ARCHIVED — Vol. 146, No. 17 — August 15, 2012

Registration

SOR/2012-151 July 26, 2012

BROADCASTING ACT

Regulations Amending Certain Regulations Made Under the Broadcasting Act

Whereas, pursuant to subsection 10(3) of the Broadcasting Act (see footnote a), a copy of the proposed Regulations Amending Certain Regulations Made Under the Broadcasting Act, substantially in the annexed form, was published in the Canada Gazette, Part Ⅰ, on January 7, 2012, and a reasonable opportunity was given to licensees and other interested persons to make representations to the Canadian Radio-television and Telecommunications Commission with respect to the proposed Regulations;

Therefore, the Canadian Radio-television and Telecommunications Commission, pursuant to subsection 10(1) of the Broadcasting Act (see footnote b), makes the annexed Regulations Amending Certain Regulations Made Under the Broadcasting Act.

Gatineau, Quebec, July 20, 2012

JOHN TRAVERSY
Secretary General
Canadian Radio-Television and
Telecommunications Commission

REGULATIONS AMENDING CERTAIN REGULATIONS
MADE UNDER THE BROADCASTING ACT

TELEVISION BROADCASTING REGULATIONS, 1987

1. (1) The definition “licensed” in section 2 of the Television Broadcasting Regulations, 1987 (see footnote 1) is replaced by the following:

“licensed” means licensed by the Commission under paragraph 9(1)(b) of the Act; (autorisé)

(2) Section 2 of the Regulations is amended by adding the following in alphabetical order:

“exempt distribution undertaking” means a distribution undertaking whose operator is, by order of the Commission made under subsection 9(4) of the Act, exempt from any or all of the requirements of Part Ⅱ of the Act; (entreprise de distribution exemptée)

2. Section 15 of the Regulations is renumbered as subsection 15(1) and is amended by adding the following:

(2) In any proceeding before the Commission, the burden of establishing that any preference or disadvantage is not undue is on the licensee that gives the preference or subjects the person to the disadvantage.

3. The Regulations are amended by adding the following after section 15:

TIED SELLING

16. (1) For the purposes of this section, “distant television station” has the same meaning as in section 1 of the Broadcasting Distribution Regulations.

(2) Except as otherwise provided under a condition of its licence, a licensee shall not offer its programming service for distribution as a distant television station as part of a package with other programming services unless it also makes its programming service available as a distant television station on a stand-alone basis.

DISPUTE RESOLUTION

17. (1) If there is a dispute between the licensee and the operator of a licensed distribution undertaking or an exempt distribution undertaking, concerning the carriage or terms of carriage of programming originated by the licensee, including the wholesale rate and the terms of any audit referred to in section 15.1 of the Broadcasting Distribution Regulations, one or both of the parties to the dispute may refer the matter to the Commission for dispute resolution.

(2) If the Commission accepts a referral of a matter for dispute resolution, the parties to the dispute are required to participate in a mediation with a person appointed by the Commission.

(3) During the dispute resolution process, the person appointed under subsection (2) may require additional information from the parties.

PAY TELEVISION REGULATIONS, 1990

4. Section 2 of the Pay Television Regulations, 1990 (see footnote 2) is amended by adding the following in alphabetical order:

“licensed” means licensed by the Commission under paragraph 9(1)(b) of the Act; (autorisé)

“new programming service” means a programming service that has not been previously distributed in Canada and includes, but is not limited to, a high definition version or a new multiplex of an existing programming service. (nouveau service de programmation)

5. Section 6.1 of the Regulations is amended by adding the following after subsection (2):

(3) In any proceeding before the Commission, the burden of establishing that any preference or disadvantage is not undue is on the licensee that gives the preference or subjects the person to the disadvantage.

6. The Regulations are amended by adding the following after section 6.1:

TIED SELLING

6.2 Except as otherwise provided under a condition of its licence, a licensee shall not offer its programming service for distribution as part of a package with other programming services unless it also makes its programming service available on a stand-alone basis.

AVAILABILITY OF NEW PROGRAMMING SERVICES FOR DISTRIBUTION

6.3 Except as otherwise provided under a condition of its licence, a licensee that is ready to launch a new programming service shall make that programming service available for distribution by all licensed broadcasting distribution undertakings or operators of exempt distribution undertakings, despite the absence of a commercial agreement.

