The Canadian Association of Broadcasters and the Canadian Cable Television Association are at loggerheads over whether the channel positioning of local broadcasting services on Canadian distribution systems should be left to the goodwill of the distributor or enforced by binding legislation.

The conflict comes in the midst of a call from the crtc for public comment on establishing comprehensive access rules for broadcasting distribution undertakings. To date, the crtc has received 42 interventions from broadcasters and production companies, with more expected by the Dec. 1 deadline. Hearings are scheduled to begin Feb. 5.

The cab is proposing that formal access rules be set down in regulation, applying to all distribution systems, with provisions built in allowing broadcasters direct recourse to the crtc for dispute resolution.

Specifics up for discussion at the hearing will be the broadening of a set of rules to dictate channel positioning for future navigation systems, the bumping of exempt services like the Home Shopping Channel to the higher channel regions, and a regulated proviso that all channel realignments be subject to the approval of the services affected.

‘The single most important challenge for Canadian programming services is to ensure access to audiences on any and all means of distribution,’ says the cab.

The cab, broadcasters including CanWest Global Communications, Baton Broadcasting Systems and the cbc, and the Canadian Film and Television Production Association are proposing that a service’s position on a system be dictated by the degree to which it fulfills the goals of the Broadcasting Act, in part by its level of Canadian content.

Canadian broadcasting services captured a 61.5% audience share in 1994/95, according to the cab, a level difficult to maintain if local broadcasters are buried on services like direct-to-home satellite which will offer more than 100 channels.

Reduced ratings will damage the broadcasters’ bottom lines and filter down to independent producers, says the cab: ‘Canadian producers of programming remain reliant on the continued success of the Canadian broadcasters; success that can only come with continued access.’

While virtually all interventions unanimously support the idea of Canadian services having priority placement over foreign and ancillary services, the dividing line between the broadcasters and the cablecos is the issue of the accountability of the distributor to give local services the best shot in a future multichannel lineup. It’s equally important in the short term, many add, since there are a significant number of consumers with old tv sets and channel converter capacity restrictions.

Since May 1994, Canadian cablecos have followed the ccta’s Access Commitment, which stipulates that all Class 1 cable systems with more than 6,000 subscribers must provide access to all licensed Canadian specialty services and pay-per-view systems where the cable licensee has available channel capacity.

Although the system is voluntary, the ccta calls it a ‘resounding success,’ with only 2.2% of all Class 1 cablecos (152,964 subscribers) not offering the new specialty services, mainly due to capacity constraints.

But Michael McCabe, chairman and ceo of the cab, says that although the codes have been effective at the cable end, Canadian broadcasters and producers can’t trust a voluntary system will serve their needs in an expanded distribution environment.

‘The world down the road will be cable, telephone, dth, cellular, and we’re saying that we need more than a voluntary code dictated by one distributor to ensure access. New players might well ask why one distributor is setting the rules for all systems, and it’s too easy when it’s purely voluntary to find ways around it.’

On the small percentage of cablecos not offering the new specialties, McCabe adds that with access rules there would be no reason for any cabler not to offer the services.

Richard Stursberg, president and ceo of the ccta, was unavailable for comment.

The cftpa, although supporting the concept of giving Canadian services key positions on new distribution systems, is coming down on the side of the cablecos on the issue of making access legally binding.

Elizabeth MacDonald, president of the cftpa, says the idea is impractical, considering the already taxed resources of the crtc, to propose that they have more to judiciate.

‘There are many practical issues related to the position and marketing of all the Canadian services,’ says MacDonald. ‘You cannot regulate marketing plans, and although there has to be a place to go if there’s a discreptancy on access-related issues, it has to be outside the crtc. The world is trending towards less regulation, not more.’

While the ccta says the flexibility of the Access Commitment is better suited for a competitive environment because it allows the parties to adjust for market-specific circumstances, the cbc and other broadcasters are registering support for the cab’s position on legally enforceable access regulation.

The current rules have not solved all the problems, says the cbc, ‘problems (which are) inherent in a system in which large distribution enterprises can make or break the fortunes of licensed program providers through their decisions relating to carriage, packaging, and channel placement.’

For its part, CanWest says the ccta’s Access Commitment ‘falls short’ of what it was designed to achieve, and in addition to supporting the idea of access regulation, proposes that the 1986 Cable Regulations be modified to include a secondary list of carriage priorities to include all types of programming services with cable-owned or controlled services having last priority.

Baton is joining the cab, cbc and the cftpa in advocating an extension of carriage rules to include all Class 2 and Part III cable systems.

Baton is further proposing that all Class 2 and Part III licensees with less than 2,000 subscribers be required to carry extra regional stations as well as local and regional stations.

Excluding the carriage of any regional station ‘no longer makes sense in the 500-channel universe, especially given that these exempt systems are currently expending significant financial resources to offer discretionary services and superstations,’ says Baton.

The ccta, while willing to extend the Access Commitment to include all licensed cablers with 6,000-plus subscribers regardless of class, says the costs associated with building the equipment necessary to provide all services in the smaller regions may be prohibitive given the limited subscriber base.

According to the cftpa, the access issues on the table are critical to the survival of the Canadian television production industry. Television production has flourished while film production faltered primarily because the Canadian broadcasting system provides guaranteed shelf space to programs.

‘The removal of any one of the factors which have sustained growth in this country could have a serious negative effect on the industry infrastructure. The gains of a generation could be undone in two or three years,’ says the association.

While supporting the point, MacDonald adds that it’s ironic that the cab is employing the strategy of saving Canadian programs in their access argument when they ‘have other strategies like access to funding pools which are destructive to our industry.’

Among the controversial topics up for the crtc’s consideration next February will be the broadcaster’s position that the amount of space allocated for Exempt Programming Services on any distribution system needs to be restricted and placed down the priority totem pole in terms of channel positioning.

The ccta notes that in the first set of interventions filed Sept. 20, ‘those whose interests were linked to the production of programming for or the distribution of licensed programming services generally opposed the notion of cable licensees setting aside up to 20% of their capacity for exempt services, while intervenors who wish to provide exempt services generally felt the 20% level too low.’ To balance interests, the ccta is opting to maintain the 20% maximum.