TRANSCRIPT OF PROCEEDINGS BEFORE

             THE CANADIAN RADIO‑TELEVISION AND

               TELECOMMUNICATIONS COMMISSION

             TRANSCRIPTION DES AUDIENCES DEVANT

              LE CONSEIL DE LA RADIODIFFUSION

           ET DES TÉLÉCOMMUNICATIONS CANADIENNES

                          SUBJECT:

Applications to Provide an All Channel Alert Service /

demandes visant la fourniture d'un service

d'alerte tous canaux

HELD AT:                              TENUE À:

Conference Centre                     Centre de conférences

Pontiac Room                          Salle Pontiac

140 Promenade du Portage              140, Promenade du Portage

Gatineau, Quebec                      Gatineau (Québec)

May 2, 2006                           Le 2 mai 2006

Transcripts

In order to meet the requirements of the Official Languages

Act, transcripts of proceedings before the Commission will be

bilingual as to their covers, the listing of the CRTC members

and staff attending the public hearings, and the Table of

Contents.

However, the aforementioned publication is the recorded

verbatim transcript and, as such, is taped and transcribed in

either of the official languages, depending on the language

spoken by the participant at the public hearing.

Transcription

Afin de rencontrer les exigences de la Loi sur les langues

officielles, les procès‑verbaux pour le Conseil seront

bilingues en ce qui a trait à la page couverture, la liste des

membres et du personnel du CRTC participant à l'audience

publique ainsi que la table des matières.

Toutefois, la publication susmentionnée est un compte rendu

textuel des délibérations et, en tant que tel, est enregistrée

et transcrite dans l'une ou l'autre des deux langues

officielles, compte tenu de la langue utilisée par le

participant à l'audience publique.

               Canadian Radio‑television and

               Telecommunications Commission

            Conseil de la radiodiffusion et des

               télécommunications canadiennes

                 Transcript / Transcription

   Applications to Provide an All Channel Alert Service /

         demandes visant la fourniture d'un service

                    d'alerte tous canaux

BEFORE / DEVANT:

Michel Arpin                      Chairperson / Président

Joan Pennefather                  Commissioner / Conseillère

Helen del Val                     Commissioner / Conseillère

ALSO PRESENT / AUSSI PRÉSENTS:

Chantal Boulet                    Secretary / Secrétaire

Peter McCallum/                   Legal Counsel /

Reynolds Mastin                   Conseillers juridiques

Gerard Bergin                     Manager, Broadcast

Technology / Gestionnaire

de technologie en

radiodiffusion

HELD AT:                          TENUE À:

Conference Centre                 Centre de conférences

Pontiac Room                      Salle Pontiac

140 Promenade du Portage          140, Promenade du Portage

Gatineau, Quebec                  Gatineau (Québec)

May 2, 2006                       Le 2 mai 2006

           TABLE DES MATIÈRES / TABLE OF CONTENTS

                                                 PAGE / PARA

PHASE III

INTERVENTION BY / INTERVENTION PAR:

CARP                                              338 / 1837

CMOS                                              349 / 1904

Ministry of Community Safety and                  364 / 2000

  Correctional Services

Salvation Army                                    382 / 2106

Rogers communications                             396 / 2173

New Brunswick Emergency Measures Organization     452 / 2471

CanWest Media Works Inc., CHUM Ltd. & CTV Inc.    481 / 2630

City of Mississauga                               529 / 2876

City of Sarnia                                    533 / 2895

City of Brampton /                                539 / 2929

  Ontario Association of Emergency Managers

Québecor Média                                    578 / 3130

Telco TV                                          615 / 3338

CKUA                                              646 / 3484

Environment Canada                                690 / 3707

Avis de Recherche.tv                              715 / 3849

                  Gatineau Quebec / Gatineau (Québec)

‑‑‑ Upon resuming on Tuesday, May 2, 2006

    at 0900 / L'audience reprend le mardi

    2 mai 2006 à 0900

LISTNUM 1 \l 1 \s 18281828             THE CHAIRPERSON:  Order please.  À l'ordre, s'il vous plaît.

LISTNUM 1 \l 11829             Nous débuterons la Phase III de l'audience à l'instant même.

LISTNUM 1 \l 11830             We will initiate Phase III of this public hearing now.  I will ask the secretary to introduce the first intervenor.

LISTNUM 1 \l 11831             THE SECRETARY:  Thank you, Mr. Chairman.

LISTNUM 1 \l 11832             Before we proceed to Phase III, I would just like to state for the record that the applicant Pelmorex Communications filed a 7‑page document during Phase II yesterday, which includes a CBC detailed breakdown of cable capital costs compared to Pelmorex.  This document will be added to the applicant's public record and will be available in the examination room for those interested to have a copy.

LISTNUM 1 \l 11833             Also, with respect to the intervenors, we have been informed that Ville de Blainville, which is Intervention No. 279, as well as the Canadian Red Cross, which is Intervention No. 24, will not be appearing at the hearing.

LISTNUM 1 \l 11834             I would now call the first intervenor to come forward, which is CARP, if they have arrived.

LISTNUM 1 \l 11835             Come forward to the front, please, for your presentation.

‑‑‑ Pause

LISTNUM 1 \l 11836             THE CHAIRPERSON:  Whenever you are ready.

INTERVENTION

LISTNUM 1 \l 11837             MR. VENGROFF:  Ladies and gentlemen of the CRTC, this presentation is made by CARP, Canada's Association for the 50 Plus in support of the application made by Pelmorex for the ALL CHANNEL ALERT system, or ACA.

LISTNUM 1 \l 11838             We at CARP believe that this system will be an important and potentially lifesaving support mechanism for many Canadian seniors, particularly those who travel on a limited basis outside their homes, or who are highly dependent on favourable environmental conditions for their activities of daily living.

LISTNUM 1 \l 11839             Seniors, particularly the elderly, often living alone are more severely affected by environmental events than many others that may often take it in stride.  Heavy rain, extreme heat alerts, smog alerts and even high winds can adversely affect their days and put their lives at risk.

LISTNUM 1 \l 11840             CARP is the largest association in the country for people over 50.  With over 400,000 members, over 800,000 readers per issue of our magazine and millions of unique visitors per year on our various websites, we reach a wide and growing cross section of Canada.  We are the voice representing over 10 million Canadians over the age of 50.

LISTNUM 1 \l 11841             CARP has been actively involved in supporting a healthy environment, reduced and hazardous pollutants, everything from automobile emissions to other airborne and waterborne toxins.  We hosted an environmental roundtable in 2002 with such distinguished speakers as David Suzuki, Dr. Sheila Basrur and Hanna Strong where we presented a series of recommendations to David Anderson, the Minister of Environment of the day, a number of which have been acted upon.

LISTNUM 1 \l 11842             We continue to be very concerned about this issue and believe that it is particularly important that seniors be given timely information to enable them to deal with environmental and other threats?

LISTNUM 1 \l 11843             It may be true these days that Canadians in general are more connected and more informed than ever.  Many have cellphones, personal digital assistants, radios, television, printed media, and more.  Many of us use these information‑gathering devices in conjunction with other ones such as TV combined with websites for enhanced broadcast experiences, or cellphones and PDAs combined, such as the RIM Blackberry or the Handspring Trio.

LISTNUM 1 \l 11844             However, seniors today, even the more connected ones, by and large rely on traditional media, television, radio and newspaper for much of their current information.

LISTNUM 1 \l 11845             We are not here to comment on the rate chargeable to consumers for the ACA service, but at a cost of $0.08 a month per subscriber it is clear the issue is not one of affordability.

LISTNUM 1 \l 11846             Rather, our position only speaks to the necessity of the service.

LISTNUM 1 \l 11847             In supporting Pelmorex for the ownership and management of the service, we do so only to the extent that, based on our knowledge of both the requirements of such a service and the qualifications of the applicant, they would be the best at providing it at a level Canadians would expect and at a price they can afford in the shortest possible time.

LISTNUM 1 \l 11848             Our understanding as to how such a system would work would be to provide emergency information on a timely basis as events are developing, as opposed to reporting events that have already occurred.  Given the nature and variation in our climate, this seems like more than just a good idea.

LISTNUM 1 \l 11849             But we also know that it is not just about the weather, and this will be discussed later.

LISTNUM 1 \l 11850             News coverage after certain events can reflect the current state of affairs post facto.  Beforehand the same media can offer predictions in some cases of events yet to be played out.

LISTNUM 1 \l 11851             There is also a need, and with today's aging population a more pressing one, to be able to report on developing events in as many ways as possible in order to give the affected parties the maximum amount of time to prepare.  Seniors need more time to get out of a house in the event of an evacuation.  Seniors may need to obtain medication or emergency supplies if they know they may not be able to get out of the house for a few days.

LISTNUM 1 \l 11852             Others may reconsider their plans to leave the house if a severe weather alert appears on their television sets.

LISTNUM 1 \l 11853             If weather were the only concern, in CARP's opinion this would be reason enough to have this service.  But, as we know, there are events where we are simply not playing the odds, as in a tornado watch where they have already occurred.

LISTNUM 1 \l 11854             I lived in Houston for a number of years and any resident, even a relatively recent one, is well aware of the large industrial plants, petrochemical plants that exist at the eastern edge of the city.  The discharge of often very hazardous chemical compounds was an alarmingly regular event during my stay there and continues to this day.

LISTNUM 1 \l 11855             The potential outcome, and sometimes the actual outcomes, was more than just a ruined picnic.  These events, and sometimes the evacuations that followed, were sometimes a matter of life and death.

LISTNUM 1 \l 11856             Upon reflection, many Canadian cities find themselves in similar circumstances.  Many people live in relatively close proximity to petrochemical plants, smelters, pulp and paper mills or nuclear power plants and would potentially be much better off if their televisions alerted them to an industrial accident with widespread consequences.

LISTNUM 1 \l 11857             The fact that even 20 years after Chernobyl Canada doesn't have an emergency system to warn against such a similar occurrence is inexcusable.  Why isn't this in place now?

LISTNUM 1 \l 11858             We must be cognizant of the power of human intervention on the environment.  Terrorism, forest fires and domestic civil unrest are realities, grim or otherwise, both abroad and at home.  The benefits of ACA, both tangible and intangible, could be immeasurable over the long term.

LISTNUM 1 \l 11859             In fact, not too dissimilar perceptions and sentiments existed during the height of the cold war or the civil defence era, the antecedent cause of the establishment of the Emergency Broadcast System, the predecessor to the Emergency Alert System in use today in the United States.

LISTNUM 1 \l 11860             It would be nice to think that in this increasingly interconnected society an alert system of the nature being discussed would be almost a self‑evident truth, but apparently it is not.

