ARCHIVED -  Transcript of Proceeding

TRANSCRIPT OF PROCEEDINGS BEFORE

THE CANADIAN RADIO-TELEVISION AND

TELECOMMUNICATIONS COMMISSION

SUBJECT:

Expedited procedure for resolving a consumer

and competitive issues /

HELD AT:

Réal Therrien Room

1 Promenade du Portage

Gatineau, Quebec

April 24, 2009

Transcripts

In order to meet the requirements of the Official Languages

Act, transcripts of proceedings before the Commission will be

bilingual as to their covers, the listing of the CRTC members

and staff attending the public hearings, and the Table of

Contents.

However, the aforementioned publication is the recorded

verbatim transcript and, as such, is taped and transcribed in

either of the official languages, depending on the language

spoken by the participant at the public hearing.

Canadian Radio-television and

Telecommunications Commission

Transcript

Expedited procedure for resolving a consumer

and competitive issues /

BEFORE:

Elizabeth Duncan   Chairperson

Suzanne Lamarre   Commissioner

Timothy Denton   Commissioner

ALSO PRESENT:

Sheila Perron   Secretary

Jean-Sébastien Gagnon   Legal Counsel

Gerry Lylyk   Director, Dispute Resolution

Kathleen Taylor   Manager, Dispute Resolution

Mark Gromoll   Senior Analyst

HELD AT:

Réal Therrien Room

1 Promenade du Portage

Gatineau, Quebec

April 24, 2009

- iv -

TABLE OF CONTENTS

   PAGE / PARA

Opening remarks on behalf of CCSA   4 / 23

Opening remarks on behalf of Rogers   9 / 50

Closing remarks on behalf of Rogers   52 / 301

Closing remarks on behalf of CCSA   55 / 317

   Gatineau, Quebec

--- Upon commencing on Friday, April 24, 2009 at 0915

1   THE CHAIRPERSON: Good morning, ladies and gentlemen and welcome to the CRTC this morning.

2   I am Commissioner Elizabeth Duncan and I will be chairing today's hearing. I am joined on the Panel today by my colleagues Suzanne Lamarre and Tim Denton.

3   I would also like to introduce the CRTC staff will be assisting the Panel today. At the table we have Jean-Sébastien Gagnon, our legal counsel; Gerry Lylyk, Director of Dispute Resolution; Kathleen Taylor, Manager of Dispute Resolution; Mark Gromoll, Senior Analyst of Competitive Dispute.

4   During the course of the hearing please discuss any administrative procedural matters with Sheila Perron, the Hearing Secretary behind me to my right.

5   As you know, the Commission has decided to hold this expedited hearing with a view to making determinations on the request for dispute resolution that was submitted by CCSA on February 26th of 2009.

6   The Panel notes that some of the issues to be discussed are commercially sensitive. As such, the Panel has decided to conduct a two-part hearing which will include an in camera session not accessible to the public.

7   I will now ask the Commission's counsel, Jean-Sébastien Gagnon, to outline a few key points.

8   MR. GAGNON: Thank you, Madam Chair.

9   Before we begin I would to say a few words about the administration of this hearing.

10   As noted by the Chair, the Panel has decided to conduct this hearing in two parts. Yesterday both parties were sent a copy of the revised Agenda that we will be following today.

11   The first part will deal exclusively with whether the Commission can and/or should separate terms and conditions. We would like to hear arguments from both parties on these two points.

12   The second part of the hearing will be held in camera. The Panel wishes to hear arguments from both sides on what these rates, terms and conditions should be and for what period of time any rate, term and condition should be in force.

13   As mentioned earlier, these are commercially sensitive issues and the Commission has granted confidentiality on a large portion of the record in this proceeding.

14   The Commission will not entertain written final arguments. Rather, parties will have five minutes at the end of each session, following a short recess, to make their file submissions.

15   During the course of the hearing we may ask parties to provide additional information following the hearing. These undertakings will have to be filed with the Commission and served to the other party no later than by 1 May 2009.

16   Parties are free to speak in the language of their choice. English and French translation services are being provided during the course of the proceeding. Headsets are available at the back of the room for this purpose.

17   Please note that there is also a live audio streaming of the proceeding over the Internet in both languages. The audio streaming will be suspended during any in camera portions of this proceeding.

18   Le sténographe judiciaire préparera un compte-rendu textuel de l'audience. Pour que le sténographe puisse produire un compte-rendu exact, assurez-vous que votre microphone est ouvert lorsque vous parlez. Pour savoir comment obtenir une partie ou la totalité de ce compte-rendu, veuillez vous informer auprès du sténographe.

19   Nous vous prions de vous assurer que vos téléphones cellulaires et vos téléavertisseurs sont désactivés en tout temps lorsque vous êtes dans la salle d'audience.

20   We will now begin with opening remarks by the Canadian Cable Systems Alliance which will have five minutes to make its presentation.

21   Before beginning your remarks, I will ask that you introduce the members of your team.

22   Thank you.

OPENING REMARKS

23   MS TOWNSEND: Thank you very much.

24   First, to my far right, this is Jim Deane. Jim is the President and CEO of ACCESS Communications in Saskatchewan; immediately to my right is Jennifer Salmon and she is the Director of Programming at CCSA -- Director of Programming Contracts; and I am Alyson Townsend, I am President and CEO of CCSA.

25   CCSA has requested the Commission to assist in resolving this dispute. It is a commercial dispute.

26   We have asked initially for final offer arbitration. The Commission decided that the proceeding should be done by way of expedited hearing.

27   Regardless of its form, the essence of the process is the same, the Commission is to act as an expert arbitrator under its own dispute resolution rules to solve a commercial dispute between two parties.

28   The Commission is not being asked in this process to set a regulated rate, its role is to make a determination only binding on the parties on the specific facts of the case before it.

29   The issues in dispute are purely commercial and do not require any change to the existing policies of the CRTC. This dispute can be resolved in its entirety by a CRTC decision as to the fair and equitable wholesale rate and terms for distribution of Sportsnet services.

