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Decision CRTC 2000-72

Ottawa, 1 March 2000
The Ontario Educational Communications Authority (TVOntario)
Toronto, Ontario – 199902185
Application processed by
Public Notice CRTC 1999-173
dated 22 October 1999
Summary
The Commission, by majority vote, denies the application by The Ontario Educational Communications Authority (TVOntario) relating to carriage in the province of Quebec of its French-language educational television service known as TFO. Specifically, the applicant had requested that all Class 1 cable systems and MDS distribution undertakings serving Quebec be required, on a mandatory basis, to distribute TFO on a discretionary analog tier for a fee.
The issue in this proceeding was whether the Commission should make it mandatory under section 9(1)(h) of the Broadcasting Act (the Act) for distributors to carry TFO in Quebec for a fee to subscribers. The Commission is of the view that it would not be appropriate to approve TFO’s application. It considers that viewers in Quebec, who already receive the educational service Télé-Québec, should not be obliged to pay for a second educational service that originates in another province. The application also raises concerns about fair competition between services.
The Commission acknowledges the many interventions that praised TFO’s programming. Since TFO is on the Commission's lists of eligible satellite services, any cable system in Quebec, as well as in other parts of Canada, may distribute TFO to its subscribers on a discretionary basis without seeking the Commission's prior approval. The Commission notes that the direct-to-home (DTH) services ExpressVu and Star Choice now carry TFO on their feeds that serve Quebec. The multipoint distribution system (MDS) operated by Look Communications Inc. that serves parts of Quebec is also authorized to distribute TFO on a discretionary basis. Therefore, subscribers in Quebec may have access to TFO if they subscribe to a BDU that has chosen to carry the service.
The applicant

1. The Ontario Educational Communications Authority (TVOntario) is the educational broadcaster designated by the Government of the Province of Ontario under the Direction to the CRTC (Ineligiblity to Hold Broadcasting Licences). It provides both a French-language and an English-language television service. The French-language service is known as TFO.

2. Most of TVOntario’s funds come from the Government of Ontario. It also generates revenues on its own through program sales, membership subscriptions, corporate project underwriting and leasing satellite channel space.

3. Class 1 and Class 2 distribution undertakings in Ontario distribute TFO as part of their basic service, as required by the Broadcasting Distribution Regulations (the regulations).

The application

4. TVOntario proposed that the Commission require Class 1 broadcasting distribution undertakings located in Quebec to distribute TFO on a mandatory basis. The service would be carried on a discretionary analog tier.

5. Further, the applicant sought to collect a fee from the subscribers of the distribution undertakings that would be required to carry TFO in Quebec. In the financial forecasts that it submitted, TVOntario assumed a monthly wholesale rate for carriage of TFO of $0.24 per subscriber for the Vidéotron systems and $0.26 per subscriber for the Cogeco systems. Thus, a subscriber to a given discretionary analog tier would face a rate increase.

6. In support of its application, TVOntario stated that the revenue derived from mandatory distribution of TFO in Quebec would compensate for the increased cost of acquiring national programming rights. It explained that, since the arrival of DTH distribution in 1996 and 1997, as well as the arrival of new specialty programming services, French-language services have purchased national rights for programs. The applicant stated that this has increased the cost of obtaining programming for TFO.
7. TVOntario also argued that francophones in Quebec should have access to a maximum number of French-language television services. It noted that TFO is the only French-language service that Class 1 distributors in Quebec are not required to distribute under the Commission’s access rules.
8. Further, the applicant noted that TFO offers a programming schedule based on educational and cultural programming with high levels of programming for children. It considered that widespread carriage of TFO in Quebec would increase the choice and diversity of programming available to viewers.
9. The applicant also argued that carriage of TFO would contribute to an increased understanding between Quebec residents and francophones living outside Quebec, since residents of Quebec would be exposed to the views and cultural activities of francophones living in Ontario.
Interventions
10. The Commission received many interventions relating to TVOntario’s application. There were 1,563 supporting interventions, less than 1% of which addressed the fee that subscribers would pay. Further, 58% of the supporting interventions came from Quebec and twelve interveners opposed the application.

