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AVR Licence Renewal

February 21, 2012

 

John Traversy Acting Secretary General CRTC Ottawa, ON K1A 0N2

Dear Mr. Traversy,

Re: Item 8, Broadcasting Notices of Consultation CRTC 2012-224, and 2012-224-1 (Ottawa, 18 April 2012 and 11 May 2012)

The National Indigenous Media Association of Canada is a newly formed coalition of Indigenous broadcasters, telecommunications companies and internet service providers. We are intervening with respect to the renewal of Aboriginal Voices Radio (‘AVR’), listed as Item 8 in the above-mentioned notice.

AVR was licensed under the CRTC’s 1990 Native Broadcasting Policy. The Commission introduced this policy “to ensure that native broadcasting occupies its rightful place as an essential component of the Canadian broadcasting system.”1

In previous comments to the CRTC2 NIMAC has requested that the CRTC initiate a public hearing to review the 1990 Policy, before the CRTC began to renew the licences of Canada’s radio and television ‘native’ broadcasters. We had three reasons for making this request.

First, the policy is 21 years old but has never been reviewed. A paper proceeding in 2001 changed Indigenous radio broadcasters’ conditions of licence for Canadian content and advertising,3 but that proceeding involved neither a public hearing nor a substantive review of the Policy’s implementation.

By contrast since 1990 the CRTC has held numerous consultations, reviews and public hearings to consider commercial, television and distribution – including at least 12 major consultations and four public hearings to review its commercial radio policy, and another 12 consultations and two public hearings to review its community/campus radio policy:

Why has the CRTC reviewed these important sectors – several times – while deciding not to review the Indigenous broadcasting sector?

Second, the Indigenous broadcasting sector now consists of radio, television and distribution undertakings – but very little is known about the position and role of these services in Canada’s broadcasting system. A policy review with a public hearing would help the CRTC answer these questions: what challenges does the Indigenous broadcasting sector face in Canada? How has the introduction of digital technology affected the operations of Indigenous broadcasters? How can the role of Indigenous broadcasters in Canada’s broadcasting system be strengthened?

Third, the financial position of the Indigenous broadcasting sector has been precarious for a number of years, and is now deteriorating. We note that since the Native Broadcasting Policy was introduced in 1991, the profits before interest and taxes (PBIT) of an average commercial radio station (controlling for inflation) have grown from a loss of $25,393 in 1992, to $391,627 in 2010. By comparison, the PBIT of an average Type B ‘native’ radio station (controlling for inflation) has decreased from $29,949 in 1992, to a loss of $44,727 in 2010. What factors have contributed to this serious problem? What can and should be done to address the financial challenges facing Indigenous broadcasters? A public hearing could gather the evidence needed to address these issues.

Fourth, the CRTC created and implemented its Native Broadcasting Policy in 1990 – before Parliament had even introduced Indigenous broadcasting into its broadcasting policy for Canada, and when the internet was but a gleam in Al Gore’s eye. Since 1990 Parliament expressed its view that Indigenous broadcasting must have a place within Canada’s broadcasting system and digital content production and distribution has become the norm. As well, however, the courts have begun to reinterpret the role of Indigenous peoples in Canadian society (through landmark cases such as Gladstone in 1996, Delgamuukw in 1997 and Marshall in 1999) and Parliament has substantially rewritten its laws concerning non-profit corporations – affecting all Indigenous broadcasters since the CRTC’s 1990 policy makes it mandatory for Indigenous broadcasters to operate as non-profit corporations.

The CRTC’s decision to schedule AVR’s renewal application at its June 19, 2012 public hearing appears to establish that the CRTC has denied our request for a policy review.

NIMAC respectfully submits that fundamental shifts to Canada’s legislative approach to Indigenous peoples and non-profit corporations, major changes in the broadcasting and telecommunications landscape since 1990, serious reductions in Indigenous radio stations’ financial capacity and weak growth in the number of Indigenous broadcasting services establish the importance of reviewing and revising the Commission’s policy for Indigenous communications in Canada.

