LANG Committee Report

INTRODUCTION

The House of Commons Standing Committee on Official Languages is tabling a report to Parliament on developments in the area of official languages in Canada and on the work of the Canadian Radio-television and Telecommunications Commission (CRTC).

During this and the previous session, the House of Commons Standing Committee on Official Languages and its predecessor, the Standing Joint Committee on Official Languages, have had the opportunity to hear testimony from the CRTC on two occasions.¹ This brief report deals with five issues that attracted the Committee members’ attention. First, we will look at how the CRTC defines bilingual markets. Currently, only the English- and French-language markets have been identified. Second, we will comment on the regional signals of the CBC offered by satellite service providers. Third, the Committee will make a few observations about the CRTC’s role under Part VII of the Official Languages Act. Fourth, we will make some suggestions following the licence renewal for the Cable Public Affairs Channel (CPAC). Fifth, we will discuss the issue of CPAC’s non-availability in hotels.

A.        The identification of bilingual markets by the CRTC

The CRTC currently identifies markets according to the mother tongue of the majority of the population in the area being served. That criterion was established in Public Notice CRTC 1996-60,² entitled Access Rules for Broadcasting Distribution Undertakings. Under paragraph 18(4)(a) of the Broadcasting Distribution Regulations, a market is considered francophone “if more than 50% of the total population of all cities, towns and municipalities encompassed in whole or in part within the licensed area of the licensee has French as its mother tongue, according to the most recent population figures published by Statistics Canada.”³ Paragraph (b) of the same section, however, states that “a licensee that is not operating in a francophone market is considered to be operating in an anglophone market.”⁴ The Regulations in their present form do not recognize the concept of a bilingual market.

Members of the Official Languages Committee have expressed their dissatisfaction in the past about the lack of rules defining what constitutes a bilingual market. Even Françoise Bertrand, then Chairperson of the CRTC, acknowledged when she appeared before the Standing Joint Committee on Official Languages in 1998 that the definition used “does not match reality”⁵ and that the CRTC should undertake to “redefine what constitutes a market.”⁶

In May 1999, the CRTC launched a review of the access rules for Canadian pay and specialty channels in bilingual markets. (Public Notice CRTC 1999-74).⁷ The CRTC called for comments on how the needs of francophone subscribers could be better met in those markets. The CRTC invited interested parties to comment on what future measures could be taken to offer an adequate range of services in areas where an official-language community forms a significant portion of the population, such as in the National Capital Region and Northern Ontario. The Committee considers that the CRTC could use the criteria adopted by the Treasury Board Secretariat in the Official Languages (Communications with and Services to the Public) Regulations in defining “significant demand”.⁸

Although the review was carried out, the Commission indicated in Public Notice 2000-38 that “there was no consensus among the comments received regarding how a bilingual market should be defined.” Its deliberations revealed that the use of the term “bilingual market” did not capture the basic objective of ensuring that a minimum number of minority official language specialty services are offered in markets where individuals of one official language or another form a minority.”⁹ The Commission, however, encouraged distributors to offer the full range of licensed English- and French-language services as part of the digital offering.

The Standing Committee on Official Languages urges the CRTC to reopen this issue and add the concept of bilingual market to the Broadcasting Distribution Regulations in order to guarantee adequate blocks of television service in both official languages for this type of market.

RECOMMENDATION 1

The Committee recommends that the CRTC develop a concept of bilingual market, which would make it possible to provide better service to the anglophone and francophone audiences comprising a considerable portion of the local population.

B.        Broadcasting of regional CBC/SRC signals by satellite service providers

In the course of public consultations held in 2000 and 2001 by the CRTC regarding French-language broadcasting services to francophones living in a minority environment,¹⁰ a number of associations criticized direct-to-home broadcast satellite services, more commonly known as DTH services, for not broadcasting all local and regional stations of national broadcasters, in particular those of the Canadian Broadcasting Corporation (CBC) / Société Radio-Canada (SRC).

Bell ExpressVu, a major DTH provider of French-language programming in Canada, acknowledged that it was not able to broadcast all regional stations of the public broadcaster. The company explained in its submission that it had to make choices and take into account various technological and economic factors such as satellite capacity, high-definition television, the significant costs involved in adding new local signals, the number of subscribers in a given region, and the duplication resulting from carriage of network and regional programming from the mother station and affiliated regional stations.¹¹

In its February 12, 2001, report entitled Achieving a Better Balance: Report on French-Language Broadcasting Services in a Minority Environment (Public Notice CRTC 2001-25), the CRTC recommends in paragraph 106 “that satellite service providers offer regional signals of the CBC in both official languages”.¹² The Commission also indicated that it intended “to deal with this issue when it considers the licence renewal of satellite service providers and will take into account their efforts in this regard.”¹³

On September 28, 2001, the CRTC called for comments on carriage of local television stations by DTH undertakings in smaller markets. Public Notice CRTC 2001-103 states that “recent developments in DTH distribution have raised some concerns about the impact of the distribution of optional local television signals by DTH on smaller market television stations across Canada.”¹⁴

