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Rogers Cablesystems Limited

333 Bloor Street East 9th Floor

Toronto, Ontario M4W 1G9

By Facsimile November 12. 1999

Mr. John Keogh

Acting Secretary General Canadian Radio-television &

Telecommunications Commission

1 Promenade du Portage Central Building

Hull, Quebec K1A 0N2

Mr. Keogh:

Re: Notice of Public Hearing CTRC 1999-10, ltem 15 Application by Jan Pachul to Carry on an English-language Low Power Television Programming at Toronto

I. Introduction

1. Rogers Cablesystems Limited ("Rogers") is pleased to participate in this proceeding and to provide our comments on the above-noted application by Mr. Jan Pachul. For the reasons set out below, Rogers opposes Mr. Pachul's application to carry on a new low power television programming undertaking at Toronto.

2. Rogers owns and operates several broadcasting distribution undertakings that provide cable television service to subscribers in British Columbia and Ontario, including four cable systems (Etobicoke/Mississauga, Toronto/Peel, York and Downsview) in the Toronto area that would be within 15 kilometres of the proposed low power television station's transmitting antenna. As a result, should Mr. Pachul's application be approved, those four cable systems would be required by the Broadcasting Distribution Regulations (the "Regulations") to distribute his television station as part of the basic service on the basic band ( channels 2-13).

3. It is Rogers' submission that the Toronto market does not need a new local television station, particularly one that proposes to serve only a portion of the city and will duplicate in good part the type of community programming which is already available in that community. In addition to the considerable amount of community programming provided by Rogers Television, television viewers in Toronto have access to a broad selection of local programming options. These include seven private television broadcasting stations, two CBC stations, a regional news and information specialty service, and TVO and TFO. Moreover, Mr. Pachul has failed to provide any survey or polling evidence which would indicate that viewers or advertisers in Toronto would support a new community television station.

4. There also continues to be a severe shortage of available analog channel capacity on cable systems that serve the Greater Toronto market. The licensing of Mr. Pachul's's low power television undertaking would further exacerbate this problem. Finally, the issuance of a licence to Mr. Pachul would create a precedent that would encourage others to apply for licenses to operate low power television stations in urban areas that may already served by several local broadcasters. For these reasons, Rogers submits that the Commission should deny Mr. Pachul's application for a low power television programming undertaking in Toronto.

II. Community Programming Available in the Toronto Market

5. At the heart of Mr. Pachul's application is the suggestion that residents of Toronto are currently unable to access the kinds of programming that his proposed station would provide. Mr. Pachul indicates that his station would fill a programming void that the local broadcasters and cable community channels have been unable to satisfy. As noted by Mr. Pachul at page two of the Supplementary Brief:

Programming will differ from local programming currently being offered by its depth - we will be able to focus on topics, artists, local narratives, civic culture in general, and provide comprehensive coverage - and by its consistency: an entire season of the new girls hockey league will be covered, every city council meeting will be shown, current civic issues will be followed on a daily and weekly basis. No other station is currently covering our communities' activities with this degree of attention and caring.

6. The applicant's depiction of the current state of local programming in the Toronto market is clearly overstated. As the Commission is aware, Toronto television viewers currently are able to access local programming from a large number of diverse sources, including seven private television stations (Global, CFMT, City TV, CFTO (CTV), CTS (Crossroads), OnTV and CKVR), two CBC stations (CBLT and CBLFT), a regional news and information specialty service (CP24), two provincial educational stations (TVO and TFO), and Rogers Television.

7. While Rogers does not wish to comment in detail on the local programming offered by other Toronto television stations, we would note that the broadcasters operating in the Greater Toronto Area currently provide extensive local news and information programming which is of interest to the residents of that community. For example, CP24 broadcasts an hour long call-in show Tuesdays to Fridays called Talk TV which examines local issues. Every Monday night CP24 airs a show called Megacity Mel, which provides callers with the opportunity to ask questions to the Mayor of Toronto. In addition. City TV and CP24 broadcast Breakfast TV which is a talk and entertainment program which runs five days a week from 7:00 - 9:00 am. Finally, City Pulse at 4:00 is a local news, information and public affairs program that is available on City TV and CP24.

