Bell asks court for permission to appeal Wholesale Code

BCE Inc. is again turning to the courts over a CRTC decision, this time asking the Federal Court of Appeal for leave to appeal the CRTC’s Wholesale Code. In documents filed Thursday, Bell argued that the code violates both the Copyright Act and the Broadcasting Act because its purpose is to govern the commercial arrangement between broadcasters and broadcast distributors. Last month the CRTC finalized the code, which is set to take effect in January. The code includes rules such as those banning provisions that would prevent a particular channel from being offered on a stand-alone basis or as part of a custom package and banning penetration-based rate cards (PBRCs) that require service providers to compensate channel operators when certain thresholds for advertising revenue are not met. In its court documents, Bell said that prior to the Wholesale Code, the CRTC did not govern contracts between broadcasters and broadcast distributors, save for specific licence conditions. The code “purports to give the CRTC jurisdiction to dictate the price and commercial terms” through which programmers licence their content to TV providers, by forbidding some commercial terms, such as those the CRTC considers “commercially unreasonable,” Bell said. Combined with other CRTC policies, such as its final offer arbitration regime, the Wholesale Code “purports to give the CRTC jurisdiction to require that any programming be offered i) at prices set by the CRTC ii) to the entire marketplace iii) on multiple distribution platforms and iv) with an authorization to use and package the programming as mandated by the CRTC,” which are rights the Copyright Act grants only to broadcast distributors, it said. “The Wholesale Code sharply conflicts with the Copyright Act, since it prohibits Programming Undertakings from exercising the exclusive rights granted them by the Copyright Act to control the price and commercial terms on which their programming is licensed,” Bell added. The code also requires channels to supply programming to distributors even if there is no licence agreement between the two parties, and allows distributors to “continue exploiting copyrighted works after their licence agreement expires, while being held harmless,” Bell noted. The company also argued that the Broadcasting Act doesn’t give the CRTC the jurisdiction over the direct economic relationship or terms of carriage between the broadcaster and the broadcast distributor. Bell said that the Wholesale Code is a “frontal attack” on the Supreme Court’s decision regarding the value-for-signal regime in 2012, which Bell said found that the “CRTC has no jurisdiction under the Broadcasting Act to regulate the direct economic relationship and terms of carriage” between broadcasters and broadcast distributors.” The company is currently also appealing a CRTC decision regarding simultaneous substitution and a decision regarding zero-rating TV-everywhere services in Federal Court. Last week, it also asked the federal cabinet to reverse the commission’s move in July to mandate wholesale access to fibre-to-the-home (FTTH) networks. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Shruti Shekar at sshekar@thewirereport.ca

Bell asks court for permission to appeal Wholesale Code

Broadcast | October 26, 2015

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Bell asks court for permission to appeal Wholesale Code

Broadcast | October 26, 2015

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