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ARCHIVED -  Decision CRTC 96-600

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Decision

Ottawa, 4 September 1996
Decision CRTC 96-600
Canadian Learning Television Ltd.
Across Canada - 199600545
Canadian Learning Television - Approved
Following a Public Hearing held in the National Capital Region beginning on 6 May 1996, the Commission, by majority vote, approves the application by Canadian Learning Television Ltd. (the licensee) for a broadcasting licence to carry on a national English-language programming undertaking (Specialty Television Service). The new service will be known as Canadian Learning Television (CLT).
This service will be available via satellite to all broadcasting distribution undertakings across the country. In the case of those distribution undertakings that are subject to the Commission's distribution and linkage requirements, it will be available on a modified dual status basis, as explained in Public Notice CRTC 1996-120, which introduces this and other decisions released today, and in accordance with the provisions set out in the distribution and linkage public notice also issued today (Public Notice CRTC 1996-121). As proposed by the licensee, and by condition of licence, the authorized maximum monthly wholesale rate shall be $0.15 per subscriber, in cases where CLT is distributed as part of the basic service.
The Commission will issue a licence expiring 31 August 2003, subject to the conditions specified in the appendix to this decision and in the licence to be issued.
In Public Notice CRTC 1996-120, the Commission outlined a licensing approach that grouped English-language services into two categories. The Access Rules will apply to the second group of services, to which CLT belongs, at the earliest of the following: the deployment of digital technology by the distributor, or 1 September 1999. The service of this programming undertaking must, by condition of licence, be in operation within 36 months of the date of this decision unless the service provider, prior to the expiry of this period, applies for and receives an extension of time within which to commence operations.
Ownership
CLT will be controlled by CHUM Limited (CHUM), which will hold 60% of the voting interest in the licensee. CHUM is the licensee of several radio and television undertakings across Canada, as well as the specialty services Bravo! and MuchMusic. In addition, CHUM owns the Atlantic Satellite Network, a satellite-to-cable programming undertaking, and is a co-owner of MusiquePlus, a French-language specialty television service. The licensee is associated with ACCESS Alberta (the educational broadcaster serving Alberta), through common ownership. Other shareholders in the licensee are Moses Znaimer through Olympus Management Limited (20%), 1006228 Ontario Inc. (16%) and Jay Switzer (4%).
Under the terms of a memorandum of understanding between Canadian Learning and BBC Worldwide Americas, Inc. (BBC Worldwide), BBC Worldwide will acquire a 15% voting equity in the licensee. The effect will be to reduce the equity shareholding of CHUM to 51%, and to equally reduce that of the other shareholders. Effective control of the licensee will remain with CHUM.
Programming
Nature of Service
The licensee made a commitment to provide formal and informal educational programs on a wide range of topics. All programs will be drawn from category 5(a) (Education - Formal), 5(b) (Education - Informal) and 2 (Analysis and Interpretation), as set out in Schedule I of the Specialty Television Regulations, 1990. A minimum of 55% of all programs during the broadcast day will be drawn from category 5(a) (Education - Formal). The licensee will adhere to these commitments by condition of licence.
Programming on the new service will generally focus on adult education. The Commission notes the licensee's statement that it will broadcast "a full spectrum of basic, credit-based, skills-related and life-enhancing programs, in cooperation with colleges, universities and training institutions throughout the country". The Commission also notes the licensee's statement at the hearing that "we are very much committed to regional partnerships with universities, colleges, independent producers".
In addition to accredited courses, CLT will provide courses in basic adult education such as math and literacy skills; programs providing job skills and professional development; and "enhancement programming", designed to interest and engage the viewer and contribute to a "learning culture". Programming blocks of two to five hours will be repeated at intervals over the course of each day, and throughout the broadcast week.
The licensee also plans to broadcast a daily two-hour block of programming to be acquired from the BBC and to repeat that block twice during each twenty-four hour period. The BBC programming will include both accredited courses and enhancement programming.
The licensee made a commitment that any programming shared between itself and ACCESS TV will not be scheduled at the same time on CLT and ACCESS TV. The Commission also expects the licensee to adhere to its commitment that no more than 20% of the programs broadcast on CLT will also be broadcast by ACCESS TV.
Canadian Content
In its written application, the licensee set out its plans to devote 60% of the broadcast day and 50% of the evening broadcast period to Canadian programs. These commitments will be adhered to by condition of licence.
Canadian Programming Expenditures
Consistent with the approach outlined by the Commission in Public Notice CRTC 1996-120 with respect to requirements for Canadian programming expenditures, and as discussed with the licensee at the hearing, it is a condition of licence that the
licensee shall expend on Canadian programs, in the broadcast year following the first year of operation, and in each subsequent broadcast year, a minimum of 36% of the previous year's gross revenues derived from the operation of the service. Some flexibility in the accounting of these expenditures is provided for in the conditions of licence attached to this decision.
The Commission notes the licensee's commitments that it will produce or co-produce a total of 920 hours of original programming with the independent production community, and that it will spend a total of $3.7 million on program acquisition, both commitments to be fulfilled over the seven-year licence term.
Advertising
Consistent with the licensee's commitments, it is a condition of licence that all paid advertising material distributed on CLT shall be national advertising, and shall be restricted to 8 minutes per hour, with some flexibility for the placement of advertising material in longer programs.
Interventions
Both Radio-Québec (R-Q) and the Saskatchewan Communications Network (SCN) filed interventions to this application, alleging that the Commission cannot license an educational programming undertaking without first obtaining the express approval of the designated provincial authorities in the provinces in which the educational programming undertaking would operate.
R-Q and the SCN argued that since education is a matter under provincial jurisdiction and broadcasting is a matter under federal jurisdiction, over the course of the last 25 years a compromise has developed between the federal and provincial authorities which requires an educational programming undertaking to have its programming content declared "of educational value" by the appropriate provincial authority prior to the licensing of the undertaking by the Commission. To omit provincial designation or approval would create, according to the interveners, a dangerous and legally questionable precedent.
In response, the licensee stated that the Commission's authority to issue broadcasting licences is neither prescribed nor limited in terms of the specific type of programming the applicant intends to make available. The licensee argued that neither the Broadcasting Act nor the Direction to the CRTC (Ineligibility to Hold Broadcasting Licences), Order-in-Council P.C. 1985-2108 (the Direction), suggests that only public educational broadcasting undertakings may be licensed.
The licensee also noted that its programming is not aimed at the kindergarten to grade 12 curriculum which is established by provincial educational ministries. Rather, the service will deal with life-long learning skills for adults provided by post-secondary or vocational and training institutions, which are each responsible for establishing their own courses. The licensee stated that these institutions are often involved in distance learning through other means of communications. Further, the licensee noted that its scope of operations, language of communications and the amount of formal educational programming for adult learners make its programming service far different from what is offered by R-Q.
The Commission agrees with the licensee that there is nothing in the Broadcasting Act which would limit its jurisdiction with regard to the licensing of educational programming undertakings, and that the Direction does not require the Commission to license only public educational programming undertakings. Rather, the Direction allows the Commission to license, in limited circumstances, a broadcasting undertaking controlled indirectly by a province or municipality, which might otherwise not be eligible for licensing. The Commission clearly has the constitutional and statutory jurisdiction to regulate broadcasting undertakings, regardless of the content of their broadcasting signals, even if such regulation incidentally involves a matter within provincial jurisdiction, such as education.
Other Matters
Employment Equity
In Public Notice CRTC 1992-59 dated 1 September 1992 and entitled "Imple-mentation of an Employment Equity Policy", the Commission announced that the employment equity practices of broadcasters would be subject to examination by the Commission. The licensee indicated that it was in the process of developing a policy in this regard. The Commission notes the licensee's statement that "CLT expects to be a leader within the broadcasting industry with respect to the on-air portrayal of women, aboriginal peoples, disabled persons and visible minorities". The Commission expects the licensee to complete and implement a plan in this regard by the time the service begins operation. The Commission encourages the licensee to implement these plans and will review its performance in implementing its Employment Equity practices at the time of licence renewal.
Closed Captioning
Consistent with its policy approach for closed captioning announced in Public Notice CRTC 1996-120, the Commission requires the licensee to close caption not less than 90% of all programming during the broadcast day, by the end of the licence term.
Conclusion
In approving this application, the Commission is mindful that the focus on jobs and training to be provided by CLT is especially relevant in the current economic environment. The Commission is satisfied that the high level of accredited programs targeted primarily to adults which will be broadcast on Canadian Learning Television will provide a unique Canadian national educational service.
The Commission acknowledges and has considered the interventions submitted with respect to this application.
This decision is to be appended to the licence.
Allan J. Darling
Secretary General
APPENDIX/ANNEXE
Conditions of licence for Canadian Learning Television (CLT)
1. (a) The licensee shall provide a national English-language specialty service consisting exclusively of programs drawn from Category 2 (Analysis and interpretation), Category 5(a) (Education- formal), and Category 5(b) (Education - Informal), as set out in item 6 of Schedule I of the Specialty Services Regulations, 1990.
(b) Not less than 55% of the programs during the broadcast day shall be drawn from Category 5(a) (Education- Formal), as set out in item 6 of Schedule I of the Specialty Services Regulations, 1990.
2. The licensee shall devote to the distribution of Canadian programs not less than 60% of the broadcast year, and not less than 50% of the evening broadcast period.
3. In accordance with the Commission's position on Canadian programming expenditures as set out in Public Notices CRTC 1992-28, 1993-93 and 1993-174:
(a) In the broadcast year following the first year of operation, and in each subsequent broadcast year, the licensee shall expend on Canadian programs not less than 36% of the previous broadcast year's gross revenues derived from the operation of this service.
(b) In the broadcast year following the first year of operation, and in each subsequent broadcast year, excluding the final year, the licensee may expend an amount on Canadian programs that is up to five percent (5%) less than the minimum required expenditure for that year calculated in accordance with this condition; in such case, the licensee shall expend in the next broadcast year of the licence term, in addition to the minimum required expenditure for that year, the full amount of the previous year's underexpenditure.
(c) In the broadcast year following the first year of operation, and in each subsequent broadcast year where the licensee expends an amount on Canadian programs that is greater than the minimum required expenditure for that year calculated in accordance with this condition, the licensee may deduct:
(i) from the minimum required expenditure for the next broadcast year of the licence term, an amount not exceeding the amount of the previous broadcast year's overexpenditure; and
(ii) from the minimum required expenditure for any subsequent broadcast year of the licence term, an amount not exceeding the difference between the overexpenditure and any amount deducted under (i) above;
(d) Notwithstanding the above, during the licence term, the licensee shall expend on Canadian programs, at a minimum, the total of the minimum required expenditures calculated in accordance with the licensee's condition of licence.
4. (a) Subject to subsections (b) and (d), the licensee shall not distribute more than eight (8) minutes of advertising material during each clock hour.
(b) In addition to the eight minutes of advertising material referred to in subsection (a) the licensee may distribute during each clock hour, a maximum of 30 seconds of additional advertising material that consists of unpaid public service announcements.
(c) The licensee shall not distribute any paid advertising material other than national paid advertising.
(d) Where a program occupies time in two or more consecutive clock hours, the licensee may exceed the maximum number of minutes of advertising material allowed in those clock hours if the average number of minutes of advertising material in the clock hours occupied by the program does not exceed the maximum number of minutes that would otherwise be allowed per clock hour.
5. From the date of commencement of service, the licensee shall charge each exhibitor of this service a maximum monthly wholesale rate of $0.15 per subscriber, where the service is carried as part of the basic service.
6. The licensee may require access to distribution undertakings in accordance with the Access Rules contained in Public Notice CRTC 1996-60 at the earliest of the following:
(a) at such time as the distribution undertaking makes use of digital technology for the delivery of programming to subscribers; or
(b) 1 September 1999.
7. This undertaking shall be in operation within thirty-six (36) months of the date of this decision, or, where the licensee 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.
8. The licensee shall adhere to the guidelines on gender portrayal set out in the Canadian Association of Broadcasters' (CAB's) "Sex-Role Portrayal Code for Television and Radio Programming", as amended from time to time and approved by the Commission.
9. The licensee shall adhere to the provisions of the "Broadcast Code for Advertising to Children", published by the CAB, as amended from time to time and approved by the Commission.
10. The licensee shall adhere to the guidelines on the depiction of violence in television programming set out in the CAB's "Voluntary Code Regarding Violence in Television Programming", as amended from time to time and approved by the Commission.
For the purpose of these conditions of licence, the terms "broadcast day", "broadcast year", "evening broadcast period" and "clock hour" shall have the same meaning as those set out in the Television Broadcasting Regulations, 1987; "first year of operation" shall mean the first broadcast year in which the licensee is in operation for a period exceeding 90 days, excluding any free trial period; and "paid national advertising" shall mean advertising material as defined in the Specialty Services Regulations, 1990 and that is purchased at a national rate and receives national distribution on the service.
Dissent of Commissioner Claude Sylvestre
In granting a licence to Canadian Learning Television for a national educational television service, the CRTC is undoubtedly asserting its jurisdiction over broadcasting. However, CLT did not obtain the support of certain provincial authorities responsible for education, in particular those of Saskatchewan and Québec.
A specialty television educational programming service is most certainly a major asset for the Canadian broadcasting system. Further, the team submitting this application is unquestionably first rate and consists of highly competent partners. It is unfortunate, however, that insufficient account was taken by the Commission of provincial jurisdiction in the field of education. Although a significant number of universities and colleges support the project, it lacks the support of several departments of education. The Commission is weakening the compromise between two jurisdictions, education and broadcasting, that has usually guided the lawmaker and the regulator since 1929 (the Aird Commission) until now. I therefore register my dissent from this licence to CLT.
Dissent of Commissioner Andrée Wylie
Commissioner Andrée Wylie dissents from this and from all of the other decisions issued today in respect of applications for licences to carry on new English-language specialty television programming undertakings whose services fall within the second category, namely those to whom the Access Rules will apply at the earliest of the following: the deployment of digital technology by the distributor, or 1 September 1999. The rationale underlying the Commissioner's dissent is presented at the conclusion of Public Notice CRTC 1996-120.