11. The reasons given for supporting the application generally related to the excellence of TFO’s programming. The interveners considered that TFO’s high quality non-commercial children’s, educational and cultural programming, as well as the feature films that it broadcasts, would add to the diversity and overall quality of programming available in Quebec. Some also noted that widespread carriage of TFO would provide Quebec residents an opportunity to see programming that reflects another of Canada’s francophone cultures.
12. The interveners that opposed TVOntario’s application included, among others, associations representing the broadcasting, cable, specialty service and production industries, as well as Action Réseau Consommateur, a consumers’ organization. These interveners were specifically opposed to the applicant’s proposal to charge customers for receiving TFO. In fact, five of the opposing interveners indicated that they would support TFO’s presence in Quebec if it were made available without a fee and under an arrangement that would not give TFO preferential treatment over other programming services.
13. One concern raised was the impact that implementation of TVOntario’s proposal would have on the affordability of cable service. Action Réseau Consommateur noted that the ability of a significant percentage of the population to pay for television services is limited. Yet, for many lower income people who cannot receive a variety of television services over the air, subscription to cable is their only source of entertainment. It therefore considered that the Commission should not take action to further increase the fees that subscribers must pay.
14. Some interveners considered that TVOntario’s application would fundamentally change the nature of TFO’s service from that of an educational broadcaster to that of a specialty service. They considered that such a change should not occur outside a competitive process, and without requiring TFO to fulfil the same commitments that are required of specialty services. They further noted that, under a system of mandatory carriage for a fee, TFO would have an unfair advantage over other specialty services since it receives direct funding from the Government of Ontario.
15. Some interveners also considered that approving the application would discriminate against other educational broadcasters in Canada since none of them are guaranteed distribution outside of their home province.
16. Finally, some interveners expressed concern about using section 9(1)(h) of the Act in this circumstance. They noted that the Commission has previously used this section only twice to facilitate national distribution for the TVA network and for the Aboriginal People’s Television Network (APTN).
The Commission’s decision
17. The issue in this proceeding is whether the Commission should make it mandatory, under Section 9(1)(h) of the Act, for distributors to carry TFO in Quebec for a fee to subscribers.
18. The Commission acknowledges the views of the many interveners who commended the excellent programming broadcast by TFO. It agrees that the educational and cultural programming, as well as the extensive children’s programming offered by TFO, serve to expand the quality and diversity of French-language programming in Canada.
19. However, after carefully considering the views of all parties as well as the policy objectives set out in the Act, a majority of the Commission is of the view that it is not in the public interest to approve this application. As stated in Decision CRTC 97-573, approving an application by TFO to collect a fee for its service in New Brunswick on an exceptional basis, "It is not the Commission’s policy to authorize wholesale fees for basic carriage or fees for discretionary carriage of conventional broadcasting services or provincial educational services."
20. The Commission notes that TFO is an over-the-air educational broadcaster originating in Ontario. Pursuant to section 17(1)(b) of the regulations, cable distribution undertakings in Quebec are not required to distribute TFO as a priority signal service since it is not an educational television programming service the operation of which is the responsibility of an educational authority designated by the province in which the licensed area of the undertakings are located.
21. Moreover, the Commission does not consider that it would be appropriate to require subscribers in Quebec to pay for TFO, which is the French-language educational broadcasting service operated by Ontario's provincial educational broadcaster, when they already support Télé-Québec, Quebec’s own educational broadcaster, through their taxes. The Commission remains concerned that cable service, as well as service from MDS systems, remains affordable.

22. Further, the Commission is concerned that granting TFO mandatory carriage for a fee in Quebec would afford it a competitive advantage over the existing educational broadcasting service in the Province of Quebec. Under such a scenario, TFO would have the added benefit of receiving revenues from the subscribers of distribution systems while continuing to receive funding from the Government of Ontario. By contrast, the Quebec educational broadcaster could only draw on two principal sources of funding: public funding and advertising revenue.

