From: Star Ray TV
Sent: May 7, 2001 9:13 PM
To: CRTC
Subject: Public Notice CRTC 2001-19
From: Jan Pachul, Star Ray TV 186 Main Street, Toronto, Ontario M4E 2W1
To: The Secretary General CRTC Ottawa, Ontario K1A 0N2
May 7, 2001
Regarding Public Notice CRTC 2001-19
1.The CRTC is tainted by a reasonable apprehension of bias, which denies licenses to new entrants in television broadcasting. It has been reported that several commissioners are biased towards corporations hiring CRTC employees to manage regulatory affairs with the CRTC. This bias has resulted in several new entrants being denied licenses for new television broadcasting undertakings. Three new applicants in particular who had overwhelming public support where denied licenses due to industry opposition in the past year. The CRTC does not have the legitimacy to rule on the structure of or the licenses of new entrants in community television. Anyone studying the history of biased commissioners would be a fool to apply for any community television licenses offered. Assuming anyone could actually be approved for a license, how could anyone expect CRTC regulations on community broadcasting to be for anything but mediocre, marginal, poorly funded operations .
2. I organized a grassroots group to establish a local community oriented UHF television station in the Eastern area of Toronto called Star Ray TV. The station would have featured predominately local programming with 80% Canadian content overall with an 100% Canadian content in prime time. 2200 comparable stations are on the air in the U.S., thousands worldwide, and 1000 are on the air in Russia, yes Russia! It is ironic that Russian regulators are more progressive and liberal than the CRTC!
3. Originally in 1997 I had applied for a 3 year technical and marketing trial to run a station. I was turned down by the CRTC because "under certain circumstances (such an operation), it may have an impact on the ability of existing licensees to fulfill their regulatory requirements." I actually believed that the CRTC would allow technical and marketing trials based on published policy: CRTC 1996-59 POLICY REGARDING THE USE OF EXEMPTION ORDERS.
4. In December 1998 I applied for a low power television broadcasting license from the CRTC. 43 interventions were filed in support of the application from the viewing public. Five opposing applications were filed by major broadcasters and industry groups these included: Rogers Cablesystems, Chum Television, CTV Network, Canadian Cable Television Association, and Canadian Association of Broadcasters.
5. On December 10, 1999 the CRTC conducted a hearing for the my application before Andree Wylie Chairperson, David McKendry Commissioner, Andree Noel Commissioner, Barbra Cram Commissioner, Jean-Marc Demers Commissioner.
6. After waiting an excessive eight months on August 21, 2000 I was denied a license by a 3-2 majority vote. The majority decision contained many false representations and did not respect the Broadcasting Act in any manner. The two dissenting commissioners David McKendry and Barbara Cram decision gave strong evidence that the application was supportive of the Broadcasting Act, serviced a need for the 20% of the community who don't have cable, and the applicant assumed all risk. They also believed the application was not duplicating existing services nor outside of existing Low Power Television policy. McKendry and Cram's full comments clearly determine that the rejection decision was not based on CRTC policy, but on the interests of the 5 industry opponents.
7. On September 21, 2000 the World Television Network was denied a license by the same 3 commissioners that denied the Star Ray application in a 4-1 majority vote: Andree Wylie, Andree Noel, and Jean-Marc Demers. The fourth commissioner was Martha Wilson a former Rogers Cable employee. A World Television Network's Decision Analysis dated October 2, 2000 shows the majority decision also contained many false representations and did not respect the Broadcasting Act. Stuart Langford wrote a long dissenting opinion rooted in administrative law and the Broadcasting Act. The World Television Network also had opposing interventions from the Canadian Cable Television Association, and Canadian Association of Broadcasters.
8. On March 1, 2000 the Ontario Educational Communications Authority (TFO) was denied carriage on cable in the province of Quebec by a majority vote. This decision has the same 3-2 pattern as WTN's and Star Ray's applications with Commissioners Stuart Langford and Andrew Cardozo writing dissenting opinions. Senator Jean-Robert Gauthier commented on the TFO application in a submission to the CRTC on Public Notice CRTC 2000-74 dated August 30, 2000. Sen. Gauthier called the decision as the "equivalent to a capitulation to the commercial interests of the Quebec cable industry." This license denial had two dissenting commissioners, Mr. Andrew Cardozo and Mr. Stuart Langford. Common opposing interveners again are the CCTA and the CAB.