8. Rogers would also emphasize that Rogers Television provides complete coverage of municipal Council meetings, as well as a wide range of local news, sports, entertainment, lifestyle, information programming a rid event coverage that reflects the vibrant and eclectic nature of Canada's largest city. In our view, the local programming needs of the residents of the Greater Toronto Area are, to a considerable extent, satisfied by Rogers Television. A comparison of the programming schedule of Rogers Television to that proposed by Mr. Pachul clearly demonstrates that the kinds of programs Mr. Pachul intends to broadcast on his low power television station are already available in the Greater Toronto Area on Rogers Television. Furthermore, the programming proposed in Mr. Pachul's's application is clearly inferior to the range and diversity of programming that is currently broadcast by Rogers Television.

9. In Schedule "B" of the Part II Promise of Performance portion of the application, Mr Pachul provides descriptions of the programming that will be available on his station. They include a junior talent hour, a local public affairs program, local sporting events, a dance show, science-fiction movies, live coverage of global events, coverage of City Council and Committee meetings, a science and technology show, a show profiling Canadian music, a show on urban ecology issues, a fishing show, programming from NASA Television, Hollywood movies from the golden era, and a program called "Soul Train."

1 0. With the notable exceptions of science-fiction movies, dance shows, fishing shows, NASA Television, Hollywood movies, and Soul Train, all of which Rogers would note would appear to fall outside the scope of "community programming", Rogers Television regularly airs programs that are virtually identical to the types of local programs proposed by Mr, Pachul.

11. Moreover, unlike Mr. Pachul's proposed local television station. Rogers Television's programming schedule consists of 100% community programming. We do not broadcast science-fiction movies, Hollywood movies, Soul Train or programs provided by NASA Television. Our focus is entirely on the community we serve. We cater to the needs and interests of Toronto residents.

12. We would like to provide a small sample of the kinds of community programs that are currently available on Rogers' community channel in Toronto. Each weekday, Rogers Television airs daytime, a talk and entertainment program featuring Canadian authors, up- and-coming musicians and chefs from Toronto's diverse restaurant scene. The Erin Davis Show offers viewers a daily discussion of events and topics of interest to Toronto television viewers. The New City examines municipal issues and concerns, such as homelessness, squeegee kids and the City budget, that affect the lives of Torontoians. Moneyline provides viewers living in Toronto with weekly financial guidance and investment advice. Structures offers an insightful and fascinating exploration of Toronto's architectural development and history. 10% Qtv is dedicating to covering cultural events and political issues affecting rig Toronto's Gay and Lesbian community. Toronto Living uses a magazine format to explore the city's lifestyle, covering art galleries, shops, restaurants and fashion. Mosaic is an independently produced multi-cultural news and current affairs program that reflects the diverse nature of Toronto's population.

13. In addition to these programs, arid contrary to the assertion in Mr. Pachul's's May 14, 1999 response to a Commission deficiency question, Rogers Television provides regular coverage of Toronto City Council meetings. Ou r coverage begins at 9:30 am, and runs to 6:30 pm on each of the three days of the month when City Council normally meets. It is only on those few occasions when the City Council continues to sit in public beyond 6:30 pm that Rogers Television is unable to provide "gavel to gavel" coverage of those meetings. We would also note that Rogers Television provides programming that examines and analyses municipal issues. For example, The New City is a live call-in show which is dedicated to municipal issues and features City Councillors as guests.

14. Rogers Television similarly provides "gavel to gavel" coverage of the City of Mississauga Council meetings for those Rogers' customers who reside in the City of Mississauga. Typically, Council meet two times each month. In addition to providing coverage those meetings, Rogers Television broadcasts Municipal Hotline, which is a live call-in show that examines municipal issues affecting the City of Mississauga, and regularly features Mississauga City Councillors and the Mayor of that city as guests.

15. The production costs associated with Rogers Television's coverage of City Council meetings in Toronto and Mississauga are approximately $55,000, arid involves the work of several Rogers employees and volunteers. In light of these programming costs and our use of volunteers, it is difficult for Rogers to understand how Mr Pachul's television station, which has proposed in its application Canadian programming expenditures of only $125,000 in its first year of operation, would be able to provide coverage of those City Council meetings and still stay within the parameters of its programming budget.

16. Finally, we wish to emphasize that the above-noted programs represent only a small portion of the diverse mix of programming that is currently produced for Rogers Television. Even from this small sample, however, it is obvious that the programming offered by Rogers Television is varied and comprehensive, and reflects the issues, interests and concerns of Toronto television viewers. In our submission, when one also considers the local programming available from the other nine Toronto area broadcasters, the community programming needs of Toronto viewers are more than adequately served by Rogers Television and other local Toronto broadcasters.

