TORONTO – With one saying it “verges on abuse of regulatory process,” several independent broadcasters are mulling their next steps in light of the CRTC decision to delay considering applications made under section 9(1)(h) of the Broadcasting Act to June 2012.
On Friday the Commission finally released its new criteria for assessing applications for mandatory distribution on digital basic service made under that section, which guarantees carriage for any such license holder on all Canadian BDUs as well as a wholesale rate will be paid.
While the broadcasters are somewhat concerned about the seven criteria now set out which focus on how 9(1)(h) channels have to be comprehensive and “exceptional”, it’s the further delay that has angered them.
Such an applicant must “provide evidence as to how the programming of its service contributes, in an exceptional manner, to the overall objectives for the digital basic service… and how it specifically contributes to one or more objectives of the Act, such as Canadian identity and cultural sovereignty; ethno-cultural diversity, including the special place of Aboriginal peoples in Canadian society; service to and the reflection and portrayal of persons with disabilities; or linguistic duality, including improved service to official language minority communities,” reads part of paragraph 11 in the decision.
But with the digital transition coming at the end of August next year, BDUs will then be free to shuffle and/or drop certain channels, such as the ones formerly protected by their dual status designation, like Vision TV.
The digital migration plan was set out in 2006 and broadcasters then (especially independents with little bargaining power) began to think about their carriage and business plans beyond August 31, 2011. They began to think 9(1)(h).
ZoomerMedia TV division (Vision TV’s owner) president and CEO Bill Roberts said his company began to work with the Commission in 2007 and filed its 9(1)(h) application in January of 2008, then watched over the past two and a half years how other issues were given priority over his and eight other independent 9(1)(h) applications (from the likes of Stornoway, TV5 and others).
When the new criteria were finally set out on Friday Roberts said he and his fellow 9(1)(h) applicants were stunned that the Commission said it will not even begin to consider them until June 2012. “This decision to delay due process… is outrageous,” he told Cartt.ca in an interview.
“We played by all the rules… this decision is horrific.
“It verges on abuse of regulatory process and in many ways, the future for independent broadcasters, who are a foundation of diversity of voices and ownership, which the Commission proclaims to be highly supportive of – is even murkier,” Roberts added.
The policy release says “The Commission is of the view that the industry will need time to adapt to this new environment and that the introduction of further changes through the issuance of new mandatory distribution orders would not be prudent at this time. Accordingly, the Commission has determined that it will not consider applications for mandatory carriage on the basic service until soon after 1 June 2012. Parties who wish to be considered for such carriage should file applications by that date. The Commission intends to return any applications currently before it so that interested parties may determine whether they wish to resubmit applications that address the criteria set out above.”
(Ed note: One wonders that since the two satellite BDUs are all-digital, as are the telco TV distributors – and the biggest cable carriers are well over 70% digitally penetrated, just what it is the industry needs time to adapt to.)
Commissioner Suzanne Lamarre sided with the broadcasters in a written dissent, saying: “This delay is absolutely unfair and unacceptable.
“Now that the criteria have been defined, applicants with outstanding applications should be allowed to revise their applications as necessary; a call should be issued for new applications based on the new criteria; and all the applications should be processed promptly. I recognize that the Commission has a busy schedule, given the rapid changes in the broadcasting industry, but one category of applicants should not be placed at a disadvantage to the benefit of others,” she writes.
“The delay imposed for pending applications and potential applications is clearly unreasonable. For those who have already filed an application, the situation is clear: some have been waiting nearly three years for their application to be examined, and they are now being told that they will have to wait another two years. It is reasonable to assume that some potential applicants have been waiting for the now-completed revision of the criteria before acting. Today they are finding out that they will have to wait even longer just to file an application. The imposition of this June 2012 date means that several applicants will have waited very nearly five years before a decision is made. I can see no valid reason for such a long delay.”
(Commissioner Michel Morin also dissented, pushing for a more objective, numbers-based model to measure 9(1)(h) worthiness.)
Roberts added that he and the other broadcasters are now mulling their legal options to figure out if the policy can be appealed in the courts or to Federal Cabinet and how fast they can do it.
“We began to work on this in 2006 and to punt it to 2012 is unconscionable.”