23. As noted earlier, TFO is currently carried in the Province of New Brunswick by Fundy Cable Ltd./ltée (Fundy). In Decision CRTC 97-573, the Commission authorized TVOntario to collect $0.13 per subscriber per month from the Fundy systems that distribute TFO as part of their basic service in New Brunswick. This fee was granted to permit TVOntario to recover the costs related to licence fees for the Atlantic region and copyright fees in respect of TFO productions.
24. The Commission notes, however, that distribution of TFO in New Brunswick was achieved under particular circumstances that did not require an order for mandatory carriage under Section 9 (1)(h) of the Act. New Brunswick has no provincial educational broadcaster, while Quebec is served by Télé-Québec. The Commission notes that distribution of TFO in New Brunswick for a wholesale rate of $0.13 per subscriber per month was supported by the provincial government and by the principal terrestrial distributor.
25. The Commission, however, supports the distribution of TFO in Quebec and across Canada on a non-mandatory basis. It notes that TFO is included on the Part 2 and Part 3 lists of eligible satellite services set out in Public Notice CRTC 2000-7. Any Class 1 or Class 2 cable system in Quebec, and elsewhere in Canada, may therefore distribute TFO to its subscribers on a discretionary basis without seeking the Commission's prior approval. Class 3 cable systems outside Ontario may distribute TFO on either their basic service or on a discretionary basis provided that TFO does not object.
26. The Commission notes that the DTH services ExpressVu and Star Choice now carry TFO as a discretionary service on their feeds that serve Quebec. The MDS system operated by Look Communications Inc. that serves parts of Quebec is also authorized to distribute TFO on a discretionary basis. Therefore, subscribers in Quebec may have access to TFO if they subscribe to a BDU that has chosen to carry the service.
27. In conclusion, the Commission, by majority vote, denies the application.
Related CRTC document

• Decision CRTC 97-573: Carriage of TFO by Fundy Cable Ltd./ltée

Secretary General

This decision is available in alternative format upon request, and may also be viewed at the following Internet site:
www.crtc.gc.ca

 