We continue to believe that a policy review and public hearing would permit the CRTC to consider whether the Native Broadcasting Policy has achieved its intended goals, whether Indigenous broadcasters require improvements to the Policy, or whether the Policy should be amended to take into account the many massive changes in the broadcasting environment (such as the internet and digital broadcasting, neither of which even existed when the CRTC issued the 1990 Policy).

We therefore again call on the CRTC to initiate a review of Canada’s broadcasting policy for Indigenous broadcasters, and to hold a public hearing in which all Indigenous peoples may participate, to hear their views and – ultimately – to strengthen the Indigenous broadcasting sector.

NIMAC requests the opportunity to appear before the CRTC at its 19 June 2012 public hearing, to respond to the CRTC’s questions and other interveners.

If you have any questions or comments, we would be pleased to hear from you. Sincerely yours,

Lewis Cardinal 780-288-0314 Interim President lewiscardinal@gmail.com National Indigenous Media Association of Canada

Indigenous Broadcasting in Canada: Looking to the future

Submission of the National Indigenous Media Association of Canada Association nationale des médias du Canada

In response to Broadcasting Notices of Consultation 2012-224 and 2012-224-1 Item 8: Aboriginal Voices Radio Inc. 18 May 2012

 

Contents

I    What is NIMAC?

II   The CRTC’s policy for Indigenous broadcasting in Canada: changing times require review and renewal

III  AVR’s licence renewal application
              A Context of AVR’s renewal
              B Issues related to compliance
              C Why AVR’s requests should be approved

IV   Recommendations 11
              A Grant AVR’s renewal application
              B Review the Native Broadcasting Policy

 

Executive Summary

ES1      The National Indigenous Media Association of Canada (NIMAC) represents Indigenous broadcasters who give voice to the diverse, complex and unique Indigenous cultures that have been part of Canada since time immemorial. We provide a forum to discuss and address regulatory and legislative issues affecting their business.

ES2      Canada’s Indigenous broadcasters are subject to an outdated policy first issued in 1990, without a public hearing. This Native Broadcasting Policy was written when the world was analog, when the internet did not exist, and when governments provided some, albeit limited, support for Indigenous broadcasters. Times have changed.

ES3      NIMAC has called for and is again calling on the CRTC to initiate a public hearing to review, assess and if necessary amend its 21-year Native Broadcasting Policy. The CRTC generally reviews its broadcasting policies every five years: after two decades, Indigenous broadcasters require the same fair and reasonable approach.

ES4      AVR is Canada’s largest ‘native Type B’ radio broadcaster, with a total of five licences, each in a major Canadian city. AVR is also one of NIMAC’s founding members.

ES5      AVR has had a difficult regulatory history, one result of which is that AVR has never enjoyed a full, seven-year renewal term in which to begin and stabilize its operations. Instead, AVR is now entering its third licence renewal proceeding in the twelve years since it was first licensed in June 2000 (to serve Toronto), and its second licence renewal proceeding since August 2007, when all five of its stations were first all on air.

ES6      An important part of this regulatory history has been the gradual introduction of increasingly more detailed terms and conditions of licence that are diametrically opposed to the specific commitments set out by the CRTC in its 1990 Native Broadcasting Policy. That Policy specifically rejected detailed and promise-of-performance based licensing for Indigenous radio broadcasters – yet in each of AVR’s three renewal hearings (including this one), the CRTC has introduced ever-more- stringent monitoring and analysis of AVR’s programming.

ES 7      While introducing more stringent and detailed requirements for AVR, the CRTC has simultaneously introduced a light-handed and streamlined approach to regulating commercial and other broadcasters, to give them the flexibility they require to operate successful broadcasting enterprises.

ES 8      NIMAC notes that AVR has met the CRTC’s regulations, and that it has exceeded requirements for six of its eight conditions of licence.

ES 9      While three AVR stations fully met all eight of their conditions of licence, two encountered computer software problems that left them slightly short of required numbers of news items and of less than an hour of ‘structured enriched spoken word’ programming.

ES 10     In our view, a review of the evidence establishes that AVR’s goal was to comply with the CRTC’s regulations and the terms and conditions of its licences. These two breaches were minor and not repeated, AVR clearly did not intend to commit the breaches, and AVR gained no benefit whatsoever from the breaches.

