Vol. 133, No. 33 — August 14, 1999

COMMISSIONS

CANADIAN INTERNATIONAL TRADE TRIBUNAL

DETERMINATION

Air Surveillance Services

Notice is hereby given that, after completing its inquiry, the Canadian International Trade Tribunal (the Tribunal) made a determination (File No. PR-98-040) on June 7, 1999, with respect to a complaint filed by Cougar Aviation Limited (the complainant), of Waverley, Nova Scotia, under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.), as amended by the North American Free Trade Agreement Implementation Act, S.C., 1993, c. 44, concerning Solicitation No. FP802-8-0015/A of the Department of Public Works and Government Services (the Department) for the Department of Fisheries and Oceans. The solicitation was for the procurement of air surveillance services.

The complainant alleged that this procurement had not been conducted in accordance with the applicable agreements.

Having examined the evidence presented by the parties and considered the provisions of the Agreement on Internal Trade, the Tribunal determined that the complaint was not valid.

Further information may be obtained from: The Secretary, Canadian International Trade Tribunal, Standard Life Centre, 15th Floor, 333 Laurier Avenue W, Ottawa, Ontario K1A 0G7, (613) 993-3595 (Telephone), (613) 990-2439 (Facsimile).

Ottawa, August 6, 1999

MICHEL P. GRANGER
Secretary

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CANADIAN INTERNATIONAL TRADE TRIBUNAL

DETERMINATION

EDP Hardware and Software

Notice is hereby given that, after completing its inquiry, the Canadian International Trade Tribunal (the Tribunal) made a determination (File No. PR-98-047) on June 17, 1999, with respect to a complaint filed by Novell Canada, Ltd. (the complainant), of Hull, Quebec, under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.), as amended by the North American Free Trade Agreement Implementation Act, S.C., 1993, c. 44, concerning Solicitation No. W8474-9-QQD8/A of the Department of Public Works and Government Services (the Department) for the Department of National Defence, Land Forces Command. The solicitation was for the procurement on a sole-source basis from Microsoft Corporation (Microsoft), of 325 Microsoft Windows NT Server 4.0 licences and 12 000 client access licences.

The complainant alleged that the Department has improperly proceeded with a limited tender.

Having examined the evidence presented by the parties and considered the provisions of the Agreement on Internal Trade, the North American Free Trade Agreement and the Agreement on Government Procurement, the Tribunal determined that the complaint was valid. The Tribunal recommends that the Government compensate Novell for the opportunity that it lost to be awarded the contract, and to profit therefrom, in the amount of one third of the profit that it would have made, had it been awarded the contract at the price at which it was awarded to Microsoft, i.e. $359,735.07 less GST. In addition, the Tribunal awards Novell its reasonable costs incurred in relation to filing and proceeding with this complaint.

Further information may be obtained from: The Secretary, Canadian International Trade Tribunal, Standard Life Centre, 15th Floor 333, Laurier Avenue W, Ottawa, Ontario K1A 0G7, (613) 993-3595 (Telephone), (613) 990-2439 (Facsimile).

Ottawa, August 6, 1999

MICHEL P. GRANGER
Secretary

[33-1-o]

CANADIAN INTERNATIONAL TRADE TRIBUNAL

DETERMINATION

EDP Hardware and Software

Notice is hereby given that, after completing its inquiry, the Canadian International Trade Tribunal (the Tribunal) made a determination (File No. PR-99-001) on July 7, 1999, with respect to a complaint filed by Novell Canada, Ltd. (the complainant), of Markham, Ontario, under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.), as amended by the North American Free Trade Agreement Implementation Act, S.C., 1993, c. 44, concerning Solicitation No. V9344-8-0199/A of the Department of Public Works and Government Services (the Department) for the Department of Human Resources Development (HRDC). The solicitation was for the procurement of Microsoft NT client access licences and Microsoft NT server licences.

The complainant alleged that the Department had improperly proceeded with a limited tender.

Having examined the evidence presented by the parties and considered the provisions of the Agreement on Internal Trade, the North American Free Trade Agreement and the Agreement on Government Procurement, the Tribunal determined that the complaint was valid.

Pursuant to subsections 30.15(2) and (3) of the Canadian International Trade Tribunal Act, the Tribunal recommended, as a remedy, that the Department terminate the contract for the 600 Microsoft NT server licences. The Tribunal further recommended that HRDC's requirement for a contingent technical alternative to its network operating system be competed and that the specifications be drafted in generic performance terms.

Pursuant to subsection 30.16(1) of the Canadian International Trade Tribunal Act, the Tribunal awarded the complainant its reasonable costs incurred in relation to filing and proceeding with this complaint.