Dissenting opinion by Commissioner
Stuart Langford
I disagree with the majority decision in this matter. To deny this application is neither in the public interest nor reflective of the spirit and clear intent underlying long-established Canadian broadcasting policy.
This application provided the Commission with a rare opportunity to give life and real meaning to some of the key provisions of the Broadcasting Act (the Act), the statutory driving force behind broadcasting policy in this country. By saying no to increased TFO cable distribution in Quebec, the majority has let that opportunity slip through its hands. Culturally, Canada is much the poorer for it.
The application:
TFO did not apply for an order requiring Class 1 cable broadcasting distribution undertakings (BDUs) located in Quebec to distribute its French-language educational television programming service as part of their basic packages, though in my view a strong case could be made for granting such a request. Its application sought relief of a far more limited kind.
Because TFO is having great difficulty persuading Quebec's major cable distributors to offer its service on acceptable terms, it sought Commission assistance. Its goal was to see its programming service offered to subscribers as part of a discretionary analog tier in the same way as French-language specialty services are carried in Quebec. Subscribers would then be free either to order and pay for the tier containing TFO or to spend their consumer dollars elsewhere. No viewers would have the service foisted upon them against their will.
To reject such an application as the majority has, is to break faith with Parliament's clear intention to create a broadcasting system, "¼ operating primarily in the English and French languages¼ ", and providing, "¼ through its programming, a public service essential to the maintenance and enhancement of national identity and cultural sovereignty."(section 3(1)(b) of the Act)
The Canadian way:
The term "a public service" contained in the quotation above was not accidentally chosen when parliamentarians amended the Act in 1991. It was carefully selected. The identification of public service as a basic element of Canada's broadcasting system was made in the Report of the Task Force on Broadcasting Policy (1986) that preceeded the passing of the new Act. The drafters of that report found a rationale for doing so in section 36 of the Constitution Act of 1982. That section, introduced by the sub-title Commitment to promote equal opportunities, pledges Canadian governments both provincial and federal to "providing essential public services of reasonable quality to all Canadians."
In attempting to meet the "equal opportunities" aspect of this public service mandate, the Commission has long-struggled with the challenge of providing a level of television broadcasting services to French-language viewers in Quebec and elsewhere which is similar to that available to English-language viewers in Canada. An accurate appreciation for the daunting nature of this challenge is set out in the following passage taken from remarks made by the Commission's Vice-Chair of Broadcasting to the House of Commons Standing Committee on Industry on December 2, 1999:
"¼ the French-language market presents unique challenges. One of the main characteristics of the French market is its relatively small size in relation to the English market. While there are approximately 6.6 million subscribers in the English-language market, the number of potential subscribers in the French-language market is only about 2 million. Another characteristic of the French market is the level of cable market penetration, which is on average 10% less than in the English market. Among the reasons for this discrepancy is the fact that fewer French-language services are available as compared to English-language services. Rates and costs for services are also generally higher on the French side because the market is smaller. The size of the market thus creates economic challenges for programming undertakings in terms of both advertising and subscriber revenues for the creation of quality programming content relevant to Canadians."
As the above statement clearly demonstrates, limited market size and Quebec's below average cable penetration rates make the business case for launching French-language services in Canada less than appealing. Still, Parliament in section 3(1)k of the Act urges the Commission which is charged with administering the Act and facilitating its goals to do just that: "a range of broadcasting service in English and French shall be extended to all Canadians as resources become available." (emphasis added)
In struggling to meet this element of its public service mandate, the Commission has turned its attention time and again to defining and meeting the goal of providing more French-language programming to French-language viewers. What follows is a small sampling of recent Commission statements on this theme:
Public Notice CRTC 1998-46, Public Hearing for New French-language Specialty Services (May 8, 1998)
"The Commission is of the opinion that French-language services aimed at Francophone subscribers should have priority over licensed English-language specialty services in French-language markets" (paragraph 5)
Public Notice CRTC 1999-187 Report on the establishment of a national French-language arts service (November 19, 1999)
"On 6 August 1999, His Excellency the Governor General in Council requested the CRTC to report as soon as possible, and not later than autumn 1999, on the earliest possible establishment of a national French-language arts television service that would reflect the unique character of Quebec culture and the needs and circumstances of French-language communities in other parts of Canada (Order in Council P.C. 1999-1454)." (paragraph 1)
"After carefully analysing the interventions received, the Commission considers that the establishment across Canada of a French-language arts television service that reflects the uniqueness of Quebec culture and the needs and circumstances of French-language communities in other parts of Canada could, if certain conditions were fulfilled, make a significant contribution to achieving the objectives of the Broadcasting Act." (paragraph 22)
"In particular, it could contribute to the enrichment and diversification of the high-quality French-language cultural programming provided by the Canadian broadcasting system, and could create new opportunities and revenue sources for Canadian producers, creators and artists." (paragraph 23)