30   The threshold question is: Can the Commission decide rates and commercial terms in this matter?

31   Section 10(1) of the Broadcasting Act authorizes the Commission to make regulations "for resolving disputes between programming undertakings and distribution undertakings". (As read)

32   And section 12 of the regulations allows for dispute resolution between licensees concerning carriage and terms of carriage, including the wholesale rate.

33   The Commission has in fact made regulations under section 12 to 15 of the BDU regulations whereby it may accept referral of disputes between distribution undertakings and programmers and adjudicate upon those disputes.

34   In CRTC 2008-100, the Commission recognized:

"... its responsibility in resolving disputes that arise between BDUs and programming undertakings, where those disputes are relevant to the regulation and supervision of the Canadian broadcasting system."

35   The Act and the Regulations couldn't really be more clear in the creation of authority and in fact responsibility on the Commission's part to hear and decide commercial issues regarding rates in commercial disputes referred to pursuant to the Regulations. There is no doubt whatsoever that the Commission can, as a matter of express law, set rates in this matter.

36   Should the Commission decide rates and terms in this matter, CRTC dispute resolution is not our preferred method of resolving distribution issues, but we have run out of alternatives.

37   At every juncture we have tried to introduce ideas for settlement, however, this matter has come before you because there is a serious imbalance in the power between Sportsnet and CCSA.

38   Sportsnet's consistent response to our offers have been that we must agree to the terms of the proposed. In the event we did not, we were advised the signals would be cut off and in fact that is what happened.

39   Even if all CCSA members dropped Sportsnet's signals today, Sportsnet's business would not be seriously impaired.

40   On the other hand, with its power to deny access to signals, Sportsnet could easily and very quickly ruin even the largest member of CCSA.

41   In its April 2 submission, Sportsnet makes a great deal of the Commission's statement in the Broadcasting Distribution Notice PN-2008-100 that industry solutions are preferred to regulatory intervention, especially, it argues, in fact of the changes in the industry which are forthcoming.

42   Sportsnet failed to mention that in the same PN the Commission describes exactly the situation which is before it now when it says:

"Through this transitional period the regulatory framework must not allow any one sector to exercise unreasonable power over the services available to subscribers." (As read)

43   Matters come before you precisely because of such an imbalance of power. That same imbalance is the reason why the Commission should decide upon equitable rates and commercial terms in this matter.

44   Quite simply, commercial negotiation was not possible in this case due to the imbalance of power between the parties and the Commission's assistance as an arbitrator is necessary. Without that assistance there is substantial risk that small and rural Canadians will lose the Sportsnet service and that others will pay an unfair price to receive it.

45   The Commission's determination of rates and commercial terms in this matter is consistent with its express statutory authority. The Commission's determination of rates in commercial terms in this matter is consistent with and necessary to the Commission's discharge of its mandate under the Act to supervise all aspects of the broadcasting system.

46   Thank you.

47   THE CHAIRPERSON: Thank you very much, Ms Townsend.

48   We will now turn to the Rogers panel.

49   Mr. Viner...?

OPENING REMARKS

50   MR. VINER: Good morning, ladies and gentlemen. My name is Tony Viner and I am the President and CEO of Rogers Media.

51   I am pleased to be accompanied today by my colleague, Susan Wheeler, Vice President of Regulatory Affairs; and Aivy Reinfelds, Vice President Television Development and Distribution; our legal counsel is Sheridan Scott.

52   Madam Chair, we are here to discuss two matters.

53   The first, raising policy and legal questions that may well have implications for parties beyond Sportsnet and the CCSA.

54   The second relates to the rates for our services, a highly confidential matter that would normally be the subject of private commercial negotiations.

55   These two matters are of course related, since it is our contention that for policy and legal reasons the Commission should not become involved in the setting of rates for the Sportsnet service.

56   For some time now the CRTC has been sending clear messages that it intends to become much more targeted in its regulation of broadcasting, relying, where it can, on the normal operations of the marketplace where Canadians can choose which services they value the most.

57   In the case of specialty services, the Commission has taken several farsighted moves in recent years. In 2000 it licensed over 250 Category 2 digital services in a bid to move towards what in its words would be a more opened entry competitive framework that encourages greater risk-taking and allows the success of services to be increasingly determined by customers.

58   Just last year it took a similar forward-looking step by declaring that it would move quickly to introduce competition between services operating in the genres of mainstream sports and mainstream national news.

59   Sportsnet, The Sports Network TSN and Le Réseau des Sports (RDS) were all identified as falling within the genre of mainstream sports services.

60   We agree with this approach. We believe that introducing more competition in the provision of programming services will have benefits for Canadians in the form of consumer choice and improved Canadian programming and we believe it is relevant to today's hearing and specifically why we do not believe that the CRTC should intervene in this matter.

61   If you want to encourage competition, with all the benefits that it can bring, you should show the utmost restraint in intervening in the marketplace.

62   Regulatory intervention sends the wrong signal to all participants. And we say this knowing that this approach entails risks for Sportsnet. Just as there is no guaranteed access for competitive Category 2 services, we will no longer have the comfort of knowing that we have a legally enforceable right to access the largest distribution systems in order to reach all of our potential customers. But we believe that greater risk-taking is clearly part of the competitive equation which also allows the success of services to be increasingly determined by customers.

63   If the CRTC steps in to set rates, this is tantamount to saying there is a guaranteed right to access at that rate and a mandatory obligation to provide the service, and yet there is no guaranteed access for Category 2 services under the legal framework that the Commission has established or for other specialty services with respect to systems other than Class 1s. There is no guaranteed access for HD services without minimum programming commitments, nor will there be for the competitive mainstream sports services that I referred to earlier.

64   Where programming services have no guaranteed access to a distribution system, symmetrical treatment suggests that there is no obligation to provide this service. Certainly this would be in keeping with Commission's new legal framework for specialty services which creates an obligation for them to provide their service only in the course of a dispute.

