CRTC plans to monitor technical surveys for small BDUs, dismisses CCSA undue preference complaint against Bell

The CRTC will be keeping an eye on technical surveys -- which broadcast distribution undertakings (BDUs) are sometimes required to complete to satisfy rights holders that their intellectual property will not be compromised -- to ensure that the increasingly common processes are not becoming a barrier for small BDUs. In its decision Friday, the CRTC also dismissed a complaint from the Canadian Communication Systems Alliance (CCSA), more than a year after the organization, which represents small telecom providers in major negotiations, alleged that BCE Inc. conferred an undue preference to its own TV service offerings. CCSA argued before the CRTC in Aug. 2020 that Bell was delaying services by imposing technical surveys which the organization claims was Bell’s “means of delaying the delivery of competitive programming offerings to BDUs.” Bell told the CRTC, in its Sept. 2020 response to the claims, that the process is “reasonable and in the best interest of all parties” because the onus is on BDUs to address the security concerns of Bell’s programming providers. The company recognized the process could take up to six months, but argued to the CRTC that CCSA members often cause their own delays by providing late or incomplete information. The commission wrote in its Friday decision that Bell’s use of the surveys did not contravene the CRTC’s regulatory framework, having found that the security surveys are becoming even more commonplace in the broadcasting system with the increase of multi-platform programming and therefore an increase in piracy concerns. The CRTC noted that the survey process is not standardized across the industry and Bell’s survey is more complex because it is the “biggest player” in the Canadian broadcasting system. “Consequently, the protections and guarantees required by Bell Media to satisfy the content producers and providers that their programming is being handled in a manner that does not threaten their integrity may be more stringent,” the CRTC wrote. As a result, the CRTC said, smaller BDUs may find it difficult meeting Bell’s survey requirements which may cause delays. The commission also said the CCSA was not the first to raise these concerns and it will monitor the situation to ensure the surveys do not become an obstacle to the successful commercial operations and negotiations of smaller BDUs. “Should the industry practice become too onerous for those smaller BDUs or the industry as a whole, the commission may conduct a formal, industry-wide review of the surveys and the associated process,” the regulator wrote in its decision. In its Aug. 2020 complaint, the CCSA also argued before the regulator that Bell violated the “competitive safeguards” provision of its own licence, as well as the Standstill Rule in the Wholesale Code rules. The Standstill Rule stipulates that a programming undertaking must continue to provide its programming services to a BDU at the same rates and on the same terms during a dispute. CCSA said that Bell refused to authorize new launches until the two parties agreed to a new master agreement. CCSA claimed the delay caused its members “substantial economic, reputational and competitive harm.” Bell told the CRTC, in its response, that the company was withholding new services and features as leverage in its negotiations with the CCSA and that the Standstill Rule only applied “prior to the dispute and the expired agreement.” The CRTC found that Bell was within its rights to refuse to provide new services in the absence of a contract and that small telecom members have not been prevented from carrying out the services that were agreed upon in the original contract. “The Standstill Rule is intended to ensure that Canadians do not lose access to their favourite programming services,” the CRTC said. “It was never intended to be used to compel the distribution of services and functionalities that had not been previously authorized under a valid and enforceable contract by the programming undertaking.” The commission concluded in its decision that the CCSA failed to provide sufficient evidence showing that the terms and conditions Bell is seeking in the new agreement are unreasonable, and that the matter should have been dealt with between both parties through negotiations or with the help of mediation. “While parties can call on the commission to facilitate the resolution of complaints, the commission generally expects parties to make reasonable efforts to resolve their disputes before bringing such matters to the commission for disposition,” the CRTC said in its decision. VMedia Inc. also filed a similar Part 1 with the CRTC -- several days before CCSA filed its complaint -- alleging that it is being unduly disadvantaged by Bell‘s delay in approving the distribution of Bell programming over VMedia’s streaming apps. However, a month later, the two companies resolved the dispute on their own terms. VMedia withdrew its complaint after it secured Bell’s approval to carry its programming and continue to distribute content through its transmission agents. -- Reporting by Jenna Cocullo at jcocullo@thewirereport.ca and editing by Michael Lee-Murphy at mleemurphy@thewirereport.ca.

CRTC plans to monitor technical surveys for small BDUs, dismisses CCSA undue preference complaint against Bell

Broadcast | October 15, 2021

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CRTC plans to monitor technical surveys for small BDUs, dismisses CCSA ​​undue preference complaint against Bell

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CRTC plans to monitor technical surveys for small BDUs, dismisses CCSA undue preference complaint against Bell