Bell takes mobile exclusivity decision to court of appeal

BCE Inc. has filed a court challenge of a CRTC decision that barred the company from offering exclusive NFL and NHL mobile sports content to its customers, a letter to the CRTC shows. In a decision issued last December, the CRTC said BCE's Bell Mobility subsidiary violated the commission's undue preference rules when it offered subscribers exclusive access to NHL and NFL games on mobile devices. The CRTC decision, which resulted from a complaint filed by competitor Telus Communications Co. last year, was the first of its kind under the commission's undue preference stipulations laid out in a 2009 broadcasting decision, CRTC 2009-329. The decision put forward rules governing exclusive new media offerings to a company's mobile or broadcast distribution subscribers. The CRTC reinforced those rules last year when it established a framework governing vertically integrated companies that own broadcast distribution platforms as well as broadcast content. Telus argued in its complaint that Bell gave itself an “undue preference,” or an unfair competitive advantage, when it offered the sports content exclusively to its mobile customers and not other companies. In a letter filed with the commission Feb. 7, Telus noted that Bell has now appealed the CRTC decision to the Federal Court of Appeal. “TELUS notes that Bell has sought appeal and judicial review of the CRTC’s Decision,” the letter said. In its decision last December, the commission ordered Bell to file a report “outlining the steps it will take to ensure TELUS access to the programming at issue at reasonable terms.” Bell filed a response in January, saying it does not have the authority to abide by the decision because its rights deal with the NFL was exclusive and “Bell has no rights to sub-license or otherwise make such content available to a third party mobile service provider.” Bell said its rights deal with the NHL had expired and it had since reached a new, “non-exclusive” mobile content agreement with the NHL. Telus told the commission in its letter that a “mandatory order hearing” before the CRTC may be appropriate to determine how best to make Bell comply with commission regulations. “Contractual agreements which are contrary to public policy can be struck down, irrespective of any rights in the contract to amend or terminate the agreement,” Telus wrote. “However, given Bell’s commitment to comply with the Commission’s policy and the current legal process with respect to the CRTC’s jurisdiction, TELUS does not propose that the Commission take any further measures at this time,” the letter, signed by Michael Hennessy, Telus' senior vice-president of regulatory and government affairs, said. The letter added that the CRTC should make it clear that renewals of any content licensing agreements should be considered under the commission's prohibition on new media exclusivity. “This would ensure that exclusive arrangements do not continue beyond their initial terms,” the letter said. In January, Bell told the commission it would no longer seek exclusive content distribution rights for its online and mobile platforms. It said the CRTC should allow companies to honour exclusive distribution contracts entered into before the prohibition on new media exclusivity came into force. Bell declined to comment for this story. news@thewirereport.ca

Bell takes mobile exclusivity decision to court of appeal

Broadcast | February 18, 2012

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