EXECUTIVE SUMMARY

Rogers Media Inc. (Rogers) is replying to four Petitions filed with the Governor-in-Council by the Corrcan Media Group Inc. (Corrcan), Independent Community Television Montreal (ICTV), Ethnic Channels Group Limited (ECG), and TLN Media Group Inc. (TLN) (collectively the Petitioners) pursuant to section 28(1) of the Broadcasting Act (the Act).  Each of the Petitions asks the Governor-in-Council to set aside and/or refer back for reconsideration the decision issued by the Canadian Radio-television and Telecommunications Commission (the Commission or CRTC) in Broadcasting Decision CRTC 2019-172 and Broadcasting Order CRTC 2019-173 (Decision 2019-172 or the Decision) granting Rogers a licence to continue to operate its national, multilingual multi-ethnic discretionary service known as OMNI Regional.  Rogers was originally awarded the licence for OMNI Regional in Broadcasting Decision CRTC 2017-152 and has been operating the service for the past two years.

None of the Petitions provide any credible evidence or persuasive arguments that the Commission’s decision to issue a new licence to Rogers to operate OMNI Regional derogates from the attainment of the objectives of the broadcasting policy set out in subsection 3(1) of the Broadcasting Act.  That is the test that must be met under subsection 28(1) before a decision issued by the Commission can be set aside or referred back for reconsideration.  Accordingly, the Petitions have no merit and must be dismissed by the Governor-in-Council.

In a competitive CRTC proceeding, Rogers was granted a licence to operate a national, multilingual multi-ethnic discretionary service in Decision 2019-172 over Corrcan, ICTV, ECG and TLN, as well as other applicants, because the CRTC found that Rogers’ proposal “best meets the needs and interests of Canada’s diverse population and the criteria established by the Commission, and is the most likely to ensure an exceptional contribution to the fulfillment of the objectives of the Act.”

It is not surprising that the petitions were filed by four applicants that were competing with Rogers in the CRTC’s process.  Significantly, no other applicant chose to file a petition.  That includes some partners to the original applications, such as TLN’s partner Asian Television Network, who chose not to join TLN in filing a petition.  Nor did any other participant in that proceeding, which included thousands of interveners, seek to overturn the Commission’s decision.  That is the case, despite the fact that each Petitioner suggests, in its own hyperbolic way, that the Commission’s decision will somehow cause irreparable harm to Canada’s ethnic communities, to Canada’s ethnic broadcasters and/or to the CRTC’s integrity.  This suggestion is simply not credible given that Rogers is already operating OMNI Regional under the Commission’s 91(h) authority, which has only had a positive impact on the ethnic broadcasting sector. Notably, the CRTC’s latest financial report indicates that ethnic services experienced a significant double-digit year over year revenue growth rate of 23.3% 2018.

What the Petitioners fail to point out and what the CRTC’s Decision recognized, is that each of their applications had serious deficiencies and was inferior, in almost every respect, to the application that Rogers submitted. The Petitioners ignore the fact that the Commission made its Decision based on its assessment of all of the commitments that each applicant proposed in its application and considered them in a fair, open and transparent process that provided all applicants with ample time and opportunity to submit a compelling proposal.  After completing that assessment, the Commission determined that Rogers’ proposal was superior to that of the other applicants.

In its decision, the Commission emphasized the exceptional commitments made by Rogers to provide third-language news and information programming from a Canadian perspective, to broadcast significant amounts of original, first-run Canadian content and to distribute third-language and ethnic programming from all across Canada using four regional feeds.  Collectively, these (and other) commitments far exceeded the proposals made by Corrcan, ICTV, ECG, TLN and the other three applicants.

