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ARCHIVED -  Decision CRTC 93-52

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Decision

Ottawa, 11 February 1993
Decision CRTC 93-52
Blue Water Broadcasting Limited
Leamington, Ontario - 920402500
Following a Public Hearing in the National Capital Region beginning on 21 September 1992, the Commission approves the application by Blue Water Broadcasting Limited (Blue Water) for a broadcasting licence for an English-language FM radio programming undertaking at Leamington on the frequency 96.7 MHz, channel 244, with an effective radiated power of 19,320* watts.
Blue Water currently operates CHYR/CHYR-7, the only local radio station serving Leamington. CHYR/CHYR-7 operates on two AM frequencies: 710 kHz during daytime hours and 730 kHz at night. Blue Water has submitted this application to convert CHYR/CHYR-7 to an FM radio undertaking, operating on a single frequency, and will cease operation of CHYR/CHYR-7 when it implements the new FM service.
The Commission will issue a licence for the new FM undertaking, expiring 31 August 1996, upon surrender of the current licence for CHYR/CHYR-7. The licence will be subject to the conditions specified in this decision and in the licence to be issued.
This term will enable the Commission to consider the renewal of this licence at the same time as those of other radio stations in the area.
*The Commission notes that the undertaking will use an effective radiated power of 19,320 watts, rather than 21,200 watts, as had been indicated in CRTC Notice of Public Hearing 1992-11 dated 17 July 1992.* Blue Water acquired the assets of CHYR/CHYR-7 in 1987 (Decision CRTC 87-574 dated 16 July 1987). At that time, Blue Water made a firm commitment to the Commission to apply without delay for approval to operate the station on a single AM frequency. Blue Water estimated that an expenditure of $250,000 would be necessary to implement this commitment. Instead, in 1988, Blue Water submitted an application for an FM licence, claiming that its review of the AM frequencies available in the area had revealed previously unknown complications.
In Decision CRTC 90-436 dated 10 May 1990, the Commission denied Blue Water's application on the grounds that it considered the licensee's commitment to operate CHYR/CHYR-7 on a single AM frequency as an unequivocal benefit of the 1987 transfer of assets. Moreover, the Commission was not satisfied that Blue Water had thoroughly examined the use of alternative AM frequencies.
After further examination of various alternatives, and following consultation with the Department of Communications (DOC), as required by Decision CRTC 90-436, Blue Water submitted documented evidence to the Commission indicating that it was still unable to find a practical means to operate CHYR/CHYR-7 on a single AM frequency. In a letter dated 23 January 1992, the Commission stated that it accepted Blue Water's position that changing CHYR/CHYR-7 to a single AM frequency was not practical. Subsequently, Blue Water submitted the present application to operate the station on a single FM frequency.
In support of its present application, Blue Water explained that CHYR/CHYR-7's split frequency hinders its ability to maintain its audience. Currently, listeners have to change dial positions at approximately sunrise and sunset daily to remain tuned to the station. These frequency changes occur at a different time each month and are further complicated by the hour changes associated with daylight savings time. Moreover, Blue Water stated that a single FM frequency would improve CHYR/CHYR-7's night-time coverage and "enable many listeners living in the rural communities outside Leamington to receive [the station] after dusk for the first time ever".
Blue Water stated that its original commitment of $250,000 to move CHYR/CHYR-7 to a single AM frequency would be applied to the $590,000 in capital costs required to implement the new FM service. The Commission is satisfied that this expenditure will discharge the unequivocal benefit associated with the 1987 transfer of assets.
The Commission notes that Blue Water intends to offer essentially the same programming on FM as it currently offers on AM. Blue Water proposes to broadcast a minimum of 72 hours per week of station-produced programming. Moreover, the Commission notes that the new FM station will have a coverage area similar to that of the existing station's day-time coverage. Accordingly, the Commission is satisfied that approval of this application will have a limited impact on other stations broadcasting in the area.
Blue Water also asked the Commission to grant the new FM station flexibility to enable the licensee to compete better with the over 50 U.S. signals available in the Leamington market. Leamington is located only 50 kilometres from Detroit, Michigan.
