ARCHIVED -  Letter

Ottawa, 6 February 2012

File Nos. 8622-C193-201201110
8622-B80-201201194

By email

Jennifer Salmon
VP Contracts
Canadian Independent Distributors Group
447 Gondola Point Road
Quispamsis New Brunswick E2E 1E1
jsalmon@ccsa.cable.ca

David Spodek
Senior Manager - Regulatory Affairs
Bell Media
299 Queen Street West
Toronto Ontario M5V 2Z3
David.Spodek@bellmedia.ca

Re:  Applications by: (a) CIDG for dispute resolution, by way of an expedited hearing and subsequent final offer arbitration, with respect to a dispute with Bell Media; and (2) Bell Media for final offer arbitration with respect to a dispute with Cogeco.

Dear Sir and Madame:

In accordance with paragraphs 31 and 32 of Broadcasting and Telecom Information Bulletin CRTC 2009-38 (Information Bulletin 2009-38), this letter is to advise parties:

1. that the Canadian Independent Distributors Group’s (CIDG) request, on behalf of its members [Bragg Communications Inc., Canadian Cable Systems Alliance Inc., Cogeco Cable Canada LP (represented by Cogeco Cable Canada GP Inc.) (Cogeco), MTS Inc. and TELUS Communications Company], for an expedited hearing has been accepted by the Commission; and
2. that Bell Media Inc.’s (Bell Media’s) request that its application for dispute resolution regarding Cogeco be put on hold has been accepted by the Commission.

This letter sets out the date upon which the expedited hearing is to be conducted and the matters that the Commission will consider as well as the procedures to be followed.

The Applications

 IDG submitted in its application dated 17 January 2012 (the CIDG Application), that there are four issues to be resolved in the dispute between the parties:

i. Flexibility regarding the distribution and packaging by CIDG members of specialty television services controlled by Bell Media during the term of the affiliation agreement, including concerns relating to packaging restrictions and minimum penetration requirements;

ii. Inclusion of non-linear program distribution rights to programs comprised in the linear programming of the Bell Services for distribution on CIDG members’ video-on-demand (VOD), IP broadband video and mobile platforms to their television distribution service subscribers during the term of the affiliation agreement;

iii. Commercial reasonableness of carriage terms for the distribution by CIDG members of the Bell Services, including the elimination of proposed penalties such as re-contracting fees, step-up fees and other commercially unreasonable fees; and

iv. Wholesale rates for the distribution by CIDG members of the Bell Services over the term of the affiliation agreement.

CIDG requested that the first three above referenced issues be determined by way of an expedited hearing so that comparable terms and conditions are established to permit final offer arbitration on the wholesale rates (the fourth issue).

Bell Media submitted in its response dated 23 January 2012 (Bell Media Response), that while it did not believe that dealing with CIDG as a permanent buying group was appropriate, it was prepared to proceed with the group for the purposes of an expedited hearing to get the fastest possible resolution of the regulatory and conceptual issues.    

Bell Media further indicated that while it was likely that some of the issues between the parties would be resolved through a Final Offer Arbitration process, it was premature to decide how that arbitration process should proceed until the Commission’s determinations of the issues in the expedited hearing.

Bell Media also submitted that its application for dispute resolution regarding Cogeco, filed 17 Jan 2012 (item 2 above), should be put on hold until the Commission issues its determinations in the expedited hearing.

Confidentiality

As noted in paragraphs 40 and 41 of Information Bulletin 2009-38, existing Commission confidentiality rules and practices will apply during the course of expedited hearing proceedings. Where a party files information with the Commission in confidence, the party must provide sufficient details as to the nature and extent of the specific direct harm that it considers would result from the disclosure of the information subject to the confidentiality claim.

The party is also to file an abridged version of the document for the public record accompanied by reasons for the confidentiality designation or reasons for objecting to the filing of an abridged version.

Information filed with the Commission will be placed on the public record unless the party filing the information designates the information as confidential at the time of filing. Where the Commission is of the opinion that any specific direct harm likely to result from public disclosure is not sufficient to outweigh the public interest in disclosing the information, it may place information designated as confidential on the public record.

This determination may be made on the Commission’s own initiative, or at the request of a party, after providing the party filing the information a further opportunity to justify its confidential designation.

Further, pursuant to the Canadian Radio-television and Telecommunications Rules of Practice and Procedure, as this proceeding relates to matters under the Broadcasting Regulatory framework, where the Commission determines that the information should be disclosed, and the party filing the information confirms its designation of the information as confidential, the information will not be disclosed and will not be considered by the Commission in its determinations.

During the course of the oral hearing, the parties may be required to make submissions regarding information that has been or would be designated as confidential. 