Public Notice CRTC 1999-89, Licensing of new French-language specialty television undertakings - introductory statement (May 21, 1999):
"Since its approval of the first specialty services in 1984, the Commission has sought to achieve a reasonable balance in the supply of French-language and English-language specialty services to the Canadian public." (paragraph 4)
"The Commission also saw an opportunity to correct the imbalance that exists in the supply of French-language specialty services by expanding the range of services now available." (paragraph 8)
"Over the years, Francophones have clearly demonstrated their preference for programs in their language. Year after year, French-language television programs have held the top places in viewer surveys." (paragraph 14)
With the Act and Commission policy so supportive of initiatives to equalize opportunities for French- and English-language viewers, the majority's refusal to grant TFO's application is perplexing. Certainly, section 9(1)(h) of the Act provides the Commission with the tools it requires to do so. The fact that it has not made precisely such an order before is hardly a stumbling block. The old cliché about "always a first time" speaks volumes and the Commission has used the 9(1)(h) power twice in the recent past to similar effect, to order the mandatory national carriage of TVA and APTN, the latter as part of the basic service at a cost to subscribers of $0.15 per month.
Grass roots support:
Though sound regulatory practices often conflict with winning strategies in popularity contests, this application was notable in the sense that public sentiment lined up squarely with legislated direction and established Commission policy. No fewer than 1563 interventions form part of the record of this application. Only 12 opposing interventions were made; the remaining 1551, in excess of 99% of all interventions, were made in support of TFO's request.
Of the dozen opposing interventions, only one came from an individual, Mr. Rolland Saumure of Grenville, Quebec, who stated that he did not want to pay for TFO. Nine of the other 11 opposing interventions (a consumer group and Le Bloc québécois, like Mr. Saumure, objected to paying) were from industry stakeholders who in one way or another appear to view TFO's interests as in conflict with their own.
The people spoke with another voice. The hundreds of individuals who added their support to TFO's application noted the high quality of TFO's children's and educational programs and the appetite in Quebec for more cultural programming, indeed, for more French-language programming generally. Also notable was the submission of many that access to TFO would give Quebec viewers a rare opportunity to share programming about other francophone communities in Canada. TFO, given its unique status as the French-language educational broadcaster in both Ontario and New Brunswick, is uniquely positioned to fulfil such a role and thereby nurture the understanding and communications that are so necessary to cultural survival and enrichment. Those Quebecers who urged the Commission to require cable companies to carry TFO's programming were unconcerned that TFO is not a Quebec broadcaster. They sought more Canadian, French-language, educational and cultural programming. Source was not an issue.
Interestingly enough, the sort of expectations contained in many of the supportive interventions in this application were echoed by the Commission in its recent CBC French-language television licence renewal decision (Decision CRTC 2000-2). In paragraph 9 of that decision the Commission stated: "In the course of its discussion on the CBC's television service, the Commission noted that viewers attach more importance to a program's content than to the place where it was produced. For viewers, the important thing is watching programs that appeal to them. For the Commission, the important thing is for the CBC to fulfil its mandate by showcasing the cultural diversity of Quebec and Canada and by meeting the needs of Francophones and Francophile viewers across the country."
Paramount among those needs, the Commission noted in Decision CRTC 2000-2, were unfilled appetites for children's and cultural French-language programs. The Commission was so concerned about the declining number of hours dedicated to cultural and children's programming that it attached conditions to the renewed licence of SRC, the CBC's French-language television service, requiring it to increase the number of hours of music, dance, variety and children's programs in its schedule. Ironically and sadly, while the Commission finds itself with no option but to coerce Canada's national public broadcaster to dedicate more resources to culture and children, it almost simultaneously rejects TFO's application to enhance these same program niches in Quebec, the largest French-language television market in Canada.
One condition attached to SRC's licence requires it to broadcast "¼ at least 4 hours per broadcast week of original Canadian programming directed to children under the age of 12." TFO's program schedule reveals that had its application been approved, French-language viewers in Quebec who subscribe to cable would instantly have had available to them an additional 48.25 hours per week of children's and youth programming. That is more than ten times the number of extra hours demanded of SRC.
The additional number of cultural programming hours the mandatory distribution of TFO would make available to French-language viewers in Quebec was not broken down as an hourly count. As cultural programming is a key element of TFO's mandate, however, the increase would unquestionably be a significant and welcome supplement to existing levels. So neglected is this genre that Parliament intervened when in the most recent round of French-language specialty service licensing, the Commission did not license a cultural channel. The Commission was directed to re-examine this decision and, as a result of this re-examination, recently issued Public Notice 2000 -18, soliciting licence applications for a French-language arts service. Meanwhile, Quebecers must do without the benefits of TFO's cultural programming.
The case against:
The case for allowing TFO's application is easily stated. It affordably fulfils the public interest test set out in the Act and the long-recognized needs of French-language viewers as stated in numerous CRTC public pronouncements. Nonetheless, objections were raised and adjudged convincing by the majority in this matter. In my view, these objections are without merit.
