Canyon TV files lawsuit, says broadcast carriers fall under Telecom Act

Calgary company Canyon TV Inc. has posed the question of whether broadcast carriers should have to air channels that have received CRTC licences. Canyon TV has filed a lawsuit with the Alberta provincial court against Telus Corp., seeking damages for a failure to carry its channel. The company argues that broadcast carriers also fall under the Telecommunications Act, and has filed a related complaint with the CRTC, alleging that the incumbent broadcast carriers are engaging in anti-competitive behaviour. “The CRTC publication on convergence issued in January 2010 clearly defines the nature of convergence and the effected licensing ‘In a converged environment, a BDU that is also a TSP provides both telecommunications and broadcasting distribution services,’” says the Canyon TV complaint. In September 2009, the CRTC approved an application by Canyon TV for a Category 2 specialty television channel of the same name. The channel would provide programming in the genres of world beat and international music. Following the approval of Canyon’s broadcasting licence, major carriers Telus, Bell Canada, Rogers Communications Inc. and Shaw Communications Inc. refused to carry the channel, Canyon says. “I’m alleging that the major cable companies are actually violating the CRTC licensing with regards to access,” Warren Walsh, the owner of Canyon TV, told The Wire Report. “New entrants into the market are actually battling to get carriage by these companies, which control about 90 per cent of the cable market in Canada.” Walsh, in a separate email to The Wire report, alleged that the incumbents’ behaviour is anti-competitive and that their policies have created an “illegal second tier licensing regime.” Service providers, or carriers, should not have the power to deny a broadcasting service once it has received CRTC approval, Walsh said. “By not carrying the Canyon TV service, our customers are being placed at a disadvantage and are being discriminated against,” says Canyon’s CRTC complaint. Nothing has been proven in court, and Telus outright rejects the allegations. “The claim, in our view, is frivolous,” Chris Gerritson, a spokesman for Telus, told The Wire Report. “The CRTC policy is of open licensing, but there is no guarantee of carriage.” Walsh agreed that there is no guarantee of carriage under a broadcasting licence, but said the carriers’ services fall under the Telecommunications Act because of the way the services are distributed to homes. Telecom licences mandate access to the network under CRTC regulations, he argues. “With the methods that they actually use to distribute their broadcasting undertaking, or cable licence, they have to give me access to that infrastructure,” he said. “The pieces of legislation are meant to be read together, so that when you are engaged in what would be defined as broadcast distribution activities, you’re under the Broadcasting Act,” Sheridan Scott, a partner in Bennett Jones LLP and former commissioner of the Competition Bureau, told The Wire Report. “Generally speaking, you’re under one piece of legislation or the other depending on the specific activities you’re engaged in.” She added: “Like all pieces of legislation, people find ways of cracking them open and showing gaps.” Walsh said he decided to take court action against Telus because he believes Canyon TV has a strong case against the company. “It covers both the telecommunications and the broadcast industry,” Walsh said. Canyon TV has filed for damages in potential lost advertising revenue that the company estimates to be worth about $12.1 million. “Just having someone turn you down, on its face, is not necessarily anti-competitive,” Scott said. She added that the commission should always try to encourage access to the carriers as well as programming. jmigneault@thewirereport.ca

Canyon TV files lawsuit, says broadcast carriers fall under Telecom Act

Broadcast | March 1, 2010

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