U.S. channel carried in Canada against its will

A U.S. affiliate of ABC has been denied by the CRTC its request to be removed from the list of non-Canadian television channels approved for distribution in Canada. The commission turned down an application from Hubbard Broadcasting Inc. to have KSTP-TV Minneapolis removed from the list on the grounds that it would deprive viewers of a valued service, adding that some of the issues brought up by the U.S. broadcaster concern Canadian copyright law and are not under the CRTC's jurisdiction. The CRTC said in its decision Wednesday that Hubbard had argued its signal is not available for direct reception in Canada, that it was never notified or consulted when decisions were made to have the channel approved for distribution in Canada and it's not sure if it has secured the necessary rights to have its content broadcast in Canada. A call to Hubbard for comment was not immediately returned. The commission referred to two instances when KSTP was authorized for distribution in Canada. One time was in 1998 so the channel could be carried by satellite-relay distributor Canadian Satellite Communications Inc. Another time was in 2011, in response to an application by Shaw Communications Inc. to include the channel in its basic services for cable customers in Thunder Bay, Ont. No interventions against that proposal were received, the CRTC said. "The Commission ... considers that the applicant’s arguments concerning due process and fairness are without merit," the regulator said. "As with any interested person, it received notice of the relevant applications through the publication of the application." The CRTC described an intervention against Hubbard's application from Shaw, which said the broadcaster is compensated through the retransmission regime with tariffs approved by the Copyright Board. It added that it also compensates rights holders of the content shown on the channel. Hubbard responded, the CRTC said, that it does not receive any compensation for its distribution in Thunder Bay, "under copyright or otherwise." It added that allowing Canadian broadcasters the right to approve whether their signals are retransmitted outside their local area, without similar rights for U.S. channels, is "discriminatory" and contravenes the Canada-U.S. free trade agreement. In explaining its decision, the commission said Hubbard's points about copyright issues such as retransmission, broadcast rights, compensation and equal treatment are not under its jurisdiction and "are more properly addressed in another forum." The CRTC said its involvement in programming rights for non-Canadian broadcasters only pertains to specialty services, not conventional channels. "Finally, the Commission is of the view that the distribution of KSTP-TV in Canada benefits the Canadian broadcasting system by increasing programming diversity and catering to a shared community of interest," the CRTC said. "As such, it finds that removal of the station would impact many Canadian consumers currently enjoying its programming and that the continued distribution of KSTP-TV is consistent with the achievement of the policy objectives." Toronto-based broadcast lawyer Mark Lewis said in phone interview that the CRTC's decision makes sense. He said U.S. broadcasters used to complain in 1970s about not getting compensation for being carried by Canadian TV-service providers. However, he said, as a byproduct of free trade negotiations in the 1980s, the issue was worked out by establishing a copyright regime for U.S. television signals in Canada that was similar to what already existed in the United States. Lewis said bigger issues for KSTP might be getting satisfactory service from a copyright collective that can represent its rights in Canada and being able to properly measure Canadian audiences for the programming it owns the rights to. He said the most popular shows on any U.S. affiliate are usually owned by the national network or are syndicated from a major production company. "The retransmission system is fairly sophisticated," Lewis said. "You have to invest money in it if you want to participate in it and have returns. And you can't do it — pardon the expression — half-assed." Lewis said this is the first time he's seen a U.S. station try to have itself removed from the CRTC's list of authorized channels. Other broadcast lawyers were also unaware of similar cases. Grant Buchanan from McCarthy Tétrault LLP said in an email he was unaware of any other case like this "off the top of my head," while Carol Anne O'Brien, who runs a Toronto law firm under her own name, said in an email it was an "unusual decision" and that she was "not aware of another decision like it." — With reporting by Derek Abma at dabma@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

U.S. channel carried in Canada against its will

Broadcast | May 13, 2015

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U.S. channel carried in Canada against its will

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