LISTNUM 1 \l 11861             In fact, if it were technologically possible ‑‑ and it would be hard to imagine it wouldn't ‑‑ and the will existed to extend this system to other media such as the Internet and cellphones, CARP would support that too.

LISTNUM 1 \l 11862             Another reality today is that today's senior is not as likely to be glued to the television as may have been true in much of the post‑war era.  That same individual is just as likely to be chatting with friends or playing games on line, in the garden or in town, or simply engaged in an active lifestyle where notification of any adverse environmental condition should be expected.

LISTNUM 1 \l 11863             CARP thanks you for your time and consideration of our support for the applicant.

LISTNUM 1 \l 11864             THE SECRETARY:  Excuse me, gentlemen.  Could you just identify yourself for the record?

LISTNUM 1 \l 11865             What is your name, please?

LISTNUM 1 \l 11866             MR. VENGROFF:  Yes.  My name is Eric Vengroff.

LISTNUM 1 \l 11867             THE SECRETARY:  The spelling of your last name?

LISTNUM 1 \l 11868             MR. VENGROFF:  That is V‑E‑N‑G‑R‑O‑F‑F.

LISTNUM 1 \l 11869             THE SECRETARY:  Thank you.

LISTNUM 1 \l 11870             THE CHAIRPERSON:  Thank you very much, Mr. Vengroff.

LISTNUM 1 \l 11871             Mrs. Pennefather...?

LISTNUM 1 \l 11872             COMMISSIONER PENNEFATHER:  Thank you, and thank you for coming to the hearing with your comments.  They are very clear.

LISTNUM 1 \l 11873             I just have a couple of questions I would appreciate your responses.

LISTNUM 1 \l 11874             One of them concerns the point you made on the second page about the alert.  You are aware, of course, of the kind of text that is being talked about in terms of the demos we had yesterday, or in the documentation regarding the Pelmorex application, what you would actually see and hear on the screen.

LISTNUM 1 \l 11875             In terms of seniors, the groups that you represent, what would be the details that they would require in the message?

LISTNUM 1 \l 11876             You mention here:

"Seniors may need to obtain medication or emergency supplies if they know they may not be able to get out of the house for a few days."

LISTNUM 1 \l 11877             Do you expect a text to go to that level of information?

LISTNUM 1 \l 11878             MR. VENGROFF:  No, I think by and large seniors have (off microphone...) in some cases their age.  Again, we are not talking necessarily about people who are in their advanced years.  When we refer to this demographic it could be anything over the age of 55 typically, as defined by, I guess, Statistics Canada.

LISTNUM 1 \l 11879             But I guess people who have lived to this age know what they need to do when they need to do it, they just need to know what to do ‑‑ or need to know if there is a  problem, if there is going to be a problem.  I think they have enough judgment, by and large, to be able to decide when it's time to leave the house or when it's time not to.

LISTNUM 1 \l 11880             COMMISSIONER PENNEFATHER:  Thank you.  I appreciate knowing that I know what to do.

LISTNUM 1 \l 11881             The other point I had was:  What is your sense of what the local broadcasters offer in comparison?

LISTNUM 1 \l 11882             MR. VENGROFF:  Well, I am not aware of anything other than what I see sporadically, I guess on television or through a radio broadcast or whatever it is.  If there is a severe weather alert I may hear about it at times on the radio, but never on ‑‑ not that I'm aware of on television unless I happen to be tuned into a broadcast that is directly speaking to that point.

LISTNUM 1 \l 11883             COMMISSIONER PENNEFATHER:  One of the components of the Pelmorex proposal is a public education program.

LISTNUM 1 \l 11884             Do you have any comment on what that program should contain, what kind of information about the existence of an alert system, the contents of an alert system should be?

LISTNUM 1 \l 11885             MR. VENGROFF:  I can only offer, I guess, the commentary that came out of our environmental forum back in 2002.  Seniors would often be described I guess as the canaries in the coal mine.  They are typically the more severely affected by environmental conditions.

LISTNUM 1 \l 11886             For example, on days when we know that there is going to be, or three is a high likelihood of there is going to be an environmental issue, for example a heavy smog day in a major urban city, then seniors are often told to stay indoors.  If they have respiratory problems then are often told to reduce their physical activity if it's high heat, high smog.

LISTNUM 1 \l 11887             Conversely, if you go back to even things like where it could be a waterborne agent that is in the water, or something that gets into the drinking supply as what happened in Walkerton, again it was the older population that was more severely affected.

LISTNUM 1 \l 11888             So to the extent that any information along those lines that can be added to any sort of broadcast that directly alerts a specific population that is at risk I think would be in order.

LISTNUM 1 \l 11889             And if there is any educational information that can go along with that of course then I think that would be also in order as well, things to do that you can protect yourself against.

LISTNUM 1 \l 11890             COMMISSIONER PENNEFATHER:  All right.  That was sort of what I was getting at in the first question as well ‑‑

LISTNUM 1 \l 11891             MR. VENGROFF:  Yes.

LISTNUM 1 \l 11892             COMMISSIONER PENNEFATHER:  ‑‑ what over and above the text.

LISTNUM 1 \l 11893             The public education program, as I understand it, is to let people know that such an alert system exists and what to watch for.  That, you think, through other media might be also available?

LISTNUM 1 \l 11894             MR. VENGROFF:  Well, speaking I guess from CARP's perspective, I mean we would certainly want to assist in letting our constituents know that if there were an educational opportunity we would certainly be ‑‑ we would be there to support that.

LISTNUM 1 \l 11895             COMMISSIONER PENNEFATHER:  Thank you.  Thank you very much.

LISTNUM 1 \l 11896             Those are my questions, Mr. Chairman.

LISTNUM 1 \l 11897             COMMISSIONER PENNEFATHER:  Thank you, Mr. Vengroff.

LISTNUM 1 \l 11898             MR. VENGROFF:  Okay?

LISTNUM 1 \l 11899             THE CHAIRPERSON:  Yes.

LISTNUM 1 \l 11900             Mrs. Secretary...?

LISTNUM 1 \l 11901             THE SECRETARY:  Thank you, Mr. Chairman.

LISTNUM 1 \l 11902             I would now call the next appearing intervenor, Dr. Ian Rutherford from the Canadian Meteorological and Oceanographic Society, (CMOS).

LISTNUM 1 \l 11903             Dr. Rutherford, you have 10 minutes for your presentation.

INTERVENTION

LISTNUM 1 \l 11904             DR. RUTHERFORD:  Thank you very much.  I would like to thank the Commission for the opportunity to appear before them.

LISTNUM 1 \l 11905             As mentioned, I represent the Canadian Meteorological and Oceanographic Society, which I will refer to as CMOS.  We are a national non‑profit, membership‑based society ‑‑ sometimes called a learned society although I find that a bit pretentious ‑‑ but our purpose is to advance the sciences and the technology of meteorology and oceanography, and in particular their application to protecting and improving the lives and the properties of Canadians.

LISTNUM 1 \l 11906             We represent a broad segment of the profession of meteorology and oceanography, academics, students, scientists, researchers, practitioners, weather forecasters, service providers, private consultants, a whole range of folks, including people who are just interested in the weather, from all three sectors, the public, academic and private sector.

LISTNUM 1 \l 11907             So we represent people who are knowledgeable and in fact many who are heavily involved in the production of weather warnings or in the development of tsunami warning procedures.

LISTNUM 1 \l 11908             We are also involved in accrediting consultants in our two fields.  We also endorse on‑air weather broadcasters who are disseminating weather information, those who meet our standards.

LISTNUM 1 \l 11909             We have a subsidiary body called the Canadian Foundation for Climate and Atmospheric Sciences which provides funding to university researchers in climate and atmospheric science.

LISTNUM 1 \l 11910             So because of our involvement we are quite familiar with developments in the science and technology of weather prediction and we know that these improvements by the science and in the new technologies such as doppler radar have produced enormous improvements in the accuracy, reliability and the timeliness of warnings of severe meteorological and oceanographic events such as tornadoes or hurricanes and tsunamis.

LISTNUM 1 \l 11911             The problem is that these advances have not been matched by equivalent improvements in the public warning dissemination systems needed to bring alerts and warnings to the attention of the public.  That is a serious problem, because very often many of these warnings have a very short fuse.  One can predict the occurrence of a tornado at a given spot, but only with a lead time of perhaps half an hour using the best available technology.  So if you don't get that warning out quickly, it's useless.

LISTNUM 1 \l 11912             Current dissemination systems are, first of all, very piecemeal.  They depend on individual players, TV stations, radio stations; they are voluntary; they are fragmented; they are slow to respond; they can't really differentiate urgent situations from non‑urgent situations; they don't have the knowledge to do that.  So ultimately they are ineffective.

LISTNUM 1 \l 11913             Warnings that could save lives if they were delivered promptly are delivered too late or not at all.  Lives are being lost as a result.  Property is being destroyed as a result.

LISTNUM 1 \l 11914             I as in charge of the weather service in 1987 when the Edmonton tornado hit.  We actually produced not a bad forecast of that tornado given the technology of the day, but it wasn't carried by the media.  They didn't appreciate the urgency of it.

LISTNUM 1 \l 11915             As a result of that event, the Weather Service acquired Doppler radars which essentially doubled the warning time possible technologically for tornadoes but we still do not have a dissemination system.

LISTNUM 1 \l 11916             Last year or the year before ‑‑ I forget exactly when it was ‑‑ when the Pine Lake tornado hit a trailer park in Alberta many lives were lost because people did not receive the warning that was issued.

LISTNUM 1 \l 11917             So we believe that warnings ‑‑ it is possible to produce effective warnings but it is not possible yet to deliver them effectively to the public, in spite of the good work of Pelmorex and The Weather Network and MétéoMédia who do that on their own dedicated channel but unless you happen to be watching that channel you don't get the warning.

LISTNUM 1 \l 11918             So we think what Canada needs ‑‑ and it has needed it for a long time and I think it is tragic that we haven't had it sooner ‑‑ we need a single mandatory public alerting system capable of really fast response, essentially immediate response, and it has to be able to disseminate locally differentiated warnings.  They have to be clearly marked as urgent and they have to be targeted to the people affected by the hazard.

LISTNUM 1 \l 11919             Of course, we are most knowledgeable about weather and meteorological events, oceanographic events, but we believe that such a system should be capable of responding to hazards of all types whether they are man‑made or natural or a combination of the two, and often they are a combination of the two.

LISTNUM 1 \l 11920             The system has to be able to respond to hazard warning agencies whether they are local or national or international and we believe that the Pelmorex proposal allows for that to happen.

LISTNUM 1 \l 11921             In fact, we recommend that the technology and infrastructure that has been developed by Pelmorex to disseminate localized weather warnings to those who happen to be watching The Weather Network or MétéoMédia on cable TV should be extended immediately to all cable TV and satellite TV channels and to hazards of all types.

LISTNUM 1 \l 11922             It is important to note that the weather warnings that are carried now by Pelmorex are not Pelmorex content, they are content that comes from Environment Canada, the agency officially charged with issuing that kind of warning.  They are mandated, funded and equipped to do that.  Pelmorex is the carrier.

LISTNUM 1 \l 11923             When I listen to comments from some of the other proponents that they object to carrying Pelmorex material on top of their broadcast, I think they are barking up the wrong tree.

LISTNUM 1 \l 11924             These warnings are a public service.  They are not the property of any one company whether it is a carrier or an originator.  They belong to the public and they need to be carried to the public that needs to hear them.

LISTNUM 1 \l 11925             So we think that the carrying of such warnings, no matter what type, should be a mandatory condition of licence as a matter of good public policy, that the TV stations, the cable stations should be essentially forced to carry those warnings.

LISTNUM 1 \l 11926             Further, we think that the minor incremental cost of such a system should be borne by the cable or satellite TV subscribers, much as telephone subscribers bear the incremental cost of the 9‑1‑1 emergency response service, and it is even cheaper than the 9‑1‑1 service, so it is a very minor cost.

LISTNUM 1 \l 11927             So that in a nutshell is our intervention.  We support the proposal by Pelmorex.  We don't really care who provides ‑‑ who carries these services but we do believe that someone must do it and it should happen as soon as possible.

LISTNUM 1 \l 11928             So I would like to thank you for the chance to speak to you and welcome any questions you might have.

LISTNUM 1 \l 11929             THE CHAIRPERSON:  Thank you, Dr. Rutherford.

LISTNUM 1 \l 11930             Commissioner del Val.

LISTNUM 1 \l 11931             COMMISSIONER del VAL:  Thank you, Dr. Rutherford, for taking the time to intervene.  Just a few questions.

LISTNUM 1 \l 11932             Now, who do you think should have the authority to decide that a warning should be issued?

LISTNUM 1 \l 11933             DR. RUTHERFORD:  It depends on the warning.  In the case of weather warnings it is clearly Environment Canada who is mandated to do that.  They have the responsibility and the accountability to do that but they don't have the means to disseminate it.

LISTNUM 1 \l 11934             In the case of tsunamis, a Tsunami Warning System is being set up which will be capable of producing the warnings but, again, they have to be disseminated.

LISTNUM 1 \l 11935             In the case of local events, for example, a chemical spill like the one that occurred in Mississauga some years back, clearly the responsibility is a combination of local authorities, the railroad who happened to be involved in that case, whatever.

LISTNUM 1 \l 11936             But for most types of emergencies there is a clearly identified agency of responsibility and those agencies have to have access to such a warning system.

LISTNUM 1 \l 11937             COMMISSIONER del VAL:  Okay.  I don't know whether you have had a chance to look at the CANALERT Guidelines.

LISTNUM 1 \l 11938             DR. RUTHERFORD:  No, I have not.

LISTNUM 1 \l 11939             COMMISSIONER del VAL:  Okay.  Their suggested definition of "authorized user" is essentially:

"public officials who have legislative authority and/or responsibility for emergency planning or their designated delegate."  (As read)

LISTNUM 1 \l 11940             Do you think that is a good definition?

LISTNUM 1 \l 11941             DR. RUTHERFORD:  It is not bad but it focuses on planning and planners do not have the same sense of urgency as those who are monitoring events and issuing warnings.

LISTNUM 1 \l 11942             My understanding of CANALERT is it is an agency that will set up procedures and standards but I don't think it is going to be involved itself in monitoring what is going on initially in warnings.  That will be the responsibility of those who, by legislation or whatever, by agreement, have the responsibility to do that.

LISTNUM 1 \l 11943             COMMISSIONER del VAL:  Okay.  Would you accept a definition of "authorized user," so those who can issue the awards ‑‑

LISTNUM 1 \l 11944             DR. RUTHERFORD:  By "user," you mean issuer?

LISTNUM 1 \l 11945             COMMISSIONER del VAL:  Issuer, yes, which limits the access to the system to only those individuals or agencies with a mandate to monitor and inform the public with respect to threats to life.  That is just making it narrower, it is only threats to life that they can issue warnings ‑‑

LISTNUM 1 \l 11946             DR. RUTHERFORD:  I think it is a very difficult judgment to make whether an event affects only property and not life ‑‑

LISTNUM 1 \l 11947             COMMISSIONER del VAL:  Okay.

LISTNUM 1 \l 11948             DR. RUTHERFORD:  ‑‑ and I think Canadians would expect the threats to their property would be covered by such a system as well.

LISTNUM 1 \l 11949             COMMISSIONER del VAL:  Okay.  Now, do you ‑‑ what are your views in terms of should it be ‑‑ does it matter whether this is a government initiative, a private sector initiative or a public/private partnership?

LISTNUM 1 \l 11950             DR. RUTHERFORD:  I don't think it matters who delivers the warnings and it is inevitably is going to be a combination of things.  I think the role of government though is to make sure that a warning system is in place to mandate it and if necessary to make it mandatory.

LISTNUM 1 \l 11951             COMMISSIONER del VAL:  And you see that squarely as the role of the government?

LISTNUM 1 \l 11952             DR. RUTHERFORD:  Yes, I think so.

LISTNUM 1 \l 11953             COMMISSIONER del VAL:  Okay.  Who do you think in your view should be responsible for wrong signals sent?

LISTNUM 1 \l 11954             DR. RUTHERFORD:  For?

LISTNUM 1 \l 11955             COMMISSIONER del VAL:  For wrong signals, wrong alerts.

LISTNUM 1 \l 11956             DR. RUTHERFORD:  The person who is mandated to issue the alert should be responsible for the content of that alert, recognizing that many types of alerts are not matters of certainty, they are matters of risk assessment and inevitably there will be errors made.

LISTNUM 1 \l 11957             But the responsibility of these agencies is to do as good a job as possible and I think they should be accountable for poor performance if they have been negligent and that kind of thing.

LISTNUM 1 \l 11958             One hears stories about the head of the Meteorological Service in ‑‑ I forget where it was ‑‑ Thailand was fired because a tsunami alert wasn't issued on time when in fact I think he did the best he could do with the technology available to him at the time and with the state of the science of tsunami warnings.

LISTNUM 1 \l 11959             So that sounds to me like he was held responsible for something over which he had no real control.  One could argue that he was negligent in not putting in place those systems but like any official you can only make do what the means that you are provided.

LISTNUM 1 \l 11960             So there is clearly going to be questions of blame and judgments which would have to be resolved by the courts ultimately but I think the principle that people are held responsible and are accountable for their actions and for doing the best possible job with the tools at their disposal should stand but they should be punished if they are negligent.

LISTNUM 1 \l 11961             COMMISSIONER del VAL:  Who do you think should be responsible, say, if the alert destined for one destination was sent to the wrong place?

LISTNUM 1 \l 11962             DR. RUTHERFORD:  It should be whoever made the error.  In a warning system there are many players in the chain and if, for example, the warning agency issued the warning, the basic warning for the wrong place ‑‑ and this can happen.

LISTNUM 1 \l 11963             COMMISSIONER del VAL:  Yes.

LISTNUM 1 \l 11964             DR. RUTHERFORD:  If you are tracking a tornado, for example, you may issue a warning for a place 10 minutes downstream in its track and it suddenly makes an unpredicted turn to the left and hits another community, then you could argue, well, that agency is responsible for that.

LISTNUM 1 \l 11965             Then they would argue whether they had been negligent or whether they had done the best possible job given the state of the science and technology and the observations and so on available to them at the time.

LISTNUM 1 \l 11966             If on the other hand a warning produced for Pine Lake somehow or other got routed to Woodstock, New Brunswick because there was a software error in ‑‑ I don't know ‑‑ in the cable TV box that does the switching, then whoever did that box should be the one held accountable for that error.

LISTNUM 1 \l 11967             COMMISSIONER del VAL:  Okay.

LISTNUM 1 \l 11968             DR. RUTHERFORD:  I mean clearly you have to look at what actually happened.

LISTNUM 1 \l 11969             COMMISSIONER del VAL:  Thank you.  What are your views on funding such a system?

LISTNUM 1 \l 11970             DR. RUTHERFORD:  Well, as I mentioned at the end of my presentation I think the users of the service, cable TV or satellite TV in the case of a television service, should pay the minor incremental cost.  It is not a big deal.

LISTNUM 1 \l 11971             To come back to the question of accountability, after the Edmonton tornado, I was with Environment Canada at the time and we set up an independent inquiry headed by an academic who did not work for government to look into the circumstances of exactly what happened there and where were the problems.

LISTNUM 1 \l 11972             He identified the fact that there were problems in the technology of tornado warning, which resulted in the acquisition of Doppler radars in this country, we didn't have any before that ‑‑ well, we had one ‑‑ and he also identified the difficulty in the chain of getting warnings produced by the Weather Service to the users and this was simply because there was no way to force the television stations and radio stations to issue the warning when they received it.

LISTNUM 1 \l 11973             COMMISSIONER del VAL:  When you used "users" in just that sentence, who did you mean?

LISTNUM 1 \l 11974             DR. RUTHERFORD:  I meant the public at the end ‑‑

LISTNUM 1 \l 11975             COMMISSIONER del VAL:  Okay.

LISTNUM 1 \l 11976             DR. RUTHERFORD:  ‑‑ who need to be warned, those who need to be warned.

LISTNUM 1 \l 11977             COMMISSIONER del VAL:  Okay.  Thank you for your time.

LISTNUM 1 \l 11978             Thank you, Mr. Chair.

LISTNUM 1 \l 11979             THE CHAIRPERSON:  Dr. Rutherford, I have a question myself.

LISTNUM 1 \l 11980             DR. RUTHERFORD:  Certainly.

LISTNUM 1 \l 11981             THE CHAIRPERSON:  You attended the hearing yesterday or part of?

LISTNUM 1 \l 11982             DR. RUTHERFORD:  No, I didn't.  I wasn't here but I did listen to part of it on the audio feed on the internet.

LISTNUM 1 \l 11983             THE CHAIRPERSON:  Well, that is exactly the same, I think.  Obviously, the CBC came with a proposal to implement an emergency alert system fairly similar to the one that is in existence in the U.S.  Since you seem to be very cognizant of those systems or at least from a theoretical standpoint, do you have views on the EAS system?

