Discretionary Services Regulations

Discretionary Services Regulations Whereas, pursuant to subsection 10(3) of the Broadcasting Acta, a copy of the proposed Discretionary Services Regulations, substantially in the annexed form, was published in the Canada Gazette, Part I, on October 8, 2016 and a reasonable opportunity was afforded to interested persons to make representations to the Canadian Radio-television and Telecommunications Commission with respect to the proposed Regulations; S.C. 1991, c. 11 Therefore, the Canadian Radio-television and Telecommunications Commission, pursuant to subsection 10(1) of the Broadcasting Acta, makes the annexed Discretionary Services Regulations. Gatineau, August 3, 2017 Definitions The following definitions apply in these Regulations. Act means the Broadcasting Act. (Loi) advertising material means any commercial message or programming that promotes a station, network or program but it does not include a station or network identification; the announcement of an upcoming program that is voiced over credits; or a promotion for a Canadian program or a Canadian feature film, even if a sponsor is identified in the title of the program or film or as a sponsor of that program or film, as long as the identification is limited to the sponsor’s name and does not include a description, representation or attribute of the sponsor’s products or services. (matériel publicitaire) broadcast year means the period that begins on September 1 of one year and ends on August 31 of the following year. (année de radiodiffusion) Canadian program means a program in respect of which a Canadian film or video production certificate as defined in section 125.4 of the Income Tax Act has been issued; or that qualifies as a Canadian program in accordance with the criteria established by the Commission in Appendices 1 and 2 to Broadcasting Regulatory Policy CRTC 2023-90, dated 23 March 2023 and entitled Change to the treatment of stock footage costs as part of the evaluation of applications for Canadian program certification, or [Repealed, SOR/2023-216, s. 3] paragraphs 128 to 130 of Broadcasting Regulatory Policy CRTC 2015-86, dated March 12, 2015, entitled Let’s Talk TV: The way forward – Creating compelling and diverse Canadian programming. (émission canadienne) commercial message means an advertisement that is intended to sell or promote goods, services, natural resources or activities, including by mentioning or displaying in a list of prizes the name of a person that is selling or promoting the goods, services, natural resources or activities. (message publicitaire) exempt distribution undertaking means a distribution undertaking whose operator is exempt from one or more of the requirements of Part II of the Act by an order of the Commission made under subsection 9(4) of the Act. (entreprise de distribution exemptée) key figure means a figure formed by a combination of alphanumeric characters set out in column 2 of Schedule 1 that corresponds to the description of the program set out in column 1. (chiffre clé) licensed means licensed by the Commission. (autorisé) licensee means a person that is licensed to carry on a discretionary programming undertaking or a discretionary services network. (titulaire) new programming service means a programming service that has not been previously distributed in Canada and includes a high definition version or a new multiplex of an existing programming service. (nouveau service de programmation) program means a program that falls into a category set out in item 6, column 1, of Schedule 1. (émission) programming means anything that is broadcast, but does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric characters. (programmation) Obligation to broadcast Canadian programs Subject to subsection (2) and except as otherwise provided under a condition of its licence, a licensee shall devote at least 35% of the time that it devotes to broadcasting in a broadcast year to the broadcast of Canadian programs. Licensee that provides third language programming Except as otherwise provided under a condition of its licence, a licensee that provides a third language service shall devote at least 15% of the time that it devotes to broadcasting in a broadcast year to the broadcast of Canadian programs. Period of time devoted to broadcasting For the purposes of subsections (1) and (2), the time devoted to the broadcasting of a program includes any time devoted to advertising material. Definition of third language service In subsection (2), third language service means a programming service that provides at least 90% of its programming each broadcast week, the first day of which falls on a Sunday, in a language other than English or French exclusive of secondary audio programming and subtitles. Prohibition — broadcasting of programming A licensee shall not broadcast programming that contains anything that contravenes an Act of Parliament or of the legislature of a province; any abusive comment or abusive pictorial representation that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability; or any false or misleading news. Obligation to comply with technical requirements Except as otherwise provided under a condition of its licence, a licensee shall ensure that every commercial message that it broadcasts in a break within a program or between programs complies with the technical requirements set out in ATSC Recommended Practice A/85: Techniques for Establishing and Maintaining Audio Loudness for Digital Television, published by the Advanced Television Systems Committee Inc., as amended from time to time. Alcoholic beverages A licensee may broadcast a commercial message directly or indirectly advertising an alcoholic beverage if the sponsor is not prohibited from advertising the alcoholic beverage by the laws of the province in which the commercial message is broadcast; the commercial message is not designed to promote the general consumption of alcoholic beverages; and the commercial message does not attempt to influence non-drinkers of any age to drink or to purchase an alcoholic beverage, is not directed at persons under the legal drinking age, does