Accusations fly between Rogers, sports programmer Timeless Inc. in carriage dispute

Rogers Communications Inc. and an independent programming company locked in a dispute over soccer programming carriage in Canada have launched accusations at one another of non-compliance and gumming up the CRTC’s regulatory process. In March 2023, the CRTC ordered Rogers to provide carriage of Timeless Inc.’s OneSoccer programming. The decision followed a complaint from Timeless to the CRTC, alleging Rogers acted disadvantageously by not broadcasting its soccer programming after it tried for two years to gain an agreement with the incumbent. Timeless argued in its complaint that by carrying its own sports programming with Sportsnet and Sportsnet One but refusing to carry OneSoccer’s, Rogers was giving itself an undue preference. It also argued that by distributing other sports services, such as sports services owned/operated by BCE Inc., Rogers was subjecting OneSoccer to an undue disadvantage. The CRTC agreed. Now, in a Part 1 application filed Aug. 6 and made public Aug. 23, Rogers has called into question whether OneSoccer was actually owned and controlled by Canadians at the time of Timeless’ complaint, therefore casting doubt upon whether the commission’s decision to order its carriage by Rogers could stand. Rogers argues that for the CRTC to have the authority to come to the conclusion that Rogers was giving itself undue preference, OneSoccer would have had to have been under the control of a Canadian at the time. But Rogers alleges that at the time of Timeless’ complaint, OneSoccer was actually controlled by a group called Mediapro, a subsidiary of a non-Canadian company. Rogers argues Timeless had almost no ability to influence or control programming decisions relating to OneSoccer at the time, and no ability or authority to make any final decisions regarding programming selections. Rogers alleges Timeless was “merely acting as a Canadian distributor charged with (inappropriately) securing Canadian BDUs’ linear distribution of the linear OneSoccer service, given that the non-Canadian Mediapro was not eligible to do so.” Timeless disputes concerns over ownership, control In a response to Rogers’ recent Part 1, dated Aug. 26 and signed by Timeless CEO Scott Mitchell, the company argues that it has always been owned by Canadians and has always had control over OneSoccer programming. Mediapro’s involvement has been in production “and other services” for Timeless, as well as operating the One Soccer online service, it states. “OneSoccer consists almost entirely of Canadian programming, much of it live action soccer games played in Canada by Canadians,” its response document notes. “Mediapro ran day-to-day operations and other functions of OneSoccer, but this was done on behalf of and under the direction of Timeless,” the response reads. “At all times Timeless retained the authority to make strategic or organizational changes. Therefore, Mediapro did not have control in fact of the service.” The company wrote that Mediapro and Timeless have “parted ways,” with Mediapro continuing to do production services for one year before Timeless is “likely” to hire a new company to provide such services. But Timeless argues that even if Rogers were right about OneSoccer’s ownership at the time of its complaint and the commission lacked the authority to make its decision ordering carriage, it would not make a difference at this point because a fresh application by Timeless now would “no doubt lead to a decision with the same result.” “Therefore, nothing can be gained by the Rogers application other than delay,” the company alleges. Rogers concerned about transparency Rogers first raised the question of ownership and control in an April 2023 letter to the CRTC, in which it asked the commission to review both factors “through an open and transparent process.” Instead, the company states, it got a letter from commission staff in late June 2024 saying they were satisfied that OneSoccer is “presently” owned and controlled by Canadians. The problem, Rogers alleges, is that CRTC staff did not come to any conclusions on “the critical question” of whether or not OneSoccer was controlled by a Canadian when Timeless filed its complaint, which it argues could nullify Timeless’ original complaint against it. Rogers alleges that the June 2024 staff letter “strongly suggested” that OneSoccer only came into compliance after Rogers’ questioned its ownership and control. Rogers is questioning the transparency of the CRTC’s process of determining OneSoccer’s ownership. It has asked the commission to run a public review of the ownership and control of OneSoccer, which it says has been standard practice in previous complaints. “The commission has always conducted the assessment of Canadian ownership in an open and transparent manner, with all ownership information, including