LISTNUM 1 \l 11984             DR. RUTHERFORD:  No, I am not technically competent to discuss the differences.  I heard the discussion yesterday, the arguments over EAS versus SAP and protocols and capabilities of these boxes.  I am not qualified to comment on the merits of those arguments.

LISTNUM 1 \l 11985             THE CHAIRPERSON:  Obviously, the CBC proposal is a voluntary one while the ‑‑

LISTNUM 1 \l 11986             DR. RUTHERFORD:  Yes.

LISTNUM 1 \l 11987             THE CHAIRPERSON:  ‑‑ Pelmorex one is mandatory and I hear you loud and clear ‑‑

LISTNUM 1 \l 11988             DR. RUTHERFORD:  Yes.

LISTNUM 1 \l 11989             THE CHAIRPERSON:  ‑‑ suggesting that it has got to be mandatory.

LISTNUM 1 \l 11990             DR. RUTHERFORD:  It must be mandatory ‑‑

LISTNUM 1 \l 11991             THE CHAIRPERSON:  Okay.

LISTNUM 1 \l 11992             DR. RUTHERFORD:  ‑‑ in our view.

LISTNUM 1 \l 11993             THE CHAIRPERSON:  Thank you very much, Dr. Rutherford.  Thank you.

LISTNUM 1 \l 11994             DR. RUTHERFORD:  Thank you.

LISTNUM 1 \l 11995             LE PRÉSIDENT : Madame la Secrétaire.

LISTNUM 1 \l 11996             THE SECRETARY:  Thank you.

LISTNUM 1 \l 11997             I would now call on Commissioner Julian Fantino from the Ministry of Community Safety and Correctional Services to present his intervention.

LISTNUM 1 \l 11998             Commissioner Fantino, you have 10 minutes for your presentation.

LISTNUM 1 \l 11999             COMMISSIONER FANTINO:  Yes, thank you.

INTERVENTION

LISTNUM 1 \l 12000             COMMISSIONER FANTINO:  Good morning and thank you for the opportunity to appear before you.

LISTNUM 1 \l 12001             Rather than go through my correspondence to the Commission I just thought I would highlight a number of issues that are pertinent.

LISTNUM 1 \l 12002             My role as Commissioner of Emergency Management in Ontario evolves into a good deal of proactive work as well as, of course, reactive work.

LISTNUM 1 \l 12003             We are also the body that coordinates the 444 municipal emergency response plans in the province and, of course, we are the link between municipalities, aid to municipalities that could be sourced from either provincial resources or federal resources or otherwise.

LISTNUM 1 \l 12004             So we have an overarching responsibility with respect to emergency management issues on all fronts.

LISTNUM 1 \l 12005             Moreover, we are governed by legislation and we are mandated, of course, to do certain things.  There is presently a new piece of legislation making its way through the legislative process in the province which will redefine and better articulate roles, responsibilities, accountabilities and so forth.  That is in the process of going through the system as we speak.

LISTNUM 1 \l 12006             The Province of Ontario has had a number of emergencies, some of them at the local level and some of these are ongoing even as I speak but there have been two major provincially declared emergencies in the province in past history, one being the SARS epidemic that resulted in some 40‑odd people being affected and dying and a whole lot of other affected individuals and institutions, and of course, the blackout were the two primary declarations of provincial emergencies in the Province of Ontario.

LISTNUM 1 \l 12007             With respect to the matter before you with regards to public alerting, it is an essential ingredient of any proactive strategy to enable us to ensure that the public are made aware and that they themselves take whatever precautions are necessary or required to safeguard themselves or family, of course, their property and so forth.

LISTNUM 1 \l 12008             The Commission will know just how very vulnerable we are in today's reality from potential threats from many sources, man‑made, weather or, of course, natural circumstances, health issues and so forth, and the notion of leaving everything to emergency providers is very, very difficult indeed without the full awareness and involvement of the public in our collective efforts to keep everyone safe.

LISTNUM 1 \l 12009             I have articulated for you a number of issues that go to why it is that we support the public alerting system.  I am not here to speak to you about whether this system is better than the next system with respect to technical aspects but I do have some points that I would like to share with the Commission.

LISTNUM 1 \l 12010             Speaking for the Province of Ontario, we have some 40 per cent of the overall Canadian population in our province and along with that we have some very significant high‑risk issues aside from weather and those kinds of situations.

LISTNUM 1 \l 12011             I do wish to convey to the Commission that we need to have these alerts made available on a sustainable basis.  So obviously funding will be an issue.

LISTNUM 1 \l 12012             My view is that it should be mandatory, that we employ mandatory requirements.  Whatever system or process is made into use should cover as much of the citizenry as possible.

LISTNUM 1 \l 12013             I believe as well that it should be the government that decides who should participate.  I would not leave it to private sector interests to determine how the public participation will be addressed in regards to such an onerous, overarching public safety issue which I believe is something that government policy needs to address.

LISTNUM 1 \l 12014             I also would like to caution that any such system should not be used for other than imminent threat information and there have to be criteria obviously, checks and balances in place.

LISTNUM 1 \l 12015             It has to be an imminent issue, something that is about to happen in the most immediate sense, and I believe that there has to be urgency to this type of situation.

LISTNUM 1 \l 12016             What I am trying to convey to the Commission is that it not be trivialized for just general nice‑to‑know information or information that is not specifically identified to a threat.

LISTNUM 1 \l 12017             Warnings should be the primary purpose.  It isn't a medium with which to convey information ‑‑ the media does that already ‑‑ general information.  So we are talking about threat to safety and security, imminent threat being the primary purpose, and that's what these warnings should be about.

LISTNUM 1 \l 12018             And, of course, as with Environment Canada warnings about approaching weather causes, dangers and threats, these are kinds of things that are very critical.

LISTNUM 1 \l 12019             Now we in Ontario already are governed by a number of requirements to warn the public on certain issues.  For instance, we have a provincial nuclear emergency response plan that requires a warning to the citizens that are within a three‑kilometre contiguous to a nuclear plant and then there is a further requirement for a scaled‑down warning system to citizens who are in three‑ to ten‑kilometre contiguous area to a nuclear plant in the event of an emergency.

LISTNUM 1 \l 12020             Now, this whole business of public alerting is not novel.  We do that all the time in different sectors, but most recently we have the Amber Alert, which is something that came into Ontario while I was the police chief in Toronto.  It was the first place that we used it, in Toronto, it's now going to go across Canada, and it saved many children.

LISTNUM 1 \l 12021             You probably know all that, so I don't need to get into it with you.

LISTNUM 1 \l 12022             But by its very nature, Ontario faces a very significant need to ensure that we not only plan, but we also bring into our efforts the need to ensure that the public plans for their own safeguard and their own protection.

LISTNUM 1 \l 12023             You have seen some of the disasters that have happened when people have either not been alerted or have not taken the warnings.  It just exacerbates whatever threat, whatever danger is imminent.

LISTNUM 1 \l 12024             As I indicated in my correspondence to the Commission, the thing I would like to also indicate is that every emergency or disaster is a local event, so you don't need to broadcast alerts and warnings far and wide.  And as far as checks and balances, authority and control, in my respectful submission, Emergency Management Ontario is already the clearinghouse for those kinds of warnings and those kinds of emergency responses and we operate a 24/7 emergency operation centre, which is in a position to address these kinds of issues and validate the requirement, if you will, and initiate such a warning with checks and balances and accountability in place.

LISTNUM 1 \l 12025             I don't know if, Mr. Chairman, you wish me to go through the rest of my submissions, which are contained in my correspondence to you.

LISTNUM 1 \l 12026             THE CHAIRPERSON:  We have read your submission, so if you may we have some questions.

LISTNUM 1 \l 12027             If I hear you very well, at the end of your presentation you said that Ontario has already has its authorized issuer of ‑‑ I don't know if you're familiar with the CANALERT program that is ‑‑ or that has been discussed yesterday, but they are ‑‑ there is a discussion about who is an authorized issuer and you are saying that Ontario has already its formal agency in order to meet that definition.

LISTNUM 1 \l 12028             MR. FANTINO:  Yes, Mr. Chairman.  Even with the Amber Alert, the Amber Alert has a number of checks and balances in place that ultimately requires ultimate accountability on the part of someone to have it issued.

LISTNUM 1 \l 12029             So I propose the same kind of process would be put in place as a matter of policy to ensure that all of these issues are addressed and that there be accountability for the use of the warning.

LISTNUM 1 \l 12030             THE CHAIRPERSON:  And that could be done in a very short time.

LISTNUM 1 \l 12031             MR. FANTINO:  It could be done, like I say, we have 24/7 operations.  There is people who are there all the time and we're all in contact and depending on the issue it obviously escalates to higher authority and something like this would probably go to a higher authority, either myself or my designate in the case of Ontario.

LISTNUM 1 \l 12032             THE CHAIRPERSON:  Now, at the beginning of your presentation you mentioned that two major emergency event that occurred in Ontario and you talk about SARS and the blackout.

LISTNUM 1 \l 12033             Obviously nobody could have predicted that blackout, because as a matter of fact the incident occurred in Ohio and almost half of North America was blacked out.  So no warning system could have prevented that.

LISTNUM 1 \l 12034             MR. FANTINO:  No.  I only raised that as a criteria that is used in our province, depending on the nature and the magnitude of the emergency.

LISTNUM 1 \l 12035             But you're quite correct, when the power went out a lot of the normal traditional warning systems would not have worked anyway.

LISTNUM 1 \l 12036             There is all kinds of stories coming out of Katrina as well, where once the communications broke down, batteries couldn't be charged, electricity was not available, a great deal more chaos.

LISTNUM 1 \l 12037             But, you know, some of these you can't warn people, I agree, but there are some, of course, that not only we can but we should.

LISTNUM 1 \l 12038             THE CHAIRPERSON:  Well, some could be predicted, as Dr. Rutherford explained just before you appear.

LISTNUM 1 \l 12039             Now, regarding health issues, do you see the validity of having warning?  You mentioned the case of SARS, but was that a matter for an emergency alert or was it a matter for the broadcasters to pick up the story and follow up, as they did, when the SARS was identified as a medical problem?

LISTNUM 1 \l 12040             MR. FANTINO:  Well, the type of public alerting that I think we're speaking about here would probably not fit into that kind of a scenario.

LISTNUM 1 \l 12041             Again, I raised that as stating a criteria that we have in the province for how emergencies are identified, but at any given time there could be something in a health emergency type situation that we need to warn the public about, but they would have to be imminent threats and not casual or nice‑to‑know information that could be ‑‑ that can and should be conveyed otherwise.