ES11       In light of AVR’s significant overachievements regarding Indigenous music, Indigenous spoken word and Canadian content, as well as the CRTC’s 2011 approach to non-compliance by radio-stations, we believe a full, seven-year renewal term is warranted. If the CRTC sincerely believes that AVR requires an additional reminder about the importance of compliance – a view we do not support – we believe a six-year renewal would be appropriate.

ES 12      Far more than additional regulatory sanctions, AVR requires the support the CRTC can provide by granting the stability of a full, or near-full renewal term.

ES 13      NIMAC also fully supports AVR’s requests to amend its conditions of licence.

ES 14      Finally, NIMAC reiterates its request that the CRTC initiate a full review of its Native Broadcasting Policy, including a public hearing. After 21 years, the time has come to ensure that the regulatory framework in which Indigenous broadcasters must operate enables them to grow and prosper.

 

I What is NIMAC?

1          The National Indigenous Media Association of Canada (NIMAC) represents Indigenous radio and television broadcasters, as well as broadcasting distributors, who use the tools and methods of contemporary communications media to give voice to the diverse, complex and unique Indigenous cultures that have been part of Canada since time immemorial.

2          NIMAC was formed to permit a coalition of Indigenous broadcasters to express their views about regulatory and legislative issues that affect their businesses. NIMAC’s members include the Siksika Communications Society, First Nations Technical Services Advisory Group and Aboriginal Voices Radio.

3          In the following pages we briefly describe our view of the CRTC’s policy for Indigenous broadcasting in Canada.

II The CRTC’s policy for Indigenous broadcasting in Canada: changing times require review and renewal

4          Indigenous broadcasters are new entrants in Canada’s broadcasting system, having endured decades of inattention from decision-makers and regulatory bodies dealing with broadcasting and telecommunications issues.

5          The shift from ignoring to acknowledging Indigenous peoples’ access to modern media is based in a thirty-year-old change in Canadian constitutional law. As the Task Force on Broadcasting Policy noted in 1986, “Native people have special rights by virtue of their Aboriginal status” which are “now enshrined in the Canadian Constitution [and] are a part of the laws, customs and treaties of the land”.

6          The 1986 Task Force recommended that Canada’s broadcasting legislation “should affirm the right of native peoples to broadcasting services in Aboriginal languages where numbers warrant and to the extent public funds permit”, and that “a general policy of native broadcasting for the whole country” should be established.

7           In 1991 Parliament re-enacted its broadcasting legislation for Canada and for the first time, addressed the presence of Indigenous peoples in this sector. Parliament directed in subsection 3(1)(d)(iii)that as a policy objective

the Canadian broadcasting system should

through its programming and the employment opportunities arising out of its operations, serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including … the special place of aboriginal peoples within that society

8         Parliament also provided in subsection 3(1)(o) of the Act that “programming that reflects the aboriginal cultures of Canada” ought to be “provided within the Canadian broadcasting system”.

9          Since Parliament enacted its 1991 Broadcasting Act, support for strengthening the presence and activities of Indigenous broadcasters has grown, domestically and internationally.

10        In 1996, for instance, the Royal Commission on Aboriginal Peoples issued its Report, commenting that Aboriginal media at that time remained “uneven, relatively limited, and largely restricted to regions of the north.”6 The Royal commission pointed out that while

11          It concluded that although the 1990 Native Broadcasting Policy was a “vital step toward the creation of media institutions that recognize Aboriginal peoples”, “current policies and legislation do not meet the requirements of Aboriginal-language broadcasting or address the needs of all Aboriginal people.”

12         The 1996 Royal Commission’s support for Indigenous broadcasting was reflected a decade later by the General Assembly of the United Nations, when in 2007 it “adopted a landmark declaration outlining the rights of the world’s estimated 370 million indigenous people and outlawing discrimination against them”.9 Canada endorsed the United Nations Declaration on the Rights of Indigenous Peoples three years later on 12 November 2010, and

… reaffirmed its commitment to build on a positive and productive relationship with First Nations, Inuit, and Métis peoples to improve the well-being of Aboriginal Canadians, based on our shared history, respect, and a desire to move forward together.

