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ARCHIVED - Broadcasting Procedural Letter Addressed to Geoffrey White (Counsel for the Public Interest Advocacy Centre)

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Ottawa, 22 March 2016

Geoffrey White
Counsel for the Public Interest Advocacy Centre
One Nicholas Street, Suite 1204
Ottawa, Ontario
K1N 7B7
gwhite@piac.ca

Re: 2015-0379-8 Part 1 application by the Public Interest Advocacy Centre against the “shomi” programming service

Dear Sir,

The Commission has examined the Part 1 Application filed 27 April 2015 by the Public Interest Advocacy Center (PIAC) and the comments submitted by other parties as part of this process.

In its application, PIAC submitted that Rogers Communications Inc. (Rogers) and Shaw Communications Inc. (Shaw) (the shomi partnership) were providing themselves an undue preference in the way that the shomi programming service was being offered. More specifically, PIAC argued that:

  1. By tying shomi access to the subscription of an affiliated internet service, Rogers, Shaw and the shomi partnership are conferring an undue preference on themselves, and unjustly discriminating against independent Internet service providers (ISPs) and their subscribers, in violation of subsection 27(2) of the Telecommunications Act;

  2. By tying shomi access to the subscription of an affiliated internet service or broadcasting distribution undertaking (BDU) service, Rogers, Shaw and the shomi partnership are conferring an undue preference on themselves, and unjustly discriminating against independent ISPs and BDU services and their subscribers in violation of section 3 of the Digital Media Exemption Order (DMEO); and

  3. By tying shomi access to the subscription of an affiliated internet service, Rogers, Shaw and the shomi partnership are violating the prohibition against exclusivity, as set out in section 5 of the DMEO.

In Broadcasting Regulatory Policy CRTC 2015-86, the Commission put in place a new regulatory framework to ensure and facilitate access by Canadians to programming, including original Canadian programming, on multiple platforms. This included new measures meant to ensure that video-on-demand (VOD) services are able to compete on an equitable regulatory footing with online video services. Consequently, in Broadcasting Regulatory Policy CRTC 2015-355 and Broadcasting Order CRTC 2015-356, the Commission revised the exemption order for certain classes of VOD undertakings to add a new hybrid VOD (HVOD) service category, along with the rules that apply to this category.

As such, the applicable regulatory framework has changed since PIAC has filed the complaint, with clear rules and policies with regard to the operations of VOD, digital media broadcasting undertaking and HVOD services. The Commission has therefore evaluated the parties’ compliance with the current regulatory framework.

The Commission notes that the shomi programming service was registered as an HVOD service on 20 August 2015. The evidence indicates that shomi is available to all Canadians over the Internet.  Moreover, shomi appears to be operating in compliance with all of the terms and conditions set out in the exemption order, as it applies to HVOD undertakings.  As a result, the Commission finds that shomi is complying with all current regulatory obligations.

Based on the record before the Commission, it would also appear that the shomi programming service has always been available to authenticated Rogers and Shaw subscribers, regardless of the Internet service provider used to access the service, as well as to any non-affiliated BDU that would contract for access to the service.

In light of the above, the Commission finds that the application filed by PIAC is now moot.  The Commission has accordingly closed the file.

Yours sincerely,

Original signed by Véronique Lehoux for

Danielle May-Cuconato
Secretary General

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