DISPUTE RESOLUTION

6.4 (1) If there is a dispute between the licensee and the operator of a licensed distribution undertaking or an exempt distribution undertaking, concerning the carriage or terms of carriage of programming originated by the licensee, including the wholesale rate and the terms of any audit referred to in section 15.1 of the Broadcasting Distribution Regulations, one or both of the parties to the dispute may refer the matter to the Commission for dispute resolution.

(2) If the Commission accepts a referral of a matter for dispute resolution, the parties to the dispute are required to participate in a mediation with a person appointed by the Commission.

(3) During the dispute resolution process, the person appointed under subsection (2) may require additional information from the parties.

(4) If a licensed distribution undertaking or an exempt distribution undertaking distributes the programming service of the licensee in the absence of a commercial agreement and the matter proceeds before the Commission for dispute resolution, the licensee shall submit to having the dispute resolved as provided for in Broadcasting and Telecom Information Bulletin CRTC 2009-38, dated January 29, 2009, and the rates, terms and conditions established by the Commission will apply as of the day on which the programming service was first made available to the distributor in the absence of a commercial agreement.

(5) If the dispute relates to the rates, terms or conditions, or any combination of them, surrounding a new programming service that is being distributed in the absence of a commercial agreement and the matter proceeds before the Commission for dispute resolution, the parties will be bound by the rates, terms and conditions established by the Commission for the duration of the contractual term established by the Commission.

(6) Despite subsections (4) and (5), the parties may reach an agreement with respect to rates, terms or conditions that differ from those established by the Commission.

7. Section 7 of the Regulations is replaced by the following:

7. (1) During any dispute between a licensee and a person licensed to carry on a distribution undertaking or the operator of an exempt distribution undertaking concerning the carriage or terms of carriage of programming originated by the licensee or concerning any right or obligation under the Act, the licensee shall continue to provide its programming services to the distribution undertaking at the same rates and on the same terms and conditions as it did before the dispute.

(2) For the purposes of subsection (1), a dispute exists from the moment that written notice of the dispute is provided to the Commission and served on the other undertaking that is party to the dispute and ends when an agreement settling the dispute is reached by the concerned undertakings or, if no such agreement is reached, when the Commission renders a decision concerning any unresolved matter.

SPECIALTY SERVICES REGULATIONS, 1990

8. Section 2 of the Specialty Services Regulations, 1990 (see footnote 3) is amended by adding the following in alphabetical order:

“licensed” means licensed by the Commission under paragraph 9(1)(b) of the Act; (autorisé)

“new programming service” means a programming service that has not been previously distributed in Canada and includes, but is not limited to, a high definition version or a new multiplex of an existing programming service. (nouveau service de programmation)

9. Section 10.1 of the Regulations is renumbered as subsection 10.1(1) and is amended by adding the following:

(2) In any proceeding before the Commission, the burden of establishing that any preference or disadvantage is not undue is on the licensee that gives the preference or subjects the person to the disadvantage.

10. The Regulations are amended by adding the following after section 10.1:

TIED SELLING

10.2 Except as otherwise provided under a condition of its licence, a licensee shall not offer its programming service for distribution as part of a package with other programming services unless it also makes its programming service available on a stand-alone basis.

AVAILABILITY OF NEW PROGRAMMING SERVICES FOR DISTRIBUTION

10.3 Except as otherwise provided under a condition of its licence, a licensee that is ready to launch a new programming service shall make that programming service available for distribution by all licensed broadcasting distribution undertakings or operators of exempt distribution undertakings, despite the absence of a commercial agreement.

DISPUTE RESOLUTION

10.4 (1) If there is a dispute between the licensee and the operator of a licensed distribution undertaking or an exempt distribution undertaking, concerning the carriage or terms of carriage of programming originated by the licensee, including the wholesale rate and the terms of any audit referred to in section 15.1 of the Broadcasting Distribution Regulations, one or both of the parties to the dispute may refer the matter to the Commission for dispute resolution.

(2) If the Commission accepts a referral of a matter for dispute resolution, the parties to the dispute are required to participate in a mediation with a person appointed by the Commission.

(3) During the dispute resolution process, the person appointed under subsection (2) may require additional information from the parties.

