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ARCHIVED - Broadcasting Decision CRTC 2004-197

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Broadcasting Decision CRTC 2004-197

 

See also: 2004-197-1

Ottawa, 4 June 2004

 

Request by Pelmorex Communications Inc. for an order under section 9(1)(h) of the Broadcasting Act regarding the distribution of The Weather Network and MétéoMédia by Star Choice Communications Inc.

  The Commission denies the request by Pelmorex Communications Inc. for an order under section 9(1)(h) of the Broadcasting Act. The reasons for 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 18 May 2004, Pelmorex Communications Inc. (Pelmorex) informed the Commission that it was the intention of Star Choice Communications Inc. (Star Choice), effective 25 May 2004, to commence distributing The Weather Network (TWN) and MétéoMédia (MM) as part of a discretionary package rather than as part of the basic service offering of its national, direct-to-home broadcasting distribution undertaking. Pelmorex 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 TWN and MM on its basic tier until the dispute concerning this matter is resolved. Reply comments were provided on 21 May 2004.

2.

In its letter of reply dated 21 May 2004, Star Choice set out the reasons why it believed the order should not be issued. Star Choice also undertook not to repackage the services earlier than 8 June 2004.

3.

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 Pelmorex's request for an order under section 9(1)(h) of the Act. The reasons for this denial will be issued at a later date.

4.

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.

5.

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 Pelmorex's request 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 by the circumstances surrounding this case, the status quo ante between parties.
 
  • As a result of today's decision, Pelmorex's services will be moved from the basic service provided by Star Choice to its subscribers to a low penetration discretionary tier . This change will occur as soon as 8 June, and several hundred thousand subscribers will be deprived of their weather channels and will not be reimbursed for the loss of service.
 
  • 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 Pelmorex 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: