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ARCHIVED -  Decision CRTC 86-709

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Decision

Ottawa, 6 August 1986
Decision CRTC 86-709
Canadian Broadcasting Corporation
Halifax, Nova Scotia - 860677400
For related documents: see Decisions CRTC 77-309 dated 19 May 1977, 79-320 dated 30 April 1979, 85-752 dated 11 September 1985 and 85-962 dated 11 October 1985; Public Notices CRTC 1983-22 dated 7 February 1983, 1984-132 dated 7 February 1984 and 1985-86 dated 2 May 1985; and CRTC Notices of Public Hearing 1986-19 dated 10 March 1986 and 1986-28 dated 10 April 1986.
Background
The CBC's application for renewal of the broadcasting licence for CBH Halifax was initially published for comment in CRTC - Notice of Public Hearing 1986-19 dated 10 March 1986, which called representatives of the Canadian Broadcasting Corporation to appear at a public hearing in Moncton to show cause why the licence should be renewed beyond 31 October 1986.
In response, however, to representa-tions made on behalf of the residents of the Halifax area, including a resolution passed by the Nova Scotia Legislative Assembly on 25 March 1986 asking the Commission to hear this matter in Halifax, the Commission rescheduled the application, which was heard in Halifax during the week of 6 May 1986 (Notice of Public Hearing 1986-28).
As indicated in the Notice, the CBC has been using two frequencies to simulcast its AM service in the Halifax market for more than eight years, despite the Commission's repeated requests that the Corporation find more appropriate means of eliminating the duplication of its AM service throughout the area and the CBC's own commitment to phase out the duplicated service at the latest by 1 November 1986.
The basic (AM) radio service of the CBC is provided to Halifax listeners via CBH on the 860 kHz AM frequency as well as via CBHA-FM on the 90.5 MHz frequency. In addition, the CBC's English-language stereo (FM) radio service is available to Halifax area listeners via CBH-FM on the 102.7 MHz frequency, and the CBC's basic French-language radio service is provided on FM on the 92.3 MHz frequency (CBAF-19-FM).
The use of two frequencies to provide a duplicate service to the same area is contrary to a long-standing policy of the Commission and the Department of Communications (DOC), which applies to the private broadcasting sector as well as to the CBC, and is predicated on the optimum use of public frequencies.
When the Commission authorized the CBC in 1977 to use an FM frequency to rebroadcast the basic radio service of CBH Halifax, the resulting duplication of services on the AM and FM bands was accepted only as a temporary measure because of severe deficiencies in the night-time coverage pattern of CBH, particularly in outlying areas. The Commission had noted (Decision CRTC 77-309) that it would review with the Corporation the need for the continued use of 860 kHz as the penetration of FM receivers in the Halifax area increased.
Two years later, in Decision CRTC 79-320, the Commission addressed in general terms the matter of the duplication of AM and FM radio facilities as proposed in the Corporation's Long Range Radio Plan. The Commission noted the heavy demand this would place on "the available FM radio spectrum in Canada" and reiterated the view that:
Duplication of facilities on the AM and FM band should be avoided except where necessary to compensate for extraordinarily poor AM coverage at night. Careful consideration should be given to maintaining the AM service in areas where this service remains essential.
The CBC's Long Range Radio Plan and its proposal that a number of frequencies be reserved to meet future coverage objectives, was subsequently considered by the Commission at a public hearing in April 1982 and the CRTC's conclusions were announced in Public Notice CRTC 1983-22 dated 7 February 1983.
With respect to the CBC's arguments as to "the continued deterioration and eventual demise of AM broadcasting in Canada", the Commission found that a review of the approximately 40 CBC owned-and-operated AM stations had indicated that most provide good, reliable day and night service in major urban areas where FM channels are in short supply; only in a few instances were AM stations subject to severe night-time interference.
Moreover, the notice stated that:
New developments in the AM broadcasting industry are designed to make it more attractive and to increase the availability of AM channels. These developments include the ... introduction of stereophonic AM, increased use of the AM channels designated as "clear channels" and the extension of the AM band.
The Commission concluded that "the CBC basic service should remain essentially an AM service and be provided on the AM band wherever possible" but said that it would continue to consider the merits of each case where coverage deficiencies could not be corrected by other technical means.
In cases where an AM frequency was to be replaced with FM, the Commission stressed that every effort should be made to release the AM frequency for other potential users at an early date:
When such replacement is implemented, extended periods of simulcasting should not be required... Where simulcasting continues till the expiry date of a licence, this will be reviewed during the hearing on the renewal of the station's licence.
Subsequently, at the suggestion of the CBC, the Commission announced the establishment of a Tripartite Committee, consisting of representatives of the CRTC, the CBC and the Department of Communications, to review a number of outstanding issues and recommend to the Commission how these matters should be resolved in the public interest (Public Notice CRTC 1984-132).
