Cultural groups excluded from value for signal court proceeding

OTTAWA—A coalition of three cultural groups has missed its chance to participate in the Federal Court of Appeal’s proceeding on a new value for signal regime between broadcasters and distributors. And the court isn’t making any exceptions. The cultural groups say they are disappointed with a court decision this month that denied them an extension and effectively prevents them from intervening in the proceeding. The decision means that the court hearing will not represent the views of producers, who make the Canadian content that the Broadcasting Act is designed to support, Steven Shrybman, a lawyer at Sack Goldblatt Mitchell LLP, representing the cultural groups, said in an interview. “You’re only going to hear from large corporations that have a commercial interest in the outcome,” he said. Shrybman represents the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), the Friends of Canadian Broadcasting, and the Communications Energy Paperworkers Union of Canada (CEP), who, after missing an April deadline to notify the court of its intent to participate, filed a motion with the court in early July, requesting an extension. The groups argued that they could file their arguments with the court as soon as possible without affecting the court’s schedule, including hearings set for Sept. 13 and 14 in Toronto. The CRTC issued a letter of support for the request, but on Aug. 6, Justice Nadon Matter dismissed the cultural groups’ request for an extension without reasons. Last March, the CRTC issued its long-awaited decision on value for signal, which said that over-the-air broadcasters like CTVGlobemedia and Canwest Global should have the right to negotiate “value” for the carriage of their signals with cable and satellite distributors like Rogers Communications Inc. and Bell Canada. But to clarify whether the commission has the jurisdictional authority to implement the regime, the commission referred its decision to the Federal Court of Appeal, requesting an expedited hearing. Parties to the court proceeding—namely the broadcasters and distributors—have filed arguments for and against the CRTC’s legal authority to implement the decision. But the court’s dismissal of the cultural groups’ motion means they’re out of the proceeding. “The fact that the judge doesn’t offer any reasons makes it impossible for us to know why he found our application wanting,” Shrybman said. The cultural groups knew about the April deadline to notify the court, but didn’t realize the importance of their participation in the proceeding until they saw the arguments that the broadcasters filed in June, Shrybman said. “It was only when we saw the material that we realized no one had dealt in a serious way with the whole cultural dimension of this,” he said. “We would have expected the broadcasters to do a much better job explaining why the CRTC’s mandate should include a requirement for the cablecos to pay for local signals in order to support what the Broadcasting Act intends to do.” The distributors argue that, early on, all parties were given a chance to participate. The court ordered the CRTC in March to notify all parties—that is, everyone who took part in the commission’s proceeding on value for signal—about the court proceeding. Any of those organizations could participate in the court proceeding provided they gave notice within 20 days of a court order issued on March 30. The court asked parties to file joint submissions, arguing for and against the CRTC’s legal authority to implement a value-for-signal regime, but the court also made room for parties “who wish to comment on separate issues,” suggesting that they file separate, joint arguments. Distributors Shaw Communications Inc., Bell Canada, Cogeco Cable Inc., Rogers Communications Inc., and Telus Communications Company argued that they would not get an opportunity to reply to the cultural groups' arguments filed past the deadline. “he Moving Parties failed to comply with the Procedural Order issued by this Court, and have provided no reasonable or credible explanation for doing so,” the distributors wrote in a response filed with the court on July 16. “There is simply no reason why the Moving Parties could not have worked with the other parties answering the question in the affirmative, participated in their joint submissions, and filed separate written submissions if they so desired within the timeframe prescribed by the Procedural Order.” sdoyle@thewirereport.ca

Cultural groups excluded from value for signal court proceeding

Broadcast | August 17, 2010

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