9. Mathew Fraser, a former CRTC employee and presently a professor at Ryerson University published a series of exposes on CRTC commissioners and the denial of Star Ray TV's application in the National Post. In the article "High-power cabal snuffs out low-power television" Mathew Fraser notes The real reason for the denial of Star Ray TV's application:
10."The CRTC's bureaucratic rationale was expressed in predictably opaque language, citing concerns about frequency management, cable carriage arrangements and conformity with existing regulations. The real reason, however, was that a clutch of big Canadian broadcasters with antennas in the Toronto market feared Mr. Pachul's upstart TV station might steal commercial revenues and, worse, could trigger a contagion of similar low-power TV stations across the country. Mr. Pachul's setback is a sad defeat for 'local' expression at a time when big media interests are exploiting concerns about 'globalization' to win regulatory approval for industry consolidation. It's also symptomatic of Canada's over-regulated, paternalistic and cliquish broadcasting system, in which the logic of monopoly invariably prevails over pluralism, competition and free expression. The CRTC, while piously evoking the values of 'diversity' to justify other agendas, once again has demonstrated its time-honoured reflex of blocking new market entrants."
11. Order of Canada recipient Dan Iannuzi from the World Television network comments on their license denial:
"The Commission's position is totally unsubstantiated and contradicts statements in the public transcript.
12. No other options or remedies were offered by the Commission. An examination of recent Native and French language applications indicates that this normal practice was not followed. In effect the CRTC indicates that it expected the applicant to 'volunteer' at its expense a solution to what is a commission responsibility.
13.There were over 4000 written expressions of support for WTN. These included teacher federations, unions, international development agencies, Premiers, MP's, MMP's, MNA's, mayors, Multicultural organizations, Independent producers organizations, production companies, university faculties as well as students and citizens from every corner of the land. There were 13 opposing interveners..."
14.Senator Jean-Robert Gauthier comments on the TFO license denial:
"In the economic theory of regulation a strong possibility is presented for what is called capture of the regulators by the entities they are supposed to be regulating. Capture leads to regulatory decisions that are in the best interest of the incumbent firms in an industry and not in the best interest of potential competitors in the industry or, ultimately, of consumers. The CRTC has often been criticized for acting in the best interests of Canada's major broadcasters and cable companies.
15.16. A prime example of this phenomenon is Decision CRTC 2000-72 the decision that rejected the application from the Ontario Educational Communications Authority (TVO) to have its French-language channel, TFO, distributed on cable in Quebec on a mandatory basis. In his dissenting opinion in this case, CRTC Commissioner Stuart Langford noted that less than 1% of the interventions opposed the application. Furthermore, of the 12 opposed, nine were from industry stakeholders 'who in one way or another appear to view TFO's interests as in conflict with their own.' In addition, noted Langford, TVO had made its application to the CRTC for mandatory carriage of TFO because it had been having 'great difficulty persuading Quebec's major cable distributors to offer its service on acceptable terms...'
16.18. Thus, Decision CRTC 2000-72 seems, in short, to represent a capitulation to the market interests of the Quebec cable industry and not a decision consistent with the wishes of Quebec viewers or of the proclaimed public interest of all Canadians. As a precedent for future decisions on French-language television this decision could prove a disaster.
17.72. It is telling that of the 12 submissions opposing TVO's application, several were from cable companies that have consistently resisted TFO's efforts to negotiate an acceptable carriage agreement.
18.104. It is difficult to see the wisdom of Decision CRTC 2000-72 in the light of any serious attempt to preserve or promote the French language in Canada. The decision, as noted by a CRTC Commissioner in his dissenting opinion, appears to be a capitulation to commercial interests. It certainly ignores the non-market elements to Canadian broadcasting."
19. Since March 1, 2000 there have been at least 9 CRTC decisions with dissenting opinions. I am told by industry watchers that never in the history of the CRTC have there been so many dissenting opinions by CRTC commissioners. The dissenting Commissioners have been Stuart Langford, Andrew Cardozo, David McKendry, Cindy Grauer and Barbara Cram. In a study of known hearing panels of the last year none of the dissenting Commissioners have been selected in a majority by Ms. Bertrand on any panel except the February 21, 2000 hearing in Vancouver were Mr. Langford, Ms. Grauer, and Ms. Cram were in a majority.
20. All of the CRTC decisions that have dissenting opinions where the panel is known have Commissioner Wylie in common. Many have either the CAB or CCTA or both in common as opposing interveners.
21. Evert Communications maintains a website of "Personalities in Canadian Technology" at
http://www.evert.com/persons/. A review of this website shows a number of former CRTC employees presently employed by the CCTA including Janet Yale President and CEO who signed the CCTA intervention regarding the Star Ray TV application. According to Evert she: "held the position of Director General of the Cable, Pay and Specialty Services Branch at the Canadian Radio-television and Telecommunications Commission (CRTC). She was previously General Counsel with the Consumer's Association of Canada for four years, as well as having four years experience as Director Telecommunications Policy at the CRTC."