not associate an alcoholic beverage with youth or youth symbols and does not portray persons under the legal drinking age or persons who could reasonably be mistaken for such persons in a context where any such product is being shown or promoted, does not portray an alcoholic beverage in the context of, or in relation to, an activity that is attractive primarily to people under the legal drinking age, does not contain an endorsement of the alcoholic beverage, personally or by implication, either directly or indirectly, by any person, character or group who is or is likely to be a role model for minors because of their past or present position of public trust, special achievement in any field of endeavour, association with charities or advocacy activities benefiting children, or reputation or exposure in the mass media, does not attempt to establish an alcoholic beverage as a status symbol, a necessity for the enjoyment of life or an escape from life’s problems or attempt to establish that consumption of the product should take precedence over other activities, does not imply directly or indirectly that social acceptance, social status, personal success, or business or athletic achievement may be acquired, enhanced or reinforced through consumption of alcohol, does not imply directly or indirectly that the presence or consumption of alcohol is, in any way, essential to the enjoyment of an activity or an event, does not portray an alcoholic beverage, or its consumption, in an immoderate way, does not exaggerate the importance or effect of any aspect of an alcoholic beverage or its packaging, does not show or use language that suggests, in any way, product misuse or product dependency, compulsive behaviour, urgency of need or urgency of use, does not use imperative language to urge people to purchase or consume an alcoholic beverage, does not introduce an alcoholic beverage in such a way or at such a time that it may be associated with the operation of any vehicle or conveyance requiring skill, does not introduce an alcoholic beverage in such a way or at such a time that it may be associated with any activity requiring a significant degree of skill, care or mental alertness or involving an obvious element of danger, does not contain inducements to prefer an alcoholic beverage because of its higher alcohol content, does not refer to the feeling and effect caused by alcohol consumption or show or convey the impression, by behaviour or comportment, that the people depicted in the message are under the influence of alcohol, does not portray any person with an alcoholic beverage in situations in which the consumption of alcohol is prohibited, and does not contain scenes in which an alcoholic beverage is consumed or scenes that give the impression, visually or in sound, that it is being or has been consumed. Non-application For greater certainty, paragraph (1)(b) does not apply in order to prohibit industry, public service or brand preference advertising. Obligation — allocation of broadcasting time If, during an election period, a licensee provides time on its programming service for the broadcast of programs, advertisements or announcements of a partisan political character, the licensee shall allocate the time on an equitable basis to all accredited political parties and rival candidates represented in the election or referendum. Definition of election period In subsection (1), election period means in the case of a federal or provincial election or a federal, provincial or municipal referendum, the period that begins on the day on which the announcement of the election or referendum is made and that ends on the day on which the election or referendum is held; or in the case of a municipal election, the period that begins two months before the day on which the election is to be held and that ends on the day on which the election is held. Non-disclosure obligation — distribution of programming services A licensee whose programming services are distributed by a licensed distribution undertaking or that is negotiating terms of carriage with such an undertaking for its programming services, including new programming services, shall sign and provide to the licensee of the distribution undertaking an agreement that reproduces the CRTC non-disclosure provisions; and contains its consent to comply with the CRTC non-disclosure provisions for the benefit of the licensee of the distribution undertaking. Non-disclosure obligation — broadcasting of programs A licensee whose programs are broadcast by a licensed video-on-demand undertaking or that is negotiating terms of carriage with such an undertaking for its programs shall sign and provide to the licensee of the video-on-demand undertaking an agreement that contains its consent to comply with the CRTC non-disclosure provisions for the benefit of the licensee of the video-on-demand undertaking. Definition of CRTC non-disclosure provisions In this section, CRTC non-disclosure provisions means the non-disclosure provisions set out in the appendix to Broadcasting Regulatory Policy CRTC 2013-578, dated October 31, 2013 and entitled Standard clauses for non-disclosure agreements. Obligations — log or record Except as otherwise provided under a condition of its licence, a licensee shall keep a program log or record of its programming in a form that is acceptable to the Commission; retain the log or record for a period of one year after the day on which the programming was distributed; cause the following information to be entered in the log or record each day: the date, an identification of the licensee or the service provided by the licensee, the time at which advertising material that it broadcasts in a break within a program or between programs begins, its duration and, in the case of a commercial message, the name of the person that is selling or promoting goods, services, natural resources or activities, in relation to each program other than a music video clip, its title and any additional information that is to be included in accordance with the appropriate subitem of Schedule 1, the key figure that describes the program, the time at which the program