65   Madam Chair, let me assure you that going forward we have every intention of complying with this obligation, even before it has the force of law, and have taken steps to restore all of our signals to CCSA members. However, if we can't find a resolution to the dispute, we see no obligation to provide our service where there is no obligation for a BDU to provide us with access.

66   Of course we want our programming to be viewed by the largest possible number of viewers, but not at any cost. We believe that this symmetrical treatment of rights and obligations will encourage the risk-taking and competition for viewers that the Commission has identified as its goal for a number of specialty services.

67   In closing, let me be clear about one thing, there may very well be some situations that warrant CRTC intervention, even in the absence of a guaranteed right to access, for example, where there is evidence of unjust discrimination or high-handed or abusive behaviour.

68   This is not one of those cases. Sportsnet has already reached agreements with systems representing more than 70 percent of its subscribers, including smaller non-vertically integrated systems and systems that compete directly with the CCSA members.

69   Regulating rates for some competitors and not for others undermines the Commission's policies in favour of a competitive distribution environment. It will simply encourage all participants to come forward, demanding the same regulated deal.

70   The financial implications are huge, and the messages are all wrong.

71   Thank you, Madam Chair. We would be pleased to respond to any of your questions.

72   THE CHAIRPERSON: Thank you, Mr. Viner. We are going to start this morning with Commissioner Lamarre.

73   COMMISSIONER LAMARRE: Thank you, Madam Chair.

74   First I will put questions to the CCSA, and then Rogers.

75   Please bear with me, I am not as eloquent in English as I am in French. In French I can't stop talking; in English, you are going to see that sometimes I do hesitate.

76   I want to touch on the question that you raised about imbalance of power, or economic imbalance, however you choose to qualify it, and you underlined it again in your presentation this morning. You made the statement that there is a serious imbalance, and then you substantiated it a little bit by saying that the terms could not be accepted.

77   Then, on page 2 there is one paragraph where you say that, even if all CCSA members dropped Sportsnet signals today, the Sportsnet business would not be seriously impaired.

78   Okay, I understand this statement. I am not saying that I agree with it, I am saying that I understand it.

"On the other hand, with its power to deny access to signals, Sportsnet can easily and very quickly ruin even the larger independent cable companies in our membership."

79   On what data, on what facts do you base that statement?

80   MS TOWNSEND: I will just give you an overall point of view as to why we said that, and then maybe I will turn it over to Mr. Deane, who actually experienced a loss of the Sportsnet signal and can give you more of an operator's point of view.

81   Essentially, really, everybody has to carry the two sports services. Every operator is aware of that. There is no customer who is as avid a customer as a sports services customer.

82   Cable companies -- our members -- simply have to carry that service. There is no choice.

83   Access commitment aside -- the access commitment is essentially going away, because the market is demanding that this service be there, so our members have no choice but to provide it.

84   Mr. Deane, as I say, did experience the loss -- the partial loss of the signals. He lost the regional signals and the HD signal for a while. Maybe he could tell you operationally --

85   COMMISSIONER LAMARRE: Before you get to that -- I understand that Mr. Deane can bring one particular experience to the table, but you are making the statements here as relating to all of your membership. So what I am wondering is if you have any information as to what extent carrying Sportsnet supports the profits or the business plan of your members.

86   MS TOWNSEND: I think the only way that we could provide information like that would be for our members to cease carrying the service, which no one of our members would risk, unless they were required to do so.

87   COMMISSIONER LAMARRE: I understand that, but Sportsnet has not always existed. There was a time before Sportsnet, and now there is an era with Sportsnet, and we are hoping -- I guess you are hoping that there is not going to be any "after Sportsnet".

88   Do your members have any indication as to how the existence of Sportsnet actually increases their business?

89   MR. DEAN: Good morning. I would probably phrase it a little differently. I don't think that Sportsnet has increased our business, it is a competitive response to other competitors in our market.

90   We are in a highly competitive market in Saskatchewan. We are competing with a phone company and the national satellite providers, as well. So I am not sure that I would characterize it as Sportsnet having enhanced our business.

91   I can tell you, having lost the regional services and the high-definition service throughout Saskatchewan, that we were at risk of losing customers to our competitors.

92   In fact, we did lose some.

93   COMMISSIONER LAMARRE: So, basically, when you talk about losing Sportsnet being a disadvantage, you mean it in relation to the fact that other competitors would be offering the service that you would not be offering.

94   Is that it, Ms Townsend?

95   MS TOWNSEND: Yes, that's correct.

96   Did you want to say something, Jennifer?

97   MS SALMON: I think, just to highlight the issue, Sportsnet will buy rights for specific programming, and that programming will only be on Sportsnet. So if you are watching hockey games and Sportsnet bought the right to the hockey games, if ACCESS or any one of our members is unable to carry that hockey game because Sportsnet will not allow them to access the service, or they just don't carry it because they can't afford it, the customer who wants to watch the hockey game will go and buy a satellite dish to receive the service.

98   COMMISSIONER LAMARRE: Thank you.

99   Mr. Viner and Ms Wheeler, you have made the exact opposite statement, saying that there is no power imbalance between CCSA members and Sportsnet, and you have heard the more detailed position from the CCSA.

100   In your presentation, and in your brief, I did not see any specific explanation as to why you feel that there is no power imbalance, or there is no economic imbalance.

101   Could you, maybe, detail that for me a little bit, or direct me to where I should be finding this if I overlooked it?

102   MR. VINER: Ms Wheeler may wish to elaborate on this, but I think the issue for us is that we were able to reach agreements with broadcast distribution undertakings, both larger and smaller than the CCSA, and with their competitors, many of whom are in the comparator group that we identified to both CCSA and the Commission. We have negotiated -- went into boardrooms and rolled up our sleeves and entered into tough negotiations, and we arrived at what we felt was a fair and reasonable amount of money for the value of the service.

103   So we are here not just representing the Sportsnet interests, but also the interests of the people with whom we have already negotiated and made those commercial agreements, and it is important for us that we be able to sustain them.

