Telus seeks clarity on undue preference allegations against Rogers

Telus Corp. wants to see an unredacted version of Corus Entertainment Inc.’s allegations to the CRTC that Rogers Communications Inc. is giving itself undue preference. Corus first made its arguments in a Part 1 application filed with the CRTC earlier this summer, alleging that since the acquisition, Rogers has “largely ignored” the expectations set out by the CRTC in its decision to approve the incumbent’s acquisition of Shaw Communications Inc. “Instead of dealing with independent undertakings fairly as the commission instructed it to do, has weaponized its more dominant position by aggressively targeting Corus and other independents with unduly disadvantageous treatment,” Corus alleges. Corus hinges its complaint on Rogers’ promotion of Walt Disney Co.’s Disney+ to its customers by way of free access to the streaming platform for Rogers clients, distributed as part of its Ignite Streaming online undertaking, and bundling the ad-supported version of Disney+ with traditional programing packages through Rogers’ BDUs. Corus alleges Rogers’ actions put Corus’ Disney-themed channels at a disadvantage when subscribers search for content because of promoted free access to Disney+ on Rogers’ electronic program guide, “directly below the program listings for the Corus Disney channels.” Corus also points to Rogers’ deals announced in June with Warner Bros. Discovery Inc. and Comcast Corp.’s NBCUniversal to bring their programming exclusively to Rogers’ platforms. Five Corus discretionary services will be shifted — Food Network Canada, HGTV Canada, Cooking Channel, Magnolia Network and Slice, Corus said, “whose brands our company has invested years (and in some cases, decades) building.” “Rogers is clearly seeking to bolster its already dominant position with a view to limiting the regulatory measures the commission might put in place to promote fairness and equity in the industry,” Corus charges to the CRTC, noting it expects a review of the structural relationships within the industry by the CRTC to launch “imminently.” A Rogers spokesperson argued in a statement to The Wire Report that Corus’ complaint lacks “any evidence” of an undue preference or disadvantage. “Sadly, it has not kept up with the demands of Canadians and is now looking for the regulator to protect their broken business model while we’re focused on meeting our customers’ changing viewing habits. This baseless complaint is designed to prevent us from providing Canadians with the content they want on their platform of choice,” the spokesperson alleged in an email. “They need to compete in a fair system and earn each customer, just like every other company.” In its own response to Corus’ Part 1 application, Telus has filed an intervention referring the CRTC back to its comments made to the commission during a consultation on Rogers’ acquisition of Shaw, which Telus adds were echoed by other stakeholders. Telus originally noted that in its intervention on the merger, it argued that if the deal was allowed to proceed, Rogers would become a gatekeeper for programming because of an increased incentive to withhold affiliated content from competing broadcast distribution undertakings (BDUs), as well as an ability to “make or break” unaffiliated programming services by denying them carriage on its distribution platforms. Telus is seeking to gain access to an unredacted version of Corus’ complaint through the CRTC, as it alleges the hidden information could be evidence that Rogers’ acquisition of Shaw has allowed it to “engage in anti-competitive behaviour aimed at eliminating their competitors or raising their costs, as Telus argued in our submissions in respect of that acquisition. “Alternatively, depending on the nature of the allegations, it could also disclose pro-competitive behaviour,” Telus wrote in the intervention signed by Lecia Simpson, the company’s director of regulatory affairs. “Regardless, if the allegations indeed relate to harm to competition in the market, then Telus and other market participants could be directly affected by the commission’s decision.” Telus believes that if the specific relief Corus is seeking from the CRTC on the matter remains secret, then the commission will have to craft any order it makes “in a manner that it does not affect the rights of other market participants in their own content negotiations.” Telus concludes that any decision from the CRTC on Corus’ request without releasing a further unredacted version “would be an impermissible violation of Telus’ right to procedural fairness.” If it does not order the release of an unredacted application, then the CRTC has to make sure any decision it makes does not “in any way” affect the rights of Telus or other third parties, Telus argued. Rogers itself has made arguments recently for access to unredacted documents in CTRC proceedings. The company asked the commission to release to it, on a confidential basis, copies of documents from Quebecor Inc. related to the pair’s dispute over wholesale access rates, which is now heading to the Federal Court of Appeal following an arbitration process. In its arguments, Rogers said “key assertions and supporting analysis” submitted by Quebecor were also “completely redacted,” which Rogers says prevented it from giving any meaningful response. - Reporting by Hannah Daley at hdaley@thewirereport.ca

Telus seeks clarity on undue preference allegations against Rogers

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By Hannah Daley
| September 12, 2024

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