Rogers submits that Decision 2019-172 furthers several policy objectives outlined in subsection 3(1) of the Broadcasting Act by ensuring that Canadians who speak a language other than English or French can access television programming that will enhance their ability to participate in and contribute to the cultural, political, social and economic fabric of Canada.  The unique nature of Rogers’ proposal – a national service which includes four regional feeds (OMNI Pacific, OMNI Prairies, OMNI East and OMNI Québec), a partnership with Montreal-based independent ethnic broadcaster, ICI Télévision, contributions from established ethnic news producers like Richmond, BC based Fairchild New Media Ltd. and Toronto-based CHIN Radio Canada, a physical presence in all regions of the country, commitments to local and national news, a diverse governance structure that includes regionally-based and ethnically diverse Advisory Councils and programming from over 70 local and national independent producers – ensures that OMNI Regional will serve the needs and interests, and reflect the circumstances and aspirations, of ethnic and third-language Canadians.

Rogers’ 33 year history providing Canadians with a diverse range of multilingual and multi-ethnic programming, our unparalleled experience in producing Canadian local and national ethnic and third-language news and information programming, our longstanding support for Canada’s independent producers and our deep involvement with ethnic communities across Canada combined to encourage close to 5,000 individuals, creators, corporations and community organizations to submit letters expressing strong support for our application.  We received broad national support from every region of the country.  Those interveners emphasized the extraordinary contribution that OMNI makes to ethnic communities in Canada.  Many also highlighted that Rogers was the only applicant with experience and an unparalleled track record in producing local, regional, and national ethnic and third-language news and information programming.

In addition to making an exceptional contribution to achieving Canada’s broadcasting policy objectives, the decision to grant Rogers a licence to operate OMNI Regional is entirely consistent with the criteria the Commission outlined in its call for applications, Broadcasting Notice of Consultation CRTC 2017-154 (Notice 2017-154).

The Petitioners make dubious allegations regarding Rogers’ application to continue to operate a national, multilingual multi-ethnic television service and the Commission’s decision to issue a licence to Rogers to operate OMNI Regional.  These allegations can be summarized as follows:

• Rogers is not qualified to operate a national, multilingual multi-ethnic discretionary service.
• Rogers did not satisfy the criteria established by the Commission for granting a licence to operate a national, multilingual multi-ethnic discretionary service, including the requirement to offer local, regional and national news and information programming and to provide evidence of the widespread acceptance of the proposed wholesale rate to Canadians.
• OMNI Regional is not a national service.
• It was inappropriate for the Commission to allow Rogers to link the ongoing provision of its free OTA television stations to its discretionary service, OMNI Regional.
• The granting of a new licence to Rogers to operate OMNI Regional provides Rogers with an unfair competitive advantage over other ethnic broadcasters.
• The denial of the application filed by ECG and its untested proposal to offer multiple feeds represents a failure to take into account technological change and the need for a new distribution model.
• Granting a licence to Rogers contravenes the Canadian Charter of Rights and Freedoms, the Canadian Multiculturalism Act and the federal government’s priorities regarding multiculturalism.
• The Commission’s decision failed to provide adequate reasons for denying the other applications, and the actions of the Chair and Vice Chair of the Commission during the proceeding gave rise to a reasonable apprehension of bias.
• The Commission’s Ethnic Broadcasting Policy is outdated and should be reviewed and revised.

None of the allegations have any validity and each one should be rejected for the following reasons:

A. First, Rogers was the most qualified applicant in the Commission’s proceeding:

• Rogers has been at the forefront of multilingual multi-ethnic television in Canada for 33 years, since acquiring CFMT television (Toronto) from bankruptcy in 1
• Rogers was the only applicant with experience operating a multilingual multi-ethnic television service that provides programming in 20 different languages and serves 20 distinct ethnic communities (the number is actually well over 40 languages and 40 groups since each region has a different mix of languages and groups).
• Rogers was the only applicant with experience in producing ethnic and third-language news and information television programming. None of the other applicants, including ECG, TLN, Corrcan and ICTV, had any experience producing television newscasts in third languages.
• Rogers was the only applicant to propose local news programming in four urban markets in addition to national news programming.
• Rogers was the only applicant to propose a diverse governance structure that included Advisory Councils in multiple regions of Canada consisting of members of the ethnic communities served. The authority granted to the Advisory Councils is included in the OMNI Regional conditions of licence.  Attached as Appendix A is a list of Advisory Council members and their biographies.
• Rogers was the only applicant that received support from almost 5,000 Canadians residing in every region of the country. This widespread support significantly exceeded any other applicant including the four petitioners, Corrcan, ICTV, ECG and TLN, which only received 370, 57, 1,388 and 633 letters of support, respectively, the majority of which came from Toronto where Corrcan, ECG and TLN operate.
• Rogers committed to operate OMNI Regional on a break even basis and reinvest any profit earned back into programming. Rogers made this commitment because we simply want to ensure we can continue to serve the ethnic and third-language communities who rely on our service to them. None of the other for-profit applicants (including TLN, ECG and Corrcan) made that commitment.