104   I think the issue that we might be available to consumers on different competitive distribution platforms is a reasonable one. However, we have reached agreements with BDUs, as I say, who are competitors with the CCSA, and who are both larger and smaller, and these rates have been commercially validated in the marketplace.

105   Susan, I don't know if there is anything you want to add.

106   MS WHEELER: I would just add that, in our response to the CCSA's original request for Final Offer Arbitration, we did address the issue of the inequality of bargaining power, or the imbalance of power. That would have been a letter dated March 4th.

107   Essentially, we made the arguments that Mr. Viner just spoke to, in the sense that we have been able to successfully negotiate agreements with both larger and smaller, and if there was an imbalance of power, certainly we would have experienced that, as well, in terms of -- we have been able to negotiate agreements with much larger BDUs, who are in a much stronger bargaining position than we are as a programming service.

108   So the fact that -- the rules of the marketplace would dictate that they are going to get the best rate, because they are in a position to get the best rate.

109   And we have offered this rate to all of the distribution partners. We have provided some comparator companies to you. Some of them are much smaller than the CCSA and have not, necessarily, raised issues of imbalance of power, which might be more obvious than perhaps some of the systems within the CCSA membership.

110   COMMISSIONER LAMARRE: Okay. So the bulk of your argument, if I understand it correctly, is, since you have been able to do it with other parties, that should be enough to demonstrate that there is no imbalance of power.

111   You don't have any, I would say, principle arguments -- objective principle arguments not relating to other agreements that you have reached to support your statement that there is no imbalance of power between yourself and CCSA members.

112   MR. VINER: Commissioner Lamarre, the only thing I would say on that area of disagreement is that I do think we have an objective evaluation, and that objective is the marketplace. It has been an objective evaluation of whether or not the value that we are offering has been fairly priced.

113   We think that is the objective measure.

114   COMMISSIONER LAMARRE: Thank you for leading me to the marketplace, because that is my next question.

115   I am not trying to get an answer as far as the discussion on rates, I really want to talk about the principles as to why we should be looking into this, or not.

116   In order to do that, I am going to refer back to your presentation, because, I must say, it did help to focus on the issues that you put in your brief.

117   You finished your presentation by saying that CRTC's intervention could be warranted where there is evidence of unjust discrimination or high-handed or abusive power, and we can relate that to the situation of undue preferences, which is actually referenced in both the regulation for BDUs and the regulation for specialty services.

118   That being said, you still insist that you see no obligation to provide your service where there is no obligation for a BDU to provide access.

119   What about customers? What about citizens? What about the objectives of the Act?

120   I understand that you are referring to the policy, and our policy is market driven, but that policy does not erase the objectives of the Act -- and I am sure that I don't have to read to you all of those objectives. You know exactly what they are, as far as accessibility is concerned for all Canadian citizens.

121   How do we reconcile that, if we are faced with the situation where, on the one hand, you have a service that is available only on one platform, hence there is no competition between different providers, with the fact that you want to provide access for all Canadians?

122   MR. VINER: It is my view that the Commission has foreseen this by introducing competition among distribution undertakings. So consumers, who are important to us, and customers, have the ability to get Sportsnet. They can decide whether or not they want to get Sportsnet.

123   Listen, the people at the CCSA are smart, capable business people. They are capable of making business determinations about the value of services. And we may disagree.

124   As I said in my remarks, we don't want to lose distribution. All we are asking here is that you let the business people -- the smart business people at the CCSA make the business determination of whether or not they want to carry the service. The service is available.

125   Ms Townsend remarked that the issue was that people would leave the CCSA members and go to the competitive distribution undertakings.

126   We believe that when the Commission introduced this notion of competition, they did so because they knew that there were a number of ways in which our signal might be received.

127   It is our view that we do keep the customers in mind, that our signal will be available to the customers, and that the customers will make the final choice. If that final choice is that they elect to subscribe to a different service, another Canadian licensed distribution undertaking, because, for whatever reason, they value our service higher than others, then the objectives of the Act have been met.

128   So there are alternatives for the consumer.

129   COMMISSIONER LAMARRE: Okay. Going back to what you said about the marketplace, you were mentioning that it is your position that the Commission is forcing the situation. But, at the same time, the Commission has, throughout the Act, throughout the different regulations, has safety nets for dispute resolution. And currently, you are already in a commercial relationship with CCSA members. So it is not as if CCSA was a new business partner for you.

130   So would it be then more correct to refer to an undertaking like today, a process like today, as an attempt to set an arbitrated rate instead of a regulated rate?

131   MS WHEELER: Madam Commissioner, in terms of your reference to the fact that we are currently in a commercial arrangement with the CCSA, that is precisely the difficulty in this whole situation, is that we don't have a contract with the CCSA.

132   COMMISSIONER LAMARRE: Because the former contract expired?

133   MS WHEELER: Right.

134   COMMISSIONER LAMARRE: But you did have a contract in the first place?

135   MS WHEELER: We did have a contract in the first place.

136   COMMISSIONER LAMARRE: In the place. And the reason why there is no contract today is because you could not agree on the terms of the next contract. Hence my question, would it be more appropriate to refer to the fact that the proceeding in question here today would be to attempt to come to an arbitrated rate and not a regulated rate?

137   MS WHEELER: And I guess the arbitrated rate if it is set by the Commission, in our view, is essentially a regulated rate. And we question whether, in fairness, that is really fair to our distribution partners that we have already reached commercial terms with.

138   So I think that is something that the Commission should take into consideration before intervening, because then it certainly, you know, as we referenced in our opening remarks, sends a message to parties, be they programmers or distribution undertakings.

139   This could equally apply to programmers who don't currently have access rights who are trying to negotiate with a distribution undertaking to, you know, get launched by their service and fail to reach their commercial agreement of that nature and they can trigger a dispute resolution process whereby they are asking you to mandate the distribution undertaking to carry the service.

140   COMMISSIONER LAMARRE: I am glad you lead me to that question, because I really don't understand how you can how you can make that jump. I don't understand how you can make the jump.

