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Ottawa, 3 May 2012
Mr. Grant Buchanan
Partner, McCarthy Tétrault LLP
Toronto Bank Tower
66 Wellington St., Suite 4700
Procedural letter –
Commission request for disclosure of confidential information
High Fidelity HDTV Inc.
Application No: 2012-0105-3
The purpose of this letter is to inform you of the Commission’s determination regarding two elements included in your confidentiality designation raised in your letter dated April 12, 2012.
In your letter, you have designated the following information as confidential:
• Independent individual specialty Category B services’ earnings before interest, taxes, depreciation and amortization (EBITDA) figures;
• Individual unregulated businesses’ EBITDA figures.
Individual Figures for the Category B services
Designation is requested over the discrete EBITDA figures for each of the regulated Category B services for the years 2009-2010, 2010-2011 and 2011-2012, filed in confidence in a letter dated March 5, 2012. The Commission notes your arguments, namely that the applicant is an independent operator of Category B services and that neither the applicant or the transferee are vertically integrated companies with any distribution undertaking, nor horizontally consolidated companies so as to enjoy significant market power in any broadcasting market. Furthermore, you have raised the fact that the Commission has recently considered whether and how to protect the confidential information of independent Category B services who must negotiate with distribution undertakings during the public process on the Regulatory framework relating to vertical integration, Broadcasting Regulatory Policy CRTC 2011-601, paragraph 87 and CRTC 2010-783-2, paragraph 1.
Pursuant to Section 33(4) of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (the Rules), the Commission has determined that under the specific circumstances of the current application, one of which being the small numbers of services involved in the transaction, the designation of the EBITDA figures for the regulated assets will be maintained since negotiating power of independent specialty Category B services may be negatively affected when negotiating with a vertically integrated entity if these figures are known publically.
Individual unregulated figures
Designation is requested over the detailed EBITDA figures for the non-programming master control and production businesses for the years 2009-2010, 2010-2011 and 2011-2012, filed in confidence in a letter dated March 5, 2012. The Commission notes your arguments, namely that each of these business units operates in an unregulated, highly competitive sector, and one of them is still in start-up mode. Furthermore, you have raised the fact that release of this information would have a direct financial harm.
The Commission notes that this information has been disclosed in another document filed in the context of the current application and therefore requests public disclosure of the table containing the EBITDA for High Fidelity HDTV Inc.’s unregulated business, with the exception of the fourth and fifth row (i.e. Related Companies and Total EBITDA), which was not part of the previously filed disclosed information.
Therefore, the applicant must file an abridged version of the letter dated March 5, 2012 in order to reflect the above determination within 5 days of the date of the current letter.
A copy of this letter as well as all related correspondence will be added to the public record of the proceeding.
Finally, the Commission would like to reaffirm that confidentiality designation determinations are made on a case by case basis and that confidentiality may be provided where the applicant has demonstrated that granting such confidentiality is in the public interest.
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