13        While the CRTC has never undertaken a formal public review of the Native Broadcasting Policy and its implementation, serious concerns about the situation of Indigenous broadcasters in Canada have existed and continue to exist. These concerns are well known. For example, in its 872-page review of Canada’s broadcasting system in 2003, the House of Commons Heritage Committee urged the CRTC to address the pressing needs of Indigenous radio. After quoting from numerous witnesses whose testimony described financial problems, the Committee wrote of its concern

… that the situation is much worse than witnesses indicated. For example, 11 of 96 community sites are now off the air and the actual cost of maintenance and equipment replacement is approximately $ 1 million more per year than available federal funds support. The Committee is gravely concerned by this information and believes that there is a pressing need to address this situation as soon as possible.

14        NIMAC estimates that the CRTC has licensed 44 Indigenous ‘Type B’ radio broadcasters. The licences of almost one third (16) of these broadcasters are due to expire in 2012, with the licences of another 12 due to expire in 2015, and smaller numbers of licences in other years.

15        Given the number of Indigenous radio broadcasters whose renewals the Commission will hear this year, NIMAC called on the CRTC earlier this year to hold a public hearing to review the state of its policy for Indigenous broadcasting in Canada before commencing these renewal proceedings.

16        A policy review of the Commission’s 21-year old policy would have given the CRTC a broad, evidence-based perspective on the status and role of Indigenous broadcasters in Canada, and would have permitted the Commission to consider the direction in which Indigenous broadcasting should best proceed. This perspective would have provided the Commission with an informed context in which to consider the renewals of over a quarter of the Indigenous ‘Type B’ radio stations, whose licences are due to expire in 2012

17        The CRTC’s decision on 18 April 2012 to proceed with the renewal of Canada’s largest Indigenous radio broadcaster without a policy review is very regrettable, especially insofar as it limits Canadians’ ability to understand the role and future of this broadcaster in the context of the Indigenous broadcasting sector or Canada’s broadcasting system in general. This decision also raises serious concerns about the level of interest by the CRTC, as Parliament’s agent for implementing the Broadcasting Act, in a strong and dynamic Indigenous broadcasting sector.

18        We again urge the CRTC to launch a review of its policy regarding Indigenous broadcasting in Canada.

19        That said, our brief comments about AVR’s renewal application, and our recommendations concerning this application, now follow.

 

III AVR’s licence renewal application A Context of AVR’s renewal

20       With five radio station licences, AVR is Canada’s largest ‘native Type B’ radio broadcaster, is the only such broadcaster with stations in more than one major urban centre, and is one of NIMAC’s founding members.

21        We are therefore aware not only of AVR’s difficult history, but of its commitment to strong performance despite the financial and other difficulties it has encountered. The difficulties to which we refer, in particular, stem from the length of time required after AVR received its licences, to launch those stations and systematically improve their programming.

22       It is important to bear in mind, however, that when the CRTC approved AVR’s applications for its Toronto and Vancouver stations, it simultaneously gave the frequencies for which AVR was applying to other broadcasters.

  • In Toronto, AVR applied in 1999 for a weak FM frequency and an AM frequency that would augment the FM signal. In 2000 the CRTC approved AVR’s application, but gave the “powerful signal of 740 kHz” that would “serve the widest possible sector of the population”, to an existing commercial radio broadcaster with stations in Oakville (CHWO, and Mississauga (CJMR). It planned to offer “easy listening, ‘50s pop, big band, swing and nostalgia”12 to people over 50 in Toronto, “although two Toronto radio stations, CHFI-FM and CHUM” were already playing some of the music proposed by the new station. AVR was left with a weak FM frequency that did not reach its full audience.
  • In 2001, the CRTC approved AVR’s application for a radio licence to serve Vancouver, but denied its frequency request on the ground that its application “would not constitute the best possible use of the 90.9 MHz frequency”.13 It gave the frequency instead to the CBC, to establish a French-language station. At the time, the number of Indigenous people living in Vancouver outnumbered French-speaking people by more than three to one (36,855 Indigenous people, vs 10,035 French-speaking people).14 The CRTC’s decision required AVR to locate another usable frequency in a city where 16 or more radio stations were already operating, a process that delayed AVR’s launch until 2007.