shareholder agreements and various commercial agreements, routinely placed on the public record with minimal redactions,” Rogers wrote. Rogers claims that even if OneSoccer became compliant before or after the CRTC’s decision, but after the Timeless complaint, that would still not validate the commission’s decision because it would have stemmed from a complaint made by what was an unauthorized programming service at the time. Following its new Part 1 application, if the CRTC’s decision is still considered legitimate, Rogers says it would fly in the face of the foundational elements of the Broadcasting Act and long-standing commission policies regarding Canadian ownership and customer choice. If the decision were allowed to stand, “every Canadian programming service operating in a specific genre will demand distribution from every BDU that offers programming in that same genre,” Rogers argues. Timeless accuses Rogers of deliberately delaying process Timeless is asking the CRTC to dismiss Rogers’ application, accusing the incumbent of trying to delay the launch of OneSoccer on its BDU service and “making a mockery” of the regulatory process while “showing their disregard for the Canadian broadcasting system.” “Canadian soccer fans served by Rogers Cable have already waited several years to watch their favorite Canadian soccer teams on linear television and Rogers proposes to make them wait even longer,” Timeless alleges. In its Part 1 application, Rogers states that it has no intention of continuing negotiations with Timeless for carriage of OneSoccer until the CRTC determines whether or not its 2023 decision was valid. It also accused Timeless of not making a serious offer in negotiations by proposing terms that were “clearly unacceptable and would effectively require Rogers’ customers to subsidize OneSoccer’s business by underwriting a significant portion of the costs associated with its operations.” The CRTC decision, Rogers alleges, has “emboldened Timeless to propose commercially unreasonable rates that are grossly inflated and totally unrelated to the value of the service.” But Timeless proposes that Rogers should be willing to continue negotiations with the company so that the terms of carrying OneSoccer are ready to go once it “almost certainly” has to begin carrying its programming. “By refusing to negotiate until their perceived jurisdictional issues are resolved, they are admitting that their purpose in bringing this application is to avoid carrying OneSoccer for as long as possible,” Timeless alleges. Timeless proposes that Rogers could make a counteroffer if it did not like the first offer, or could alternatively ask the CRTC for mediation and arbitration. Among other accusations, Timeless alleges that until the matter is resolved, Rogers can “continue to prefer” their own programming and those of vertically integrated providers. It notes Rogers’ ownership of Sportsnet, and alleges that, until the case is sorted, “a new Canadian sports broadcasting competitor cannot successfully launch, since Rogers Cable controls the majority of the Canadian English language cable business.” “Rogers is sending an important message to other independent programming services in Canada. They are telling them that asking for carriage on Rogers or exercising their right to file an undue preference application against Rogers is a very risky proposition,” Timeless alleges. When asked for comment on Timeless’ response to its Part 1 Tuesday, Rogers told The Wire Report it will “await a commission decision on the application.” “As described in the application, all evidence available to us indicates that OneSoccer was not under the control of a Canadian when it filed the complaint, and that it was controlled in fact by Mediapro, a confirmed non-Canadian company,” a spokesperson for the company wrote in an email. “This would mean the commission lacked the authority to issue the direction to negotiate with Timeless for the carriage of the OneSoccer service.” Timeless has asked the CRTC to issue a fresh order requiring Rogers to carry OneSoccer. “This order will prevent Rogers from engaging in even more pointless delays by launching an appeal and/or a judicial review application,” Timeless alleges, adding a request that the commission closes Rogers’ application “on an expedited basis.” “Although we have until Sept. 23 to file our answer, we are filing it today in order to move this matter along as quickly as possible,” Timeless wrote. - Reporting by Hannah Daley at hdaley@thewirereport.ca

Accusations fly between Rogers, sports programmer Timeless Inc. in carriage dispute

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By Hannah Daley
| August 27, 2024

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Accusations fly between Rogers, sports programmer Timeless Inc. in carriage dispute

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