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Ottawa, 28 June 2012

File No.  8622-B80-201205716

By email

Kevin Goldstein
Vice President - Regulatory Affairs
Bell Media
299 Queen Street West
Toronto, Ontario M5V 2Z3

Jennifer Salmon
VP Contracts
Canadian Independent Distributors Group
447 Gondola Point Road
Quispamsis, New Brunswick E2E 1E1

Re: Application for Final Offer Arbitration by Bell Media Inc. with respect to a dispute relating to the renewal of affiliation agreements between Bell Media Inc. and CIDG – Confidentiality of documents

Dear Sir and Madam:

This letter is to address a request by Bell Media Inc. (Bell Media) that certain provisions in CIDG’s reply comments be struck from the record. 

By letter dated 21 June 2012, Bell Media requested that certain portions of CIDG’s reply comments be struck from the record, because they refer to previous offers made by Bell Media “without prejudice”, and/or because they reflect the unlawful sharing of confidential information among CIDG members. Bell Media submitted that the filing of this information presents a distorted picture of Bell Media’s previous and current offers, and is therefore highly prejudicial to it.

CIDG replied on 25 June 2012, and submitted that the impugned portions of its reply comments are squarely within the ambit of the matter upon which the Commission must rule. It submitted that Bell Media’s own reply comments refer to rates and terms contained in previous Bell Media offers to Cogeco Cable Canada Inc. (Cogeco) and to other CIDG members. In CIDG’s view, Bell Media’s introduction and discussion of that subject matter amounts to a waiver of any right to have that subject matter excluded from the record of the proceeding. CIDG also argued that Bell Media’s original offers were not marked as “without prejudice”, and further, that Cogeco never undertook or assumed any contractual obligation to maintain the confidentiality of Bell Media’s original offers.

The Commission notes that this request by Bell Media is not a question of confidentiality, but a matter of the evidentiary record upon which the Commission will make its determinations.

The Commission considers that the impugned provisions are relied upon by CIDG to substantiate its case and defend the reasonableness of its final offer, and therefore, are relevant and will remain on the record of this proceeding. The Commission notes, however, the concern raised by Bell Media that the impugned statements present only one side of Bell Media’s past offers. The Commission will ultimately decide the weight to attach to this evidence, taking into consideration the totality of the circumstances and the complete record of the proceeding.


Original signed

John Traversy
Secretary General

cc.:         Pauline Jessome, MTS
              Natalie Macdonald, EastLink
              Yves Mayrand, Cogeco

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