Further information may be obtained from: The Secretary, Canadian International Trade Tribunal, Standard Life Centre, 15th Floor, 333 Laurier Avenue W, Ottawa, Ontario K1A 0G7, (613) 993-3595 (Telephone), (613) 990-2439 (Facsimile).

Ottawa, August 6, 1999

MICHEL P. GRANGER
Secretary

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CANADIAN INTERNATIONAL TRADE TRIBUNAL

DETERMINATION

EDP Hardware and Software

Notice is hereby given that, after completing its inquiry, the Canadian International Trade Tribunal (the Tribunal) made a determination (File No. PR-99-002) on Monday, July 12, 1999, with respect to a complaint filed by Northern Micro Inc. (the complainant), of Nepean, Ontario, under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.), as amended by the North American Free Trade Agreement Implementation Act, S.C., 1993, c. 44, concerning Solicitation No. 595EJ.46577-8-1628/A of the Department of Public Works and Government Services (the Department) for the Department of National Revenue. The solicitation was for the supply, delivery and configuration of 900 NMSO category 2.1 Advanced Pentium II desktop microcomputers, with associated hardware, bilingual documentation and one-year on-site warranty to services, with an option to purchase up to 450 additional systems.

The complainant alleged that the Department had improperly evaluated the complainant's proposal as being non-compliant.

Having examined the evidence presented by the parties and considered the provisions of the Agreement on Internal Trade and the North American Free Trade Agreement, the Tribunal determined that the complaint was not valid.

Further information may be obtained from: The Secretary, Canadian International Trade Tribunal, Standard Life Centre, 15th Floor, 333 Laurier Avenue W, Ottawa, Ontario K1A 0G7, (613) 993-3595 (Telephone), (613) 990-2439 (Facsimile).

Ottawa, August 6, 1999

MICHEL P. GRANGER
Secretary

[33-1-o]

CANADIAN INTERNATIONAL TRADE TRIBUNAL

DETERMINATION

EDP Hardware and Software

Notice is hereby given that, after completing its inquiry, the Canadian International Trade Tribunal (the Tribunal) made a determination (File No. PR-99-007) on July 20, 1999, with respect to a complaint filed by IT/NET Consultants Inc. (the complainant), of Ottawa, Ontario, under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.), as amended by the North American Free Trade Agreement Implementation Act, S.C., 1993, c.44, concerning Solicitation No. 21150-9-7500 of the Correctional Service of Canada (CSC). The solicitation was for the development and maintenance of CSC's PeopleSoft Human Resource Management System.

The complainant alleged that CSC had evaluated the proposals in a manner inconsistent with the evaluation criteria described in the Request for Proposal.

Having examined the evidence presented by the parties and considered the provisions of the Agreement on Internal Trade, the North American Free Trade Agreement and the Agreement on Government Procurement, the Tribunal determined that the complaint was valid.

Pursuant to subsections 30.15(2) and (3) of the Canadian International Trade Tribunal Act, the Tribunal recommended, as a remedy, that CSC re-evaluate the four proposals that it received in response to the solicitation. This re-evaluation should be performed using the version of mandatory requirement 8.1.1.1(c) modified on February 22, 1999. In the event that the complainant is declared the successful bidder by CSC in accordance with the evaluation and award provisions set out in the solicitation documents as amended, the Tribunal further recommended that the contract awarded to Deloitte & Touche Consulting Group be terminated and, instead, be awarded to the complainant.

In the alternative, the Tribunal recommended that CSC present to it a proposal for compensation, developed jointly with the complainant, that recognizes the profit that the latter lost in being deprived of the contract.

Pursuant to subsection 30.16(1) of the Canadian International Trade Tribunal Act, the Tribunal awarded the complainant its reasonable costs incurred in relation to filing and proceeding with the complaint.

Further information may be obtained from: The Secretary, Canadian International Trade Tribunal, Standard Life Centre, 15th Floor, 333 Laurier Avenue W, Ottawa, Ontario K1A 0G7, (613) 993-3595 (Telephone), (613) 990-2439 (Facsimile).

Ottawa, August 6, 1999

MICHEL P. GRANGER
Secretary

[33-1-o]

CANADIAN INTERNATIONAL TRADE TRIBUNAL

DETERMINATION

Machinery and Tools

Notice is hereby given that, after completing its inquiry, the Canadian International Trade Tribunal (the Tribunal) made a determination (File Nos. PR-98-034 and PR-98-035) on Monday, April 19, 1999, with respect to two complaints filed by Keystone Supplies Company (the complainant), of Richmond, British Columbia, under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.), as amended by the North American Free Trade Agreement Implementation Act, S.C., 1993, c. 44, concerning Solicitation Nos. FP802-8-0361/A and FP802-8-0362/A of the Department of Public Works and Government Services (the Department). The solicitation was for the procurement of chain, shackles and swivels.