(4) If a licensed distribution undertaking or an exempt distribution undertaking distributes the programming service of the licensee in the absence of a commercial agreement and the matter proceeds before the Commission for dispute resolution, the licensee shall submit to having the dispute resolved as provided for in Broadcasting and Telecom Information Bulletin CRTC 2009-38, dated January 29, 2009, and the rates, terms and conditions established by the Commission will apply as of the date on which the programming service was first made available to the distributor in the absence of a commercial agreement.

(5) If the dispute relates to the rates, terms or conditions, or any combination of them, surrounding a new programming service that is being distributed in the absence of a commercial agreement and the matter proceeds before the Commission for dispute resolution, the parties will be bound by the rates, terms and conditions established by the Commission for the duration of the contractual term established by the Commission.

(6) Despite subsections (4) and (5), the parties may reach an agreement with respect to rates, terms or conditions that differ from those established by the Commission.

11. Section 11 of the Regulations is replaced by the following:

11. (1) During any dispute between a licensee and a person licensed to carry on a distribution undertaking or the operator of an exempt distribution undertaking concerning the carriage or terms of carriage of programming originated by the licensee or concerning any right or obligation under the Act, the licensee shall continue to provide its programming services to the distribution undertaking at the same rates and on the same terms and conditions as it did before the dispute.

(2) For the purposes of subsection (1), a dispute exists from the moment that written notice of the dispute is provided to the Commission and served on the other undertaking that is party to the dispute and ends when an agreement settling the dispute is reached by the concerned undertakings or, if no such agreement is reached, when the Commission renders a decision concerning any unresolved matter.

BROADCASTING DISTRIBUTION REGULATIONS

12. Section 1 of the Broadcasting Distribution Regulations (see footnote 4) is amended by adding the following in alphabetical order:

“new programming service” means a programming service that has not been previously distributed in Canada and includes, but is not limited to, a high definition version or a new multiplex of an existing programming service. (nouveau service de programmation)

13. Paragraph (c) of the definition “voting interest” in subsection 4(1) of the Regulations is replaced by the following:

  • (c) a partnership, a trust, an association or a joint venture means an interest or right in the assets of it that entitles the owner to receive a share of its profits, to receive a share of its assets on dissolution and to participate directly in its management or to vote on the election of the persons to be entrusted with the power and responsibility to manage it; and

14. (1) Subsections 12(4) and (5) of the Regulations are replaced by the following:

(4) If the Commission accepts a referral of a matter for dispute resolution, the parties to the dispute are required to participate in a mediation with a person appointed by the Commission.

(2) Subsection 12(7) of the Regulations is replaced by the following:

(7) During the dispute resolution process, the person appointed under subsection (4) may require additional information from the parties.

(3) Section 12 of the Regulations is amended by adding the following after subsection (8):

(9) If the dispute relates to the rates, terms or conditions, or any combination of them, surrounding a programming service that is being distributed in the absence of a commercial agreement and the matter proceeds before the Commission for dispute resolution, the licensee shall submit to having the dispute resolved as provided for in Broadcasting and Telecom Information Bulletin CRTC 2009-38, dated January 29, 2009, and the rates, terms and conditions established by the Commission will apply as of the day on which the programming service was first made available to the distributor in the absence of a commercial agreement.

(10) If the dispute relates to the rates, terms or conditions, or any combination of them, surrounding a new programming service that is being distributed in the absence of a commercial agreement and the matter proceeds before the Commission for dispute resolution, the parties will be bound by the rates, terms and conditions established by the Commission for the duration of the contractual term established by the Commission.

(11) Despite subsections (9) and (10), the parties may reach an agreement with respect to rates, terms or conditions that differ from those established by the Commission.

15. The Regulations are amended by adding the following after section 15:

OBLIGATION DURING DISPUTE

15.01 (1) During any dispute between a licensee and a person licensed to carry on a programming undertaking or the operator of an exempt programming undertaking concerning the carriage or terms of carriage of programming services or concerning any right or obligation under the Act, the licensee shall continue to distribute those programming services at the same rates and on the same terms and conditions as it did before the dispute.