begins and ends, if applicable, the code set out in column 1 of Part A, C or D of Schedule 2 that indicates the language, type or group of the program described in column 2, if applicable, the code set out in column 1 of Part B of Schedule 2 that indicates the accessibility of the program described in column 2, and if it is required by a condition of the licence, a brief description of the content of the program, in relation to each music video clip, the title of the clip, the name of and language used by the performer, an indication as to whether the clip is a Canadian music video clip, as defined in section V of Appendix I to Public Notice 2000-42, dated March 17, 2000, entitled Certification for Canadian Programs — A revised approach, the key figure that describes the clip, and if applicable, the code set out in column 1 of Part B of Schedule 2 that indicates the accessibility of the clip described in column 2, and if the licensee distributes its programming in a multi-hour block, the time at which each block begins and ends; and within 30 days after the last day of each month, provide to the Commission the log or record of its programming for the month and a certificate attesting to the accuracy of the contents of the log or record. If more than one subitem applies For the purposes of clauses (1)(c)(iv)(B) and (1)(c)(v)(D), if more than one subitem of Schedule 1 applies to the program, a licensee may, in respect of that program, cause to be entered in its program log or record the key figures indicating the subitems that apply to each segment of the program, in the order in which the segments are distributed, and the starting time and duration of each segment of the program. Obligation to keep recording of programming A licensee shall retain a clear and intelligible audio-visual recording of all of its programming for a period of four weeks after the day on which the programming is distributed; or for a period of eight weeks after the day on which the programming is distributed, if the Commission receives a complaint from a person regarding any programming, or for any other reason wishes to investigate the programming, and notifies the licensee of the investigation before the end of the four-week period. Obligation to provide recording to Commission If the Commission requests a clear and intelligible audio-visual recording of a licensee’s programming from the licensee before the end of the applicable period referred to in paragraph (3)(a) or (b), the licensee shall, without delay, provide the recording to the Commission. Obligation to file statement of accounts On or before November 30 of each year, a licensee shall file with the Commission, on the annual return form issued by the Commission, a statement of accounts for the previous broadcast year. Obligation to respond to complaint or request At the Commission’s request, a licensee shall respond to a complaint or request for resolution of a dispute filed by a person or a request for information regarding the programming that is originated by or is distributed by the licensee or regarding the licensee’s technical operations, subscribership, financial affairs or ownership; and a request for information regarding the licensee’s adherence to the conditions of its licence, the Act, these Regulations, industry standards, practices or codes or any other self-regulatory mechanism of the industry. The following definitions apply in this section. associate, when used to indicate a relationship with a person, includes a partner of the person; a trust or an estate in which the person has a substantial beneficial interest or in which the person serves as a trustee or in a similar capacity; the person’s spouse or common-law partner; a child of the person or of their spouse or common-law partner, including a child adopted in fact by the person, spouse or common-law partner; the spouse or common-law partner of the child; a relative of the person, or of the person’s spouse or common-law partner, if that relative has the same residence as the person; a corporation of which the person alone has, or the person together with one or more associates described in this definition have, directly or indirectly, control of 50% or more of the voting interests; a corporation of which an associate, as described in this definition, of the person has, directly or indirectly, control of 50% or more of the voting interests; and a person with which the person has entered into an arrangement, a contract, an understanding or an agreement in respect of the voting of shares of a licensee corporation or of a corporation that has, directly or indirectly, effective control of a licensee corporation, except when that person controls less than 1% of all issued voting shares of a corporation whose shares are publicly traded on a stock exchange. (lien) common-law partner means an individual who is cohabiting with a person in a conjugal relationship having done so for a period of at least one year. (conjoint de fait) common shares means the shares that represent the residual equity in the earnings of a corporation, and includes securities that are convertible into such shares at any time at the option of the holder and the preferred shares to which are attached rights to participate in the earnings of the corporation with no upper limit. (actions ordinaires) person includes an individual, partnership, joint venture, association, corporation, trust, estate, trustee, executor or administrator, or a legal representative of any of them. (personne) voting interest, in respect of a corporation with share capital, means the vote attached to a voting share; a corporation without share capital, means an interest that entitles the owner to voting rights similar to those enjoyed by the owner of a voting share; a partnership, trust, association or joint venture, means an ownership interest in its assets that entitles the owner to receive a share of its profits, to receive a share of its assets on dissolution and to participate directly in its management or to vote on the election of the persons that are to be entrusted with the power and responsibility to manage it; and a not-for-profit