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File No.: 8622-A124-201304907
BY E-MAIL
Johanne Saint-Laurent
Senior Vice-President, Business Affairs
Les Chaînes Télé Astral and
Vice-President, Director General
Astral Télé Réseau
1800 McGill College Avenue, Office 1600
Montreal, Quebec H3A 3J6
jsaint-laurent@astral.com
Louma Haffar
Senior Advisor, Regulatory Affairs - Broadcasting
Québecor Média Inc.
612 Saint-Jacques Street, Montreal, Quebec H3C 4M8
louma.haffar@quebecor.com
Dear Mesdames:
Re: Final offer arbitration between Astral Inc. and Vidéotron s.e.n.c. – Astral’s request for disclosure of information
On 7 June 2013, in response to a request by Commission staff in its letter of 6 June 2013, Vidéotron s.e.n.c. (Vidéotron) disclosed to Astral Inc. (Astral) certain information for which confidentiality was claimed regarding the Nordicity report entitled “Signal Valuation: Astral’s French-Language Specialty Channels” (the report), included in Appendix F1 of Vidéotron’s submission. Vidéotron proposes to use the report to justify the wholesale rates in its final offer for the linear distribution of Astral’s specialty television services.
In his letter of 7 June 2013, Me Malcolmson of Goodmans LLP, acting as legal advisor for Astral, indicated that he was not satisfied with the new version of the report provided by Vidéotron. Me Malcolmson stated that the level of disclosure was insufficient to allow for a complete analysis of the report, and that only complete disclosure would provide Astral with the evidence to which it must respond. He proposed that the confidential version (unredacted) be provided only to him and to the independent expert acting on behalf of Astral; this version would be destroyed following the conclusion of this file. No one at Astral would have access to the unredacted version.
In a letter dated 10 June 2013, Vidéotron opposed Astral’s proposal. Vidéotron indicated that a procedure such as the one proposed is not set out in the Commission Rules of Practice and Procedure. In addition, Vidéotron stated that since independent experts and lawyers accept mandates from various players in the industry, access to the confidential information in question would give them an advantage in future negotiations with Vidéotron, either on behalf of Astral or of other companies. Vidéotron considers that providing this information to Astral’s advisors, rather than directly to Astral, does not change the reasons for which the information should continue to be treated confidentially, and does not guarantee that this highly strategic information will be kept confidential.
Final Commission determination
The Commission notes that the information in question concerns third parties with which Vidéotron has confidentiality agreements. The Commission also notes Vidéotron’s argument that the disclosure of confidential information could negatively affect Vidéotron’s competitiveness and hinder negotiations in progress. In addition, the Commission considers that the information is commercially sensitive and is consistently treated as confidential by Vidéotron.
The Commission also recognizes Astral’s argument that it cannot effectively counter the methodology proposed by Vidéotron to establish the fair market value of the specialty television services in question without having access to the report in its entirety.
In light of the circumstances, and after weighing the public interest in disclosure (including the procedural fairness owed to the parties, and the value of having a complete record to enable the Commission to make a decision), and the potential negative effect of disclosure on Vidéotron, the Commission determined that, in this case, public interest would best be served if:
- the confidentiality of the information is maintained (meaning that Astral’s request is denied);
- the confidential version of the report submitted to the Commission is not admissible as evidence (the panel will not have the confidential information in question and will not take this version of the report into consideration when making its decision)
- the abridged version of the report disclosed to Astral on 7 June 2013 will remain on the record (this will be the version that the panel will take into consideration).
The Commission will decide the weight to attach to each piece of evidence, taking into account the totality of the circumstances and the complete record of the proceeding.
Original version signed by Bruce Miller on behalf of
John Traversy
Secretary General
c.c. C. Brault, CRTC, claude.brault@crtc.gc.ca
Laurence J.E. Dunbar, Fasken Martineau, ldunbar@fasken.com
Dany Meloul, Les Chaînes Télé Astral, dmeloul@astral.com
Natalie Dorval, Astral Media Inc., ndorval@astral.com
Robert Malcolmson, Goodmans LLP, rmalcolmson@goodmans.ca
Manon Brouillette, Vidéotron, manon.brouillette@videotron.com
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