Rogers disputes OUTtv’s undue preference arguments, says it wants to negotiate

Rogers Communications Inc. has responded to a Part 1 application filed with the CRTC by OUTtv, which argued the broadcaster has unfairly repackaged its LGBTQ+-focused channel. According to Rogers, it is ready and willing to negotiate a new agreement with the network. OUTtv is carried by Rogers as a mandatory discretionary service, a designation which requires cable companies and satellite services to make the network available as an optional choice for viewers. It wants that changed to “must-carry” status, which would see it required on broadcasting distribution undertakings (BDUs), like news channels and weather networks, in a proceeding which has been ongoing since the fall. In its application filed with the CRTC earlier this year, OUTtv said until about September 2023, it was offered by Rogers as a default channel in the cable carrier’s largest general interest package. After that date, OUTtv says Rogers “may have stopped actively marketing” that package, replacing it with one under a different name. The network claimed that despite “steady subscriber growth” on Rogers’ systems after it was included as a default in the general interest package, it found its subscriber numbers dropped slowly and then more swiftly in a “cliff-like loss” last December. OUTtv suggested Rogers had unfairly repackaged the network into a “different and much less penetrated package,” and asked the CRTC to force Rogers to return it to the most “suitable” package. A Rogers spokesperson told The Wire Report in March that OUTtv is available for customers to add to their lineup “either as a standalone channel or in the Lifestyle and Entertainment or Variety theme packs, complying with our regulatory obligations,” and alleged OUTtv is trying to “use the regulatory system to restrict our ability to make decisions that meet changing viewership trends.” The company has now doubled down on those defences in a response document filed with the CRTC Apr. 11 and made public Apr. 14, in which it argued that the OUTtv application should be dismissed and OUTtv ordered to take part in “good faith negotiations.” Repackaging was necessary, Rogers argues Repackaging OUTtv was a “necessary business decision” Rogers made because OUTtv has refused to renegotiate a new wholesale rate, the broadcaster alleges. It said OUTtv is carried by Rogers East’s BDUs at an “exorbitant rate,” the specifics of which were redacted in the public document — a rate which was set in an agreement that has since expired, according to Rogers. Details of that agreement were also redacted in the document. “OUTtv has strategically refused to engage in meaningful rate discussions in order to maintain the rate in place for as long as possible,” Rogers alleges. The Wire Report reached out to OUTtv seeking comment on Rogers’ allegations in its reply to the application. OUTtv CEO Brad Danks said in an emailed response that the network does not have comment to provide at this time and that it will file a formal response with the CRTC in the coming days. Rogers says OUTtv is available in its “Variety” and “Lifestyle & Entertainment” channel theme packs. Because those packages include other entertainment and lifestyle services Rogers carries, it claims those are the “best available theme packages” for OUTtv. Rogers says during the agreement’s post-expiry period, its “Premier” package saw "unforeseen growth,” which ultimately led to “highly disproportionate wholesale fees paid to OUTtv.” OUTtv’s removal from that package was necessary because OUTtv did not negotiate a new rate with Rogers that was “calibrated for broader distribution,” Rogers claims. “It was no longer sustainable for the service to be included in Premier, nor could this package be justified based on consumer demand,” it says. “OUTtv demands inclusion in both the Premier and Ultimate TV packages, despite the fact that the actual differential treatment identified in their application is merely exclusion from the Ultimate TV or Popular TV packages, and Rogers has already indicated we will add the service to Ultimate TV pursuant to a new affiliation agreement,” Rogers argued. The company argues that it is not required by the Wholesale Code to place independent services channels in both their best pre-assembled package and best available theme package. “If OUTtv’s interpretation was accepted by the commission, it would result in the absurd outcome that every independent programming service would need to be included in the best available pre-assembled package in addition to the best available theme package offered by every BDU,” Rogers wrote in its response. “BDUs cannot be required to defend legitimate business decisions in the absence of credible, well-substantiated claims. To find that Rogers conferred an undue preference without OUTtv demonstrating dissimilar treatment from a specific, meaningfully comparable service would fundamentally distort the Commission's undue preference/disadvantage rules and establish a dangerous precedent,” Rogers alleged elsewhere in the document. Interventions filed in support of OUTtv The Forum for Research and Policy in Communications (FRPC) believes a decision should be expedited to be released before Apr. 30 and that Rogers should have to package OUTtv in the package “to which it had agreed or, in the alternative, in Rogers’ largest general-interest package.” “Given the wildly fluctuating state of the world’s economies, Canada’s programming and distribution services need the certainty, predictability and transparency that only the CRTC can provide through its decision in this matter,” executive director Monica Auer wrote. Auer said that the CRTC should consider the impact of OUTtv’s application on subscribers, saying that denying the application could “permit Rogers (and potentially other BDUs in its wake) to remove Canadians’ access to a service that reflects them — because OUTtv remains unique among programming services by serving and reflecting LGBTQ2 communities.” Several other individuals, including people working in TV and film production, filed interventions in support of OUTtv, highlighting the role the network plays in providing inclusive programming to viewers. With files from Paul Park. hdaley@thewirereport.ca

Rogers disputes OUTtv’s undue preference arguments, says it wants to negotiate

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By Hannah Daley
| April 16, 2025

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