ARCHIVED - Letter

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Ottawa, 25 February 2011

Mr. Mirko Bibic
Senior Vice-President
Regulatory & Government Affairs
Bell Canada
Floor 19, 160 Elgin Street
Ottawa, Ontario
K2P 2C4

Dear Mr. Bibic,

Subject: Undue preference complaint of 14 December 2010 by Quebecor Media Inc., on behalf of The Cave, against Bell TV

Further to your comments of 7 January 2011 and 24 January 2011 in the above noted complaint, the Commission is hereby seeking additional clarification from Bell TV to provide it with a fuller record upon which to decide the important matters raised in this complaint. Bell TV must provide the requested information on or before 16 March 2011.

Until such time as the Commission renders a final decision on the matter, the Commission requires that Bell TV continue to distribute The Cave in the Lifestyle 2 theme package.

The Commission notes that it will not make a practice of allowing parties the opportunity to provide additional information once the usual process of complaint/response/reply has been completed as it expects parties to provide all relevant information within these submissions. However, given the newness of the reverse onus provision, which requires that a BDU demonstrate that a preference or disadvantage is not undue, the Commission considers that parties may not have fully appreciated the requisite level of evidence required. Accordingly, in this case, the Commission deems it appropriate to request additional clarification from Bell TV.

The complaint

On or around 2 November 2010, Bell TV informed The Cave, a Category 1 digital specialty service of TVA Group Inc., that The Cave would be relocated from Bell TV’s Lifestyle 2 theme package to its Variety 3 theme package. On 14 December 2010, Quebecor Media Inc., on behalf of the licensee of The Cave, filed an undue preference complaint pursuant to section 9 of the Broadcasting Distribution Regulations. In its complaint, The Cave alleged that Bell TV subjected the service to an undue disadvantage and conferred upon itself an undue preference through this forthcoming change in packaging.

The repackaging was originally scheduled to occur on 7 February 2011, but was deferred by Bell TV to 2 March 2011.

In response to the above noted complaint, Bell TV argued that the repackaging of
The Cave does not give rise to a preference or disadvantage. Bell TV argued that its decision to repackage The Cave was strictly a business decision, arguing that The Cave “most appropriately fills the void … in the Variety 3 package” since the Variety 3 theme package skews more to a male audience as compared to the Lifestyle 2 theme package. Bell TV argued that if any preference or disadvantage is found by the Commission, the preference or disadvantage is not undue because, amongst other things, Bell TV had given equitable treatment to The Cave and there were commercially reasonable grounds for moving The Cave.

Recognizing that the reversal of onus provision places the burden on Bell TV, in this instance, to demonstrate that it has not given an undue preference or disadvantage, the Commission considers that the information provided by Bell TV is insufficient to permit it to determine whether or not an undue preference and/or undue disadvantage exists in this case.

Additional clarification

The Commission requests that Bell TV provide the Commission with fuller evidence to demonstrate that its actions in repackaging The Cave were not undue.

Bell TV is requested to:

1) Address the impact the packaging change will have on consumers, on the contribution to Canadian programming, and on the quality and diversity of programming available; and

2) Provide supporting evidence for its argument that its repackaging of The Cave is justifiable as a business decision, including, in particular, an explanation of how the decision reflects consumer needs and interests. To do so, for example, Bell TV should provide, but need not be limited to:

• A detailed explanation of what Bell TV means when it uses the term “equitable treatment”, and evidence that the facts of this case meet this definition. This should include discussion of the “equitable treatment” of all interested parties – Bell TV, The Cave, other services and consumers.
• Similarly, a fuller explanation of what Bell TV means when it states it had “reasonable commercial grounds” for moving The Cave (including the criteria for making this specific repackaging decision). Supporting evidence should include a demonstration of why The Cave was deemed the most appropriate service to “fill the void” in the Variety 3 package (for example, consumer studies, focus group results, an explanation of how the nature of the services involved reflect that of the given package, audience demographics etc.).

Yours sincerely,

[Original signed by John Keogh, on behalf of]

Robert A. Morin
Secretary General

cc. The Cave

Shaw Television G.P. Inc. (the general partner) and 7509014 Canada Inc. (the limited partner) carrying on business as Shaw Television Limited Partnership, and TVA Group Inc., partners in Men TV General Partnership.

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