23       Granting these licences without the requested frequencies forced AVR to hire consultants to locate usable frequencies in Canada’s largest cities where usable frequencies were already extremely scarce. The costs and time involved in this process were not anticipated in AVR’s licence applications and business plans.

24       Compounding AVR’s problem was the CRTC’s requirement that Indigenous broadcasters operate as non-profit undertakings: as a not-for- profit corporation that cannot issue shares or pledge assets AVR’s ability to raise additional funding to meet new and unexpected licensing requirements strained AVR’s resources.

25       A result that might have been manageable in the case of a commercial broadcaster with the ability to attract investors through shares, for instance, required AVR to divert existing financial resources from the construction and launch of its transmission and programming facilities to search for new frequencies, and then also to apply repeatedly for extensions to implement its licences. The delays in building and launching its stations compromised the integrity of AVR’s initial business plans, as the delays in its stations’ launching also precluded AVR from earning forecast advertising revenues.

26       The unexpected shape of AVR’s initial licences led to what is best described, frankly, as an anomalous situation, in which AVR has never had a full licence period in which to launch, operate, gain much-needed experience and stabilize its operations. In fact, AVR was called to its first renewal hearing in October 2006 – when its Toronto station had been on air for almost four years, its Calgary and Ottawa stations for less than half a year, and its other two stations in Vancouver and Edmonton had not yet launched at all:

27        AVR’s first renewal hearing – when only two of its stations had launched and it was still in the process of working to launch and operate its remaining stations – led the CRTC to impose new terms and conditions of licence that were at significant and serious variance with the Native Broadcasting Policy and which also added substantially to AVR’s costs. The CRTC has not only maintained these conditions without, we respectfully submit, a clear explanation of their utility to the broadcasting system or AVR, but added to them in AVR’s 2010 renewal hearing.

28        Our point in this review of AVR’s licensing history, is that AVR was never given the usual introductory grace period of a full licence term that new licensees generally enjoy.

29        Today, all five of AVR’s stations have been on-air together for just under 5 years:

30       Unless the CRTC intends to initiate a review of its licensing policy for Indigenous broadcasting in the next six months, we believe that AVR merits the same reasonable approach to licensing that the CRTC generally employs with the majority of its radio licensees, but has not used with AVR: a full licence term to provide AVR with the stability it needs to develop and strengthen its stations, its programming and its service to its audiences.

 

B Issues related to compliance

31         NIMAC has reviewed AVR’s application to renew its licences, as well as the CRTC’s correspondence with AVR regarding the application.

32        Our first comment in this matter involves the substantial variance between the CRTC’s 1990 Native Broadcasting Policy and its regulation of AVR. Where the Native Broadcasting Policy called for a hands-off approach to Indigenous broadcasting, the CRTC appears to assess AVR down to the second of its programming schedule. Our question about this is simple: why? If the CRTC is committed to the Policy it issued in 1990, it should approach AVR and other Indigenous broadcasters without detailed and excessive regulation: instead, however, the CRTC has clearly devoted enormous resources to studying AVR’s programming, and as noted above, down to the very second. What warrants this approach?

33       Our second concern is with the following paragraphs from Broadcasting Notice of Consultation 2012-224 that describe AVR – and the other eight licensees appearing at this hearing – as having ‘severe and frequent instances of apparently non-compliance’:

Given the severity and frequency of the instances of apparent non-compliance observed in the current licence terms, the Commission calls the licensees to the public hearing to discuss these issues and to show cause why a mandatory order should not be issued pursuant to section 12(2) of the Act and why, in certain cases, the Commission should not renew a licence or alternatively, suspend or revoke the licence pursuant to sections 9 and 24 of the Act.

The Commission will want to discuss with these licensees all measures taken and/or that could be taken to address the concerns raised by these instances of apparent non-compliance.

34       Respectfully, we do not accept the CRTC’s categorization of AVR’s performance during its last licence term as showing ‘severe and frequent’ non-compliance.

35       From our review of the record – unchallenged by the CRTC – we note that AVR met or exceeded all of the CRTC’s regulations.