LISTNUM 1 \l 12042             THE CHAIRPERSON:  Yes, I think ‑‑ I think the one that you mentioned about the required warning system that has been put in place surrounding a nuclear plant is an obvious one.

LISTNUM 1 \l 12043             MR. FANTINO:  Yes.

LISTNUM 1 \l 12044             THE CHAIRPERSON:  Could you briefly describe for us the process and mechanism that have been put in place surrounding the events.  So the municipalities would contact you, the police forces, what?

LISTNUM 1 \l 12045             MR. FANTINO:  Yes.

LISTNUM 1 \l 12046             THE CHAIRPERSON:  How does it work?

LISTNUM 1 \l 12047             MR. FANTINO:  Well, as you know, every emergency or disaster is primarily, at least at the beginning, a local event.  If it can be managed locally it usually is done so by local emergency providers.

LISTNUM 1 \l 12048             But we are contacted, because we have a liaison, we have liaison people on the ground in the various regions right across the province, so if things are being handled at the local level we monitor, we assist, we advise, we help co‑ordinate response if there is a need for added resources to be brought in, the military, whatever, and we are in fact the direct link to federal authorities to aid of local communities.

LISTNUM 1 \l 12049             If the emergency escalates to a point where it would be declared a provincial emergency, the two I spoke about earlier, in that particular case the Premier and the Cabinet and me as the operational person would then look after the overall response to that emergency.

LISTNUM 1 \l 12050             So it could be a local level situation as long as it can be handled locally and then scaling up, we would, of course, intervene at the province and ‑‑

LISTNUM 1 \l 12051             THE CHAIRPERSON:  Let's take, for example, a local event ‑‑

LISTNUM 1 \l 12052             MR. FANTINO:  Yes.

LISTNUM 1 \l 12053             THE CHAIRPERSON:  ‑‑ that arises, say a train that derailed and was transporting chemical and ‑‑ like happened in Mississauga a few years ago.  And let's look at it from an emergency warning.

LISTNUM 1 \l 12054             The event occurs, say in Mississauga, a train derailment.  Obviously the local officials are there first, because that's ‑‑ they're there.  So will they be contacting your agency so that your agency will be contacting ‑‑ will be the issuer of the warning or will they do it by themselves?

LISTNUM 1 \l 12055             MR. FANTINO:  I would not leave it to local decision‑making.  It should be something that has a higher clearance and authority and, as I've stated earlier, part of our job is to also make sure that the proper authorities respond to such an emergency.

LISTNUM 1 \l 12056             As you pointed out, for instance, environment people have to attend.  There is all kinds of agencies that have to be notified and we are basically the clearinghouse to make sure that those agencies are notified, they attend and they do the due diligence that's required in these circumstances.

LISTNUM 1 \l 12057             I would then put the authority for issuing such a public warning, public alerting, in that same category, that we would assume the responsibility, make sure that the due diligence is done and that the proper criteria and the proper accountability is in place before it goes out.

LISTNUM 1 \l 12058             THE CHAIRPERSON:  Do you have a mechanism that makes sure that the system is not overused, because obviously some people could see an event happening locally, but thinking it's of a great magnitude, but in reality it's a daily case that other people have to deal with.  Do you have put in place some mechanism of that nature?

LISTNUM 1 \l 12059             MR. FANTINO:  Well, not specifically to public alerting, because we don't have a system such as we're speaking about that we would like to go to, but as it stands now, we have override on some issues.  But if I can take your mind back to the Amber Alert system, we put policy in place that governs how and when and under what circumstances that particular alert is used.

LISTNUM 1 \l 12060             Same principle should apply to any public alerting system, such as we're debating or discussing here.

LISTNUM 1 \l 12061             THE CHAIRPERSON:  So those are my questions.  Legal counsel?

LISTNUM 1 \l 12062             MR. McCALLUM:  Yes, thank you.  In both your written comments on also your oral comments today you talked about the provincial nuclear emergency response plan.

LISTNUM 1 \l 12063             I just wondered if I could say how you would envision coordination between your responsibilities under the response plan and the responsibilities of one or other of these applicants, either Pelmorex or CBC or Bell ExpressVu, if they were to disseminate the warnings?

LISTNUM 1 \l 12064             MR. FANTINO:  Well, we would have to, of course, ensure that the warning was of a level that ‑‑ oh, that the emergency was of a level that required such a warning.  And then, of course, we would sign off on it.  We would be accountable to ensure that the warning met the standards, the criteria, and that it went out in a timely fashion, however that is to be.

LISTNUM 1 \l 12065             So we would be basically the clearinghouse for that type of information going out.

LISTNUM 1 \l 12066             MR. McCALLUM:  What are you doing right now for the emergency response plan, in the absence of a mandatory system?

LISTNUM 1 \l 12067             MR. FANTINO:  Well, there's a major debate going on now about sirens and other electronic devices in the homes and so forth that is a matter of discussion.  It is not been determined yet.

LISTNUM 1 \l 12068             There are consultants looking at how the three‑kilometre contiguous to a nuclear plant warning is to take place and the ten‑kilometre, the three‑ to ten‑kilometre, but as we speak it looks like sirens will be the method to be used.

LISTNUM 1 \l 12069             MR. McCALLUM:  So you are thinking of sirens like within three kilometres of Pickering, Darlington and Bruce?

LISTNUM 1 \l 12070             MR. FANTINO:  Yes, the specification really is that there has to be within ‑‑ zero to three kilometres must provide within 15 minutes of initiation warning to practically 100 percent of the people in the contiguous zone at that time, whether they be indoors or outdoor and irrespective of the time of day or year.  And then it has a lower definition for three‑ to ten‑kilometres.

LISTNUM 1 \l 12071             And basically the way that that is now being looked at is sirens up on 50‑foot poles in the community.

LISTNUM 1 \l 12072             MR. McCALLUM:  And possibly house‑to‑house warnings as well?

LISTNUM 1 \l 12073             MR. FANTINO:  Possibly house‑to‑house warning.  There is a lot of debate about what should or shouldn't happen there, but it is being worked on as we speak between the affected local municipalities and the regional municipality as well.

LISTNUM 1 \l 12074             MR. McCALLUM:  And all of these efforts will continue, in any event, regardless of what happens with the Commission's process.

LISTNUM 1 \l 12075             MR. FANTINO:  Well, that's right.  But, you know, that is only applicable to nuclear emergencies.  So we have all these other emergencies to also worry about.

LISTNUM 1 \l 12076             MR. McCALLUM:  And with Amber Alerts what you do now is deliver an Amber Alert to the local media?

LISTNUM 1 \l 12077             MR. FANTINO:  To local media, the highway signs that you see along the highways.  And it has been so effective it is unbelievable.  And it has been used even to a greater effectiveness in the United States.  Florida, for instance, have had tremendous success.

LISTNUM 1 \l 12078             But it is basically to the media, voiced out or ticker tape type on video screens or in some cases actually voicing out over broadcasts and interrupting broadcasts and so forth.

LISTNUM 1 \l 12079             MR. McCALLUM:  If the Commission were to say yes to either, say, Pelmorex or CBC or Bell ExpressVu today what would you expect to be changed with the Amber Alerts in respect of notification you would make to the media?

LISTNUM 1 \l 12080             MR. FANTINO:  Well, I would expect that the ‑‑ well, first and foremost, my expectation is that we do this sooner rather than later, so I suggest to the Commission that there is a sense of urgency about doing this.

LISTNUM 1 \l 12081             Secondly, my view is that the criteria should be developed by the Commission so as we have one‑stop shopping application across the land.  And then I would suggest that once we are talking about an imminent threat, that that warning, however that is to be done, go over to the public in a way that it's mandatory.  In other words, it wouldn't be with an optional warning.  It goes out to everybody who has access to whatever technology is available that would bring that warning to their attention.

LISTNUM 1 \l 12082             So immediate, yes, imminent threat danger, mandatory, and of course to as many people as possible, through whatever system.

LISTNUM 1 \l 12083             MR. McCALLUM:  So it might be the local media as well as, say, CBC or Pelmorex.

LISTNUM 1 \l 12084             MR. FANTINO:  Well, my view would be that whoever, however we can reach the most numbers of people in the most immediate sense is what we should be looking at and that is why I didn't get into one technical property versus another technical property.

LISTNUM 1 \l 12085             I'm looking at it from the public's need and right to know as soon as possible about any imminent danger that they are liable to face.

LISTNUM 1 \l 12086             MR. McCALLUM:  Thank you.

LISTNUM 1 \l 12087             MR. FANTINO:  Thank you.

LISTNUM 1 \l 12088             MR. McCALLUM:  Thank you, Mr. Chair.

LISTNUM 1 \l 12089             THE CHAIRPERSON:  Yes.  Thank you, Mr. Fantino.

LISTNUM 1 \l 12090             Madam Secrétaire ‑‑ oh, excuse me.

LISTNUM 1 \l 12091             COMMISSIONER PENNEFATHER:  Excuse me, I just wanted to follow up.  Thank you, Mr. Chairman.

LISTNUM 1 \l 12092             Just to follow up on counsel's point.  I think you did say that this is a warning system and not the details and that is left to the broadcasters.  And you did mention a public education component in your written application.

LISTNUM 1 \l 12093             MR. FANTINO:  Yes.

LISTNUM 1 \l 12094             COMMISSIONER PENNEFATHER:  So as I understand it, you see the mandatory warning, the text warning via the broadcasters, via the BDUs, as mandatory, but in addition, it is a limited text, it says there is an imminent danger, it is that information.

LISTNUM 1 \l 12095             Anything further about what to do, anything further about what you should do when you hear the sirens, that is a public education program.  Who is responsible for that?  Is it your organization?

LISTNUM 1 \l 12096             MR. FANTINO:  Well, we would surely undertake if that was the next phase of the warning, if you will ‑‑ first and foremost you just give a warning without some kind of information about what people should do, but I think that the people, the public can be directed to other medium to then receive follow‑up information about what they need to do or ‑‑ all depends, you know, it all depends on the severity of the issue.  It may be that we need to expand the original warning to include a few other very critical pieces of information, but I would not make it, for instance, a story book kind of a warning.

LISTNUM 1 \l 12097             Warning.  Do this, do that, whatever.  This is why.  And then we worry about the second piece as we can.

LISTNUM 1 \l 12098             COMMISSIONER PENNEFATHER:  Thank you very much.

LISTNUM 1 \l 12099             MR. FANTINO:  Thank you.

LISTNUM 1 \l 12100             COMMISSIONER PENNEFATHER:  Thank you, Mr. Chairman.

LISTNUM 1 \l 12101             THE CHAIRPERSON:  Thank you, Mr. Fantino.

LISTNUM 1 \l 12102             MR. FANTINO:  Thank you.