As noted above, some intervenors indicated that they did not wish to pay for TFO. How much weight should be given to such an objection? Given a choice between receiving a service for free and at a cost, who would pay? Programming services carried on discretionary tiers are sold to subscribers, not given to them.
Some intervenors argued that TFO was seeking the benefits enjoyed by specialty services without ever applying for a specialty licence. Status is not the issue here. TFO is the only Canadian French-language programming service that is not widely distributed throughout Quebec. It cannot convince Quebec's two major cable companies to offer it to subscribers on reasonable terms. It has taken its case to the Commission under section 9(1)(h) which gives the Commission jurisdiction to rectify precisely this sort of carriage problem. The speciality status argument is a red herring.
Some intervenors had reservations about the unprecedented nature of TFO's application and wondered whether it might put other educational broadcasters in Canada at a disadvantage. The point of this objection is unclear. Precisely what harm this application might bring to educational broadcasters in provinces like Alberta or British Columbia, for example, is difficult to comprehend.
Still others, including Quebec's educational broadcaster, Télé-Québec, as well as some specialty service providers, raised the spectre of unfair competition. A comparative analysis of the schedules in question reveals that for the most part TFO's programs are complementary to those already available in Quebec not competitive with them. Even if there were a significant competitive impact, however, the result might well be positive in nature. The influence of a few broadcasters over private sector, entertainment, specialty television programming in Quebec is so profound in my opinion that the entrance of a competitor would be good for the market. As for Télé-Quebec, the entrance of a head-to-head competitor might induce the provincial government to restore funding so that its own educational broadcaster could better fulfil its mandate. That too would be a shot in the arm for French-language broadcasting.
Some intervenors questioned the use of the subscriber fee proposed by TFO rather than the fact of a fee. Suggestions were made that the money might be used to pay down the broadcaster's debt and thereby benefit the people of Ontario at Quebec's expense. The argument is specious in that the subscribers who agree to purchase TFO's service will be doing so freely because, presumably, they feel they will receive value for money. They want the product and are willing to pay for it. If willing purchaser and willing seller come to an agreement why should third parties concern themselves about that the seller may or may not do with the proceeds of the sale? To assuage the concerns of intervenors raising this point, however, TFO undertook to direct all revenues raised in Quebec to covering the increased costs of providing service to those viewers and to making or purchasing programs in Quebec.
It is true that TFO is already on the list of eligible satellite services and, therefore, already available for distribution in Quebec. To hold that fact up, as the majority does, as evidence that the Commission need do no more to facilitate the cause of those French-language viewers in Quebec who wish to have access to TFO is to rely on a technicality. Quebec's two major cable distributors do not carry TFO and attempts by TFO to negotiate an acceptable carriage agreement with them have gone nowhere.
As well, it is true that Quebec already has an educational broadcaster, Télé-Québec. It is equally true that Télé-Québec's very low market share figures (1.1% in 1997 and 1.3% in 1998, according to available statistics) reveal that few viewers in the province watch it. Should French-language viewers in Quebec who want the programming services TFO offers be penalized simply because they already have access to one educational broadcaster? Nothing in Canada's broadcasting law or policy dictates or even suggests such a conclusion.
Finally, it is true that granting TFO's application would be tantamount to ordering Class 1 cable companies to distribute the service at a time when analog cable capacity is limited. But, ensuring the promotion of Canadian broadcasting is in large part what Parliament had in mind when establishing this Commission to oversee the Broadcasting Act. Analog cable capacity is limited, though less so in Quebec than in some of the larger urban areas outside that province, but channels are available. If an American service or something like a shopping channel had to be sacrificed to make room for TFO, it would be a small price to pay in exchange for giving French-language viewers the option of subscribing to another French-language Canadian service.
In conclusion, I would have approved this application. It meets both viewers' demands as reflected in the record and Parliament's goals as set out in the Act. To deny it is to reject both, an action, in my view, that is both unreasonable in the circumstances and in conflict with this Commision's mandate.
Dissenting opinion by Commissioner Andrew Cardozo
I was deeply impressed by the application being considered in this case. In my view TFO provides a high quality French language television service. It is Canadian with a high Canadian content, actively involves Quebec producers in its programming, would be well received by Quebec television viewers and would have done a great deal to advance "les liens" between francophones in Quebec and Ontario.
I understand that, given regulatory technicalities, this was not an easy case to rule on and fully understand the rationale of the majority that has been clearly explained in their decision. I am certainly in accord with my colleagues in their assessment that, "programming offered by TFO, serve to expand the quality and diversity of French language programming in Canada", as noted in paragraph 18 of the majority decision.
However, I respectfully dissent from the majority on this matter, as I believe we should have approved this application.
Starting point
My starting point in this matter is that, despite several well-developed services already in existence, there is a need for more high quality French language programming for francophone viewers in Quebec. This view has often been put to the Commission. Given the uniqueness of la francophonie in Canada, a Canadian service generally has more to provide viewers in Quebec or in any other province, than a foreign service. Combining this principle with the record of this proceeding, I came to the conclusion that there are good reasons to grant this application, although I feel it could have been done with some changes which take into account the opposing interventions.