partnership, trust, association or joint venture, means a right that entitles the owner to participate directly in its management or to vote on the election of the persons that are to be entrusted with the power and responsibility to manage it. (intérêt avec droit de vote) voting share means a share in the capital of a corporation to which one or more votes are attached that are exercisable at meetings of shareholders of the corporation, either under all circumstances or under a circumstance that has occurred and is continuing, and includes a security that is convertible into such a share at any time at the option of the holder. (action avec droit de vote) Control of voting interest For the purposes of this section, control of a voting interest by a person includes situations in which the person is, directly or indirectly, the beneficial owner of the voting interest; or the person, by means of an arrangement, contract, understanding or agreement, determines the manner in which the interest is voted but the solicitation of proxies or the seeking of instructions with respect to the completion of proxies in respect of the exercise of voting interests is not considered to be such an arrangement, contract, understanding or agreement. Effective control of licensee For the purposes of this section, effective control of a licensee or its undertaking includes situations in which a person controls a majority of the voting interests of the licensee directly or indirectly, other than by way of security only; a person has the ability to cause the licensee or its board of directors to take a course of action; or the Commission, after a public hearing of an application for a licence or in respect of an existing licence, determines that a person has effective control of the licensee or its undertaking and sets that determination out in a decision or public notice. Obligation to obtain Commission’s prior approval Except as otherwise provided under a condition of its licence, a licensee shall obtain the Commission’s prior approval of any act, transaction or agreement that, directly or indirectly, would result in a change by any means of the effective control of its undertaking; a person that alone controls less than 30% of the voting interests of the licensee having control of 30% or more of those interests, controls less than 30% of the voting interests of a person that has, directly or indirectly, effective control of the licensee having control of 30% or more of those interests, owns less than 50% of the issued common shares of the licensee owning 50% or more of those shares but not having, directly or indirectly, effective control of the licensee, or owns less than 50% of the issued common shares of a person that has, directly or indirectly, effective control of the licensee owning 50% or more of those shares but not having, directly or indirectly, effective control of the licensee; or a person together with an associate that control less than 30% of the voting interests of the licensee having control of 30% or more of those interests, that control less than 30% of the voting interests of a person that has, directly or indirectly, effective control of the licensee having control of 30% or more of those interests, that own less than 50% of the issued common shares of the licensee owning 50% or more of those shares but not having, directly or indirectly, effective control of the licensee, or that own less than 50% of the issued common shares of a person that has, directly or indirectly, effective control of the licensee owning 50% or more of those shares but not having, directly or indirectly, effective control of the licensee. Obligation to notify Commission A licensee shall notify the Commission, within 30 days after the day on which the act or transaction occurs or the agreement is entered into, of the occurrence of any act or transaction or the entry into any agreement that, directly or indirectly, results in controls less than 20% of the voting interests of the licensee having control of 20% or more but less than 30% of those interests, controls less than 20% of the voting interests of a person that has, directly or indirectly, effective control of the licensee having control of 20% or more but less than 30% of those interests, controls less than 40% of the voting interests of the licensee having control of 40% or more but less than 50% of those interests but not having, directly or indirectly, effective control of the licensee, or controls less than 40% of the voting interests of a person that has, directly or indirectly, effective control of the licensee having control of 40% or more but less than 50% of those interests but not having, directly or indirectly, effective control of the licensee; or that control less than 20% of the voting interests of the licensee having control of 20% or more but less than 30% of those interests, that control less than 20% of the voting interests of a person that has, directly or indirectly, effective control of the licensee having control of 20% or more but less than 30% of those interests, that control less than 40% of the voting interests of the licensee having control of 40% or more but less than 50% of those interests but not having, directly or indirectly, effective control of the licensee, or that control less than 40% of the voting interests of a person that has, directly or indirectly, effective control of the licensee, having control of 40% or more but less than 50% of those interests but not having, directly or indirectly, effective control of the licensee. Content of notification The notification is to contain the following information: the name of the person and, if applicable, of the associate; the percentage of the voting interests controlled by the person or by the person and the associate; and a complete description of the act, transaction or agreement or a copy of the transaction or agreement. Prohibition — undue preference or disadvantage A licensee shall not give an undue preference to any person, including itself, or subject any person to an undue disadvantage. Burden of proof In a proceeding before the Commission, the burden of establishing that