The Oral Hearing

Having reviewed the CIDG Application and the Bell Media Response, it has been determined that an oral expedited hearing will be held on Thursday, 22 March 2012 (and Friday, 23 March 2012 if required), in accordance with the expedited process established in Information Bulletin 2009-38, to consider the following issues:

• Flexibility regarding the distribution and packaging by CIDG members of specialty television services controlled by Bell Media during the term of the affiliation agreement, including concerns relating to packaging restrictions and minimum penetration requirements;
• Inclusion of non-linear program distribution rights to programs comprised in the linear programming of the Bell Services for distribution on CIDG members’ VOD, IP broadband video and mobile platforms to their television distribution service subscribers during the term of the affiliation agreement;
• Commercial reasonableness of carriage terms for the distribution by CIDG members of the Bell Services, including the elimination of proposed penalties such as re-contracting fees, step-up fees and other commercially unreasonable fees; and
• The process for a subsequent final offer arbitration proceeding to determine the wholesale rates for the distribution of the Bell Services by CIDG members.

For all purposes of this expedited hearing, CIDG will be treated as a single entity, including for the purpose of making any written and oral submissions.

Written Submissions

In accordance with paragraphs 32 and 33 of Information Bulletin 2009-38, Bell Media is to file with the Commission, serving a response on CIDG, within 15 days of the date of this letter, a response to CIDG’s 17 January 2012 application.  The response must include concise supporting arguments stating all the facts, all documents upon which Bell Media intends to rely, and all regulatory decisions in support of Bell Media’s submission.  This document must be no longer than 10 pages, not including any attachments.  

Bell Media shall file a copy of its initial Response dated 23 January 2012 for the public file by 7 February 2012. Bell Media is also requested to file, within 15 days of the date of this letter, evidence which supports the statement made in bullet 1, paragraph 9 of the Bell Media Response dated 23 January 2012.

Interveners

Any person who considers they have an interest in the issues in this proceeding may apply to the Commission by 15 February 2012 requesting an opportunity to file comments in this proceeding; indicating the nature of their interest and the reasons why they should be afforded this opportunity. Persons requesting to appear at the oral hearing must provide clear reasons as to why a written intervention is not sufficient and why appearance is necessary.

Mandatory Mediation

Consistent with paragraphs 127 in Broadcasting Regulatory Policy CRTC 2011-601 (CRTC 2011-601), the Commission will hold a mandatory mediation prior to the oral hearing at a date to be provided.  Parties should familiarize themselves with the Commission’s expectations with respect to their participation in the mediation as set out in paragraph 129 of CRTC 2011-601. 

Order of the Proceeding

An agenda outlining the expected process for the mandatory mediation session and the oral hearing will be sent out to participating parties no later than Thursday, 1 March 2012. 

Requests for Information

Prior to the oral hearing, the Commission may request information from the parties by way of procedural letter.  Parties are reminded that it is incumbent on them to file responses to these requests by the date specified by the Commission, serving a copy on each other.

Filing of Documents

Any documents filed with the Commission should be filed using Access Key and specifying the Commission file number indicated on this letter.  Parties can access to Access Key on the Commission’s web site http://www.crtc.gc.ca/eng/forms/form_index.htm

Responsibilities of the Parties

With respect to the oral hearing, the parties are required to bring with them all relevant documentation and knowledgeable personnel. An adverse inference may be drawn, if appropriate, from the failure of a party to bring all relevant documentation and knowledgeable personnel to the oral hearing. 

For ease of translation and transcription, parties are requested to bring five copies of any written opening and closing remarks.

The parties are also required to provide to Lynda Roy, at Lynda.Roy@crtc.gc.ca, and serve on each other, at least 10 days prior to the panel hearing, the name(s) of the person(s) who will be attending the hearing and their area of expertise. 

Other

The hearing will be held at the Conference Centre, Phase IV, 140 Promenade du Portage, Gatineau, Quebec, to address the matters set out in this letter.

Parties may contact Mr. Gerry Lylyk at (819) 953-0434, or at gerald.lylyk@crtc.gc.ca, if they require additional information regarding the organization and conduct of the hearing. 

Parties are reminded that, as of 1 April 2011, this proceeding will be conducted pursuant to the Rules of Procedure which incorporates Information Bulletin 2009-38.  For more information on the Rules of Procedure, see the Commission’s website at www.crtc.gc.ca/eng/nrpp.htm.

Where a document is to be filed or served by a specific date, the document must be actually received, not merely sent, by that date. In addition to filing with the Commission, all copies of submissions are to be sent to gerald.lylyk@crtc.gc.ca. 

Sincerely, 

Original Signed By

John Traversy
Secretary General

Date modified:

2012-02-06