ARCHIVED - Letter
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Ottawa, 22 April, 2009
By E-Mail
Our File No.: 8622-C151-200905102
Ms. Susan Wheeler
Vice President, Regulatory Affairs
Rogers Media
Ms. Alyson J. Townsend
President and CEO
Canadian Cable Systems Alliance Inc.
Dear Mesdames:
Re: Dispute between Canadian Cable Systems Alliance Inc. (CCSA) and Rogers Sportsnet Inc. (Rogers) – Confidentiality of documents
In a letter dated 8 April 2009, the Commission considered, on a preliminary basis, that it was in the public interest to disclose only the abridged versions of the detailed memorandums filed by Rogers and CCSA on 2 April 2009 as well as the letter from CCSA dated 3 April 2009 and the letter from Rogers dated 6 April 2009. Parties were given until 14 April 2009 to comment on the Commission’s preliminary view and provide their reasons.
On 14 April 2009, the Commission received a response letter from CCSA requesting that the Commission either disclose to CCSA Appendices A through F of Sportnet’s April 2 “Detailed Memorandum” or have Sportsnet withdraw, or itself exclude, those same materials from the evidentiary in this proceeding.
CCSA also stated that, at the very least, it must know the names of the BDUs whose contracts Sportnet has filed. CCSA requested this information so that it could raise details relevant to the contracting circumstances of those BDUs and to the practical differences between the circumstances of those BDUs and CCSA Member Companies. CCSA noted that the central premise of Sportnet’s case is that, if the Commission is to determine rates in this proceeding, it should do so using rates reflecting “the best comparator companies.”
On 15 April 2009, the Commission received a letter from Rogers objecting in the strongest possible terms to disclosure of Appendices B-F to its Detailed Memorandum submitted on 2 April 2009. Rogers noted that, as stated in Sportsnet’s confidentiality claim, disclosure of any of the agreements negotiated with other BDUs would be highly prejudicial to both Sportsnet and its distribution partners since it would result in direct financial harm to Sportsnet by impairing its ability to negotiate and/or finalize agreements in accordance with normal commercial practices. In addition, Rogers stated that the CCSA should not be allowed to use the regulatory process to obtain information that would clearly be out of its reach in the context of commercial negotiations.
Furthermore, Rogers submitted that, in order for CCSA to comment on the appropriateness of the companies proposed as comparators, it did not object to disclose the identities of these companies to the CCSA. Rogers noted that CCSA will also have the benefit of Sportnet’s answer to Question 3 of Attachment 2 in order to understand the basis for the selection of the comparator companies.
On 20 April 2009, the Commission received a letter from CCSA stating that it has decided not to insist, at this time, on disclosure of the full contract documents contained in Appendices B through F of Roger’s submission. In addition, CCSA requested the Commission direct Sportsnet to disclose to the CCSA the content of Appendix A to Sportnet’s submission of 2 April 2009.
With respect to the abridged versions of the detailed memorandums filed by Rogers and CCSA on 2 April 2009, the letters from CCSA and Rogers dated 3 April 2009 and 6 April 2009, respectively, the Commission notes that neither party objected to putting such material on the public record.
With respect to Appendices A through F of Sportnet’s 2 April 2009 “Detailed Memorandum, the Commission notes CCSA’s letter dated 11 March 2009 wherein it stated that affiliation agreements are kept strictly confidential pursuant to their own terms. The Commission considers that the disclosure of the contracts submitted by Rogers would likely result in direct financial harm to Rogers and that this harm outweighs the public interest in disclosure.
Final Determinations on the matters discussed above
In light of the foregoing and after weighing the public interest in disclosure against the potential harm to Rogers from such disclosure, the Commission determines the following:
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the abridged versions of the detailed memorandums filed by Rogers and CCSA on 2 April 2009; the letter from CCSA dated 3 April 2009; and the letter from Rogers dated 6 April 2009 will be put on the public record of this proceeding;
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Rogers is to file an abridged version of Appendix A of its 2 April 2009 memorandum by 23 April 2009 at 1:00 p.m. (ET), including the names of the comparator companies for disclosure to the CCSA; and
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Appendices B through F of Roger’s 2 April 2009 submission will be kept confidential. Abridged versions will be placed on the public record.
Further confidentiality considerations
The Commission considers that, on a preliminary basis, it is in the public interest to disclose only the “redacted” version of Roger’s interrogatory response 1 through 6 dated 15 April 2009; the abridged version of the CCSA interrogatory responses dated 15 April 2009, the letters from CCSA dated 14 April 2009 and 20 April 2009 and the letters from Rogers dated 15 April 2009 and 16 April 2009.
Should they wish to, each party has until 27 April 2009 at 5:00 p.m. (ET) to make representations to the Commission clearly stating why it considers that the disclosure of this information would be harmful to them and how this harm outweighs the public interest in disclosure. If it chooses to do so, each party has until 28 April 2009 at 5:00 p.m. (ET) to reply to the other party’s representations.
Yours sincerely,
Original signed by
Robert. A. Morin
Secretary General
CC: G. Lylyk, CRTC,
Ken Engelhart, Vice President Regulatory Law, RCI
Aivy Reinfelds, VP Television Development and Distribution, RSN
Tony Viner, President, RSN,
Doug Beeforth, President, RSN
doug.beeforth@sportsnet.rogers.com
Chris Edwards, VP Corporate & Regulatory, CCSA
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