The Committee reviewed 70 CBC proposals, among them a commitment to phase out duplicated AM stations at five locations in Atlantic Canada, including Halifax.
In announcing its conclusions on the recommendations of the Tripartite Committee (Public Notice CRTC 1985-86, dated 2 May 1985), the Commission noted that the CBC had proposed to vacate its AM frequencies at Goose Bay, Marystown and Moncton by 1 November 1985 and those in Halifax and Saint John by 1 November 1986. With respect to the implementation schedule for Halifax and Saint John, the Commission, noting that this would result in duplicate service in these locations for periods of eight and five years respectively, stated:
In the Commission's opinion, these periods would be far too long for the purpose for which simulcasting in these locations was intended, namely for the smooth transition of the radio service from the AM to the FM band, particularly since the Commission had approved this transition because of the reported deficiencies in the AM stations' coverage.
Consequently it asked the Corporation to take immediate steps towards the elimination of the duplicate AM services of CBH Halifax and CBD Saint John by 1 November 1985. It noted that this would give the CBC six months in which to notify and prepare the public for the forthcoming changes. This expectation was reiterated in Decision CRTC 85-752 on 11 September 1985.
Furthermore, in response to a request from the CBC, the Commission granted a renewal of the licence for CBH Halifax for a further one-year period, to 31 October 1986 (Decision CRTC 1985-962 dated 11 October 1985):
to enable the Corporation to undertake the necessary studies to determine the best way to ensure that residents of the Halifax area continue to have access to the best and most complete CBC radio service technically deliverable in the area, keeping in mind the scarcity of public frequencies.
The CBC was to report within three months on the studies which it had committed to undertake in Saint John and Halifax.
May Public Hearing
At the hearing the panel chairman explained the overall objectives of the CRTC's long-standing policy against the utilization of two frequencies in the same market to deliver a duplicate service and reiterated the reasons why in 1977 the licence for CBHA-FM had been granted as a solution to the night-time coverage deficiencies of the CBC AM station, with the resulting duplication of service being allowed only as a temporary measure. The FM rebroadcaster was licensed on the understanding that the Corporation would take steps to cease the unnecessary duplication within a reasonable period of time.
Representatives of the CBC, however, stated at the hearing that they now saw no reason to discontinue broadcasting the CBC basic service on AM because several frequencies in the Halifax/Dartmouth area are still available and a listener usage survey had indicated that area listeners wanted continued access to the CBC basic radio service on both the AM and FM frequency bands.
The CBC argued that an audience survey it had commissioned indicated that eliminating the duplication by closing CBH would cause excessive disruption to its listeners. The survey suggested that discontinuance of CBH would affect 25% of the CBC's current listeners in the Halifax metropolitan area. About half of this number stated that they would need to acquire new radios with an FM capability; the others already have FM radios and would only need to change their listening habits in order to receive this service on the FM band.
Upon being questioned at the hearing, it became evident that the CBC had not made any serious effort to inform Halifax listeners of the future elimination of the AM frequency nor had it offered practical solutions for eliminating the duplication of service by closing the FM station CBHA-FM and finding other means of overcoming the night-time coverage deficiencies of CBH in the outlying areas.
The CBC also argued that its engineering services had now estimated that more than $1 million in capital costs would be required to replace the FM transmitter and duplicate its coverage without overlap, an expenditure which it considered excessive.
Given that the CBC through its participation on the Tripartite Committee, had proposed a date on which the Halifax AM frequency should be vacated, the CBC representatives were asked at the hearing whether the present application should be taken as an indication that the CBC had changed its position on the matter of frequency duplication. CBC representatives at the hearing conceded that "as a general principle" there is no justification for the Corporation not to uphold the Commission's policy against unnecessary duplication of coverage.
Gerald Flaherty, speaking on behalf of the Corporation, also admitted that the Tripartite Committee, on which the CBC was represented, had recommended the elimination of duplication in five locations, including Halifax, and he noted that, to date, the CBC had surrendered its AM frequency in two of those areas, Marystown and Goose Bay, Newfoundland. However, in the case of Halifax, he added:
I would have to concede that in this particular case, we have changed our position in that some time ago we were prepared ... to recommend that we would phase out at a particular point...
Testimony at the hearing revealed that 97% of the homes in Halifax County have radio receivers with FM capability, which is slightly higher than the national average, while the proportion of car radios with FM capability is about 59%, or the same as for the general Canadian population. Upon being questioned, the CBC acknowledged that the audience survey had been commissioned to ascertain information on AM and FM receiver ownership in various locations in the Halifax/Dartmouth area and the proportion of tuning to the basic CBC service on the local AM and FM frequencies. The census metropolitan area was used, as it approximates the daytime coverage of the existing AM frequency.