LISTNUM 1 \l 12103             THE CHAIRPERSON:  Madam Secrétaire?

LISTNUM 1 \l 12104             THE SECRETARY:  Thank you, Mr. Chairman.

LISTNUM 1 \l 12105             I would now invite Mr. James Ferguson of the Salvation Army to make his ten‑minute presentation.

INTERVENTION

LISTNUM 1 \l 12106             MR. FERGUSON:  Mr. Chairman and members of the Commission, I would like to thank you for the opportunity to appear here today and to support the proposal for an all channel alert system in Canada.

LISTNUM 1 \l 12107             I requested this opportunity to advocate ‑‑ and I'll use "ACA" to cut down on having to say that many times ‑‑ be instituted.  And just to give a bit of a context from which I come, I'll just indicate there are several reasons and, number one, I represent the Salvation Army, which is the largest provider of social services in Canada outside of government and this includes emergency services right across the country.

LISTNUM 1 \l 12108             My role in the Salvation Army is the coordination of its emergency disaster services.  I say across the country, it also includes Bermuda, but that doesn't concern you people particularly, I don't think, at this point.

LISTNUM 1 \l 12109             The Salvation Army is one of the non‑governmental organizations which has formed an alliance, which includes four other agencies, the Canadian Red Cross, St. John Ambulance, Mennonite Disaster Services and Christian Reform World Relief Services of Canada.

LISTNUM 1 \l 12110             I would say that my colleague from Red Cross was planning to be here, but he or I had to go to Regina today to meet with PHAC emergency social services people, so he drew the short straw, I guess.

LISTNUM 1 \l 12111             What we have done in forming this alliance is in fact to foster a co‑operative relationship and the purpose of that relationship is to provide optimal services to the Canadian public in times of disaster.

LISTNUM 1 \l 12112             Those organizations work closely with the Public Health Agency of Canada and the Public Safety and Emergency Preparedness Canada to ensure that our efforts in disaster relief operations are conducted in an environment of co‑operation and within the stipulations of governments at all levels, be it municipal, provincial, territorial, or federal.

LISTNUM 1 \l 12113             In the best practices of effective emergency preparedness there are a few basic tenets upheld by all emergency responders and I'm not going to go into all of the details or the ‑‑ try to support one over the other, but I'll simply select the key factor that has to be of prime concern to all of us, and that is human life.

LISTNUM 1 \l 12114             And basically when a disaster strikes what governs all else is that in order to accomplish the highest survival rate when a disaster strikes, individuals and families within a community must be prepared to be self‑sufficient for at least the first 72 hours.

LISTNUM 1 \l 12115             It is most opportune that this hearing is occurring in the same week as the kickoff for Emergency Preparedness Week.  I think this ties in very nicely.

LISTNUM 1 \l 12116             What can organizations such as the Salvation Army and the other NGOs and government emergency preparedness agencies do to promote this individual and family preparedness and how is this connected to today's hearings?

LISTNUM 1 \l 12117             Obviously there is a need for an effective program of public education.  Members of our communities have to be taught how to prepare and know what to do when disaster strikes.

LISTNUM 1 \l 12118             Equally evident is the need for the preparedness education to adopt an all‑hazards approach.  The steps we would take in an earthquake are not the same measures we would take in a flood or a terrorist attack with a dirty bomb.

LISTNUM 1 \l 12119             Therefore we must keep before us the absolutely essential factor that teaching our community members what and how to protect themselves from disasters is virtually useless unless there is some way of letting them know what's happening.

LISTNUM 1 \l 12120             They need information, timely and accurate, so that they know when to put their emergency plans that they have learned how to do and that they have put into effect, what measures are required and for that to happen there are three requirements for those whoever the accurate information for the people who need that information.

LISTNUM 1 \l 12121             Number 1 is it communicate; secondly it is communicate; and thirdly it is communicate.

LISTNUM 1 \l 12122             That, ladies and gentlemen, is the reason that I have advocated for the implementation of an all channel alert system for several years now and it is why I've written to you in three different years and why I requested the opportunity to speak to you directly in support of an ACA for Canada today.

LISTNUM 1 \l 12123             All the work that emergency responders have done in recent years in promoting preparedness and educating the public will be severely hampered without the initiation of a communications network which will trigger the public's response.

LISTNUM 1 \l 12124             One step towards that would accomplish ‑‑ towards accomplishing the capacity to reach millions across Canada would be to implement all channel alert system which would initiate crawlers across the screen of every television set in the affected region, providing the critical messages of an impending disaster.

LISTNUM 1 \l 12125             As you are well aware, other countries in the world are far ahead of our country in this regard.  Indeed, I can say from personal experience, as I'm sure most of you can as well, in the United States the population knows it can count on the latest weather warnings or alerts together with instructions whenever trouble is brewing, whether that be atmospheric conditions that are right for a tornado or the fact that there has been an industrial accident on First avenue and the following neighbourhoods must be evacuated.

LISTNUM 1 \l 12126             Indeed, last time I was in Florida there was flash floods alerts and those warnings came across the screen.  We knew whether we were affected or not, because that was made very clear.

LISTNUM 1 \l 12127             Now, are the systems that are in place there perfect?  No.  And does that sort of approach meet all the informational needs of communities faced with a disaster?  Not yet.  And does the system ensure that people with various physical and communications disorders receive the warning?  Not at all.

LISTNUM 1 \l 12128             But what the existing ACA systems do provide, however, is a very much enhanced protection to the population, the viewing public in particular, of course, which Canadians do not currently enjoy.

LISTNUM 1 \l 12129             I would appeal to you to consider in your very responsible role today these additional facts:  Contrary to perhaps what we've heard earlier, it is not just in the mitigation and preparedness phases of a disaster response that ACA would be beneficial, as important as that function is.

LISTNUM 1 \l 12130             During the actual response phase people will need information about, (a), what had happened; (b), the nature of the existing dangers if any; what they should do to protect themselves; and where they can go for food, shelter, medical attention; and how they can find out about the status of family members.

LISTNUM 1 \l 12131             The roles of telecommunications facilities and systems will be absolutely critical to the possible survival of many thousands of people victimized by a catastrophic event.  Providing the mandate for an ACA system would be one measure that would increase the capacity of communities to emerge with some degree of physical and emotional stability in spite of what has occurred.

LISTNUM 1 \l 12132             Disasters take many forms.  In Canada we have been spared many of the weather‑related disasters that our neighbours to the south have experienced.  Statistically we have evidence that this good fortune is beginning to shift and, whether due to periodic cycles or to other phenomena, such as global warming, our portion of the continent is now due for much more severe episodes of bad weather.

LISTNUM 1 \l 12133             Our country has also been spared many of the extreme expressions of political and racial discontent, but we are not immune to terrorist attack.

LISTNUM 1 \l 12134             We need to decide on means by which our population can be warned of impending risk and what measures they should take to preserve the well‑being of their families.

LISTNUM 1 \l 12135             One of the crises on the horizon right across the world is determining how to best respond to a pandemic influenza and if I may I'll make an aside here.

LISTNUM 1 \l 12136             Better information in Toronto, being one of the examples, during SARS would have been extremely helpful.  I'm sure one of my previous colleagues would vouch for the fact that over 47,000 calls a day went to the hot‑line for information about SARS, because one of the largest factors that had to be dealt with was fear.  People did not know.  They didn't know what they were to do.  They had to go looking for it.  It was not being provided for them.

LISTNUM 1 \l 12137             So that, I think, is another role that could be played by this kind of a service.

LISTNUM 1 \l 12138             Many sectors within the medical and emergency disaster infrastructure have been working long and hard to prepare for this impending event, and I'm talking here of pandemic influenza.  Prior to and during the pandemic, key messaging ‑‑ and I emphasize that, because that applies to all kinds of incidents ‑‑ key messaging will be vital to assisting Canadians to respond appropriately.

LISTNUM 1 \l 12139             Once again, an ACA system could be an enormous asset to getting timely messages out to a public that could rapidly descend into panic and despair without those messages.  And these, the messages, could be disseminated via this technology.

LISTNUM 1 \l 12140             It was more than five years that I had the opportunity to learn about ACA and the system that was being proposed by Pelmorex.  Although my appeal to you is for immediate action to move on the establishment of an ACA system for Canada and although I have no intention to express a bias in favour of one applicant over another, I can speak of the enthusiasm and corporate responsibility demonstrated by Pelmorex when they invited me to their head office to view what they had in mind for a system by which a large portion of the population could be alerted to a hazardous situation in spite of the channel that they were viewing at that time.

LISTNUM 1 \l 12141             Technically I'm not qualified to judge the merits of one proposal or another, so I would beg you not to ask me questions about that, I'm not going to be of much help.

LISTNUM 1 \l 12142             My job is in terms of helping people who are experiencing disasters and I know information is a big issue.

LISTNUM 1 \l 12143             So the responsibility of choosing is yours.  I will say, however, that Canada is increasingly handicapped by the absence of a messaging service which ACA could provide, so I thank you for your concern about this.

LISTNUM 1 \l 12144             THE CHAIRPERSON:  Thank you, Mr. Ferguson.  Commissioner Pennefather.

LISTNUM 1 \l 12145             COMMISSIONER PENNEFATHER:  Thank you, Mr. Chairman.  Good morning Mr. Ferguson.

LISTNUM 1 \l 12146             MR. FERGUSON:  Good morning.

LISTNUM 1 \l 12147             COMMISSIONER PENNEFATHER:  Thank you for your comments this morning and your ongoing interest in this area.  Your expertise is valuable to our discussion.

LISTNUM 1 \l 12148             I did want to pursue one point you made regarding your example of the pandemic influenza and I think I understood a little differently from perhaps Mr. Fantino's comments that you are looking at this service as both a warning system in the pure sense of the term warning, imminent danger, and as an information source.

LISTNUM 1 \l 12149             MR. FERGUSON:  I believe that is necessary and I think our experience in SARS has proven just that.

LISTNUM 1 \l 12150             One of roles that the Salvation Army was charged with was the distribution of isolation kits.  On one day in particular I well remember ‑‑ and this is an experience shared by the Red Cross and by St. John Ambulance as well ‑‑ in distributing these isolation kits, we had 1200 one day.  750 were delivered.  An attempt was made to deliver the other kits, but there was no one home.

LISTNUM 1 \l 12151             COMMISSIONER PENNEFATHER:  Deliver to ...

LISTNUM 1 \l 12152             MR. FERGUSON:  To people who had in fact been either contact with someone who was reported to have ‑‑ had contact with SARS or whatever.

LISTNUM 1 \l 12153             I think it would be a public service as well, if people were aware that there is a contact number for information, just that much, about an existing perilous, hazardous situation.