(2) For the purposes of subsection (1), a dispute exists from the moment that written notice of the dispute is provided to the Commission and served on the other undertaking that is party to the dispute and ends when an agreement settling the dispute is reached by the concerned undertakings or, if no such agreement is reached, when the Commission renders a decision concerning any unresolved matter.

OBLIGATION TO PROGRAMMING UNDERTAKINGS REGARDING
DISTRIBUTION WITHOUT AGREEMENT

15.02 A licensee who distributes a new programming service with respect to which it has no commercial agreement shall abide by the rates, terms and conditions established by the operator of the concerned programming undertaking until a commercial agreement is reached between the parties or the Commission renders a decision concerning any unresolved matter.

16. (1) Subsection 19(1) of the Regulations is amended by adding the following in alphabetical order:

“exempt distribution undertaking” means a distribution undertaking the operator of which is exempt under the terms of the order entitled Exemption order for terrestrial broadcasting distribution undertakings serving fewer than 20,000 subscribers made by the Commission under subsection 9(4) of the Act, that is set out in the Appendix to Broadcasting Order CRTC 2009-544, dated August 31, 2009, as amended from time to time. (entreprise de distribution exemptée)

“independent programming undertaking” means a programming undertaking for which no licensee of a distribution undertaking or operator of an exempt distribution undertaking, or an affiliate of the licensee or operator, holds, directly or indirectly, an interest or right in the assets. (entreprise de distribution indépendante)

(2) The portion of subsection 19(2) of the Regulations before paragraph (a) is replaced by the following:

(2) For the purposes of subsections (3) and (3.1), a Category B service includes

(3) Subsections 19(3) and (4) of the Regulations are replaced by the following:

(3) Except as otherwise provided under a condition of its licence and subject to subsections (3.1) to (4), a licensee shall, for each Category B service and each exempt third-language service of a related programming undertaking that it distributes in a licensed area, distribute in that area at least three Category B services or at least three exempt third-language services — or any combination of at least three of those services — of unrelated programming undertakings.

(3.1) Except as otherwise provided under a condition of its licence, a licensee shall, for each Category B service of a related programming undertaking that it distributes in a licensed area, distribute in that area at least one Category B service of an independent programming undertaking.

(3.2) Except as otherwise provided under a condition of its licence, if the Category B service of the related programming undertaking referred to in subsections (3) and (3.1) is an English-language Category B service, at least two of the three programming services of the unrelated programming undertakings that are to be distributed under subsection (3) shall, to the extent that they are available, be English-language services of which at least one shall be a Category B service of an independent programming undertaking.

(4) Except as otherwise provided under a condition of its licence, if the Category B service of the related programming undertaking referred to in subsections (3) and (3.1) is a French-language Category B service, at least two of the three programming services of the unrelated programming undertakings that are to be distributed under subsection (3) shall, to the extent that they are available, be French-language services of which at least one shall be a Category B service of an independent programming undertaking.

COMING INTO FORCE

17. These Regulations come into force on the day on which they are registered.

EXPLANATORY NOTE

(This note is not part of the Regulations.)

These Regulations amend the Television Broadcasting Regulations, 1987, the Pay Television Regulations, 1990, the Specialty Services Regulations, 1990 and the Broadcasting Distribution Regulations in order to implement determinations set out in Broadcasting Regulatory Policy CRTC 2011-601, dated September 21, 2011, and entitled Regulatory framework relating to vertical integration. The amendments introduced by these Regulations relate to the following matters:

  • Burden of proof applied for purposes of dispute resolution pertaining to prohibitions against undue preferences and undue disadvantages;
  • Prohibition against tied-selling of programming services;
  • Prevention of anti-competitive head starts of programming services;
  • Establishment of rates, terms and conditions surrounding carriage of programming services absent a commercial agreement;
  • The provision and distribution of programming services after the expiry of a commercial agreement and pending the conclusion of a new agreement or resolution of a dispute by the Commission;
  • Distribution of independent Category B services by broadcasting distribution undertakings distributing related Category B services, as that term is defined in the Broadcasting Distribution Regulations; and
  • Mandatory mediation and other dispute resolution requirements.

Footnote a
S.C. 1991, c.11

Footnote b
S.C. 1991, c.11

Footnote 1
SOR/87-49

Footnote 2
SOR/90-105

Footnote 3
SOR/90-106

Footnote 4
SOR/97-555