The complainant alleged that delivery and testing requirements discriminated against certain suppliers.

Having examined the evidence presented by the parties and considered the provisions of the Agreement on Internal Trade, the North American Free Trade Agreement and the Agreement on Government Procurement, the Tribunal determined that the complaints were not valid.

Further information may be obtained from: The Secretary, Canadian International Trade Tribunal, Standard Life Centre, 15th Floor, 333 Laurier Avenue W, Ottawa, Ontario K1A 0G7, (613) 993-3595 (Telephone), (613) 990-2439 (Facsimile).

Ottawa, August 6, 1999

MICHEL P. GRANGER
Secretary

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CANADIAN INTERNATIONAL TRADE TRIBUNAL

DETERMINATION

Professional, Administrative and Management Support Services

Notice is hereby given that, after completing its inquiry, the Canadian International Trade Tribunal (the Tribunal) made a determination (File No. PR-99-006) on June 28, 1999, with respect to a complaint filed by Quality Services International Inc. (the complainant), of Nepean, Ontario, under subsection 30.11(1) of the Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.), as amended by the North American Free Trade Agreement Implementation Act, S.C., 1993, c. 44, concerning Solicitation No. EN575-8-0002/A of the Department of Public Works and Government Services (the Department). The solicitation was for the procurement of ISO 9000 auditing services, on an as and when required basis, to the Canadian General Standards Board, a constituent agency of the Department.

The complainant alleged that the Department improperly decided not to evaluate its proposal because it included a dual rate structure.

Having examined the evidence presented by the parties and considered the provisions of the Agreement on Internal Trade, the Tribunal determined that the complaint was not valid.

Further information may be obtained from: The Secretary, Canadian International Trade Tribunal, Standard Life Centre, 15th Floor, 333 Laurier Avenue W, Ottawa, Ontario K1A 0G7, (613) 993-3595 (Telephone), (613) 990-2439 (Facsimile).

Ottawa, August 6, 1999

MICHEL P. GRANGER
Secretary

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CANADIAN INTERNATIONAL TRADE TRIBUNAL

FINDING

Flat Hot-rolled Carbon and Alloy Steel Sheet Products

In the matter of an inquiry (Inquiry No. NQ-98-004) under section 42 of the Special Import Measures Act respecting certain flat hot-rolled carbon and alloy steel sheet products originating in or exported from France, Romania, the Russian Federation and the Slovak Republic

The Canadian International Trade Tribunal, under the provisions of section 42 of the Special Import Measures Act, has conducted an inquiry following the issuance by the Deputy Minister of National Revenue of a preliminary determination dated March 3, 1999, and a final determination dated June 1, 1999, respecting the dumping in Canada of flat hot-rolled carbon and alloy steel sheet and strip, including secondary or non-prime material, originating in or exported from France, Romania, the Russian Federation and the Slovak Republic, in various widths from 3/4 in. (19 mm) and wider, and (a) for product in coil form, in thicknesses from 0.054 in. to 0.625 in. (1.37 mm to 15.88 mm) inclusive, (b) for product that is cut-to-length, in thicknesses from 0.054 in. up to but not including 0.187 in. (1.37 mm up to but not including 4.75 mm), excluding stainless steel sheet and strip.

Pursuant to subsection 43(1) of the Special Import Measures Act, the Canadian International Trade Tribunal hereby finds that the dumping in Canada of the aforementioned goods, originating in or exported from France, Romania, the Russian Federation and the Slovak Republic, has caused material injury to the domestic industry, excluding flat hot-rolled, cut-to-length alloy steel products containing no less than 11.5 percent manganese, in thicknesses from 3 mm to 4.75 mm.

The Canadian International Trade Tribunal also finds that the requirements of paragraph 42(1)(b) of the Special Import Measures Act with respect to massive dumping have not been met.

Ottawa, July 2, 1999

MICHEL P. GRANGER
Secretary

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CANADIAN INTERNATIONAL TRADE TRIBUNAL

NOTICE NO. HA-99-005

Appeals

The Canadian International Trade Tribunal will hold public hearings to consider the appeals listed hereunder. The hearings will be held beginning at 9:30 a.m., in the Tribunal's hearing room, Standard Life Centre, 18th Floor, 333 Laurier Avenue W, Ottawa, Ontario K1A 0G7. Interested persons planning to attend should contact the Tribunal at (613) 991-5767 for further information and to ensure that the hearings will be held as scheduled.

