ARCHIVED - Broadcasting Conduct Letter addressed to Stingray Group Inc. and Rogers Communications Canada Inc.

Ottawa, 9 July 2019

Application number: 2019-0431-8

By email

Stéphanie Hudon
Director, Regulatory Affairs
Stingray Group Inc.
shudon@stingray.com

Pam Dinsmore
Vice President, Regulatory Cable
Rogers Communications Canada Inc.
Pam.Dinsmore@rci.rogers.com  

Re: Request for final offer arbitration (2019-0431-8) with respect to Stingray Music

Dear Ms. Hudon and Ms. Dinsmore:

Pursuant to sections 12 to 15 of the Broadcasting Distribution Regulations, sections 14 and 15 of the Discretionary Services Regulations,and Broadcasting and Telecom Information Bulletin CRTC 2019-184 (Information Bulletin 2019-184), this letter is to advise the parties that the Commission accepts the request by Stingray Group Inc. (Stingray) for final offer arbitration (FOA) with Rogers Communications Canada Inc. (Rogers).

This letter sets out the matter upon which the Commission will make a determination, the dates upon which the FOA process is to be conducted, and the procedure to be followed.

The Commission strives to release FOA decisions as expeditiously as possible. However, any procedural issues that arise may result in delays to the applicable timelines (see details in the attached Procedural Appendix).

The application

On 22 May 2019 the Commission received a request for FOA from Stingray, pursuant to section 12 to 15 of the Broadcasting Distribution Regulations, relating to a commercial dispute with Rogers regarding distribution of the Stingray Music Pay Audio service. Stingray stated that this case meets all of the criteria for FOA:

• the dispute concerns monetary issues only;
• the dispute is bilateral;
• the parties have been unable to resolve the dispute by alternative methods,
• the dispute is relevant to the regulation and supervision of the Canadian broadcasting system; and
• the resolution of the dispute does not require a new policy or change to an existing policy.

On 27 May, Rogers responded to Stingray’s FOA application, stating that it supported FOA, but only if the scope is narrower and the duration of the prospective agreement is shorter than suggested by Stingray, and proposed an alternative rate structure.

Following scoping discussions with Commission staff, including a teleconference on 31 May, the parties exchanged further proposals, which culminated in the parties’ 17 June submissions.

Commission Decisions

Upon review of the current record, the Commission considers that FOA is an appropriate method of dispute resolution in this case, as the dispute is exclusively monetary, involves only two parties, and otherwise meets the criteria for dispute resolution set out in paragraph 4 of Information Bulletin 2019-184. Accordingly, the Commission accepts Stingray’s FOA application.

In accordance with paragraph 22 of Information Bulletin 2019-184, the matter upon which the Commission will make a determination is as follows:

Establishing the wholesale rates for distribution of the Stingray Music pay audio service by Rogers.

The Commission hereby notifies the parties that other matters relating to the distribution of Stingray Music by Rogers will not be considered in this proceeding and are left to negotiation between the parties, including with the assistance of Commission staff.

Accordingly, in the final offers they will submit, the parties must propose offers consistent with the Commission’s above noted characterization of the matter at dispute. A confidential template to this effect has been provided to the parties. The Commission will examine the final offers submitted by the parties and will select one in its entirety^Footnote1 . The Commission’s decision will be binding on the parties.

Documents to be provided

The Commission requires that the parties each file their final offers with the Commission by 24 July. A confidential template in Excel format has been provided to facilitate the parties’ submissions. Please refer to the attached Procedural Appendix for the procedure to be followed in the filing of documents, in addition to Information Bulletin 2019-184.

When preparing your arguments, please refer, where applicable, to the criteria for fair market value set out in the Wholesale Code, Broadcasting Regulatory Policy CRTC 2015-438. As noted in the Interpretation of the Wholesale Code, Broadcasting Information Bulletin CRTC 2015-440, the Commission will determine which fair market value factors are applicable in a given case and assess proposed rates or final offers in relation to those factors. In addition, the Commission will apply, where appropriate, a public interest test that examines whether the proposed wholesale rates are consistent with the relevant public policy objectives.