LISTNUM 1 \l 12154             COMMISSIONER PENNEFATHER:  But I understand and currently now, though, let's assume that the ACA service that we are addressing is not there, what would you do now, because would you not through ‑‑ for information, for packages that would provide further information, for support throughout, as we said earlier, a health concern such as a influenza is ongoing.  It is not ‑‑ as in a tornado.

LISTNUM 1 \l 12155             MR. FERGUSON:  That's right.

LISTNUM 1 \l 12156             COMMISSIONER PENNEFATHER:  So would not existing broadcast media be able to play a role there?

LISTNUM 1 \l 12157             MR. FERGUSON:  That is one of the means of doing so, but to be very direct on this, there is an organization which is charged with the responsibility of disseminating information, it is an emergency network of non‑governmental organizations, interestingly enough, chaired by Public Health Agency of Canada.

LISTNUM 1 \l 12158             The reason that relationship is there is that it is deemed, and I think correctly so, that many of the not‑for‑profit organizations across the country have contacts out into the community and therefore key messages could be disseminated in that manner.

LISTNUM 1 \l 12159             That is certainly not the way you want to go for something that is urgent, however, and needs to be delivered very quickly, because it is going to take time to do that.

LISTNUM 1 \l 12160             COMMISSIONER PENNEFATHER:  Okay.  Let's go back, then, to the very specific warning service that we are discussing at this hearing and what I'm hearing ‑‑ what this discussion is helping us understand, I think, is the number of agencies across the country which for very good reason are involved in support in the event of an emergency.

LISTNUM 1 \l 12161             In the case of a warning system of imminent danger, if we narrow it to very specifically that discussion, in your view ‑‑ you have heard our conversations perhaps over the last day or so ‑‑ who should be the authorized provider of the emergency message, in your view?

LISTNUM 1 \l 12162             MR. FERGUSON:  I think it has to be the arm of government or designate that has the expertise and the responsibility for doing so.  If we are talking about a severe weather event, then it should be Environment Canada.  If it is something to do with an imminent attack, then obviously it is going to be coming either from defence or another arm of government.

LISTNUM 1 \l 12163             COMMISSIONER PENNEFATHER:  It is government, then.

LISTNUM 1 \l 12164             MR. FERGUSON:  In a position to do so.  But I think it should be a government agency in that respect.  Everything that the NGOs do in emergency services is done under the leadership, basically, of the government level in which they are working.  If it is in a municipality, then it is the local mayor who is in charge.

LISTNUM 1 \l 12165             COMMISSIONER PENNEFATHER:  Do you have any comment on how the alert system for the warning of imminent danger should be funded?

LISTNUM 1 \l 12166             MR. FERGUSON:  Well, I certainly would support what has been said so far, because I ‑‑ I think it is appropriate in ‑‑ as I say, in a couple of days we are kicking off a campaign in which everybody will be getting a folder that talks about the first 72 hours and how to survive, because people have to take responsibility for their own welfare, and I suspect that there is not very much way you can argue against laying the responsibility for that at the feet of the people who are the consumers.

LISTNUM 1 \l 12167             COMMISSIONER PENNEFATHER:  And final question, and I promise it is not a technical question, but considering your experience in this area, is it your view that such a system for warnings of imminent danger be mandatory to broadcast distribution undertakings and broadcasters?

LISTNUM 1 \l 12168             MR. FERGUSON:  Absolutely, because if it is going to have any effect it has to get out.  It can't be just in a very narrow channel.  Right now we are faced with that same sort of situation in that we've got very piecemeal means and if it were not mandatory then I would suggest that all we are doing is prolonging that status.

LISTNUM 1 \l 12169             COMMISSIONER PENNEFATHER:  Thank you, Mr. Ferguson.  Thank you, Mr. Chairman.

LISTNUM 1 \l 12170             THE CHAIRPERSON:  Thank you, Mr. Ferguson.  We will move to the item.  Madame Secrétaire?

LISTNUM 1 \l 12171             THE SECRETARY:  Thank you, Mr. Chair.  The next intervener to appear with the Rogers Cable communications, I would invite Mr. Ken Engelhart and Peter Kovacs to come forward.

LISTNUM 1 \l 12172             THE CHAIRPERSON:  Mr. Englehart, when you are ready.

INTERVENTION

LISTNUM 1 \l 12173             MR. ENGLEHART:  Thank you, Mr. Chairman, members of the Commission.  I'm Ken Engelhart, the vice‑president regulatory for Rogers Communications.  With me today from Rogers Cable are to my left Pam Dinsmore, vice‑president regulatory, and to Pam's left, Peter Kovacs, the director of regulatory.  To my right is Chris Lapine, the director of digital television services technology and to my far right is Suzanne Blackwell, the president of giganomics.

LISTNUM 1 \l 12174             Rogers supports the establishment of a public emergency alerting system.  It is time that Canada had a system for the reasons that the various interveners have said.

LISTNUM 1 \l 12175             We are fully prepared to implement such a system if we are asked to by the Commission or any other agency or department of the Federal Government and that commitment is not dependent on funding being received for CBC or funding being received for CANALERT or any of those other things.

LISTNUM 1 \l 12176             We do, however, oppose Pelmorex's application requesting that the CRTC mandate carriage of their ACA service.

LISTNUM 1 \l 12177             Now, I have something here to show you how an emergency alerting system will work.  Is that working?  Yes.  Thanks so much.

LISTNUM 1 \l 12178             So, as we've heard, there is really three parts to an emergency alerting system.  There is the alert that comes from a government agency; there is the distribution of that alert to a cable head end; and then there is putting that alert up onto the TV screen, either through a crawl or a forced tune down to a message of the type we saw in the CBC video.  So those are the three parts that you need for an emergency alerting system.

LISTNUM 1 \l 12179             We don't need Pelmorex for any of those three parts.

LISTNUM 1 \l 12180             The first part is the alerts.  They don't come from Pelmorex, as we have heard.  They come from the federal, provincial or municipal governments.

LISTNUM 1 \l 12181             Now, as they describe in their application, Pelmorex proposes that these agencies send their alerts to the Pelmorex distribution centre over the Internet, over a secure, encrypted, password protected Internet connection.  Well, it's just as easy for those folks to send those messages to a Rogers centre, the Rogers server.  In fact, it could be sent to all of the relevant servers with a single push of a button.

LISTNUM 1 \l 12182             So what we have once it hits the Pelmorex server is a whole elaborate satellite system to get that message down to the cable head end.  But this is really sort of a pre‑Internet type of solution.  We don't need that.

LISTNUM 1 \l 12183             Once it's at the Rogers server we can use our own distribution network to deliver the signals to our head end.  That's what we do.  Our whole network is a giant system for delivering things to our head end.  So we can get the message to our head end without Pelmorex.

LISTNUM 1 \l 12184             Now, the last part of the equation is the head end equipment, the receivers, the character generators, the force tune equipment.  Again, we don't need Pelmorex for that.  They have a technology solution, but all of the major manufacturers make these things.  They are off‑the‑shelf technology.  They are easily buyable.  We can buy these things today.  There is no reason why we need Pelmorex for that.

LISTNUM 1 \l 12185             So all three parts of the equation we can do without Pelmorex.

‑‑‑ Pause

LISTNUM 1 \l 12186             MR. ENGLEHART:  So what is the problem, then, from our perspective with the Pelmorex solution?

LISTNUM 1 \l 12187             Well, the financial issue is really important.  Pelmorex will be charging us $2 million a year for their EAS solution.  This is a lot of money for something that we could do ourselves for far less.

LISTNUM 1 \l 12188             As you heard from Pelmorex, there are two ways of getting the message up on the screen, character generators that are much more expensive, and the force tune solution which is cheaper.

LISTNUM 1 \l 12189             If we used the force tune solution, we could buy all of the head end equipment for $1.3 million one time, so we would be paying a one‑time cost of $1.3 million instead of $2 million a year until the end of time.

LISTNUM 1 \l 12190             We will have operating costs if we buy the equipment, but we will have operating costs if Pelmorex supplies the equipment, because we are responsible for operating their equipment in our head end.

LISTNUM 1 \l 12191             One of the reasons why their solution is so expensive is that their business plan includes all sorts of costs that we don't think we should have to bear.

LISTNUM 1 \l 12192             There is a very high licensing fee of $2.6 million over their first term to their affiliated manufacturing entity; there is $5.8 million in education, communication and marketing costs; there is 41.4 million for administrative and regulatory costs, in addition to $4.5 million of general management costs; and there is $2.3 million of pre‑launch costs.  These are all costs that we either wouldn't have to bear if we did it ourselves or they would be far, far less.

LISTNUM 1 \l 12193             I would also note, while we are talking about the financial model, that we believe that their revenues are understated because they have not allowed for subscriber growth.  We would also note that they are making a 17 percent profit margin, which again is something that we wouldn't have to bear if we provided the service ourselves.

LISTNUM 1 \l 12194             We also have a number of technical concerns.  It's not that their solution couldn't work, it's that there are a whole lot of things about the relationship that set off warning bells for us.

LISTNUM 1 \l 12195             One, they don't really have any experience as an equipment manufacturer.  About half of the $0.08, about $0.04 goes to the equipment.  They have never manufactured equipment before.  We deal with Scientific Atlanta, GI, Motorola, big equipment manufacturers, and even there we are paranoid control freaks about the equipment we buy.

LISTNUM 1 \l 12196             So we are very worried about getting this equipment from Pelmorex.

LISTNUM 1 \l 12197             They are also in the position of planning and managing our network.  That's what we do.  We are a cable company.  That's our core competency, is buying equipment for the network.  This is not even a secondary competency for Pelmorex.  And any time you put a piece of equipment into the head end, you introduce risk to our security of our network, to the reliability of our network, to the quality of our picture, and if we can control our own network then we can pick the appropriate level of risk.  But if they are putting the equipment in and upgrading it according to their timetable, it injects a lot of risk for us.

LISTNUM 1 \l 12198             Another technical matter that is worth mentioning is that they have stated in their application, they can monitor the alert as far as the satellite, but they can't make sure that it got to the head end.  We can make sure that that alert got to the head end, so we believe our monitoring would be more effective.

LISTNUM 1 \l 12199             Finally, I want to talk a bit about jurisdiction.

LISTNUM 1 \l 12200             As you know from our brief, we do not believe the Commission has the jurisdiction under the Broadcasting Act to licence the ACA service.  The ACA service is alphanumeric, therefore it is not programming.  If it's not part of a program, it's not licensed under the Broadcasting Act.

