Discretionary Services Regulations (SOR/2017-159)

Whereas, pursuant to subsection 10(3) of the Broadcasting ActFootnote ^a, 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;

• Return to footnote ^aS.C. 1991, c. 11

Therefore, the Canadian Radio-television and Telecommunications Commission, pursuant to subsection 10(1) of the Broadcasting ActFootnote ^a, makes the annexed Discretionary Services Regulations.

Gatineau, August 3, 2017

La secrétaire générale du Conseil de la radiodiffusion et des télécommunications canadiennes, Danielle May-Cuconato Secretary General, Canadian Radio-television and Telecommunications Commission

Interpretation

Marginal note:Definitions

1 The following definitions apply in these Regulations.

Act

Act means the Broadcasting Act. (Loi)

advertising material

advertising material means any commercial message or programming that promotes a station, network or program but it does not include

• (a) a station or network identification;

• (b) the announcement of an upcoming program that is voiced over credits; or

• (c) 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

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

Canadian program means a program

• (a) 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

• (b) that qualifies as a Canadian program in accordance with the criteria established by the Commission in

  • (i) 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

  • (ii) [Repealed, SOR/2023-216, s. 3]

  • (iii) 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

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

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

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

licensed means licensed by the Commission. (autorisé)

licensee

licensee means a person that is licensed to carry on a discretionary programming undertaking or a discretionary services network. (titulaire)

new programming service

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

program means a program that falls into a category set out in item 6, column 1, of Schedule 1. (émission)

programming

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)

Canadian Programs

Marginal note:Obligation to broadcast Canadian programs

• 2 (1) 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.

• Marginal note:Licensee that provides third language programming

  (2) 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.

• Marginal note:Period of time devoted to broadcasting

  (3) For the purposes of subsections (1) and (2), the time devoted to the broadcasting of a program includes any time devoted to advertising material.

• Marginal note:Definition of third language service

  (4) 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.

Programming Content

Marginal note:Prohibition — broadcasting of programming

3 A licensee shall not broadcast programming that contains

• (a) anything that contravenes an Act of Parliament or of the legislature of a province;

• (b) 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

• (c) any false or misleading news.

Commercial Messages

Marginal note:Obligation to comply with technical requirements

4 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.

Marginal note:Alcoholic beverages

• 5 (1) A licensee may broadcast a commercial message directly or indirectly advertising an alcoholic beverage if

  • (a) the sponsor is not prohibited from advertising the alcoholic beverage by the laws of the province in which the commercial message is broadcast;

  • (b) the commercial message is not designed to promote the general consumption of alcoholic beverages; and

  • (c) the commercial message

    • (i) does not attempt to influence non-drinkers of any age to drink or to purchase an alcoholic beverage,

    • (ii) 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,

    • (iii) 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,

    • (iv) 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,

    • (v) 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,

    • (vi) 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,

    • (vii) 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,

    • (viii) does not portray an alcoholic beverage, or its consumption, in an immoderate way,

    • (ix) does not exaggerate the importance or effect of any aspect of an alcoholic beverage or its packaging,

    • (x) 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,

    • (xi) does not use imperative language to urge people to purchase or consume an alcoholic beverage,

    • (xii) 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,

    • (xiii) 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,

    • (xiv) does not contain inducements to prefer an alcoholic beverage because of its higher alcohol content,

    • (xv) 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,

    • (xvi) does not portray any person with an alcoholic beverage in situations in which the consumption of alcohol is prohibited, and

    • (xvii) 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.

• Marginal note:Non-application

  (2) For greater certainty, paragraph (1)(b) does not apply in order to prohibit industry, public service or brand preference advertising.

Political Broadcasts

Marginal note:Obligation — allocation of broadcasting time

• 6 (1) 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.

• Marginal note:Definition of election period

  (2) In subsection (1), election period means

  • (a) 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

  • (b) 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

Marginal note:Non-disclosure obligation — distribution of programming services

• 7 (1) 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

  • (a) reproduces the CRTC non-disclosure provisions; and

  • (b) contains its consent to comply with the CRTC non-disclosure provisions for the benefit of the licensee of the distribution undertaking.

• Marginal note:Non-disclosure obligation — broadcasting of programs

  (2) 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

  • (a) reproduces the CRTC non-disclosure provisions; and

  • (b) contains its consent to comply with the CRTC non-disclosure provisions for the benefit of the licensee of the video-on-demand undertaking.

• Marginal note:Definition of CRTC non-disclosure provisions

  (3) 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.