Excise Tax Act

Appellant v. Respondent (Minister of National Revenue)

September 1999

Date	Appeal Number	Appellant
22	2704	596720 Ontario Limited
	2705	J. J. Taylor & Sons Limited
	2706	Diesel Equipment Limited
	2707 and AP-90-114	Multi-Vans Inc.
		Section 8, Part XVII, Schedule III
Date	Appeal Number	Appellant
27	AP-98-093	Cast Terminals Inc. Paragraph 23(8)(c)
27	AP-98-094	Terminus Racine (Montréal) Ltd. Paragraph 23(8)(c)

Customs Act

Appellant v. Respondent (Deputy Minister of National Revenue)

September 1999

Date	Appeal Number	Appellant
8	AP-98-102	Calego International Inc.
	Goods in Issue:	Plush articles
	Dates of Entry:	August 26 to November 12, 1997
	Tariff Items at Issue:
	Appellant:	9503.41.00
	Respondent:	4202.22.10 and 4202.92.11
20	AP-98-106	Atlas Graphic Supply Inc.
	Goods in Issue:	Rubber printing blankets
	Dates of Entry:	October 26, 1993, to May 20, 1994
	Tariff Items at Issue:
	Appellant:	5911.90.10
	Respondent:	5911.10.11
22	AP-99-010	Phosyn, plc
	Goods in Issue:	Micronutrient fertilizers
	Dates of Entry:	June 20, 1997 and March 27, 1998
	Tariff Items at Issue:
	Appellant:	3105.10.00 and 3105.90.00
	Respondent:	3824.90.90
29	AP-97-011	Asea Brown Boveri Inc.
	Goods in Issue:	Capacitor elements
	Dates of Entry:	February 22 to June 7, 1993
	At Issue:	Applicability of Code 2101

August 6, 1999

By Order of the Tribunal

MICHEL P. GRANGER
Secretary

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CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION

NOTICE TO INTERESTED PARTIES

The following notices are abridged versions of the Commission's original notices bearing the same number. The original notices contain a more detailed outline of the applications, including additional locations and addresses where the complete files may be examined. The relevant material, including the notices and applications, is available for viewing during normal business hours at the following offices of the Commission:

— Central Building, Les Terrasses de la Chaudière, 1 Promenade du Portage, Ground Floor, Hull, Quebec K1A 0N2, (819) 997-2429 (Telephone), 994-0423 (TDD), (819) 994-0218 (Facsimile);

— Bank of Commerce Building, Suite 1007, 1809 Barrington Street, Halifax, Nova Scotia B3J 3K8, (902) 426-7997 (Telephone), 426-6997 (TDD), (902) 426-2721 (Facsimile);

— Place Montréal Trust, 1800 McGill College Avenue, Suite 1920, Montréal, Quebec H3A 3J6, (514) 283-6607 (Telephone), 283-8316 (TDD), (514) 283-3689 (Facsimile);

— The Kensington Building, Suite 1810, 275 Portage Avenue, Winnipeg, Manitoba R3B 2B3, (204) 983-6306 (Telephone), 983-8274 (TDD), (204) 983-6317 (Facsimile);

— 530-580 Hornby Street, Vancouver, British Columbia V6C 3B6, (604) 666-2111 (Telephone), 666-0778 (TDD), (604) 666-8322 (Facsimile);

— C.R.T.C. Documentation Centre, 55 St. Clair Avenue E, Suite 624, Toronto, Ontario, (416) 952-9096 (Telephone), (416) 954-6343 (Facsimile);

— C.R.T.C. Documentation Centre, Cornwall Professional Building, Room 103, 2125 11th Avenue, Regina, Saskatchewan S4P 3X3, (306) 780-3422 (Telephone), (306) 780-3319 (Facsimile).

Interventions must be filed with the Secretary General, Canadian Radio-television and Telecommunications Commission, Ottawa, Ontario K1A 0N2, together with proof that a true copy of the intervention has been served upon the applicant, on or before the deadline given in the notice.

Secretary General

CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION

DECISIONS

The complete texts of the decisions summarized below are available from the offices of the CRTC.

99-192 August 3, 1999

Canadian Broadcasting Corporation
Wingham, Ontario

Approved — Addition of a transmitter at Wingham.

99-193 August 3, 1999

Groupe TVA inc. (formerly Télé-Métropole inc.)
Across Canada

Approved — Licence amendment pertaining to the distribution of advertising material by the French-language national specialty television programming undertaking "Le Canal Nouvelles."

99-194 August 5, 1999

Regina Cablevision Co-operative
Bredenbury; Canora; Churchbridge; Esterhazy; Kamsack; Melville; Norquay; Saltcoats; Springside; Theodore and Yorkton, Saskatchewan

Approved — Acquisition of the assets of the cable distribution undertakings serving the communities noted above from North Eastern Cablevision Ltd.; and broadcasting licences to continue the operation of these undertakings. The licences will expire on the current expiry dates: August 31, 2005, for the Norquay and Theodore undertakings and August 31, 2001, for the remaining undertakings.