LISTNUM 1 \l 12201             But the Commission has said there are some kinds of non‑programming service, there are some kinds of alphanumeric texts that can be part of the program, but it has to be program‑related.  If it's not program‑related, it's not part of the program, therefore it's not licensable.

LISTNUM 1 \l 12202             So here it is obviously not programming because it's alphanumeric text.

LISTNUM 1 \l 12203             It is also not program‑related, and you can tell that from a commonsense test.  If you are watching channel 183 and a tornado warning comes across in the middle of the golf game you're watching, you don't think to yourself, "Well, I'm watching The Weather Network now", you think "I'm watching the Golf Channel with a tornado warning".  So there is nothing  commonsense to suggest that it's part of the program.

LISTNUM 1 \l 12204             But if the commonsense test isn't enough, the Commission has laid out in the ITV decision very clearly what is program‑related and what isn't, and clearly this isn't.

LISTNUM 1 \l 12205             So it is not licensable, it can't be the subject of a 9(1)(h) order, but that's okay.  All the Commission needs to do is amend paragraph 70 of the Broadcast Distribution Regs.  That's all the Commission needs to do, to permit us to delete or alter the programming signals to insert our alert messages and then we will do it.

LISTNUM 1 \l 12206             We look forward to any questions you have.

LISTNUM 1 \l 12207             THE CHAIRPERSON:  Thank you, Mr. Englehart.

LISTNUM 1 \l 12208             Commissioner del Val...?

LISTNUM 1 \l 12209             COMMISSIONER del VAL:  Thank you.

LISTNUM 1 \l 12210             I was just going to ask if you could shift that so I could see Mr. Kovacs.  That's great.  Thanks.  So you anticipated my first question.

LISTNUM 1 \l 12211             One of the questions is, I have read your argument on why this is not a program or program‑related, but let's assume for a moment that it is.  Now, my concern is then section 3(1)(h) of the Broadcasting Act which essentially says that:

"all persons who ... carry on broadcasting undertakings have a responsibility for the programs they broadcast;"

LISTNUM 1 \l 12212             I think none of the applicants want to be responsible for the content of the message.  How would I get around the 3(1)(h) problem?

‑‑‑ Pause

LISTNUM 1 \l 12213             MR. ENGLEHART:  Well, I think ‑‑ I mean, a cable company is responsible for what they do in their network.  If our server doesn't work right or our character generators don't work right, that's our problem.

LISTNUM 1 \l 12214             We are obviously not responsible for the message because we don't originate the message and the message comes from someone else.

LISTNUM 1 \l 12215             I would also point out ‑‑ not necessarily that I should be putting ideas into the Commission's head ‑‑ but if I'm right that this is a telecom service you might be able to make people responsible or not responsible under the Telecom Act.

LISTNUM 1 \l 12216             COMMISSIONER del VAL:  How would I do that?

LISTNUM 1 \l 12217             MR. ENGLEHART:  Well, most cable companies have some sort of telecom service, even if it's just a TV Guide channel, which is an alphanumeric channel.  That's telecom.  So in a strict legal sense they are telecom carriers.

LISTNUM 1 \l 12218             They have never really been much regulated, but the cable industry has had a couple of decisions dealing with alphanumeric channels where the Commission has said what we can and cannot carry and how we would do it.

LISTNUM 1 \l 12219             Even though it would be very unusual, legally, jurisdictionally, I don't think there is anything to prevent the Commission from using the Telecommunications Act to order the cable companies and other BDUs to carry an alerting service.

LISTNUM 1 \l 12220             Now, if we were making submissions to you on that, I wouldn't be asking you to make us liable, I would be asking you, under the Telecom Act, to limit our liability, because I think if we are providing a public service like this we shouldn't also find ourselves sued if something screws up.

LISTNUM 1 \l 12221             But that's how the Commission could do it, I believe, if you wanted to do it.

LISTNUM 1 \l 12222             COMMISSIONER del VAL:  Now, I also gather that you are in favour of a section 7(d) amendment.

LISTNUM 1 \l 12223             Is that of

LISTNUM 1 \l 12224             MR. ENGLEHART:  That is absolutely correct, yes.

LISTNUM 1 \l 12225             COMMISSIONER del VAL:  There does not appear, from what we heard yesterday, to be any agreement on the issue of, say, liability for the signals.  There was talk about asking and needing indemnities, but there is no agreement.

LISTNUM 1 \l 12226             If I were, say CTV, then I have a situation where nobody, no broadcaster wants to be responsible for the content of the message, and yet when you remove the critical element of 7(d), which is the requirement of an agreement before the deletion or alteration of the program, then they have no control.

LISTNUM 1 \l 12227             Why is it unreasonable for the broadcaster to have a significant concern in that area?

LISTNUM 1 \l 12228             MR. ENGLEHART:  I would be very concerned if I was them, because you are affecting their signal.  The fact is, if an alert message has to be put up on all channels ‑‑ it is an all channel alert ‑‑ the broadcasters of channel 87 shouldn't be able to say, "Well, you can use every other channel, but not 87."

LISTNUM 1 \l 12229             So if the broadcaster's is that the alerting should be done in a certain way and to a certain specification, I can understand that.

LISTNUM 1 \l 12230             Bear in mind, though, that as cable operators we have the exact same concern that the broadcasters have, which is that our viewers are upset as little as possible.  We have the same incentive as them.  We want very much, yes, to give them the alert, but (b) to be as ‑‑

LISTNUM 1 \l 12231             COMMISSIONER del VAL:  As non‑disruptive?

LISTNUM 1 \l 12232             MR. ENGLEHART:  ‑‑ as non‑disruptive as we can.

LISTNUM 1 \l 12233             So I understand where the broadcasters are concerned, but it's not like we have some different set of incentives that would incline us to do something different than them.

LISTNUM 1 \l 12234             COMMISSIONER del VAL:  You are also advocating for voluntary participation at this point, aren't you?

LISTNUM 1 \l 12235             MR. ENGLEHART:  That's correct.

LISTNUM 1 \l 12236             I mean right now if we consider section 7(d), we are actually forbidden from doing an alerting service.  We couldn't do one, save and except getting all 500 channels on the 500 channel universe to consent.

LISTNUM 1 \l 12237             So right now the Commission is, in effect, forbidding us from doing it.  We think it is sort of odd to go from forbidden one day to mandatory the next day.  It makes more sense to go from forbidden to voluntary.  I think you will find that the cable operators in Canada will respond.  If the Commission says "This is something that has to be done", or if Industry Canada says it, or if PSEPC says it, the cable industry will step up.  Among other things, I think as Pelmorex pointed out, it is something that is valuable to our viewers.  It's a valuable service.  So we will step up and do it.

LISTNUM 1 \l 12238             If you find in a couple of years, "Look, these cable companies are all talk and no action, they are not actually doing it", then I think either you or some other branch of the federal government should make it mandatory.

LISTNUM 1 \l 12239             COMMISSIONER del VAL:  So then for as long as carriage is voluntary, so you have the choice of transmitting the signal or not, and if section 7(d) were changed, would you give the broadcasters an indemnity?

LISTNUM 1 \l 12240             MR. ENGLEHART:  I don't know exactly what I'm indemnifying them against.  I guess they would be concerned that ‑‑ I mean certainly, like we saw on the video, if you are watching Rick Mercer and suddenly you are told about an tornado, there is an interruption to the program.  There is no reason to indemnify CBC for that.

LISTNUM 1 \l 12241             I suppose if our equipment malfunctions so that it is a minute or two before the viewer is back to the program, no, I don't want to indemnify CBC for that, or anyone else.  I am going to operate that equipment as efficiently as I possibly can because as a cable operator it is in my self‑interest to make sure that my customers have as least disruption as they can, but if the worst thing happens I don't want to be sued by a bunch of broadcasters too.

LISTNUM 1 \l 12242             COMMISSIONER del VAL:  I don't think anybody likes to be sued by anybody, but the reality is, say if I were watching on CTV Canadian Idol and I look down the chain and all I see when I'm the viewer, I see an alert.  You know, it could have been an error that it should not have been broadcast to me, it could have contained wrong information.

LISTNUM 1 \l 12243             The point is that the broadcaster has no control, right.  To them, they are probably in this process you could say they could be a victim.  From their perspective, what does it matter who made the mistake?

LISTNUM 1 \l 12244             If you want to remove them from having any say at all when their broadcast signal is altered, do you want to indemnify them?

LISTNUM 1 \l 12245             MR. ENGLEHART:  I guess I would say that, you know, we do other things like simultaneous substitution.  Chris and his team at Rogers have put in a simultaneous substitution system that we are very proud of, but I wouldn't tell you that it never makes a mistake, that it doesn't clip off a bit of a program or occasionally ‑‑ I might get kicked under the table ‑‑ occasionally forget to do a substitution.  I don't know if that has ever happened, but I have never heard of anyone suing us before.

LISTNUM 1 \l 12246             So as cable operators make the odd mistake, I have never ‑‑ I have never known a broadcaster to sue us.

LISTNUM 1 \l 12247             But I guess when you say they have no say, they probably have no say that it will happen, but I think they should have some say in any Commission process about how it will happen.

LISTNUM 1 \l 12248             COMMISSIONER del VAL:  Thank you.

LISTNUM 1 \l 12249             Moving on, still on the legal argument side on whether this is a programming service.

LISTNUM 1 \l 12250             I think you addressed it in paragraph 38 or 39 of your intervention, but what should I make of the fact that the alert message is a severable portion from the rest of The Weather Network's program?

LISTNUM 1 \l 12251             What does that tell me about program‑relatedness, for lack of a better term, program enhancement, and how I should assess that severable portion itself?

LISTNUM 1 \l 12252             MR. ENGLEHART:  Well, starting at the beginning, the Commission can issue programming licences.  So a programming licensee under the Act distributes programs.  Programs are sounds and images but not including alphanumeric text.  So those are the only things you can licence, is people that produce those programs.

LISTNUM 1 \l 12253             Where there is alphanumeric text, well, there is a problem.  The Act has just said alphanumeric text is not programming, and yet, as we have heard, there is alphanumeric text sometimes on programming services.

LISTNUM 1 \l 12254             So the Commission has looked at this problem and said, yes, that alphanumeric text is considered to be programming when it is program related, and the question is, is it part of the program?

LISTNUM 1 \l 12255             So obviously, the fact that these ACA messages are on a different channel is one of the things that would lead one to think, hum, this doesn't seem to be part of the program.

LISTNUM 1 \l 12256             The viewer watching their golf game wouldn't know that that program ‑‑ wouldn't even know what the program was on Channel 23, on The Weather Network, certainly wouldn't think that that tornado warning is part of that program.

LISTNUM 1 \l 1