At the present time, the fact that regional signals of the CBC/SRC are not broadcasted in certain regions by DTH undertakings remains an outstanding issue in some regions. Indeed, the public broadcaster indicated when it appeared before the Standing Joint Committee on Official Languages in June 2002 that French-language services available to francophones outside Quebec were still less than satisfactory. Many francophones do not have access to regional air television signals of the CBC/SRC, partly because direct broadcast satellite (DBS) distribution services do not always offer the appropriate services of the public broadcaster for a given region. The following is a quote from testimony by the then-Executive Vice-President of French Television, CBC/SRC, Michèle Fortin, who questioned the requirements imposed by the CRTC on the DBS providers:

On the other hand, the CRTC has asked us to produce — and we do so willingly — regional news programs. But all of the citizens with access to Radio-Canada via satellite cannot, in some regions, have access to their regional news because the satellite distributes only a fraction of regional signals. For example, in the most remote areas, you can get shows from Moncton, Quebec City or Vancouver, but in the other western provinces, you can get regional news if you have Radio-Canada by antenna or with cable, but not via a satellite. (…) I would say that the CRTC, given the availability of frequencies and the economic model and perhaps because they are private companies, does not have as strict requirements for broadcasters as cable providers and satellites.”¹⁵

Over the past 50 years, the CBC/SRC has developed a network of regional stations for both radio and television broadcasting which we feel need to be maintained and promoted. These regional stations play a primary role in enabling linguistic minorities to see and hear each other. Like the official minority language press and community radio stations, regional stations of the CBC/SRC reflect the reality, vitality and specificity of the francophone and Acadian communities in Canada. Moreover, these regional stations help bridge the gap between Canada’s two linguistic communities.

In order to preserve, develop and ensure the vitality of minority official language groups, regional programming of the public broadcaster, both on radio and television, must be made available. The Committee expects DBS providers to offer regional signals of the national public broadcaster in both French and English. The Committee is therefore calling on the CRTC to work with these providers to correct the current shortcomings. The Committee will follow developments in this file closely over the next few years to ensure that appropriate action is taken to correct the situation.

RECOMMENDATION 2

The Committee urges the CRTC to require direct broadcast satellite (DBS) service providers to carry the signals of the regional television stations of the CBC/SRC.

C.        The CRTC’s obligations under Part VII of the Official Languages Act

On August 2, 1994, Cabinet approved an accountability framework for the implementation of sections 41 and 42 of the Official Languages Act. The accountability framework targets key federal institutions involved in areas of intervention that are critical for minority official language communities and that have a major impact on their development, namely those involved in economic, cultural and human resource development. To date, 29 departments and organizations have been designated as key institutions.

As a federal institution, the CRTC is bound by the provisions of the Official Languages Act regarding public broadcasting and service delivery and it must also fulfill its obligations under sections 41 and 42 of Part VII of the Official Languages Act. However, it is important to note that the CRTC is not among the 29 institutions designated in the accountability framework adopted in August 1994 with a view toward ensuring the implementation of sections 41 and 42 of the Official Languages Act. If that were the case, the CRTC would be required to prepared an annual or multi-year action plan after consulting with minority official language communities to determine their needs. It is also important to note that the CRTC would be obliged to provide an annual update describing its achievements and also a summary of the impact of its decisions on the cultural vitality of minority official language communities.

Since 1998, a proposal to add the CRTC to the list of designated federal agencies and institutions has been a recurrent topic at the hearings of the Official Languages Committee. On May 12, 1998, the Standing Committee on Official Languages passed a motion with 8 votes against 1 recommending that the Canadian government add the CRTC to the list of designated federal institutions.

When she appeared before the Standing Committee on Canadian Heritage on April 9, 2002,¹⁶ the Official Languages Commissioner, Dyane Adam, asked that the CRTC be added to the list of designated federal agencies to ensure the implementation of Section 41 of the Official Languages Act. At that same hearing, the Fédération des communautés francophones et acadienne du Canada (FCFA du Canada) also reiterated the CRTC’s obligations to francophone minorities under Part VII of the Official Languages Act.¹⁷

Every time the CRTC has appeared before the Standing Committee on Official Languages, parliamentarians have asked the CRTC to explain why it still was not one of the designated institutions. During the meeting on June 3, 2002,¹⁸ the Executive Director of Broadcasting, Jean-Pierre Blais, explained the organization’s reticence as follows:

Despite the arguments put forward by the CRTC, the Committee is firmly convinced that the organization has a role to play in this area and that it should be a designated federal institution in light of its importance for the development of minority communities. Contrary to claims made by the CRTC, the provisions of the Broadcasting Act that deal with linguistic minorities are far less explicit than Section 41 of the Official Languages Act.

The Committee is equally convinced that the CRTC must not only maintain, but also increase, dialogue with Canada’s linguistic minorities. CRTC rulings have a major impact on the country’s linguistic minorities.