99-195 August 5, 1999

WIC Radio Ltd.
New Westminster, British Columbia

Approved — New radio network to broadcast the Canadian Football League games of the B.C. Lions. The licence will expire August 31, 2005.

99-196 August 5, 1999

WIC Radio Ltd.
New Westminster, British Columbia

Approved — New radio network to broadcast "The Stirling Faux Show." The licence will expire August 31, 2005.

99-197 August 5, 1999

WIC Radio Ltd.
New Westminster, British Columbia

Approved — New radio network to broadcast the program "Money Talks." The licence will expire August 31, 2005.

99-198 August 5, 1999

WIC Radio Ltd.
New Westminster, British Columbia

Approved — New radio network to broadcast "The Home Ideas Show." The licence will expire August 31, 2005.

99-199 August 5, 1999

WIC Radio Ltd.
New Westminster, British Columbia

Approved — New radio network to broadcast the program "Sportstalk." The licence will expire August 31, 2005.

99-200 August 5, 1999

WIC Radio Ltd.
New Westminster, British Columbia

Approved — New radio network to broadcast the program "Housecalls." The licence will expire August 31, 2005.

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CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION

PUBLIC NOTICE 1999-125

1. Across Canada
Vision TV: Canada's Faith Network/Réseau religieux Canada (Vision)

To amend its broadcasting licence for the national specialty television service known as Vision TV.

Deadline for intervention: August 23, 1999

August 3, 1999

[33-1-o]

CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION

PUBLIC NOTICE 1999-126

Distribution of Specialty Services

Summary

In this document the Canadian Radio-television and Telecommunications Commission (Commission) clarifies the regulatory obligations of Class 1 cable distribution undertakings regarding the distribution of specialty services licensed in September 1996, as well as its expectations regarding the appropriate terms of carriage of these services.

It also sets out a streamlined dispute resolution process for dealing with unresolved issues.

Background

1. In September 1996, in Decisions CRTC 96-595 to 96-617, the Commission licensed two groups of English-language specialty services. A core group of four specialty services was given an immediate right of access to analog channels of Broadcast Distribution Undertakings (BDUs). For another group of 13 specialty services, access rights were deferred, to no later than September 1, 1999.

2. Four of the 13 services — Star!, CLT, ROBTv and TalkTV — remain unlaunched on all systems, while the others have launched and are distributed by most Class 1 BDUs.

3. Class 1 BDUs are required under subsection 18(5) of the Broadcasting Distribution Regulations (the Regulations) to distribute the services of all licensed specialty and pay television undertakings and at least one general interest pay-per-view (PPV) service in the official language which is predominant in their market, to the extent of available channels.

4. An exception to these requirements was incorporated into the Regulations, to give effect to the Commission's decision to delay the obligation to carry the 13 new services licensed in 1996, when the Regulations came into effect on January 1, 1998.

5. Subsection 18(8) of the Regulations delays the application of subsection 18(5), until the earlier of two dates: when the BDU makes use of digital technology for the delivery of programming to at least 15 percent of its subscribers, or September 1, 1999. The expression "makes use of digital technology for the delivery of programming" is defined in subsection 18(3). A BDU is deemed to make use of digital technology when at least 15 percent of its subscribers receive one or more programming services on a digital basis. It appears that no Class 1 cable distribution undertaking has met the 15 percent digital delivery threshold or will meet it by September 1, 1999.

6. In the event that a BDU is not delivering one or more programming services on a digital basis to at least 15 percent of its subscribers by September 1, 1999, subsection 18(9) requires it to distribute the service on an analog channel (to the extent of available channels), unless the service agrees to its digital distribution.

7. Finally, subsection 18(10) provides that, once a BDU is distributing programming on a digital basis to at least 15 percent of its subscribers, it may choose to distribute the service on an analog or on a digital basis or both.

8. In view of the September 1, 1999 deadline, the Commission sent letters, in March and May of this year, to all Class 1 cable systems and to the four unlaunched services requesting information on their launch plans. The responses indicated that Star!, CLT and ROBTv intend to launch in September. Talk TV has elected to postpone its launch for up to one year. The correspondence also indicated that some cable distribution licensees were unclear about the carriage requirement for the specialty services that will launch, or have launched, as of September 1, 1999. The Commission, therefore, wishes to clarify certain aspects of its regulations and expectations regarding the carriage of such services.

Distribution Requirements

9. As noted above, the distribution requirements for Canadian pay, specialty and PPV services that are applicable to Class 1 cable distribution undertakings are set out in section 18 of the Regulations. The Commission wishes to emphasize that compliance with the Regulations is not optional.