As Serge Allen, Directeur général, Communauté urbaine de Québec, noted in his intervention, "[translation] For several years, this service has been unavailable to Quebec residents and considering the situation of the French-language in Canada, it seems important to us to increase the number of channels that can offer quality programming".
The point was made in the record that a high proportion of the channels available to francophone viewers in Montreal, are in English. This type of proportion is not unusual elsewhere in the province. In some cases, channels in English are in the majority. While they may be good services, it is important that viewers have as much choice as possible in the official language of their preference.
I am struck by the overwhelming support for this application as demonstrated by the record. 99.3% of the 1,563 interventions were in favour of the application. I find it hard to dismiss such a significant proportion.
TFO demonstrated that it ranks high on values put forward for television services in Quebec, namely, high quality French-language service, non-violent, quality children’s programming with no advertising. Licensing TFO also contributes to the Commission objectives of diversity of programming, diversity of ownership and facilitating a system that allows broadcast services to grow and be strong players.
My analysis of the interventions is as follows:
The supporting intervenors
There appeared to me to be an impressive consensus among a wide range of intervenors whose central message was that TFO presented a high quality French language service that would create better understanding among francophones in Quebec and Ontario. In the cultural field these intervenors included writers such as Michel Temblay and Antonine Maillet and groups such as Le Conseil de la vie française en Amérique and the Fédération culturelle canadienne française. Mr. Tremblay said, "[translation] TFO's programming would add to the choice of French-language programming available, especially since this network (which I can receive in the country, but not in Montréal) produces, in my opinion, quality educational programs."
From the film and producers, the Canadian Association of Film Distributors and Exporters supported the application. Its president Richard J. Paradis noted that, "[translation] Distribution of TFO's signal in Quebec will serve to improve the French-language programming available at a time when the number of English-language networks is increasing, and technological developments continually add to the number of foreign services that are available."
There were various independent producers such as André Monette of Action film Ltée who pointed to the complementary nature of the service, noting that "[translation] TFO's entertaining cultural and educational programming will increase television programming choice for Quebec viewers, serving to complete the television services presently offered."
TVA, the largest private French language broadcaster, was a notable supporter of the application. Its president Daniel Lamarre said, "[translation] it is essential that the artists, talents and cultural products of the different francophone communities, especially those in Ontario, be made accessible to Quebec viewers by way of a television service that is their own, and that service is TFO." He further noted that the distribution of TFO would add to the diversity of programming that was already taking place with Radio-Canada and distribution of TVA across Canada.
Among educational institutions there were school boards such as the Frères des écoles chrétiennes (District du Canada francophone, Administration provinciale) and la Fédération canadienne pour l’alphabétisation en français in addition to various educationalists.
There was broad political support for this application and the benefit it would provide from members of the Senate, the House of Commons, and the provincial assemblies of Quebec and Ontario. The Association parlementaire Ontario-Quebec was one notable supporter having passed a resolution to this effect.
Even the one political intervenor who was against the specific means of licensing and carriage supported the distribution of the TFO in Quebec precisely because it was good quality and would be of interest to viewers.
Reflecting the diversity inherent in la francophonie of Quebec there were supporting comments from la Communauté séfarade du Québec and Le centre de recherche-action sur les relations raciales.
Most important, was the number of letters we received from a large number of individuals from various parts of the province who wrote in support of this application - Quebecers who thought it was a good service and one they would like to have access to. Some of these were from the Hull-Aylmer-Gatineau part of the province, being viewers who received the signal and believed it would be of wide interest and relevance to fellow citizens across the province.
Intervenors from outside Quebec
Interestingly, we also received a number of interventions from outside Quebec, primarily from Ontario and New Brunswick. As noted in the majority decision, this service is available in New Brunswick (paragraph 19), so I felt the input from New Brunswickers was instructive since they were watching an out-of-province service that was certainly relevant and useful to them.
Input from Ontarians seemed to me to have a central message, perhaps best explained by Mme Gisèle Lalonde of SOS Montfort!, who said: "[ translation] As francophone minorities, it is essential that we create strong links with all the francophone communities of Canada and especially with Quebec. It would be unthinkable that the only province with a francophone majority be refused access to a television service that would offer to all those living in Quebec diversity in television programming."
The sense of pride that this Ontario-based French language service was of high enough quality to be distributed in Quebec, and which would create stronger links between Ontarians and their fellow francophones in Quebec, was an unmistakable undercurrent of many of the Ontario submissions.
The social, cultural and national benefits of such a service are not only clear to me, but are very much in line with the objectives of the Broadcasting Act. While the Act obviously does not require us to approve this application it certainly paves the way for us to approve it.
