ARCHIVED - Broadcasting Procedural Letter Addressed to Evan Wynn Kosiner and Lenore Gibson (Bell Canada)

Ottawa, 20 August 2014

Evan Wynn Kosiner
Suite 23-031
550 Eglinton Ave. W.
Toronto, Ontario M5N 1B6
ewk@kosinervc.com

Lenore Gibson
Senior Counsel – Regulatory Affairs
Bell Canada
Floor 19
160 Elgin Street
Ottawa Ontario K2P 2C4
bell.regulatory@bell.ca

File number 2014-0334-4 - Complaint against Bell Canada related to the distribution of exempt programming undertakings

In a letter dated 14 April 2014, Mr. Evan Wynn Kosiner (Mr. Kosiner), the owner of the exempt programming undertaking “Teleshopping Channel”, complained that Bell Canada is in non-compliance with its obligations pursuant to section 19(5) of the Broadcasting Distribution Regulations (the Regulations). In particular, Mr. Kosiner alleges the following:

• Bell Canada distributes “The Shopping Channel” (TSC), an exempt programming undertaking related to Bell Canada;
• Bell Canada distributes two additional related exempt programming undertakings – “TSN Extra” and “iTV 198 Plus”;
• Bell Canada distributed no unrelated exempt programming undertakings; and
• Bell Canada has not provided “Teleshopping Channel” with its standing in relation to the “first come, first served” policy for exempt programming undertakings.

Mr. Kosiner is of the view that, based on the above, Bell Canada should be required to distribute the “Teleshopping Channel” on its distribution platforms, or if it is currently in compliance with section 19(5) of the Regulations, provide “Teleshopping Channel” in writing with its standing in relation to the “first come, first served” policy for exempt programming undertakings.

In a letter dated 23 May 2014, Bell Canada disputed Mr. Kosiner’s allegations for the following reasons:

• Bell Canada has no ownership stake in TSC and therefore that service does not meet the definition of a related programming undertaking pursuant to the Regulations;
• Bell Canada does not distribute any related programming undertakings; and
• The “first come, first served” policy is moot given that Bell Canada is prepared to carry the “Teleshopping Channel”.

In order to address the complaint, the Commission has identified the following issues that are further discussed below:

1. Compliance with section 19(5) of the Regulations; and
2. Compliance with the “first come, first served” policy for exempt programming undertakings.

1. Compliance with section 19(5) of the Regulations

Section 19(5) of the Regulations states that a licensee that distributes one or more programming services of related exempt programming undertakings in a licensed area shall also distribute an equal number of programming services of unrelated exempt programming undertakings in the licensed area.

Section 19(1) of the Regulations defines “unrelated exempt programming undertaking” as an exempt programming undertaking of which the licensee or an affiliate, or both, control 10% or less.

Bell Canada confirmed that it distributes TSC on both its Bell TV and Bell Fibe^{Footnote 1} broadcasting distribution undertakings (BDU). Based on the record of this proceeding and on publicly available information, there is no evidence that Bell Canada has any ownership stake in TSC. Therefore, for purposes of section 19(5) of the Regulations, TSC is an exempt programming undertaking unrelated to Bell Canada.

In its intervention, Bell Canada indicated that Bell Fibe never distributed “iTV 198 Plus” and that Bell TV ceased distributing the service on 18 August 2011. There is no evidence that either of Bell Canada’s BDUs currently distributes “iTV 198 Plus”.

Bell Canada disputed whether TSN Xtra is a related exempt programming undertaking for the purposes of section 19(5) of the Regulations. It noted that most of the content of TSN is alphanumeric and therefore is not broadcasting under the Broadcasting Act. To the extent that TSN Xtra broadcasts video it submits it does so under the Digital Media Exemption Order, which is not the type of exempt programming undertaking contemplated by section 19(5) of the Regulations.

The Commission considers that it is unnecessary to address the status of TSN Xtra in order to dispose of this complaint. Even if the Commission were to find that “TSN Extra” were a related exempt programming undertaking, because Bell Canada currently distributes the unrelated exempt programming undertaking TSC, Bell Canada’s BDUs would be in compliance with section 19(5) of the Regulations.

2. Compliance with the “first come, first served” policy for exempt programming undertakings.

The “first come, first served” policy for the distribution of services of exempt programming undertakings set out in Broadcasting Public Notice 2000-72 sets out that a broadcasting distribution undertaking (BDU) must advise the operator of the exempt undertaking, in writing, as to the place that its service holds in line for distribution on a "first come, first served" basis.

According to Bell Canada, it had offered Mr. Kosiner, in mid-February 2014, a distribution agreement that was subsequently rejected by Mr. Kosiner. Because Bell Canada is offering to distribute the “Teleshopping Channel”, it was of the view that providing a standing regarding the “first come, first served” was unnecessary. Bell Canada confirmed, however, in its 23 May 2014 reply, that “Teleshopping Channel” was first in line if and when it becomes necessary for Fibe TV to carry another unrelated exempt programming service.

The Commission finds, therefore, that Bell Canada is in compliance with the “first come, first served” policy for exempt programming undertakings.

Conclusion

Based on the above, the Commission dismisses the complaint.

Sincerely,

Original signed by

John Traversy
Secretary General

Date modified:

2014-08-20