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ARCHIVED - Broadcasting Decision CRTC 2004-198

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Broadcasting Decision CRTC 2004-198

 

See also: 2004-198-1

Ottawa, 4 June 2004

 

Request by the licensees of The Sports Network, Talk TV and Le Réseau des sports for an order under section 9(1)(h) of the Broadcasting Act regarding the distribution of these services by Star Choice Communications Inc.

  The Commission denies the request by the licensees of The Sports Network, Talk TV and Le Réseau des sports for an order under section 9(1)(h) of the Broadcasting Act. The reasons for this denial will be issued at a later date. The Commission also announces that it will conduct a process to inquire into the measures that may be required to ensure that negotiations between distributors and programmers are conducted in accordance with good commercial practices. A dissenting opinion by Commissioner Noël is appended to this decision.

1.

In its letter of 21 May 2004, the licensees of The Sports Network (TSN), Talk TV and Le Réseau des sports (RDS), hereinafter called the Services, informed the Commission that it was the intention of Star Choice Communications Inc. (Star Choice), licensee of a national, direct-to-home broadcasting distribution undertaking, to remove TSN from its "Sports" package and RDS from its "Actif" package and add both services to its "Essentials/Essentiels" package. The Essentials/Essentiels package is Star Choice's basic service offering. Further, the Services informed the Commission that Star Choice intended to remove Talk TV from its "Lifestyle" package and place it in its "FYI" package. Both the "Lifestyle" and "FYI" packages are offered by Star Choice to its subscribers on a discretionary basis.

2.

The Services requested that the Commission issue an order under section 9(1)(h) of the Broadcasting Act (the Act), requiring Star Choice to continue to distribute TSN and RDS as currently packaged, remitting to TSN and RDS the wholesale rate payable pursuant to the terms of carriage previously agreed upon, and to continue to distribute Talk TV as part of the "Lifestyle" package, remitting to Talk TV the agreed upon wholesale rate for that service. The Services further requested that the order remain in place until the earlier of:
 

a) the resolution of this dispute via a mutually satisfactory agreement between the parties; or,

 

b) a final determination by the Commission following a request for dispute resolution filed by the Services, pursuant to the dispute resolution procedures set out in sections 12 to 15 of the Broadcasting Distribution Regulations (the Regulations).

3.

Star Choice filed a comment on the Services' request on 27 May 2004, arguing that the request for an order should be dismissed. The Services filed a reply comment on 28 May 2004. In the reply comment, the Services indicated that Star Choice had proceeded with its repackaging of TSN, RDS and Talk TV on 25 May 2004.

4.

The Commission, having carefully considered all submissions received, is not satisfied that it should issue the order requested in this case. Accordingly, the Commission denies the Services'request for an order under section 9(1)(h) of the Act. The reasons for this denial will be issued at a later date.

5.

The Commission notes that, on 21 May 2004, the Services filed a request for dispute resolution pursuant to sections 12 to15 of the Regulations.

6.

While the Commission remains of the view that the commercial arrangements between distributors and programmers should best be determined by negotiations between them, without its intervention, the Commission also wishes to express its concern, based upon its review of the circumstances surrounding this case and others, that the negotiation process between parties is not consistently characterized by good commercial practices.

7.

In the Commission's view, good commercial relations are essential to allow parties to fulfil their respective responsibilities under the Act. Accordingly, the Commission announces that it will conduct a process to inquire into the measures that may be required to ensure that negotiations between distributors and programmers are conducted in accordance with good commercial practices.
  Secretary General
  This decision is to be appended to each licence. It is available in alternative format upon request, and may also be examined at the following Internet site: www.crtc.gc.ca 
 

Dissenting opinion of Commissioner Andrée Noël

  I disagree with the majority's decision and would have granted the joint request by TSN, Talk TV and RDS for an order under section 9(1)(h) of the Broadcasting Act (the Act) for the following reasons:
 
  • Section 9(1)(h) of the Act is the only tool available to the Commission to maintain or re-establish, as would be dictated the circumstances surrounding this case, the status quo ante between parties.
 
  • The case that is the subject of the Commission's decision reveals that even though Star Choice received, on 21 May, the request of the three parties under section 9(1)(h) of the Act, as well as a letter from the Commission asking for a response to the parties, Star Choice chose to transfer the services to different tiers in the early hours of the morning on 25 May, thereby defying the Commission's authority to render a decision on the said request.
 
  • It is unrealistic to expect that, absent maintaining the status quo ante, adispute resolution process and the resulting final determination by the Commission would undo the harm done to the three parties as a result of Star Choice's behaviour, or the inconvenience caused to subscribers.
  I do agree, however, with the majority's decision to conduct a process to inquire into the measures that may be required to ensure that negotiations are conducted in accordance with good commercial practices.
  Notwithstanding the Commission's announcement, and given the facts surrounding this case, I do question the motives that would have Star Choice use brutal, not to say uncivilized, commercial practices in its dealings with the programming undertakings. I would hope that the public process announced by the Commission in its decision restores civilized negotiations.

Date Modified: 2004-06-04

Date modified: