ARCHIVED -  Decision CRTC 97-387

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Ottawa, 8 August 1997
Decision CRTC 97-387
1019415 Ontario Inc., doing business under the style of "R.B. Communications"
Welland, Ontario - 199613344
Conversion of CHOW Welland from AM to FM - Approved
1. Following a Public Hearing in Toronto beginning on 14 April 1997, the Commission approves the application by 1019415 Ontario Inc., doing business under the style of "R.B. Communications" (RBC), for a broadcasting licence to carry on an English-language FM radio programming undertaking at Welland, on the frequency 91.7 MHz, channel 219B, with an effective radiated power of 27,420 watts. The new station will replace the licensee's existing AM undertaking, CHOW Welland. Subject to the requirements of this decision, the Commission will issue a licence expiring 31 August 2003. The new FM licence will be subject to the conditions specified in this decision and in the licence to be issued.
2. This authority will only be effective and the licence will only be issued at such time as the construction of the transmitter is completed and it is prepared to commence operation. If the construction is not completed within twelve months of the date of this decision or, where the applicant applies to the Commission within this period and satisfies the Commission that it cannot complete construction and commence operation before the expiry of this period, and that an extension of time is in the public interest, within such further periods of time as are approved in writing by the Commission, the licence will not be issued. The applicant is required to advise the Commission (before the expiry of the twelve-month period or any extension thereof) in writing, once it has completed construction and is prepared to commence operation.
3. RBC is licensee of the stand-alone AM station CHOW Welland. In operation since 1957, CHOW is one of Ontario's oldest, full-time country music stations. The applicant proposes to continue operating in the country format following conversion of CHOW to the FM band. As proposed by the applicant, it is a condition of licence that the new FM station not be operated within the Specialty format as defined in Public Notice CRTC 1995-60 or as amended from time to time by the Commission.
4. It is a further requirement that the applicant surrender the current CHOW licence once the new FM station commences operations.
Purpose of the application
5. The proposed move to the FM band is intended to reverse a decline in audience and revenues experienced by the station in recent years. The licensee acknowledged that this decline is due in part to technical problems associated with the existing CHOW service on the assigned frequency of 1470 kHz. As a principal factor, it cited a technical regulation of the Department of Industry which requires the station to change its antenna radiation pattern daily at sunset, thus resulting in a reduction in coverage. According to the licensee, this technical constraint prevents it from providing a consistent signal throughout the station's mandated service area of Niagara South which, in turn, has brought about a loss of listeners to out-of-market country music stations whose signals "spill" into the Welland area, most notably that of WYRK-FM Buffalo, New York. The licensee also stated that its problems are attributable in part to a levelling-off of interest in country music radio audiences in North America, and to the growing preference that radio listeners have shown for FM over AM in most markets.
6. The Commission received a large number of interventions to this application. Most of these took the form of letters and petitions in support of RBC's proposal. Four interveners, however, appeared at the hearing to oppose the application. These included 788813 Ontario Inc., licensee of CFLZ-FM Niagara Falls. CFLZ-FM is a low-power, unprotected undertaking that is authorized to provide a non-commercial service consisting solely of pre-recorded tourist information for visitors to Niagara Falls. CFLZ-FM operates on channel 220, the continued use of which would be technically incompatible with the proposed use by the applicant of channel 219. As noted in Decision CRTC 97-35, which last renewed the CFLZ- FM licence, the Department of Industry had advised at that time that renewal of the station's Broadcasting Certificate would only be valid for as long as channel 219 at St. Catharines remained unassigned.
7. Also opposed to the application are CJRN 710 Inc. (CJRN), licensee of commercial stations CJRN Niagara Falls and CKEY-FM Fort Erie/Niagara Falls, and Coultis Broadcasting Limited (Coultis), licensee of CHSC St. Catharines. Among other things, these interveners are concerned that the proposed FM station will create increased competition for audience and advertising revenues among local stations in a fragile radio market.
8. The Coopérative Radiophonique de Toronto (the Coopérative) submitted the fourth opposing intervention. This intervener stated that the FM frequency RBC proposes to use at Welland is identified in the long range plan of the Canadian Broadcasting Corporation (CBC) for use in providing a French-language radio service to the region. It argued that the frequency should be retained for this purpose. As mentioned during the hearing, the Coopérative was one of two applicants who, over the course of the last two years, have submitted proposals predicated on the use of 91.7 MHz, one at St. Catharines and the other at Toronto. Both of these applications were found to be incomplete by the Commission and were therefore returned to the applicants.