The CBC was asked to address the findings in the listener study that 41% of the people surveyed did not know that the AM service was duplicated on FM and 17% did not know where to find the CBHA-FM location on the radio dial. In response, the CBC admitted that it had not spent any money to promote the use of FM and had not taken any particular measures to inform its Halifax audience of the fact that it would be eliminating the AM service.
Interventions
The Commission received six interventions related to this application and a further twenty-five letters of support. The Honourable Vincent MacLean appeared at the hearing to endorse continuance of CBC radio broadcasting on both AM and FM frequencies in Halifax, as was unanimously resolved by the provincial Legislative Assembly on a motion he had presented. He requested the Commission to consider the special needs and circumstances of the Halifax region, while recognizing the Commission's difficult position in this matter:
"some years ago a Tripartite Committee did recommend that the AM service be eliminated, ... circumstances have changed to the extent that people better understand what the Halifax audience wants."
Interventions in support of the renewal of CBH were also submitted by David Colville, Director of Communications Policy for the Nova Scotia Department of Transportation and R.B. O'Sullivan, N.S. Regional Director of Emergency Planning Canada.
Mr. Colville acknowledged the Commission's responsiveness in rescheduling the hearing from Moncton to Halifax and noted that "local or regional conditions may sometimes demand solutions which may not necessarily conform to national policy but which are ultimately in the best interests of the people."
The concerns of small boat fishermen about the possible loss of the CBC's marine weather service reports broadcast on CBH were raised by Michael Beliveau on behalf of the Maritime Fishermen's Union and in a submission by C.V.D. Smith, Marine Surveyor for the Canadian Coast Guard.
The Canadian Association of Broadcasters submitted an intervention requesting the CBC to discontinue by 31 October 1986 either CBH or CBHA-FM and to surrender the unused frequency or, in the case of the FM service, use it to provide the French-language CBC FM stereo service which is not now available in the Halifax area.
Conclusion
The Commission has given careful consideration to all of the foregoing factors, including the views advanced by the CBC at the May 1986 hearing to justify its failure to conform to Commission policy and to fulfill its own commitments made after lengthy discussions with the Commission and the Department of Communications within the framework of the Tripartite Committee. The Commission has particularly, been very sensitive to the strong concerns reflected in the interventions received from the public in the Halifax region and from their elected representatives with respect to the continued use of the AM frequency and its importance for listeners in outlying areas. The Commission has to assume that the CBC's representatives on the Tripartite Committee had taken these factors into account when they agreed to vacate the AM frequency in Halifax.
The Commission considers it unfortunate that the CBC has not embarked upon a meaningful campaign to inform Halifax area listeners of the availability of its basic radio service on FM. Such promotion could have changed listening habits, as has happened in other areas of the country where the CBC has moved its AM service to FM frequencies, and might well have altered the current situation. The Commission considers that it is also unfortunate that the CBC has not submitted any practical proposals for an early and reasonable solution to these difficulties.
The engineering solutions to the duplication problem presented by the CBC, namely retaining CBH, closing CBHA-FM and upgrading CBC stations in adjacent communities are inordinately costly at a time when the Corporation's budget is subject to serious restraint.
Consequently, notwithstanding the Commission's serious concerns about this matter and because of the strong representations received from the communities involved, it is prepared to grant an exemption to its policy for a further interim period of three years in order to allow the CBC, in concert with the CRTC and the DOC, to find a practical and reasonable solution to this problem that will ensure that listeners in the Halifax/ Dartmouth area receive complete and adequate signal coverage of the CBC basic radio service.
The Commission gave serious consideration to renewing the licence term of CBH for a one-year period only, but decided that such a solution
would not be in the public interest. Accordingly, by majority decision, the Commission renews the broadcasting licence for CBH Halifax from 1 November 1986 until 30 September 1989, subject to the terms set out in this decison and in the licence to be issued. A minority of Commissioners, however, favoured a shorter term.
The Commission strongly urges the CBC to undertake immediately a close assessment of its radio coverage in Halifax, Moncton and Saint John and requires it to propose in consultation with the Commission and the DOC practical means and a firm timetable for elimating the service duplication in these communities. In this regard, the Commission notes that the licences of the CBC's Moncton and Saint John AM radio stations expire 30 September 1987.
The Commission expects the CBC to explain how the solutions it proposes will contribute to upholding the policy enunciated in the Broadcasting Act with respect to the optimum utilization of public radio frequencies.
Further, the Commission expects the CBC to demonstrate clearly that it has explored all practical solutions to the coverage deficiencies of the CBH signal, including those suggested in the interventions received in response to this application. The Corporation is reminded that only in the most extraordinary circumstances will the Commission tolerate the continuance of this unacceptable duplication of service beyond the three-year licence term herein granted.
The Corporation is further required to submit a progress report within one year of the date of this decision.
Fernand Bélisle
Secretary General