemption application. The CAB intervention is biased towards existing broadcasters and seems not interested in providing alternatives to existing programming. The CAB is trying to protect it's members and is not concerned with what is in the best interest of the Canadian viewing public. Our application calls for 100% Canadian content during prime time and 80% overall. This is a substantially greater commitment to 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. Please consider the CAB intervention for what it is: an attempt to protect existing members without any consideration given to program innovation and diversity. If the CAB was an advocate of the viewing public, the CAB would support the Star Ray TV application and not request that the application be denied. Sincerely, Jan Pachul |