9. CJRN and Coultis also noted that the CBC's long range plan contemplated eventual use of the 91.7 MHz frequency in the Niagara Region. The interveners indicated that it had been their assumption that this fact effectively ruled out use of the frequency by anyone other than the CBC. The interveners argued that the Commission should have issued a call for applications from other parties interested in making use of this frequency following receipt of the proposal by RBC. It was also alleged that the technical parameters of the proposed FM undertaking represent inefficient use of the frequency, and that RBC had not given adequate consideration to other potential solutions.
10. In responding to the interveners' arguments at the hearing, the applicant noted the following:
[The CBC long range plan] is not a reservation plan, per se... The CBC did not request and was not granted a reservation...anywhere in the country for the channels it has identified in the plan. So private broadcasters are at liberty to apply on channels that the CBC has identified and presumably the Corporation, if it sees fit, would make its comments known.
11. The Commission notes in this regard that the CBC chose not to intervene against RBC's application.
12. The Commission has also considered the interveners' argument that the Commission should have issued a call for applications from other interested parties. Although the Commission did weigh this option prior to scheduling RBC's application to the 14 April Public Hearing, it notes that to issue a call is not a requirement under the Broadcasting Act. This fact was emphasized by the Commission in both Public Notice CRTC 1990-112 and Public Notice CRTC 1991-74 entitled Radio Market Criteria and Radio Market Policy, respectively. In the Commission's view, its determination not to issue a call is justified, based on the weakness of the local radio market and the fact that RBC's proposal would bring about no net increase in the number of commercial radio voices to exacerbate this situation. Rather, it would simply result in the movement of an existing commercial AM station to the FM band, with no change in music format. Moreover, none of the interveners challenged the applicant's assertion that there had been two well-publicized applications seeking use of the frequency 91.7 MHz that had been filed with the Commission in recent years, and that these events, occurring prior to the filing of RBC's application, effectively established the potential availability of the frequency to any interested applicant.
13. The Commission is satisfied that approval of this application will have no undue impact on existing licensees in the market, but will enable the licensee to better serve residents in southern portions of the Niagara Region, many of whom are unable to receive CHOW's AM signal due to technical restrictions on AM transmission in the market. The Commission also considers that the proposed FM service will allow RBC to repatriate some audience now lost to out-of-market country music stations, notably WYRK-FM Buffalo.
14. As for the interveners' arguments that RBC's proposal would represent inefficient use of the radio spectrum and that the applicant had not given sufficient consideration to other possible remedies, based on the facts before the Commision, including the constraints of geography and the need to protect existing frequency-related assignments, it is satisfied that RBC's proposal constitutes effective use of the 91.7 MHz frequency.
15. Moreover, the applicant pointed out at the hearing that it had given due consideration to other technical solutions, but concluded that there were no other AM frequencies available that would be suitable for its use and that the cost of establishing a number of low-power FM transmitters to remedy the coverage problems would be prohibitive.
16. The Commission notes in this regard that the Department of Industry has confirmed that the application is technically acceptable. The Department of Industry has advised, however, 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.
17. Therefore, and in accordance with subsection 22(1) of the Broadcasting Act, the Commission will only issue the licence, and the authority will only be granted, at such time as written notification is received from the Department that its technical requirements have been met, and that a Broadcasting Certificate will be issued.
18. As requested by RBC, the licensee is relieved, by condition of licence, from the requirement of section 10.1 of the Radio Regulations, 1986 that it own and operate its transmitter. The Commission expects the applicant to retain, at all times, full control of its undertaking, including control of its programming transmission and scheduling.
Other matters
19. The Commission reaffirms the particular importance it attaches to the development of Canadian talent and is satisfied with the annual budgets and the initiatives proposed by the licensee in this respect. It encourages the licensee, during the new licence term, to continue its efforts towards the support, development and on-air exposure of local and regional talent.
20. It is a condition of licence that the licensee adhere to the guidelines on gender portrayal set out in the Canadian Association of Broadcaster's (CAB) Sex-Role Portrayal Code for Television and Radio Programming, as amended from time to time and accepted by the Commission. The application of the foregoing condition of licence will be suspended as long as the licensee remains a member in good standing of the Canadian Broadcast Standards Council.
21. It is also 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 accepted by the Commission.
22. 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. In this regard, the Commission encourages the licensee to consider employment equity issues in its hiring practices and in all other aspects of its management of human resources.
This decision is to be appended to the licence.
Laura M. Talbot-Allan
Secretary General
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