III. No Market Research Demonstrating that a Low Power Television Station is Needed in Toronto

17. In light of the substantial amount of community programming currently available to television viewers in Toronto, it is Rogers' view that Mr. Pachul should have provided the Commission with at least some market research indicating that his proposed service would be supported by the community. It is significant, from Rogers perspective, that Mr. Pachul has failed to provide the Commission with any public opinion surveys, marketing surveys or other forms of scientific evidence that would indicate that a low power television station would have public or advertising support in Toronto. The only evidence provided by Mr. Pachul's appears to be anecdotal.

18. Rogers' believes that the Commission should not issue a licence to utilize a scarce and valuable broadcasting frequency in a situation where the applicant has not demonstrated that there is demand in the proposed market for its service.

IV. Channel Realignments and Analog Capacity

19. If Mr. Pachul's licence application is approved by the Commission, it would appear that the low power television station would be a priority carriage television service. Consequently, Rogers' cable systems in Toronto would be required. under section 17 of the Regulations, to distribute Mr. Pachul's service as part of the basic service beginning with the basic band As a result, Rogers would have to ensure that an analog channel is available for the distribution of that service. As the Commission is acutely aware, analog channel capacity is currently very much in demand. Rogers' cable systems, like most other cable distributors, simply do not have the analog channel capacity available to distribute another local television station. As the Commission knows, cable distributors are only able to offer a digital programming service through the "harvesting" and re-purposing of existing analog channels. By using these harvested analog channels to distribute digitized programming, Rogers is able to provide an enhanced and marketable digital service offering.

20. The priority carriage status that Mr. Pachul's service would obtain under section 17 of the Regulations would also cause considerable disruption to our customers and to affected broadcasters. It is Rogers' experience that channel realignments are a major source of customer dissatisfaction. In the cable systems that would be affected by Mr. Pachul's application, the television services distributed on the basic band have, in general, been distributed in their current channel positions for a number of years. The licensing of a new station in Toronto would require Rogers and other cable distributors to make significant channel adjustments that, given the nature of Mr. Pachul's proposed services, would be difficult to justify to our customers.

21. In the event that the Commission issues a licence to Mr. Pachul, Rogers believes that it would be appropriate for the Commission to relieve cable distributors from the priority carriage requirements set out in section 17 of the Regulations, and in particular the requirement to distribute Mr. Pachul's's station as part of the basic service beginning with the basic band.

V. Setting a Precedent

22- Rogers believes that it is also important for the Commission to consider the broader implications of approving an application, such as the one submitted by Mr. Pachul, which proposes to serve the residents of only two municipal wards in a large urban area like Toronto. In our view, if the Commission were to issue a licence to Mr. Pachul, the Commission would be establishing a precedent for other potential applicants in the Greater Toronto Area and other urban centres who may be willing to make promises and commitments that are comparable to those set out in Mr. Pachul's application. Each of those applicants for low power television licenses would presumably compete for viewers and advertising revenues with existing broadcasters and would be guaranteed access to cable distributors operating in their markets.

VI. The Commission's Low Power Television Policy

23. Finally, while Mr Pachul indicates throughout his application that he is applying to operate a low power television undertaking, Rogers would note that the application. as filed, does not comply with the Commission's policy for low power television stations, which is set out in Public Notice CRTC 1987-8, Regulations Respecting Television Broadcasting. In that Public Notice, the Commission outlined four criteria that would have to be satisfied by an applicant before the Commission would issue a licence to operate a low power television undertaking. Those criteria are as follows:

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

24. Based on our review of Mr. Pachul's application, it is clear that the proposed low power television station would not satisfy criteria (a) and (b) of the Commission's low power television policy. With respect to the first criterion, there are currently nine local and regional television stations operating in the Toronto area. Each of those undertakings would be considered to be "a competing local or regional television service." As for the second criterion, Rogers Television was certainly operating on a regular basis at the time Mr. Pachul filed his application.

25. While the inability of Mr. Pachul to address the Commission's criteria for licensing low power television programming undertakings should not be the sole basis for denying this application, Rogers' believes that, at most, Mr. Pachul's application should have triggered a call for new applications for television stations to serve the Toronto market. In the absence of a competitive licensing process, it is our view that it would be difficult for the Commission to ensure that the public interest would be served by the licensing of a new over-the-air television programming undertaking in that community.

VII. Conclusion

26. In light of the above, it is Rogers' submission that the application by Mr. Pachul to operate a low power television programming undertaking in Toronto should be denied. If the Commission requires further information. please do not hesitate to contact me directly at (416) 935-4818.

Yours truly,

Pamela Dinsmore

Vice President, Regulatory

c.c. Jan Pachul (416-690-5997)