CRTC leans to using broadcast rules in Aliant-Eastlink ad dispute

The CRTC seems to be leaning toward using Broadcasting Act rules to arbitrate a dispute between Aliant Telecom Inc. and EastLink, even though the telco filed its complaint under the Telecommunications Act (CCR, Jan. 14/05). At issue is whether or not cableco EastLink, a subsidiary of Bragg Communications Inc., has the right to refuse to run competitor Aliant’s advertising on its cable TV community channels in Nova Scotia and Prince Edward Island. One sign that the broadcast rules would trump the telecom complaint came when the commission held an expedited hearing last week, as it has done in the past on the telecommunications side. Instead of a telecom commissioner in charge, however, the CRTC put vice-chair of broadcasting Andrée Wylie at the helm of the hearing. Further, many of the questions posed by the panel of three commissioners dealt with the Broadcasting Act, and not the Telecommunications Act. Paul Fitzpatrick, a lawyer for Aliant, argued before the panel that the listing service on the cable TV channel on which the advertising runs shouldn’t be considered programming and thus the Telecommunications Act was applicable. Aliant’s job will be a lot tougher if the CRTC uses the rules governing broadcasting to arrive at its decision. Fitzpatrick tells Canadian Communications Reports that the onus of proof isn’t as great for the complainant under the Telecommunications Act. "The Broadcasting Act is a much broader test than under the Telecommunications Act, so that’s one significant difference (of using the latter act). With the Telecommunications Act, the onus is on the defendant (EastLink) to prove there isn’t an undue preference, but under the Broadcasting Act, the complainant has to prove that there’s harm (as a result of the undue preference)," he notes. Fitzpatrick argued that EastLink shouldn’t be allowed to use its broadcaster power as the cable incumbent "as a tool to serve its own interests." Under questioning, he told the panel that the channel shouldn’t be considered programming – despite a ruling by the CRTC that said a similar channel operated by Shaw Communications Inc. was programming – because of "the predominant characteristic that viewers go to the channel for." "To look at one flickering ad at one time is not looking at the channel in its totality," he stated. He implied that it was more important to consider the reason that subscribers tuned into the listing channel, which was for the text scroll of events and that they were not drawn to the part of the screen containing the ads. Natalie Macdonald, a director at EastLink, later in the hearing questioned why Aliant would want to advertise at all if viewers weren’t paying any attention to the ads on the channel. She noted that the listing service contained visuals and audio sounds and full motion, and thus would be considered programming rather than simply being alphanumeric text. Fitzgerald retorted that it was much more cost effective to advertise on a community TV channel than on network TV. He said that people would stay tuned on the listing channel while it was scrolling to find information, and that they would notice the advertising on the other part of the screen. EastLink argued that the programming on its TV listing service was programming, and thus the Broadcasting Act should apply. However, it noted that it was not in breach of either act. In an interview with CCR following the hearing, Macdonald agreed that the questioning indicated that the CRTC was leaning toward considering the matter under the Broadcasting Act rather than the Telecommunications Act. "It certainly seemed that the direction seemed more focused on those topics (of the Broadcasting Act) I would say. That seemed to be the focus of attention during the hearing," she said. "One of the issues at the hearing was whether it’s the Broadcasting Act or the Telecommunications Act that does apply. Our position was that the Broadcasting Act does..." The CRTC has indicated that it will rule on the matter by April 1.

CRTC leans to using broadcast rules in Aliant-Eastlink ad dispute

Broadcast | March 29, 2005

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