10. The requirements set out in section 18 of the Regulations reflect the general policy set out in Public Notice CRTC 1996-60 "Access Rules for Broadcasting Distribution Undertakings". These requirements are based on the principle that BDUs should distribute all licensed Canadian programming undertakings appropriate for their markets, including specialty services.

Interpreting the Regulations

Definition of "making use of digital technology"

11. The Commission will require any licensee who, in response to a complaint, claims that it has met the threshold for making use of digital technology on or after September 1, 1999, to demonstrate that it has done so.

12. The definition in subsection 18(3) was meant to ensure that at least 15 percent of the subscribers of a licensee are actually using digital set-top boxes to receive one or more services. It was meant to preclude the mere "offering" of digital services as a means of satisfying the regulatory requirement. To "receive" a service must mean to receive it in an intelligible form.

13. In view of this definition, a cable licensee cannot consider that it meets the requirements of the Regulations because it sends digital signals to over 15 percent of its subscribers. Signals must be received in digital form by 15 percent of its subscribers for the requirement to be met.

14. Since no Class 1 distribution undertaking appears to have met the 15 percent digital threshhold, on September 1, 1999, all Class 1 cable distribution undertakings will be required to distribute all available specialty services referred to in subsection 18(8), on an analog basis, to the extent of channel capacity, unless the service has agreed to its distribution on a digital basis.

Available Channel Capacity

15. The Commission will require any licensee who, in response to a complaint, claims that it is relieved of its obligation to distribute the specialty services on an analog basis, on September 1, 1999, due to insufficient channel capacity, to demonstrate that it is in compliance with the Regulations.

16. Based on the information filed at the request of the Commission, it appears that some cable companies who are under the obligation to distribute the specialty services on an analog basis may claim that they have insufficient channel capacity to distribute these services on September 1, 1999.

17. The Regulations provide the necessary tools to clarify licensees' obligations. "Available channel" is defined in section 1 of the Regulations to mean:

"any unrestricted channel of a distribution undertaking, other than a channel on which is distributed

(a) the programming service of a licensed programming undertaking other than a video-on-demand programming undertaking;

(b) community programming;

(c) a programming service comprising the proceedings of the House of Commons; or

(d) a programming service comprising the proceedings of the legislature of the province in which the undertaking is located."

18. The net effect of this definition is that any channel used to distribute a foreign programming service is an available channel. However, available channel capacity is modified for the purpose of satisfying the distribution requirements under section 18. Pursuant to subsection 18(7), a channel used to carry a foreign programming service for the first time on or after May 6, 1996, becomes an available channel for the purposes of distributing any pay or specialty programming service licensed after that date. A distribution undertaking would therefore be required to drop a foreign service that was first carried on or after May 6, 1996, should there be insufficient analog capacity to carry the new services as required under subsection 18(5).

Terms of Analog Carriage

19. The Commission reminds licensees that it expects distribution undertakings and programming undertakings to negotiate equitable carriage arrangements.

20. The Commission expects that when the services are carried on an analog basis, they will be distributed in a manner that is fair and equitable, taking into consideration the terms of carriage applicable to the other specialty services of the group licensed at the same time.

21. The Commission also considers that, under the terms of the Regulations, access must be provided even in the event that satisfactory negotiations have not been concluded between the distributor and a programming service. In such cases, the distributor must provide access, in this case by September 1, 1999, and either party may apply to the Commission for dispute resolution under section 12 of the Regulations, if necessary.

22. Some cable systems may plan to distribute the remaining services on a scrambled analog basis, either as part of a tier or on a stand-alone basis.

23. In Public Notice CRTC 1996-120, the Commission addressed carriage arrangements for the new specialty services. It stated that it expected "distribution undertakings and programming undertakings to negotiate equitable carriage arrangements." The Commission also noted that the viability of the services was an important consideration. The licensing approach for new specialty services involved "a balance between the need for competitive voices and the requirement for adequately financed and experienced programmers." While the Commission recognized that "greater consumer choice means that financial viability cannot be guaranteed," it approved applications with a view to ensuring that the services would have a fair opportunity to establish and market themselves and to provide consumers with further choice.

24. The Commission is therefore concerned about distribution of these services on a scrambled analog basis where such distribution is likely to result in a low penetration level that may not be sufficient for a service to meet its business plan. The Commission also has a concern that the penetration of analog decoder boxes may be declining as they are replaced with digital boxes. There may therefore be no potential for growth in penetration for any service launched on a scrambled analog basis.

25. In view of these concerns, the Commission may consider that distribution on a scrambled analog basis is, in itself, not fair to a given programming undertaking, in circumstances where more favourable carriage arrangements have been concluded with other specialty services that were licensed at the same time. In particular, the Commission is of the view that the carriage of one of these services on a purely discretionary, scrambled, stand-alone basis would be inconsistent with fair and equitable treatment.