22. Other CCTA employees with CRTC backgrounds are:
Suzanne Blackwell - VP Economic Research CCTA: She held various positions during an eight-year stint at the CRTC, including chief of regulatory policy in the telecom branch.
23. Michael Hennessy - SVP, Policy and Planning CCTA: He was director-general of competition, convergence and social policy at the CRTC. In the latter role, Hennessy was responsible for providing advice on such matters as competition policy, deregulation, privacy and the convergence of telecom and cable activities.
24. Ian Scott - VP telecommunications CCTA: He joined the CRTC in 1990 and was involved in a senior advisory capacity in the proceeding that led to the establishment of a competitive long distance regime in Canada. More recently, Mr. Scott played a similar role in the CRTC's landmark proceeding that established the current regulatory regime for telecommunications in Canada.
25. According to Evert Commissioner Wylie : "Prior to her appointment (to the CRTC), she was a lawyer with the firm Blake, Cassels, and Graydon in Ottawa. Since her calling to the Ontario Bar in 1979, Ms. Wylie has had extensive experience in issues dealing with regulatory tribunals. She was a member of our Legal Directorate from 1979-1984 and since then has represented third parties involved in matters before the Commission and other tribunals."
26. Since Ms. Wylie had represented third parties before the commission before her appointment, she obviously has a conflict of interest as a CRTC commissioner. I would like to know if these third parties included any of the opposing interveners to the three applications under investigation here.
27. According to Evert Pamela Dinsmore, VP regulatory Rogers Cablesystems Limited who signed the Rogers intervention regarding the Star Ray TV application previously held a high position with the CRTC: "Prior to joining Rogers, Ms. Dinsmore held a variety of positions at the Canadian Radio-television and Telecommunications Commission, including Chief of Staff/Special Advisor to the Chairman."
28. WTN's CAB intervention is signed by Sylvie Courtemanche, another former CRTC employee. The CAB's website makes the following comments on Ms. Courtemanches CRTC employment: "Courtemanche gained broad respect and a deep understanding of broadcasting and telecommunications during six years front line service as legal counsel for the Canadian Radio-television and Telecommunications Commission (1991-1997). 70. She took part in hearings on the structure of the broadcasting industry, Pay and Specialty applications, French-language license renewals, Direct-to-Home Satellites, pay audio, and other key issues. In 1993, she created the CRTC's first mediation and dispute resolution mechanism for broadcasting. 71. In 1997, she went into private practice, specializing in communications and issues before the CRTC."
29. Together, major media corporations and several Commissioners named herein have worked to block any attempts to diversify the type and size of television players. A continuing pattern emerges from the study of the TFO, WTN, and Jan Pachul Star Ray TV decisions and related documents.
30. The motive of financial gain from major broadcasting organizations is quite evident when the considering the number of former CRTC employees working on submissions before the CRTC for major corporations. The conflicts of interest are also quite evident. The CRTC cannot be trusted to include new entrants in television broadcasting.
31. There are also systemic barriers in place to prevent anyone but the very wealthy from participating in television broadcasting. Not many can afford to lose several hundred thousand dollars on an application. Who would want to invest in such a venture? The money wasted in the process is enough to put a low power station on the air. It is time the CTRC realized its biased policies have denied a voice in Canadian broadcasting to everyone except the wealthy corporate elite.
32. If the CRTC wants to regain any kind of credibility it should exempt community low power UHF broadcasters from the Broadcasting Act as long as they maintain local ownership and have at least 50% local content. The cable lobby doesn't want to carry low power stations reducing the potential audience to about 20% of the population. This type of operation isn't worth the "crap shoot" the CRTC has turned license applications into. An exemption spares would-be community broadcasters from the massive expense of preparing the required license application. Mired in red tape, stations now spend one hundred thousand to one million dollars just for the application, with no guarantee of ever receiving a license. An exemption would spur aspiring low power community broadcasters into giving it a try.
33.Presently the status of the community channel on cable amounts to an exemption from the Broadcasting Act since the community channel is not licensed to the cable company. There are also other exemptions available to cable companies, including Community Programming Network Undertakings: distribute portions of one licensee's community programming to the licensees of other distribution undertakings serving a common urban area (Public Notice CRTC 1993-52). Low power television is specifically excluded from any exemptions from the Broadcasting Act, this must change.
