Source : Cablecaster

OTTAWA - Saying it fears a policy-bending precedent could be set, the Canadian Association of Broadcasters this week filed a letter with the CRTC opposing the applications made by Shaw Communications and Rogers Communications to add two U.S. news channels to the eligible satellite list.

As first reported by www.cablecastermagazine.com, the two companies want Bloomberg and MSNBC added to the list for digital-only distribution.

Shaw holds a category 2 license for Bloomberg in Canada but says it will not launch that channel, wishing rather to add the U.S. service. As for MSNBC, Rogers and Shaw currently own and operate category 2 digi-net MSNBC Canada but say they plan to shutter the service because its Canadian content requirements are too onerous.

The CAB opposes both "based on two fundamental concerns," says its letter to the Commission. "First, the proposed non-Canadian satellite services would be totally or partially competitive with existing Canadian specialty services. Second, approval of these applications would create a precedent that could be exploited in the future to circumvent the Commission's policies regarding the addition of non-Canadian services to the lists of eligible satellite services."

The association said Bloomberg, a financial news channel, would compete with CTV's ROBTv while news channel MSNBC would be directly competitive with CTV Newsnet, for example.

The CAB reminded the CRTC that it "has consistently maintained and enforced this policy for 20 years, ensuring that only those non-Canadian services that contribute to the diversity of the Canadian broadcasting system without adversely affecting the development of Canadian specialty and pay services are permitted to be added to the lists of eligible satellite services," says the letter.

"It is important to note that the test for the addition of non-Canadian services is a much more stringent one than the test for determining whether a proposed Category 2 service is competitive with existing specialty or pay services. As set out in the licensing framework for digital services, a Category 2 service must not be directly competitive with an analog specialty or pay service or a Category 1 service. Non-Canadian services, on the other hand, must not be either totally or partially competitive with any Canadian specialty or pay service approved by the Commission, including all Category 1 or Category 2 services approved by the Commission." (their emphasis.)

"Accordingly, the fact that the Commission may have previously approved a Category 2 service in a particular genre cannot be used as a precedent for the authorization of a non-Canadian service in that genre, even where the licence for the Category 2 service is surrendered. Each non-Canadian service must be assessed on its particular facts, based on the more stringent policy applicable to such services…

"Approval of these requests would create a precedent for circumvention of the Commission's normal approval process with respect to the addition of non-Canadian services to the lists of eligible satellite services." (their emphasis)

"The CAB submits that approval of these requests on this basis would create an environment in which any licensee of a Category 2 digital specialty service could effectively circumvent the Commission's normal approval process for the addition of non-Canadian services to the lists of eligible satellite services by alleging that the continued operation of its Category 2 service could no longer be sustained, and that the only alternative would be to import a foreign service in an equivalent format to ensure continuity of service.

"Such an outcome could encourage applications for Category 2 digital services in specific genres that are motivated more by the desire to 'book mark' those genres in order to preempt future opposition to the addition of non-Canadian services operating in those same genres. The CAB submits that the potential for abuse of such an approach, particularly in view of the Commission's policy permitting broadcasting distribution undertakings (BDUs) to hold specialty licences, is further justification for the denial of the current requests to add Bloomberg Television and MSNBC," says the CAB submission.

The CAB also proposed in its letter that for every category 2 license that is surrendered, other Canadian broadcasters should have a year to develop and submit applications for a new Canadian service that would operate within the surrendered genre.

Plus, it wants the Commission to tell cable operators that spectrum formerly used by closed channels that were owned by BDUs, "should continue to be made available for the distribution of licensed Canadian services as a priority over non-Canadian services."

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