141   To me, there is no logic in no way, shape or form between the fact that we would be trying to resolve a commercial dispute between two parties, one of them being a programming provider that already had in the first place, even though it has expired, already had in the first place an agreement with distributors and then -- I just don't understand how this could bring anybody to think that by doing that we would be opening the door to imposing on distributors the distribution of category programming. I just don't see that.

142   MS WHEELER: Well, I can tell you that currently Sportsnet had commercial arrangements with some distribution undertakings who aren't obligated to carry our service. We have gone to them and asked whether they are interested in a new contract, a new rate card with us. They have said, "no" and we feel that we have no obligation.

143   Francophone systems have no requirement to carry us. We know that there are certain large francophone distributors who no longer want to carry the Sportsnet service. We don't feel that we have the recourse to come to the recourse to come to the Commission and make them carry our service.

144   COMMISSIONER LAMARRE: So we agree?

145   MS WHEELER: So we would see that the flip of that would also have to hold true then. Because we --

146   COMMISSIONER LAMARRE: I don't see --

147   MS WHEELER: -- the commercial arrangement as you suggested earlier, similar situation, we had a commercial arrangement, the agreement has expired, we have failed to negotiate a new agreement and they have said, we are not interested in carrying your service anymore.

148   COMMISSIONER LAMARRE: But, to me, it is just that it is not the flip of the same coin, it is a different coin.

149   MS WHEELER: But if I could just go back to the imbalance of power issue. I just reviewed our March 4 letter. The other, I guess, objective principle that you might be able to point to is the fact that we are now or soon will be in direct competition with other sports services.

150   So there is definitely a commercial imperative out there to reach negotiation or reach an agreement with other services, because we could find ourselves in a situation where other sports services are carried by CCSA members where Sportsnet is not, and that certainly would be a huge competitive disadvantage to Sportsnet.

151   COMMISSIONER LAMARRE: Well, thank you for pointing that out.

152   Those are my questions, Madam Chair.

153   THE CHAIRPERSON: Commissioner Denton.

154   COMMISSIONER DENTON: Yes, the proposition which engages my attention in this is that here we have a dispute resolution procedure of the CRTC which is laid out in its legislation and regulations in some detail and which appears to be rather expansive.

155   So I am trying to understand the proposition that Rogers is putting forward because it intrigues me. Are you saying -- and my uncertainty is not feigned, I would really like to hear it clear in my mind from you people -- are you saying that though we might have powers of dispute resolution, that if we engaged in them in this kind of dispute that we would open the door to undermining a bunch of other policy thrusts that we have made?

156   Is that what you were proposing?

157   MR. VINER: Perfectly well said. That is exactly it. The wide-ranging implications, why would any BDU sign with us or negotiate commercial terms if the alternative existed for them to go and get a better deal at the CRTC?

158   But that is exactly it, we understand what your powers are, but we think that you should not intervene in this case for that reason.

159   COMMISSIONER DENTON: I got it.

160   And CCSA, what do you say to that proposition?

161   MS SALMON: That we don't want to be here either. But the fact of the matter is, we were unable to come to an agreement. We have tried, we have tried over the last year. And the thing that actually brought us here, there was no turning back after signals were cut off when we could not reach an agreement.

162   COMMISSIONER DUNCAN: So what do you think of the proposition, that if we settle this case, we will be up for every cable, BDU programming dispute of whatever nature that anyone might wish to call?

163   MS SALMON: I think --

164   COMMISSIONER DENTON: For example, this instance cited by Rogers, Rogers says, you know, some people have chosen not to carry Sportsnet. And they just say, that is our tough luck. What answer would you give to that?

165   MS SALMON: Well, I think first, in terms of not carrying Sportsnet, there was probably a financial reason that they could not carry Sportsnet. So I guess that my answer is that it is pretty nonsensical. We would much rather negotiate and come to an agreement.

166   This has taken a huge amount of time for our small systems to deal with this issue through this mediation process, tons of documentation, tons of man hours. It is much more preferable to anybody to come to a commercial agreement that they like and that they feel is fair.

167   Now, part of the problem -- and another reason why no one would wan to go through this process is it is not good for the relationship between the parties. We are going to have to deal with each other going forward. And the impact that this type of thing has, you do not take this step lightly, you take it because there are no alternatives.

168   Does that answer your question?

169   COMMISSIONER DENTON: Yes. It doesn't ease our burden. Thank you.

--- Laughter

170   MS SALMON: Sorry.

171   THE CHAIRPERSON: Thank you, Commissioner Denton.

172   I do have a question or two following along on Commissioner Lamarre's question. And I am just wondering -- I am concerned that it is not as easy as saying, well subscribers can switch to another supplier. We don't have the information in front of us as to what it would cost to make that change for a subscriber and also in terms of the initial installation costs. And we don't have the costs in front of us for the service that Bell or Star Choice would offer subscribers.

173   And then, you know, on the telephone side we often hear about lethargy. Now people don't want to make the change, people are accustomed to what they have. So I am not sure that I fully accept your argument from the consumers' point of view. And, you know, I share Commissioner Lamarre's concern about the consumer and our obligations under the Broadcasting Act.

174   The other thing that I am curious to know, you did mention that you have reached agreements with companies smaller than CCSA, and I have seen what you have given us. But when you say smaller than CCSA, you are talking about the group that CCSA represents. Have you reached any agreements with individual companies smaller than or of the same size as the individual companies that CCSA represents?

175   MR. VINER: I will ask Aivy to comment on the -- he is the one that has conducted the negotiations.

176   THE CHAIRPERSON: Sure.

177   MR. REINFELD: For those people that aren't members of this CCSA we have sent out agreements, as we had to the CCSA, and they have signed those agreements. If you would like a list of those, we can get them to you.

178   But, by and large, as Tony as said, you know, the 70 per cent of the marketplace constitutes those that are both larger and smaller. And in terms of being smaller, even some of the comparator companies that we gave you are, on their own, smaller than the largest member of the CCSA.

179   THE CHAIRPERSON: True enough.

180   I think it would be helpful to have the list, and you can submit it in confidence, that is fine, but I think it would be helpful to us to have it.