36       AVR also met or exceeded all eight of its conditions of licence except for two incidents involving computer software. In the case of required newscast items, AVR generally met and in some cases exceeded the CRTC’s 5-item/day requirement, though it was short one out of seven days for two out of its five stations. AVR exceeded its required 20- hours/week of ‘structured enriched spoken word programming’ by more than five hours for three of its stations, though it was short by a total of 42 minutes on two of its stations.

37        If these issues were ‘severe’, we would have expected to see a degree of concern about these issues on the public record. Yet prior to AVR’s submission of its renewal application, no complaints were submitted by AVR’s audience or other broadcasters about these matters.

38       It is also unclear why the CRTC has described these breaches as ‘repeated’ – since in both cases these small infractions were the first of their kind in AVR’s history.

39       Finally, and while more to do with the consequence of non-compliance than with any findings of non-compliance, we wonder why the CRTC’s notice does not also mention, in the case of AVR, some of its achievements:

  • Each of AVR’s stations exceeded condition of licence 4, by ensuring on average that 4.8% – not the 2% or more required by the CRTC – of AVR’s spoken word programming was in a Canadian Indigenous language.
  • Each of AVR’s stations exceeded condition of licence 5, ensuring on average that 4.3% – not the 2% or more required by the CRTC – of AVR’s vocal musical selections aired each broadcast week were in a Canadian Indigenous language.
  • Each of AVR’s stations exceeded condition of licence 6, by ensuring that on average 51.7% – not the 35% or more required by the CRTC – of AVR’s Popular music (Category 2) selections were Canadian.

40      Considering that AVR is still within what is, effectively, a first seven-year licence term, its extremely limited staff complement and its very limited financial resources in comparison to commercial broadcasters, NIMAC submits that AVR’s two regulatory infractions are not severe, but minor. Further, based on the evidence on the record these infractions were not ‘repeated’, but rather one-time events.

41        The evidence from AVR is that it fully intended to comply with the terms of its licences, but that computer software failed to operate as planned. Rather than imposing draconian sanctions on AVR, NIMAC respectfully submits that this broadcaster would benefit significantly more from a full, or near-full licence term going forward.

 

C Why AVR’s requests should be approved

42       AVR’s evidence is that it has introduced policies and procedures to ensure that the regulatory infractions noted above are not repeated. It is also apparent from the record that AVR has met the CRTC’s regulations, including requirements for Canadian content and the submission of information such as its annual returns.

43       The CRTC’s Revised approach to non-compliance by radio stations15 that was introduced over a year ago explains that the CRTC will consider licensees’ applications to amend their licences, depending on the quantity, recurrence and seriousness of non-compliance.

44        In our view, AVR has delivered on a strong commitment to adhere to its regulatory requirements. It would be fundamentally unfair, we submit, to penalize AVR for what are essentially two infractions that – but for recalcitrant computer software – would not have happened. This is all the more so true in light of the fact that these two instances of not fully meeting two of eight conditions of licence did not result in any material gain or benefit to AVR.

45        Given the level of flexibility that the CRTC has regularly given to commercial broadcasters, we respectfully request that the CRTC approve AVR’s applications to amend its licences, so that it can devote its time and other resources to serving its audiences as the current Policy for Indigenous broadcasting sets out.

 

IV Recommendations A Grant AVR’s renewal application and amendment requests

46         NIMAC recommends that the CRTC grant AVR a full, seven-year licence renewal. To the extent that the CRTC believes any punishment is required for computer software failures, we believe a six-year term would be appropriate.

47         NIMAC also recommends that the CRTC grant AVR its application to modify its conditions of licence: while the CRTC is mandated to implement the terms of the Broadcasting Act, AVR is best placed to understand and respond to the needs of its audiences. New or additional attempts by the CRTC to exercise yet-more-detailed control over AVR’s programming decisions would, we respectfully submit, imply that the CRTC believes it is entitled to manage AVR’s day-to-day operations.

 

B Review the Native Broadcasting Policy

48         NIMAC repeats its recommendation that the CRTC undertake a full review of its ‘native’ broadcasting policy for Canada. Indigenous broadcasters should not have to wait another 21 years to receive the same care and attention that other elements and sectors of Canada’s communications system appear to receive on an annual basis.

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