Telus, Cogeco challenge Bell appeal of wholesale code

Telus Corp. and Cogeco Cable Inc. have filed their opposition to BCE Inc.'s attempt to fight, before the Federal Court of Appeal, the CRTC's wholesale code governing relationships between television stations and TV-service providers. In a memorandum filed Monday, Telus disputed Bell's argument that the CRTC's attempt to impose a wholesale code violates both the Broadcasting Act and the Copyright Act. Telus argued in its filing that the Broadcasting Act gives the CRTC the mandate to determine policies that give Canadians more choice in TV services. "The Commission heard evidence that certain terms contained in 'affiliation agreements' between the entities that supply programming ('programming services') and those that distribute it to consumers ('broadcast distribution undertakings' or 'BDUs') are one of the key obstacles to providing that choice," Telus said in its memorandum. It said the wholesale code, scheduled to take effect on Jan. 22, is meant to "ensure that negotiations between programmers and distributors are conducted fairly and that the agreements they conclude 'reflect the Commission's new policies in support of consumer choice,' " Telus added, quoting the CRTC. Telus took aim at Bell's position that a 2012 Supreme Court decision that quashed the CRTC's attempt to apply a value-for-signal regime to compensate over-the-air channels when their signals are carried by service providers set a precedent for the CRTC's boundaries, applicable in this case with the wholesale code. Telus said a main difference is that the Copyright Act already has a system in place for dealing with over-the-air signals, though it has no provisions for dealing with pay and specialty channels, which are the primary concern of the wholesale code. It said there is nothing about the wholesale code that would be in "operational conflict" with the Copyright Act. Telus added that in the case concerning value for signals, the Supreme Court decided the CRTC's powers do not extend to governing the "direct economic relationship" between TV stations and broadcast distributors. It said the wholesale code is not aimed at "economic relations" between the broadcasting entities, but rather "its clearly stated purpose is to enhance consumer choice in programming." Another memorandum, also filed Monday, from Cogeco and the Canadian Cable Systems Alliance (CCSA) also argued that the Supreme Court decision on value for signals was not applicable to the wholesale code, that it's within the CRTC's jurisdiction to implement such measures and that the wholesale code does not conflict with the Copyright Act. "Although the Wholesale Code governs certain aspects of the commercial arrangements between BDUs and programming undertakings, it does not grant anyone any exclusive right that the Copyright Act would have specifically withdrawn from them," said the memorandum from Cogeco and the CCSA, the latter of which represents more than 100 independent cable operators across the country, according to its website. The wholesale code would, among other things, ban provisions that prevent a particular channel from being offered on a stand-alone basis or as part of a package that customers can create themselves, and also stop so-called penetration-based rate cards that require service providers to compensate channel operators when certain thresholds for advertising revenue are not met. While Bell owns both broadcast distribution operations and TV channels, Telus and Cogeco are providers of TV services without any media properties. Jacqueline Michelis, a spokeswoman for Bell, said the company is not commenting on the wholesale code dispute while it is before the courts. Bell is also appealing CRTC decisions that ban simultaneous substitution for future Super Bowl broadcasts and zero-rating mobile-video services, both before the Federal Court of Appeal. It has 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 Derek Abma at dabma@thewirereport.ca and editing by Shruti Shekar at sshekar@thewirereport.ca

Telus, Cogeco challenge Bell appeal of wholesale code

Broadcast | November 17, 2015

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Telus, Cogeco challenge Bell appeal of wholesale code

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