181   And if you have the information on the prices that consumers would have to pay to make that switch, that would be also interesting. And if you have done any kind of study that might indicate the willingness of consumers to switch, that also might be interesting.

182   And the other thing that I guess we can't lose sight of is what we expect of these BDUs as far as delivering on their regulatory obligations too. So you know, I mean, if we weaken them or if they feel weakened I think that is a concern to us as well.

183   So I guess what you are saying is, just to confirm, you don't think we need to be involved. The only alternative then is for you to come to this as a commercial resolution. So you don't have a problem with consumers losing the service or you don't see that as a reality?

184   MR. VINER: We have a big problem with consumers losing the service. We have a big problem, and we will attempt to get the information. I can't imagine many consumers would like to change distributors, but they do all the time. And as to, you know, how much different distributors would charge, we have no control over that.

185   But we do think that this is a case of offering a price to one set of competitors and a different price to a different set of competitors, which is the principle that we think that you should be wary of.

186   THE CHAIRPERSON: Okay.

187   MS WHEELER: And the other cost I guess that I would raise as well, is the cost to Sportsnet if the Commission were to set a rate that is somewhat less than what our other distribution partners have already agreed to.

188   Yes, we do have contracts with them, but as Ms Townsend referenced earlier, we have relationships and we have to have ongoing relationships with these distributors.

189   The fact that this is a public hearing, they are aware that we are here today in this dispute with the CCSA. There is no doubt that Aivy and Tony's telephone will light up with requests to get the same deal that the CCSA -- you know, that the Commission would have granted for the CCSA. So the order of magnitude to Sportsnet would be considerable and we would be happy to file that with the Commission as well.

190   THE CHAIRPERSON: Okay. That would be fine. I understand that undertakings -- of course, we would like it as quickly as possible, but at the latest next Friday -- what would that be, May the 1st I think. If we can believe we are already into May.

191   Anyway, I would like to give counsel an opportunity to ask any questions he has.

192   MR. GAGNON: Thank you, Madam Chair.

193   Mr. Viner, I will address some of my questions to you, you may re-direct them as necessary.

194   There was a discussion earlier on the message the Commission would be sending should it decide to intervene in this case and set rates. I would just like to better understand the rationale behind that, because I don't see the Commission at this time as being seen as a regulator that intervenes a lot in such issues.

195   Plus, I don't understand why exactly a BDU would see this and say, well, why would I negotiate with you when I can get a better deal? I mean, who is to say you will get a better deal? Why would you get a better deal? Why would you not get a worse deal? Plus, these decisions are usually kept confidential so, in theory, they would not have access to the result of the determination.

196   MR. VINER: I will perhaps let others respond to your last point.

197   First, you are quite right, the confidentiality will be theoretical. That's No. 1.

198   I should say that -- to your first point that the Commission is not known to intervene in these matters we agree with wholeheartedly and we would encourage you to continue not to.

199   Ms Wheeler alluded to this as to, you know, how the business really works. We have relationships, as Ms Townsend has said, and we continue to have relationships with distributors, and we can reach agreements with them because they believe that we are being honest and straightforward with them. They believe that in a competitive environment we are offering the service in the same general range to them as we were offering it to their competitors. So they believe that.

200   There would be enormous pressure on me and on Aivy if for one reason or another the Commission were to determine that CCSA should get a break, you know, a different deal from other people.

201   Even my signed deals, I would be under tremendous pressure to go back to those deals and redo them. The Commission would set that precedent.

202   So we think that if in fact they could believe that -- you know, we might be the ones that go back to the Commission. We can't get a good deal from the BDU, we will go to the Commission. So, you know, my concern is that it's a slippery slope when you step in to regulate. That's my only point.

203   So it wouldn't necessarily just be BDUs, it might be programming services that would come and say, you know, for us -- Susan has alluded to a large BDU with whom we have had a commercial relationship for many years who have -- and, frankly, I wish we were getting a big price increase from them, but we are not, but they have just said to us they are not -- you know, that they are not going to carry the service any more.

204   And we don't believe we have a right of access to that BDU and so we just have to suck it up or reach an agreement with them.

205   MS WHEELER: The only thing I would add is that you are perfectly correct that we don't know that we are going to get a better deal, we don't know that the Commission wouldn't completely validate the proposal that we put before the CCSA, it's the principle of engaging the CRTC's dispute resolution mechanism when you are trying to get a deal that's different than that that has already been achieved or granted to your competitor.

206   So it's the time involved in this proceeding as the CCSA referenced, it's, I guess, the appearance of regulatory intervention in a commercial negotiation context that really does send the wrong message and that's, I guess, the principled argument that we are trying to put forward today to you.

207   MR. VINER: And when I said what did they have to lose, it's unlikely that you would force anyone to pay more than their competitor. So, you know, their position may well be that, you know, I go see the Commission and the Commission is not going to make me pay more than my competitor, so maybe they will make me pay less because they think my circumstances are different. Do that's our concern.

208   MR. GAGNON: You have made reference again to the access right issue and it's also in your presentation on page 3 where you say that:

"If the CRTC steps in to set rates it would be tantamount to saying that there is a guaranteed right to access at that rate and mandatory obligation to provide the service." (As read)

209   I'm trying to better understand that argument.

210 Could you explain to me or to the Panel why if the Commission decided to intervene and set rates, why would this be tantamount to making any access right and obligation?

211 MS WHEELER: I guess just to rephrase it, we acknowledge that we don't have any obligation to offer the signal so should the Commission set a rate -- and we don't think that it's appropriate -- perhaps we will make the decision not to offer our signal.

212 However, I think the argument is -- and it was referenced in the final offer arbitration in the sense that why would we engage in a final offer arbitration when that question of whether we even have to offer the signal is out there. So why would the Commission bother to engage in such an exercise if they didn't think that we would be offering that signal at that rate.

