Bell asking court to review CRTC decision on CanCon concert spend

BCE Inc.’s media division is asking the Federal Court of Appeal to look at a CRTC decision last month that made concert tickets the broadcaster distributed for promotional purposes ineligible as Canadian content contributions. To meet its Canadian content requirements, licensees must allow tickets to events such as concerts to be sold to the public, except for a “minor” amount that can go toward promotional purposes, such as radio contest giveaways. In the case at issue, 75 per cent of the tickets were available to the public for two Bell-sponsored concerts in 2014 and 2015, but the broadcaster claimed the rest for its own promotions. On July 4 -- a month after the CRTC ruled that the 25 per cent of tickets Bell distributed for its own purposes would be ineligible as Canadian content contributions -- Bell filed a request to review the case in the Federal Court of Appeal. The case dates back to January 2018, when the CRTC asked Bell to provide additional information about CanCon contributions to seven events, including the two concerts in question. After Bell supplied the information, the CRTC ruled that the quarter of total tickets used for purposes other than general distribution was “more than a minor component of the main event.” The Canada Music Week Fanfest and Breakthrough Canada Showcase Series events were both sponsored with Canadian content development funds. Late last year, the CRTC ordered Bell to pay close to half a million dollars in ineligible CanCon contributions for one of those events, headlined by a non-Canadian musician. Bell argues that the CRTC’s June decision, which requires the broadcaster to pay back the amount the concert tickets are worth ($188,771), was “substantively unreasonable” and the regulator “breached its duty of procedural fairness” by departing from how it determines CanCon eligibility for these kinds of events. Specifically, Bell draws on two pieces of evidence where the “minor” standard for promotional activity for concerts can be relied upon: Rogers Communications Inc.’s spending on a Chez-FM concert and the CRTC’s own guidance when Bell acquired Astral Media in 2013. In the Chez-FM case, Bell pointed to the CRTC having no problem with Rogers using 20 per cent of the concert tickets for promotional purposes. In the latter acquisition, Bell said Astral received assurances from the CRTC that so long as 75 per cent of concert tickets were distributed by third parties, the concerts would be eligible as a CanCon contribution expense. “The Decision is therefore directly inconsistent with the CRTC’s existing Policy,” Bell said in its court filing. “However, the CRTC did not even acknowledge – let alone explain – why it was departing from its established rule. “As a result, the Decision lacks the hallmarks of justification, transparency and intelligibility that are required of a reasonable order under Canadian administrative law.” Bell also said the CRTC failed to establish a threshold to suggest what a “minor” amount would entail and said it was unfair for the CRTC to disqualify the entire 25 per cent instead of the difference between that amount and what the regulator thinks is an eligible amount. “Going forward, it is not clear what fraction of tickets a radio station may distribute to its own listeners, if a concert is to remain eligible as a CCD contribution,” Bell said in its court filing. “The CRTC moved the goalposts and then disallowed the full 25% of the CCD deduction because Bell Media had now missed the net.” The case represents the second time in three months a telecom has launched a court challenge against decisions of the CRTC that they say went against established precedent and policy without notifying the involved players. The first court filing was submitted in April by Telus Corp., which said the regulator’s decision to allow smaller providers to continue serving customers with internet speeds over 100 Mbps on an interim basis without having to move to a new fibre regime, went against policy because the small telecom representative did not meet the full test to be granted that decision. Telus, and then Bell, argued that the CRTC deviated from the standard three-part test without notifying the parties involved. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Bell asking court to review CRTC decision on CanCon concert spend

Broadcast | July 11, 2019

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Bell asking court to review CRTC decision on CanCon concert spend

Broadcast | July 11, 2019

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