26. In PN 1996-120, the Commission noted its concern with regard to any potential conflict of interest arising from the integration of ownership between distribution and programming undertakings and further noted its concerns

... respecting the potential for preferential treatment where a cable licensee has the option of choosing from several services in the second group for possible distribution on an unscrambled analog tier, or possibly on the basic service. In such circumstances, the Commission strongly expects these distributors to act in a fair and equitable manner.

27. The Commission notes that most of the major cable systems have entered into contracts with some or all of the services that have launched to date, stipulating that they will be carried on unscrambled analog, either on basic cable or a tier.

28. The Commission further notes that section 9 of the Regulations prohibits a distributor from giving an undue preference to any person, including itself, or from subjecting any person to an undue disadvantage.

Dispute Resolution

29. The Commission is adopting a streamlined dispute resolution process to ensure that the policy objectives set out in this document are met in a timely manner when carriage issues remain unresolved.

30. Subsection 12(2) of the Regulations provides that whenever there is a dispute between a programming undertaking and a distribution undertaking concerning the carriage or terms of carriage of programming, including the wholesale rate, either side may refer the matter to the Commission for dispute resolution.

31. Given that the distributors and specialty service licensees have been negotiating for some time, with a view to meeting the September 1, 1999 deadline, the Commission intends to deal with disputes on an expedited basis. It will not, therefore, require parties to resort to independent mediation 45 days prior to the referral of the matter to the Commission, as is its usual practice.

32. The Commission will adopt the following process for dispute resolution in these matters:

(a) The process will be triggered on the request of either of the parties in the dispute. A party triggering a dispute resolution process will immediately serve the other party with a copy of its request.

(b) The parties will then have two clear working days to agree on the issues that must be resolved. When parties have agreed to the issues in dispute, they shall immediately advise the Commission by filing an agreed statement of the disputed issues. If they cannot agree within this time period, either party may request that the Commission determine the issues.

A party requesting that the Commission determine the issues in dispute will immediately serve the other party with a copy of its request which should clearly identify the proposed issues in dispute. The other party will have two clear days to file with the Commission its position with respect to what issues are in dispute.

(c) Following the determination of the issues under dispute, either by agreement of the parties or by Commission determination, each party will have five clear working days to provide its final offer, as a package, which addresses all of the defined issues.

(d) The Commission will choose either one or the other of the final offers as the basis for settlement. This decision will be made within ten days of receiving the offers.

August 3, 1999

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CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION

PUBLIC NOTICE 1999-127

Quebec and Atlantic Region

1. Allardville, Alma, Back Bay, Baie-Sainte-Anne, Barnesville, Bathurst, Baxters Corner, Bayfield, Beaver Brook Station, Big Cove, Blackville, Blue Mountain Settlement, Boiestown, Bouctouche, Browns Flat, Burtts Corner, Campbellton, Canterbury, Cap-Lumière, Caraquet, Caron Brook, Centre-Acadie, Centre Napan, Centreville, Chatham/Newcastle (Miramichi), Chipman, Clair, Dalhousie, Davis Mill, Doaktown, Durham Bridge, Edmundston, Elgin, Florenceville, Fredericton, Gagetown, Grand Falls, Grand Manan, Hartland, Harvey, Hatfield Point, Havelock, High-way 505 to Sainte-Anne-de-Kent, Holtville, Hopewell Cape, Hybernia Heights, Jacquet River, Juniper, Keatings Corner, Kedgwick, Kingsley, Kouchibouguac, Lac-Baker, Lakeville, Leonardville, Lepreau, Lower Turtle Creek, Ludford Sub-division, Ludlow, McAdam, Meductic, Middlesex, Millville, Minto, Miscou Centre, Moncton, Morrisdale, Musquash, Nackawic, Nassonworth, Noonan, Notre-Dame-de-Lourdes, Patterson/Hoyt, Pennfield, Perth-Andover, Petitcodiac, Plaster Rock, Pointe-Sapin, Richibucto, Richibucto-Village, River Glade, Riverside-Albert, Rogersville, Saint-André-de-Shédiac, St. Andrews, Saint-Antoine, St. George, Saint-Ignace, Saint-Joseph-de-Madawaska, St. Margarets, St. Martins, Saint-Paul/Val-Richard, St. Stephen, Sainte-Anne-de-Kent, Sainte-Marie-de-Kent, Saint John, Salmon Beach, Shediac, Shippegan, Stuart Town, Taymouth, Temperance Vale, Tracadie, Tracy/Fredericton Junction, Upper Gagetown, Welsford, Welshpool, White Rapids, Williamsburg, Willow Grove, Wilsons Beach and Woodstock, New Brunswick, and Carleton, Quebec