any preference or disadvantage is not undue is on the licensee that gives the preference or subjects the person to the disadvantage. Prohibition Except as otherwise provided under a condition of its licence, a licensee shall not offer its programming service for distribution as part of a package with other programming services unless it also makes its programming service available on a stand-alone basis. Obligation — distribution of new programming service Except as otherwise provided under a condition of its licence, a licensee that is ready to launch a new programming service shall make that programming service available for distribution by all licensed broadcasting distribution undertakings or operators of exempt distribution undertakings, despite the absence of a commercial agreement. Referral of dispute to Commission If there is a dispute between a licensee and the operator of a licensed distribution undertaking or an exempt distribution undertaking concerning the carriage or terms of carriage of programming that originates from the licensee, including the wholesale rate and the terms of any audit referred to in section 15.1 of the Broadcasting Distribution Regulations, one or both of the parties to the dispute may refer the matter to the Commission for dispute resolution. Mediation If the Commission accepts a referral of a matter for dispute resolution, the parties to the dispute shall participate in a mediation with a person who is appointed by the Commission. Additional information During the dispute resolution process, the person who is appointed may require additional information from the parties. Procedural requirements, rates, terms and conditions If a licensed distribution undertaking or an exempt distribution undertaking distributes the licensee’s programming service in the absence of a commercial agreement and the matter proceeds before the Commission for dispute resolution, the dispute shall be resolved in accordance with the procedural requirements established by the Commission in Broadcasting and Telecom Information Bulletin CRTC 2019-184, dated May 29, 2019 and entitled Practices and procedures for dispute resolution; and the rates, terms and conditions established by the Commission apply as of the day on which the programming service was first made available to the distributor in the absence of a commercial agreement. Rates, terms and conditions — new programming service If the dispute relates to the rates, terms or conditions that relate to a new programming service that is being distributed in the absence of a commercial agreement and the matter proceeds before the Commission for dispute resolution, the parties will be bound by the rates, terms and conditions established by the Commission for the duration of the contractual term established by the Commission. Rates, terms and conditions — agreement Despite subsections (4) and (5), the parties may reach an agreement that sets out rates, terms or conditions that differ from those established by the Commission. Obligation — rates, terms and conditions During a dispute between a licensee and a person that is licensed to carry on a distribution undertaking or the operator of an exempt distribution undertaking concerning the carriage or terms of carriage of programming that originates from the licensee or concerning any right or obligation under the Act, the licensee must continue to provide its programming services to the distribution undertaking at the same rates and on the same terms and conditions as it did before the dispute. Period of dispute For the purposes of subsection (1), a dispute begins when written notice of the dispute is provided to the Commission and is served on the other undertaking that is a party to the dispute and ends when an agreement settling the dispute is reached by the concerned undertakings or, if no such agreement is reached, when the Commission renders a decision concerning any unresolved matter. Obligations — transmission of programming service Except as otherwise provided under a condition of its licence, a licensee shall, in respect of each programming service that is required to be distributed under section 18 of the Broadcasting Distribution Regulations, by the Commission under paragraph 9(1)(h) of the Act or by order of the Commission made under subsection 9(4) of the Act, ensure the transmission of the programming service from its production facilities to each broadcasting distribution undertaking’s head end located within the area for which the licensee is licensed or to a satellite uplink centre located within that area; and bear the costs of the transmission. The holder of any licence for a pay television programming undertaking or a speciality services programming undertaking in effect on September 1, 2017 is considered to be a licensee for the purposes of these Regulations for the remainder of the term of the licence. A program that, before November 1, 2023, qualified as a Canadian program under subparagraph (b)(i) or (ii) of the definition Canadian program in section 1, as it read immediately before that day, continues to qualify as a Canadian program for the purposes of these Regulations. [Repeal] These Regulations come into force on September 1, 2017 but if they are registered after that day, they come into force on the day on which they are registered. News Analysis and interpretation Long-form documentary Reporting and actualities Religion Formal education and preschool Informal education/Recreation and leisure Professional sports Amateur sports Drama and comedy (include the appropriate Commission drama credit if applicable) Ongoing dramatic series Ongoing comedy series (sitcoms) Specials, mini-series or made-for-TV feature films Theatrical feature films aired on TV Animated television programs and films Programs of comedy sketches, improvisation, unscripted works, stand-up comedy Other drama Music and dance other than music video programs or clips Music video clips Music video programs Variety Game shows General entertainment and human interest Reality television Interstitials Public service announcements Infomercials, promotional and corporate videos Filler programming