B. Second, Rogers’ application to operate OMNI Regional satisfied all of the criteria outlined by the Commission in Notice 2017-154. A list of those criteria is attached as Appendix B.  Considered together all of the commitments Rogers made significantly exceeded those of each of the other applicants.  Rogers’ commitments included the following:

• Its programming schedule will be comprised of 100% ethnic programming (90% Québec) and 80% third-language programming (60% in Québec);
• 70% of its programming will be dedicated to original first-run Canadian content;
• The service will produce 6 daily national newscasts seven days a week in six different languages;
• Rogers was the only applicant to propose 6 hours of local original newscasts per week from Vancouver, Calgary/Edmonton and Toronto;
• 60% of each year’s gross revenues will be spent on original first-run Canadian programming;
• 5% of each year’s gross revenues will be spent on Programs of National Interest (PNI) (which includes critically acclaimed scripted programs like Blood and Water, Second Jen and Mangoes: A Slice of Life, all of which have received international attention and created export opportunities for independent producers); and
• An affordable 19 cent wholesale rate, which was deemed by the Commission to be appropriate and necessary to support all of the exceptional commitments Rogers made in the application, and was acceptable to a majority of Canadians who were surveyed on this issue.

C. Third, unlike TLN, EGC and Corrcan all of which are Toronto-based, OMNI Regional is a truly national, multilingual multi-ethnic discretionary service that serves all of Canada with a physical presence in each region:

• It operates using four regional feeds (OMNI Pacific, OMNI Prairies, OMNI East and OMNI Québec) that are designed to ensure that the national service has the ability to satisfy the specific language needs of the ethnic communities that comprise each region of the country.
• It includes the OMNI Québec feed, which is provided in partnership with Montreal-based independent ethnic broadcaster, ICI Télévision (CFHD-DT http://icitelevision.ca/). ICI Télévision has been involved in ethnic and third-language production in Montreal for over 33 years and in 2012 Rogers provided seed funding for ICI to launch a multilingual multi-ethnic television station in Montreal.  No other applicant proposed a Québec feed or a service that would ensure ethnic French and third-language communities in Québec would be fully served by the new multilingual, multi-ethnic discretionary service. Nor did any applicant come close to matching ICI Télévision’s experience, understanding and knowledge of the unique circumstances of ethnic and third-language Quebecers.
• It receives programming contributions from established ethnic news producers, like Fairchild New Media Ltd. and CHIN Radio Canada; and
• It supports the production of over 50 hours of programming each month, which is created by over 70 local independent producers in all regions of the country.

D. Fourth, Rogers’ application was the only one that recognized the need to provide new Canadians with affordable access to third-language and ethnic news programming that would help them integrate into Canadian society by providing the second lowest wholesale rate and making programming available free over-the-air to Canadians who cannot afford a TV or internet subscription. Rogers was the only applicant to make a commitment to continue to provide Canadians with free, local OTA television services, while simultaneously offering Canadians a national, multilingual multi-ethnic service that would meet the needs of Canadians who subscribe to broadcasting distribution undertakings (BDUs).  Rogers’ commitment to continue to operate the OMNI OTA television stations was an integral part of our proposal and was clearly stated in the application submitted to the CRTC.

E. Fifth, given the unique nature of a multilingual multi-ethnic service and the need to serve multiple ethnic groups in multiple languages on one channel, granting a new licence to Rogers to continue to operate OMNI Regional does not alter the competitive landscape for ethnic broadcasters in Canada. In fact, OMNI Regional’s continued operation will allow its partner, ICI Télévision, to continue operating in Montreal and expand its programming in Quebec, something it would not be able to do without funding from OMNI Regional.