Shaw Communications Inc. (Shaw), on behalf of Fundy Cable Ltd./Ltée (Fundy Cable)

For authority to acquire effective control of Fundy Cable. Shaw proposes to acquire all of the issued and outstanding shares of Fundy Communications Inc., Fundy Cable's parent corporation. Shaw is the parent corporation of the second-largest cable operator in Canada, Shaw Cablesystems Ltd. which has broadcast distribution operations across Canada. In proposing to acquire effective control of Fundy Cable, Shaw will significantly increase its presence in New Brunswick, and will serve more than 74 percent of the province's basic cable subscribers. Shaw Communications Inc. is an integrated corporation involved in other broadcasting sectors such as radio, specialty programming, video-on-demand, DTH and SRDU undertakings.

2. Dartmouth and surrounding areas, Digby and surrounding areas, Sandy Cove/Mink Cove/Little River/Tiddville/East Ferry, Tiverton, Freeport, Westport, Kentville/New Minas, Mount Uniacke/Lakelands and Bedford/Sackville, Nova Scotia; Sussex/Sussex Corner and surrounding areas, New Brunswick

Shaw Cablesystems Ltd. (Shaw), on behalf of Access Communications Incorporated (Access)

For authority to acquire effective control of Access and its subsidiary, Kings Cable Limited. Shaw also has filed an application to acquire 45 percent voting equity in Halifax Cablevision Limited. Shaw has also filed an application on behalf of Access Cable Television Bedford/Sackville Limited (ACTBS) for authority to acquire effective control of ACTBS. Shaw is the second largest cable operator in Canada. It has broadcast distribution operations across Canada. If the Commission approves the acquisition of effective control of Access and ACTBS, Shaw will significantly increase its presence in Nova Scotia, and will serve more than 53 percent of the province's basic cable subscribers. Shaw's parent corporation, Shaw Communications Inc., is an integrated corporation involved in other broadcasting sectors such as radio, specialty programming, video-on-demand, DTH and SRDU undertakings.

Deadline for intervention: August 25, 1999

August 5, 1999

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CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION

PUBLIC NOTICE 1999-128

1. Across Canada
Canadian Satellite Communications Inc. (CANCOM)

To amend the broadcasting licence for its national satellite relay distribution undertaking.

2. Sudbury, Ontario
Eternacom Inc.

To amend the broadcasting licence of the radio programming undertaking CJTK-FM Sudbury, by increasing the effective radiated power from 35 to 1 400 watts. The transmitter would also be relocated some 3.7 km northwest of the existing site.

3. Windsor, Ontario
CHUM Limited

To amend the broadcasting licence of its radio programming undertakings CKWW, CIMX-FM and CIDR-FM Windsor.

Deadline for intervention: September 10, 1999

August 5, 1999

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NAFTA SECRETARIAT

DECISION

Brass Sheet and Strip

Notice is hereby given, pursuant to rule 70 of the NAFTA Article 1904 Panel Rules, that the panel established to review the final determination made by the United States Department of Commerce, International Trade Administration, respecting brass sheet and strip from Canada issued its decision on July 16, 1999 (Secretariat File No. USA-CDA-98-1904-03).

In the July 16, 1999 decision, the binational panel affirmed in part and remanded in part the agency's determination respecting brass sheet and strip from Canada.

The binational panel instructed the investigating authority to provide its determination on remand by September 14, 1999.

Copies of the complete decision may be obtained from Canadian Government Publishing, Public Works and Government Services Canada, Ottawa, Canada K1A 0S9, (819) 956-4802 (Telephone), (819) 994-1498 (Facsimile).

Explanatory Note

Chapter 19 of the North American Free Trade Agreement establishes a procedure for replacing domestic judicial review of determinations in anti-dumping and countervailing duty cases involving imports from a NAFTA country with review by binational panels.

These panels are established, when a Request for Panel Review is received by the NAFTA Secretariat, to act in place of national courts to expeditiously review final determinations to determine whether they are in accordance with the anti-dumping or countervailing duty law of the country that made the determination.

Under Article 1904 of the North American Free Trade Agreement which came into force on January 1, 1994, the Government of Canada, the Government of the United States and the Government of Mexico established the Rules of Procedure for Article 1904 Binational Panel Reviews. These Rules were published in the Canada Gazette, Part I, on January 1, 1994.

Requests for information concerning the present notice, or concerning the NAFTA Article 1904 Panel Rules, should be addressed to the Canadian Secretary, NAFTA Secretariat, Canadian Section, North American Free Trade Agreement, Royal Bank Centre, Suite 705, 90 Sparks Street, Ottawa, Ontario K1P 5B4, (613) 992-9388.

DENIS FORTIER
Deputy Secretary

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NOTICE:
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