CRTC considering U.S. test to determine what iTV content is program-related

The CRTC is considering an American approach to determining whether interactive television (iTV) content is program-related and thus should be subject to mandatory carriage rules. Not surprisingly, the CRTC’s latest iTV process on what constitutes program-related iTV content is expected to again pit broadcasters and distributors against each other over carriage issues. Carriage and packaging issues dominated negotiations over the launch of new digital specialty TV channels last fall (CCR, June 7/01, March 29/01), and remain key stumbling blocks to agreement between distributors and broadcasters in the transition to digital. Looking for more flexibility in carriage, the Canadian Cable Television Association (CCTA) suggests that the CRTC adopt the test, dubbed the WGN criteria, used by the U.S. regulator, the Federal Communications Commission (FCC). But the Canadian Association of Broadcasters (CAB), and broadcasters such as CHUM Ltd. and Pelmorex Communications Inc., argue that interactive content that is related to a program should automatically be considered integral to a service and thus be subject to mandatory carriage rules. Michael Hennessy, the CCTA’s senior VP of policy and regulatory affairs, says that while the WGN test is one potential solution to concerns over the gatekeeping role of distributors, the broader answer remains a hands-off approach to iTV. "I’m not sure that the proceeding has announced is going to really clarify things. I think they will find, as we pointed out…that you can take pretty well any example of a service and, by the way you configure that service, it could be broadcasting; it could be exempt new media broadcasting; or, it could be telecom," he says. "So you’re not going to be able to come up with a generic thing on program-related…I would say there’s no more reason to regulate iTV than there was to regulate new media at this point. You could easily just come out with a blanket exemption on iTV the same way you did for new media, and deal with the gatekeeping issues that are part of the program-related thing by using your undue preference rules." But the issue of access to bandwidth for iTV content was so important to Pelmorex, which owns The Weather Network and MétéoMédia, that it applied for a licence amendment last year that would make interactivity an integral part of its service (CCR, July 4/01). The CRTC denied the request and instead launched a fact-finding process on iTV (CCR, Nov. 9/01). In that process, Pelmorex urged the commission to "act speedily" to "take actions that will ensure priority access to bandwidth for iTV services provided by licensed Canadian services" (CCR, March 15/02). With the release late last month of its report on iTV that emerged out of the fact-finding process, the CRTC decided to move forward on determining what constitutes a program-related iTV service – Broadcasting Public Notice 2002-63 (CCR, Oct. 24/02). In its report, the CRTC determines that "the concept of a ‘program-related’ activity should be one of the key factors in determining which iTV services, if any, fall under the definition of broadcasting and what regulatory treatment they should be subject to as a result." "Is the WGN test adopted by the FCC relevant to the Canadian iTV context?" is one question the CRTC is asking in this latest process. The commission also wants to know the criteria it should use to determine what constitutes program-related activity in the Canadian iTV context. The WGN test, based on the court case WGN Continental Broadcasting Co. v United Video Inc., that has been adopted by the FCC has three criteria. First, the broadcaster’s intention must be that the information be seen by the same viewers who are watching the video signal. Second, the information must be available during the same interval of time as the video signal. Third, the information must be an integral part of the program. But Hennessy thinks the CRTC may just find that iTV is too new to regulate. "It will lead them to the conclusion that it’s experimental, let it go," he says. "…With all the economic meltdown that’s been going on everywhere, that everybody, you probably sense that, certainly iTV is a lower priority on everybody’s scale. There’s less people in the market," he notes. But Paul Temple, senior VP of corporate development for Pelmorex, has told Canadian Communications Reports that it’s important for there to be ground rules before moving ahead with the expense of developing iTV content. He argues that broadcasters would be more willing to invest in iTV if there were assurances that the distributors would have to carry it. Hennessy, and others, counter that there’s no business case for iTV at this stage. Comments in the CRTC process are due December 20.

CRTC considering U.S. test to determine what iTV content is program-related

Broadcast | November 7, 2002

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