213 So if the Commission can clarify that we have no obligation after this proceeding is concluded if they choose to set a rate, if they can clarify that we don't have an obligation to offer the signal, then I guess we would be less concerned with the presumption that setting a rate is requiring a must offer obligation on our part, or a must carry obligation on the part of the CCSA.

214 MR. GAGNON: Well, of course I'm not saying if the Commission will decide to do that or not, but I'm trying to get your understanding of access rights here and to which members of the CCSA you think -- you think they have to carry Sportsnet. And if there is a Commission determination on rates, how do you see it apply to CCSA members?

215 MR. VINER: There are certain classes of -- certain systems that aren't obligated to carry us, which we understand. And there are certain of our signals, a portion of our signals, the out-of-market signals and the HD signal -- which we continue to believe are discretionary -- whether CCSA members choose to carry those or not is entirely -- you know, we can't force them to carry it. You know, if they don't like the rates they don't have to carry it. That's commercial negotiation.

216 So if you set a rate for those when they don't have to carry it, I mean what's our position? Do we have to offer it at that price?

217 I mean, we would be happy to have your clarification on that, but --

218 MR. GAGNON: I'm actually trying to get yours on that.

219 MR. VINER: Well, okay.

220 Our opinion is that if they are not required to carry -- you know, the right to access and the right carriage are symmetrical, so if there is not a right to access there is not a right carriage.

221 MS WHEELER: And we acknowledge that.

222 Until the broadcast distribution regulations are amended our primary signal for Sportsnet is still an access signal, there is still an obligation on us to offer that signal. We have never breached that obligation.

223 And it goes back to, I guess, our view that we are not clear why the Commission would want to engage in an arbitration of rates when there still is that question of whether we have to offer the signal. We don't believe that we have to offer the signal for the discretionary, for the additional regional feeds or the HD, and once the BDU regs are amended we don't feel that we will have an obligation to offer that service in that -- at that point either.

224 So it brings to question why the Commission would engage in such an involved exercise when there really isn't that obligation on the part of two parties to carry and to offer. We think that is more conducive to reaching a commercially arrived resolution to the issue as opposed to a regulated solution to the issue.

225 MR. GAGNON: Madam Townsend, could I get CCSA's comments on this issue?

226 MS TOWNSEND: Well, I'm listening closely because, quite frankly, what I have heard really concerns me.

227 It sounds to me like what is being said here is it doesn't matter whether the Commission decides that they have the right to intervene in this matter; it doesn't matter if the Commission sets a rate because at the end of the day if Sportsnet doesn't like either of those things they are not going to offer us the signal, which is troublesome.

228 It's the whole process useless? The fact that we are here today trying to find an answer to a commercial dispute, all of the dispute resolution mechanisms are rendered meaningless.

229 So I guess my reaction is I'm terrified that what we have done will not produce any result.

230 MR. GAGNON: So I guess I will ask you the same questions as I have asked Rogers.

231 If the Commission should decide to intervene in setting rates, how would you see that being applied to your members?

232 MS TOWNSEND: Well, our hope would be that it would just be like an ordinary commercial arbitration where you appear before the arbitrator, each side tells their story, the arbitrator makes a decision and the result is an agreement, the parties turn it into a commercial agreement and they both signed it.

233 They have had the opportunity to try and negotiate. You know, we are still prepared to negotiate, but it was my full expectation and our members' full expectation that there would be a resulting agreement to pay and distribute.

--- Pause

234 MR. GAGNON: Those are all my questions.

235 THE CHAIRPERSON: Commissioner Lamarre has a follow-up.

236 CONSEILLÈRE LAMARRE: Merci, Madame la Présidente.

237 I do want to get back to the point that you raised with legal counsel when you mentioned that it's your position that Rogers doesn't have an obligation to provide the signal. And I do understand your explanation about the symmetry between the right to access versus the obligation to provide, that's fine.

238 But, you know, the lawyer in me is getting out and, you know, as every general rule there may always be an exception. So would you agree or disagree that under section 10.1 of the Regulations Respecting Special Services Television Networks -- because as a specialty service that's what you are obligated to -- and I will read it for you.

239 Section 10.1 states that:


"No licensee shall give an undue preference to any person, including itself, or subject any person to an undue disadvantage."

240 So would you agree or disagree that if not providing a service would result in an undue disadvantage, that would be an equivalent to what you were stating in your opening remarks, that it would be evidence of unjust discrimination or high-handed or abusive behaviour where the Commission would need to intervene?

241 MS SCOTT: You are bringing out the lawyer in me as well, I guess.

242 In fact I would say that that section would not apply to these circumstances because we are talking to a situation where the rates that are being offered are identical to a competitor in the marketplace and so it's hard to see where the unjust discrimination would arise. You are offering the rates on like terms.

243 In terms of a legal obligation, if we look at the Regulations and the conditions of licence that apply to specialty services, there is no obligation to provide the service. The Commission is intending to amend its regulations to create such obligation where there is a dispute, but once there is no longer a dispute then there would be no obligation.

244 Certainly when one looks at the symmetry between access obligations it seems appropriate that you have matching obligations to provide the service; but where there is a discretionary service there doesn't seem to be a regulatory reason to create a regulatory obligation to provide that service.

245 COMMISSIONER LAMARRE: Okay. Well, then, you know, notwithstanding the presentation, let's just talk about the principle here, because that's what I'm trying to get at, because that's the first part of the hearing.

246 Then what is the use of section 10.1?

247 MS SCOTT: In the dispute resolution?

248 COMMISSIONER LAMARRE: No, no.

249 Section 10.1 of the Regulations Respecting Specialty Services Television Networks. I mean that section says:


"No licensee shall give an undue preference to any person..."

250 And that is not the part I'm referring to:


"... including itself, or subject any person to an undue disadvantage."

251 What does it relate to? What is it there for?

252 MS SCOTT: It turns on the word "undue" and "unjust" and when you have a point of comparison to direct competitors.

253 COMMISSIONER LAMARRE: I'm sorry to interrupt you, but I don't want to talk about comparison, I'm just trying to get your opinion on the principle of that specific section.