The Commission notes that CHYR/CHYR-7, the only radio station in Leamington, has recorded losses before interest and taxes in each of the past five years. Further, the Commission notes that the total population within CHYR/CHYR-7's 3 mV/m contour is less than 100,000, and that approximately 66% of the tuning in the area is to U.S. stations. For these reasons, the Commission is satisfied that Blue Water's request meets the guidelines for assessing applications for programming flexibility from licensees of radio stations operating in small markets and border markets, as outlined in Public Notice CRTC 1992-3 dated 16 January 1992.
Accordingly, the Commission approves, by condition of licence, Blue Water's request to broadcast a weekly minimum spoken word level of 12%, rather than the minimum weekly level of 15% required by the Radio Regulations, 1986 (the regulations).
Blue Water also proposed to broadcast a minimum of 579 distinct musical selections per week and not to exceed a maximum weekly repeat factor of 28. Further, Blue Water proposed to broadcast a maximum weekly hit percentage of 80%.
In accordance with Public Notice CRTC 1992-72 dated 2 November 1992 entitled "A Review of the CRTC's Regulations and Policies for Radio", the Commission relieves the licensee of any commitments with respect to the number of distinct musical selections and of repeats. Moreover, in the circumstances, the Commission has decided to exempt the licensee from any regulatory requirement with regard to the level of hits.
As a further measure of flexibility, Blue Water requested authority to broadcast a minimum level of 20% Canadian selections with respect to category 2 music. Interventions were submitted by the Canadian Independent Record Production Association and the Society of Composers, Authors and Music Publishers of Canada opposing Blue Water's request to broadcast a lower level of Canadian content than the 30% weekly minimum level required by the regulations.
The Commission has considered the arguments put forward by Blue Water and the interveners on this question. In Public Notice CRTC 1992-3 the Commission stated that:  flexiblity regarding Canadian content will not generally be accorded except for the licensees of AM and FM stations in border markets where exceptional circumstances are present, such as those identified in Public Notice CRTC 1984-233 entitled "Windsor Radio Review".
Based on the evidence, the Commission has determined that the circumstances of the Leamington market do not warrant an exception to this policy. In accordance with the regulations, the Commission requires the station to broadcast a weekly minimum level of 30% Canadian content with respect to category 2 music.
The Commission reaffirms the particular importance it attaches to the development of Canadian talent and notes Blue Water's commitment to allocate $2,167 annually in direct expenditures for this purpose.
In Public Notice CRTC 1992-59 dated 1 September 1992 and entitled "Implementation of an Employment Equity Policy", the Commission announced that the employment equity practices of broadcasters would be subject to examination by the Commission. It encourages Blue Water to consider employment equity issues in its hiring practices and in all other aspects of its management of human resources. The Commission will review with the licensee its progress in these areas at the time of the licence renewal of Blue Water stations.
Bea-Ver Communications Inc., licensee of CKSY-FM Chatham, submitted an opposing intervention claiming that an approval would have a negative impact on CKSY-FM's operations. The Commission is satisfied with Blue Water's reply thereto. Moreover, as stated earlier in this decision, the Commission has determined that approval of this application will not have any undue impact on other radio broadcasters in the area.
The Commission acknowledges the two interventions submitted in support of this application. It is a condition of licence that the licensee adhere to the guidelines on gender portrayal set out in the Canadian Association of Broadcasters' (CAB) Sex-Role Portrayal Code for Television and Radio Programming, as amended from time to time and approved by the Commission.
It is a condition of licence that the licensee adhere to the provisions of the CAB's Broadcast Code for Advertising to Children, as amended from time to time and approved by the Commission.
DOC has advised the Commission that this application is conditionally technically acceptable, and that a Broadcasting Certificate will only be issued once it has been determined that the proposed technical parameters will not create any unacceptable interference with aeronautical NAV/COM services.
In accordance with subsection 22(1) of the Broadcasting Act, the Commission will only issue the licence, and the authority granted herein may only be implemented, at such time as written notification is received from the DOC that its technical requirements have been met, and that a Broadcasting Certificate will be issued.
It is a condition of licence that construction of this undertaking be completed and that it be in operation within twelve months of the date of receipt of the DOC notification referred to in the preceding paragraph or, where the applicant applies to the Commission within this period and satisfies the Commission that it cannot complete implementation before the expiry of this period and that an extension is in the public interest, within such further period of time as is approved in writing by the Commission.
Allan J. Darling
Secretary General