RECOMMENDATION 3

The Committee recommends that the Government of Canada add the CRTC to the list of designated federal institutions in its accountability framework adopted in August 1994 in order to ensure the implementation of sections 41 and 42 of Part VII of the Official Languages Act.

D.        Licence Renewal for the Cable Public Affairs Channel (CPAC) by the CRTC

The meeting of the House of Commons Standing Committee on Official Languages on November 27, 2002 dealt specifically with the licence renewal for CPAC. Following this meeting, the Committee considered two issues: (1) distribution of House of Commons proceedings via CPAC in both official languages throughout Canada, and (2) distribution of CPAC to hotel clients.

CPAC is a non-profit agency that provides non-commercial programming services that are 100% funded by a consortium of more than 100 Canadian cable distribution companies. This national distribution service up until very recently had two major categories of programs: the proceedings of the Senate, the House of Commons and some of committees, as well as public affairs activities across Canada. Its licence expired on August 31, 2002. On November 19, 2002, the CRTC announced that this licence would be renewed for a period of seven years, from December 1, 2002 to August 31, 2009.

Broadcasting Decision CRTC 2002-377¹⁹ set out the changes made to the CPAC licence. The changes were significant, particularly in terms of programming, the fee model and distribution. We will discuss the last two points, that is, fees and distribution.

In terms of the fee model, CPAC will receive $0.10 per month, per subscriber, for the distribution of the licensed and exempt services, together, in both French and English. This amount will increase to $0.11 in the third year. Of these amounts, subscribers will pay $0.07 for the first two years and $0.08 starting the third year. Distributors will pay the difference of $0.03 to fund CPAC’s coverage of the proceedings of Parliament.²⁰ According to Claude Doucet, Director, Distribution and Competitive Policy at the CRTC, the new fees would bring CPAC revenues of “between $5 million and $7 million, or perhaps $10 million.”²¹

Regarding distribution, distribution order 2002-1 requires all broadcasting distribution undertakings (BDUs) in Class 1 (6 000 or more subscribers) and Class 2 (2 000 to 6 000 subscribers), as well as Direct-To-Home (DTH) Satellite Distribution Undertakings (SDUs) to carry CPAC as part of their basic service. These three classes of BDUs accounted for 91% of subscribers in Canada in 1999²².

In terms of distribution in both official languages, the CRTC ordered that:

Class 3 BDUs (with fewer than 2,000 subscribers) using digital technology, with a capacity of 550 megahertz or more, are required to provide CPAC in both official languages. However, the smallest BDUs employing analog distribution technology are not obliged to distribute the signal, although the CRTC strongly encourages them to do so.²³ Furthermore, there are still a certain number of Class 3 BDUs that do not have the technical equipment required to distribute the CPAC signal to their subscribers using SAP (second audio program) technology.²⁴

 The Committee recognizes that undeniable progress has been made with the conditions of licence imposed by the CRTC to ensure CPAC programming in both official languages, and that, with the digital boom, all Canadians will one day have access to CPAC in the language of their choice. However, there are still small cable operators with fewer than 2 000 subscribers who are not able to carry CPAC in both official languages. These subscribers, who account for a little under 5% of the total, will have to pay for a signal that they will not be able to receive in the language of their choice. The Committee is concerned about this situation.

When the CRTC’s Vice-Chairman, Broadcasting, Andrée Wylie, appeared before the Committee on November 27, 2002, she acknowledged that the technology is available to allow the CRTC to require all BDUs, whatever their category, to distribute CPAC in both official languages to all their subscribers.²⁵

Noting that a certain proportion of BDU subscribers are required to pay a monthly fee for a signal they cannot receive in the official language of their choice, and that it is technically possible to offer them that signal in the official language of their choice, the Committee recommends that the Governor in Council, pursuant to its authority under the Broadcasting Act, correct this undesirable state of affairs.

RECOMMENDATION 4

The Committee recommends that the Governor in Council by order direct the CRTC to make it mandatory for all broadcasting distribution undertakings (BDUs), without exception, to distribute to all their subscribers the video and audio signals of the debates of Parliament via CPAC in both official languages.

E.        CPAC availability in hotels

The CRTC’s recent licence renewal for CPAC was an opportunity for members of the Committee to discuss CPAC’s actual availability in different areas.

From personal experience, Committee members stated that certain hotels²⁶ did not make CPAC available in the cable services offered to their clients.

It appears that establishments “notch out”²⁷ certain cable services, replacing them with pay-per-view movie services to clients. At worst, the services mentioned are displaced from a basic band channel to a higher channel and, if the television set is not designed for a high number of channels, signals such as CPAC’s will not be received.

The offending BDUs who authorize this type of action are in violation of the Broadcasting Distribution Regulations, among others. Moreover, in Broadcasting Decision 2002-377, the CRTC approved CPAC’s mandatory distribution as part of the basic service provided by most cable operators and other distributors.

RECOMMENDATION 5

The Committee recommends that the CPAC signal distributed as part of the basic cable service be protected from displacement by closed circuit video programming, and that the Broadcasting Distribution Regulations be amended in this regard if necessary.