CRTC rules against TSN, but leaves door open for future multiplexing

In what amounts to little less than a slap on the wrist, the CRTC clarified The Sports Network Inc.’s conditions of licence regarding simultaneous distribution of multiple feeds, essentially telling TSN to ask before it multiplexes in future. The CRTC’s ruling concerned a January 17 complaint by the Canadian Broadcasting Corp. that TSN broadcast NHL hockey games using two simultaneous national feeds at least three times between October and December of last year. By multiplexing their service, TSN allowed analog and digital cable BDUs to broadcast two hockey games at the same time. As the CBC pointed out – and as the commission concurred – this is not allowed under the conditions of TSN’s broadcasting license. "The licensee must ensure that it does not permit the simultaneous distribution of separate feeds by BDUs unless it obtains appropriate authorization," read the CRTC’s decision. "The commission is of the view, however, that it may be appropriate in certain circumstances to permit the multiplexing of specialty services. Accordingly, it would be prepared to consider an application from the licensee to authorize the simultaneous distribution by BDUs of its separate feeds in a single region on a digital basis only." Katherine Heath-Eves, a spokesperson for the CBC, tells Canadian Communications Reports: " is saying, ‘You broke the rules, there’s no penalty, but in the future we won’t rule out. You just have to ask in advance.’" Judging by a comment issued by TSN, who declined an interview request for this story, the broadcaster is taking the ruling as an invitation to apply to expand its services. "We are pleased that the CRTC has clarified the matter and, as contemplated by the decision, we will be filing an application shortly," read TSN’s statement emailed to Canadian Communications Reports on June 1. And if the past is any indication, this decision could be a stepping-stone to substantially increased TSN offerings in the future. In May 1999, TSN filed a similar complaint against CTV Sportsnet – one that was cited heavily in both the CBC’s complaint and the CRTC’s determination – in which the commission ruled it would consider an application to allow Sportsnet to distribute its four regional channels on a digital basis. Sportsnet subsequently applied and approval was granted in January 2000, giving Canadian digital cable subscribers access to sports coverage from across the country on the four Sportsnet variants. While there could be numerous motives behind TSN’s simultaneous distribution of these hockey games, it’s hard to believe that it didn’t intentionally violate the terms of its license. Part of the broadcaster’s license allows that it "may distribute separate regional programming in place of its national service to affiliated distribution undertakings provided that the hours devoted to such regional programming do not exceed 10% of the licensee’s quarterly program schedule." TSN took advantage of this clause, and the fact that it has a second, almost permanently inactive channel with BDUs, to broadcast two national hockey games in the same region at one time. TSN’s reply to the CBC complaint, and its justification for using its second channel in this manner, was simple: "In the licensee’s view, there is no question that, after a year without NHL hockey, the live broadcast of the season opening games of five of Canada’s six NHL teams (Ottawa, Calgary, Edmonton, Vancouver and Toronto) constituted programming of a regional interest." Although it likely would have been acceptable for TSN to use its split feed to broadcast something like a regional lumberjack competition, the NHL games hardly meet the test of local-interest programming. As the CBC pointed out in its complaint, distributing two national sports events is extremely beneficial to TSN. "Specifically, the CBC was of the view that TSN would be in a position to acquire packages of rights that include simultaneous sports events by paying a higher price for a package than would otherwise be reasonable, since TSN could rely on a national audience, and hence national advertising, for all of the simultaneous sports events." Added Heath-Eves: "If the CRTC would have ruled in favour of TSN it would have meant a big change for the broadcasting environment in Canada, and implications would have ranged from channel capacity to ad revenue to programming rates for all broadcasters. If every channel is allowed to broadcast whatever they want on all their various platforms it really changes everything. Just imagine the ad revenue alone. It just wouldn’t be a level playing field if some broadcasters have two channels and others have just one." But by not quantitatively punishing TSN in any way, the CRTC did rule somewhat in favour of the broadcaster (the commission was unable to comment on its decision before press time). TSN would have been able to gauge viewer response to its multiple feeds and it has also opened up discussion about applying to be able to multiplex its digital service on a more regular – or even permanent – basis, something the broadcaster is clearly interested in doing. And TSN stated that some broadcasters already do have two channels served by one licence, arguing that CBC’s time-shifting CBC East and CBC West signals allow BDUs to distribute multiple national hockey games already. The last word, for now, goes to TSN. In its reply to the CRTC decision the specialty channel said: "In the view of the licensee, to alter the current model at this time would deprive viewers of the programming diversity they have come to expect in the digital distribution environment, thereby hindering the transition to digital distribution. Moreover, it would restrict TSN’s programming flexibility in a manner that would put it at an unfair competitive disadvantage to both the CBC and Sportsnet."

CRTC rules against TSN, but leaves door open for future multiplexing

Broadcast | June 5, 2006

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