F. Sixth, the Commission’s decision to licence OMNI Regional was entirely consistent with the policy objective of ensuring the broadcasting system is adaptable to scientific and technological change. The ECG proposal to offer multiple feeds was roundly criticized by BDUs that participated in the CRTC proceeding because it raised serious technical and bandwidth concerns, which were not sufficiently addressed by ECG.  Denying ECG’s application was an entirely rational decision that ensured ECG’s proposal to introduce an untested and costly distribution model into the Canadian broadcasting system would not be implemented.  Moreover, OMNI Regional’s proposal to offer four regional feeds and launch a digital app that would allow viewers to consume content on the platform of their choice, clearly demonstrated its ability to adapt to technological change.

G. Seventh, issuing a licence to Rogers to operate a national, multilingual multi-ethnic discretionary service does not violate the Canadian Charter of Rights and Freedoms, the Canadian Multiculturalism Act or the federal government’s priorities regarding multiculturalism. In the petitions filed by Corrcan and TLN, neither Petitioner provided any compelling evidence or even a coherent reason why they believe the Charter, the Act or the government’s priorities have been violated by the Commission’s decision.

H. Eighth, the Commission’s decision includes sufficient reasons for approving Rogers’ application and denying the others. As a general practice, the Commission does not issue reasons for denying applications that participate in a competitive licensing process.  A simple review of previous competitive licensing decisions for any number of programming services over the past decade would confirm this practice. In addition, the actions of the Chair and Vice Chair of the Commission during the CRTC’s proceeding did not give rise to a reasonable apprehension of bias.

I. Finally, the Commission’s Ethnic Broadcasting Policy was not an issue that was being considered as part of the competitive licensing proceeding that was initiated in Notice 2017-154. Rogers would not be opposed, however, to the Commission undertaking a review of its Ethnic Broadcasting Policy to ensure that it continues to serve the needs and interests of Canada’s ethnic communities.

The Commission’s decision to issue Rogers a new licence to continue to operate OMNI Regional was clear and unequivocal.  It provided a comprehensive rationale for granting the licence to Rogers, rather than any of the other seven applicants.

In view of the above, we ask the Governor-in-Council to reject the Petitioners’ requests to set aside or refer back for reconsideration the Commission’s decision to re-issue a licence to Rogers to operate a national, multilingual multi-ethnic discretionary service and to benefit from mandatory basic carriage.

The Commission’s decision to grant the licence to Rogers will ensure that OMNI Regional will continue to make an exceptional contribution to the Canadian broadcast system by reflecting Canada’s multicultural society in a comprehensive manner and in a way that is affordable for all Canadians.  Attached as Appendix C is a recent program schedule for OMNI Regional that shows the wealth of news, information and entertainment programming that is being provided to Canadians in multiple languages today. Our new licence (which begins in September 2020) will provide even more news and information programming and increased investments in Canadian content and Canadian independent production.

A decision by the Governor-in-Council to return Decision 2019-172 to the Commission for reconsideration would have a profound negative impact on ethnic Canadians and Canadian creators. OMNI employs 105 creators across the country over half of which are Unifor members who would lose their jobs if OMNI were to close its doors.  OMNI Regional’s viewers rely on the service for their programming needs, including news and information programming from a Canadian perspective, which is essential to participating in and contributing to the cultural, political, social and economic fabric of Canada.

If the Commission is required to reconsider its decision, this valuable service will be put at risk and its employees and audiences will undergo yet another year of uncertainty and delay in the launch of new programming initiatives and enhancements to the service that will begin in 2020.  Rogers’ current licence expires on August 31, 2020.  No other applicant has the experience, the expertise or the news gathering infrastructure in place to launch a national, multilingual multi-ethnic service like OMNI Regional by September 1, 2020.  As a result, a decision by the Governor-in-Council to require the Commission to review the OMNI Regional decision could very well mean that there would be no national, multilingual multi-ethnic service operating in Canada as of September 1, 2020.