Canada-wide supporters
From a Canada-wide perspective there were letters of support from an interesting array of federal institutions. These included the Commissioner of Official Languages, Téléfilm Canada, the National Arts Centre, the National Capital Commission and the Canadian Museum of Civilization.
Civil society groups also wrote in. These included la Fédération des communautés francophones et acadiennes du Canada, la Fédération nationale des femmes canadiennes françaises and la Commission nationale des parents francophones.
Opposing Intervenors
Opposition to the application came from 12 intervenors, only one of which was an individual citizen. Most of those opposed felt that TFO was seeking status as a specialty service and hence, should go through a similar competitive process as other specialty services, such as those who competed in the last licensing round of 1998-1999. The route for carriage (using section 9(1)(h) of the Broadcasting Act), some felt, was not justified. Action Réseau Consommateur opposed the application primarily on the grounds that consumers would have to pay an additional fee for the service. My colleagues generally agreed with the concerns raised by opposing intervenors. In my respectful view, these interventions are to be heeded, however, the licensing route I would have approved would have taken these views into consideration to a considerable extent.
Carriage by cable companies
Some intervenors suggested that TFO should be working out its distribution with cable distributors. TFO is currently included on the Part 2 and Part 3 lists of eligible satellite services as noted in Paragraph 25 of the majority decision, which means that any cable distributor (with few exceptions) can distribute the service to subscribers, in most cases, on a discretionary tier. If they are to pay a rate to TFO, this would be worked out between the two parties and would not necessitate the intervention of the CRTC.
This application has been made to the Commission because, it would appear, such a deal could not be worked out between the parties.
Subscriber fee
TFO has asked for a subscriber fee of 24 to 26 cents, primarily to cover costs of increased programming rights. I note that the rate in New Brunswick is 13 cents. From the available evidence on the record, it is my view that a rate of 18 cents would have been sufficient.
Other issues
Interestingly, almost no one made the argument that TFO would be a competitor to Télé-Québec, which is the Quebec government supported educational network, the Quebec counterpart to the Ontario TVO/TFO service. The main issue raised in this regard was more to the effect that Quebecers pay for one educational service through their taxes and should not have to pay for another through enforced subscriber fees.
This raises several points. First, educational services are now broad in the range of programming that they carry, such that these two services offer virtually none of the same programs. Second, while it is correct that a positive decision by the Commission would require subscribers to a high penetration discretionary tier to pay for the TFO service, this is not so different from what happens in many other cases. Often, I note that francophone subscribers must pay for English language specialty services they may or may not want as part of a package. In one sense, I liken this case to various others where subscribers, broadcasters or distributors come to the Commission to settle disputes regarding distribution. Third, this application is for licensing on an optional tier, which means it would not be of the mandatory nature that was used in two other cases where section 9(1)(h) of the Broadcasting Act was used. The purchase of a tier by a subscriber is of course optional, although my hunch is that it would become a lot more attractive to a francophone subscriber with the addition of TFO.
Licence terms
Given the value of this service in Quebec and the various views expressed during this proceeding, I would have preferred a licence with terms such as the following:
- Approve the application for distribution of this service by Class 1 and Class 2 broadcast distribution undertakings (BDUs) pursuant to 9(1)(h) of the Broadcasting Act, on the grounds that there is a need for this type of French language service in Quebec, that is high quality, that is Canadian and that has a high degree of support in the province as evidenced in the proceeding. Its carriage would be licensed for an optional tier, thus not making its purchase mandatory to the subscriber.
- It should be carried within 12 months of the decision, which would give BDUs flexibility as to the best date for launching, either at the time of a future channel re-alignment or at the launching of a French language Arts channel, should such a service be licensed.
- The subscriber fee 18 cents and paid only by those subscribers who purchased the relevant tier.
- The licence would include at least an expectation that TFO spend a minimum of 25% of the educational programming budget in Quebec during the licence period. (This is in line with the significant amount they spend now.)
- The licence would include an expectation that around 50% of co-productions would include Quebec partners. (This is in line with the significant amount they spend now.)
- The licence would include an expectation that programming on TFO would be different from Télé-Québec, which is in keeping with current programming, and ensure that only a maximum of 10% could be the same. (This would in effect, give Télé-Québec the first right of refusal on acquisition of programs.)
These requirements, I believe, ensure that francophone Quebec viewers would have access to a high quality Canadian French language service, and would place limitations on the service that respond to some of the opposing ideas.
While the digital framework of the future will be an option for TFO to reach Quebec viewers, it is some time away. In my view, the considerable public participation in this process should be a signal to cable distributors to re-think their position on the carriage of this service in the near future. It is my sense that there is in the province, an increasing thirst for things Francophone whether from Quebec or outside, and this was evidenced in the proceeding. Making TFO accessible to viewers would have helped in this regard.
Since I believe that this application could well have been granted with the above noted terms, I respectfully dissent from the majority in this matter.