To complete the record, Rogers must also provide additional information as set out below by 24 July. A confidential template in Excel format has been provided to facilitate the transmission of that information when applicable:

1. the latest affiliation agreement between Rogers and Stingray for the distribution of Stingray Music and any applicable amendment (or whatever term sheet that may apply);
2. the wholesale rates paid by Rogers for Stingray Music when offered in preassembled and/or build-your-own package (as the case may be);
3. the wholesale rates paid by Rogers for other comparable services (Canadian and foreign) in preassembled and/or build-your-own package (as the case may be), as well as the corresponding affiliation agreements and any applicable amendments (or whatever term sheets that may apply);
4. the average monthly number of subscribers to Stingray Music, in preassembled and/or build-your-own package (as the case may be);
5. the average monthly number of subscribers to each comparable service (Canadian and foreign) distributed by Rogers;
6. the retail rate for packages offered by Rogers that include Stingray Music;
7. Rogers subscribers’ viewership to Stingray Music (e.g., set top box data, average minute audience, total number of hours watched); and
8. Rogers subscribers’ viewership to all other comparable services offered by Rogers (e.g., set top box data, average minute audience, total number of hours watched), if available.

To complete the record, Stingray must also provide additional information as set out below by 24 July. A confidential template in Excel format has been provided to facilitate the transmission of that information when applicable:

1. Affiliation agreements in effect between Stingray and other BDUs in the Canadian market for the distribution of Stingray Music;
2. For each BDU (other than Rogers) that distributes Stingray Music:
   1. wholesale rates broken down by distribution in a preassembled and/or build-your-own package (as the case may be),
   2. number of subscribers and actual penetration levels, and
   3. applicable volume discount;
3. Data on the tuning or viewership to Stingray Music, including
   1. average minute audience (AMA), and
   2. total number of hours watched, by month;
4. Total payments received by Stingray from each BDU (including Rogers) that distributes Stingray Music.

By 29 July, once Commission staff has confirmed that the offers respond to the identified scope of the proceeding, Commission staff will forward to each party a copy of the other party’s offer.

The parties will have until 5 August to file comments on the other party’s final offer with the Commission, and to serve a copy of those comments on the other party.  However, neither party will be authorized to amend its offer.

Any documents filed with the Commission should be filed via the secure service “My CRTC Account” (GCKey or Partner Log In) using the “Broadcasting Online Form and Cover Page” on that same webpage and quoting the application number noted above.

A copy of this letter will be added to the public record.

Responsibilities of the parties

The parties may contact Matt Tošaj at 819-953-6719 or at Matthew.Tosaj@crtc.gc.ca if they require additional information regarding the organization and conduct of the final offer proceeding.

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 via “My CRTC Account”, the parties must send copies of all the documents in question to Matthew.Tosaj@crtc.gc.ca.

Yours sincerely,

Claude Doucet
Secretary General

Procedural Appendix

Information Bulletin 2019-184 sets out the practices and procedures to be followed in FOA (par. 17-33), as well as matters relating to the filing of documents and confidentiality (par. 58-64). Parties should be aware that any deviation from the final offer arbitration process may result in delays to the applicable timelines.

Filing of documents

Parties must follow the following naming convention in filing documents via GC key:

• Application number – FOA – Filing party – Document name – Document version – Filing date (yyyy-mm-dd)

In the confidential CRTC version, parties are to highlight text that is designated confidential towards the other party in green, and confidential towards the public in yellow.

Confidentiality

In accordance with paragraph 59 of Information Bulletin CRTC 2019-184, existing Commission confidentiality rules and practices will apply throughout the FOA proceedings.  The applicable rules and practices are set out in the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (the Rules) and described in Broadcasting and Telecom Information Bulletin 2010-961

Section 31(1) of the Rules provides that in broadcasting matters, a party may designate information related to the following as confidential:

1. information that is a trade secret;
2. financial, commercial, scientific or technical information that is confidential and that is treated consistently in a confidential manner by the person who submitted it; or
3. information the disclosure of which could reasonably be expected
   1. to result in material financial loss or gain to any person;
   2. to prejudice the competitive position of any person; or
   3. to affect contractual or other negotiations of any person.

Section 31(2) of the Rules provides that the party must make the designation at the time that they file the document that contains the information. Moreover, the party that designates information as confidential must provide reasons, as well as any supporting documents, why the disclosure of the information would not be in the public interest, including why the specific direct harm that would be likely to result from the disclosure would outweigh the public interest.

[These sections are only an excerpt of the applicable Rules.]

Date modified:

2019-07-09