254 I realize that it will apply if there is a question of undue disadvantage, but I don't want to talk about the evidence in this specific case whether or not there is undue disadvantage.

255 I am just asking you if you feel this is an exception or not -- and if you disagree then you will say it's not -- but on the principle, not on the facts of a specific case about the non-obligation to supply services.

256 Isn't that the exception to that rule?

257 MS SCOTT: Well, in the end I would say that section has to turn on the facts and that that is a provision that one could rely on if you were looking at the circumstances in which the signal was not provided.

258 I think that has been quite clear in sort of articulating the circumstances in which we believe the CRTC should intervene, it's where there is evidence of unjust discrimination or undue preferences or examples of abusive behaviour or high-handed behaviour, and again then those turn out to be factual determinations.

259 COMMISSIONER LAMARRE: Okay. Thank you.

260 COMMISSIONER DENTON: I would like to just go at this delicious question one more time.

261 So as I hear the proposition of Rogers we could establish a price and you guys, by the logic of what you are telling us that other CRTC policy thrusts have arrived at the following result, that we might establish a price but that if we were consistent with our own principles Rogers could then say "Well, thank you very much, but we choose not to offer it", or the other people may say "At that price we choose not to carry it"?

262 MS WHEELER: That's correct.

263 COMMISSIONER DENTON: Thank you.

264 THE CHAIRPERSON: Commissioner Lamarre...?

265 COMMISSIONER LAMARRE: Thank you.

266 Ms Townsend, you have heard the arguments and the rationale that Rogers is putting forward and as far as, you know, the absence of obligation -- and you have explained to legal counsel what was your position.

267 So how do you yourself see the extent of the application of section 10.1 of the rules and how do you think that it should bear application in cases of undue disadvantage?

268 MS TOWNSEND: You Are at 10.1 of the Act?

269 COMMISSIONER LAMARRE: No, 10.1 of the Regulations Respecting Specialty Services Television Networks. As Roger stated that, you know, they feel there is a symmetry and they are making a good rationale for it that, you know, if there is no access right there should not be an obligation to provide.

270 Do you think that section 10.1 is actually the exception to that general rule?

271 MS TOWNSEND: I'm not very familiar, I'm sorry, with the specialty services Regulations, but it will take a look at that.

--- Pause

272 UNIDENTIFIED SPEAKER: It's page 218 of the red book.

273 MS TOWNSEND: Thank you very much.

274 COMMISSIONER LAMARRE: I have a bilingual binder here, it's very useful, so that's why I don't have the same pages.

275 MS TOWNSEND: Page 218 of the red book.

--- Pause

276 COMMISSIONER LAMARRE: Perhaps I could read the entire section. It's section 10.1 of Regulations Respecting Specialty Services Television Networks and it reads:


"No licensee shall give an undue preference to any person, including itself, or subject any person to an undue disadvantage."

277 MS TOWNSEND: I should have found that earlier.

278 Yes, I guess that we would regard ourselves as falling within the claim of being unduly advantaged.

279 COMMISSIONER LAMARRE: But do you also agree with Rogers -- maybe there is a place where we can agree here -- that if we were to apply this exception to the general rule it would have to stand by the merits of the fact of the specific case that would need to be demonstrated?

280 MS TOWNSEND: Oh, I think so.

281 COMMISSIONER LAMARRE: Okay.

282 MS TOWNSEND: Yes, I can agree on that.

283 COMMISSIONER LAMARRE: Thank you.

284 THE CHAIRPERSON: Okay...?

285 Thank you very much.

286 I think we will take a 15-minute break and then we will reconvene in the in camera session.

287 Excuse me.

--- Pause

288 THE CHAIRPERSON: Right. Oh, I'm cutting you off too soon. Sorry about that.

289 I always need a cheat sheet here, sorry. In fact I have one, it's just under the papers.

290 So we will allow Rogers to go first with their final comments.

291 Oh, questioning each other, sorry.

292 MS SCOTT: I think our issues have been covered.

293 MS TOWNSEND: I do have just one question which has to do with the comment that you will get telephone calls and people will wonder what happened with CCSA and that sort of thing.

294 I would trust that your response would be that you don't intend to disclose that, just like you didn't intend to disclose the contracts that you filed with the Commission because you take that confidentiality very seriously.

295 Wouldn't that be right?

296 MR. VINER: Well, yes it would be, but in the real world we have found that, you know, these things get out there.

297 THE CHAIRPERSON: Thank you.

298 I don't know if there are any more questions from either Commission or counsel...?

299 Then we will start with the closing remarks from Rogers.

300 Thanks.

CLOSING REMARKS

301 MR. VINER: Thank you, Madam Chair. I am pleased to have the opportunity to respond.

302 I think it's abundantly clear that Sportsnet does not believe that the Commission should set rates in this case. There may well be situations where it would be entirely appropriate for the Commission to intervene where in the example we mentioned in the case of unjust preferences or where there is high-handed or abusive behaviour.

303 Madam Chair, we are convinced that this is not one of those cases.

304 We have already reached agreements with systems representing more than 70 percent of our customers. We have reached those agreements following tough negotiations with give-and-take on both sides. Everyone wants a better deal, Madam Chair, but in the end the framework you have established for the negotiation of wholesale rates, one based on letting the market operate, allowed parties to reach agreement relying on their own abilities.

305 Sportsnet has no entitlement to be distributed on the vast majority of the systems represented here today. This is partly a reflection of the Commission's view as expressed in its policy statements and licensing decision that the market and not regulation should be the guide.

306 We cannot insist on carriage on Class 2 or 3 systems or exempt systems; we cannot force distribution of our HD signals or our regional feeds on any system and, very soon, as the Commission implements its decision to encourage competition for Canadian providers of mainstream sports, we will not be able to insist on any carriage on the largest BDUs.

307 Madam Chair, we are in support of this direction.

308 However, we also believe that the framework should be symmetrical for program providers and distributors alike. If we cannot insist on access to the distribution network, distributors should not be able to insist on access to the programming signal. Determining rates in this case would, in our view, be tantamount to saying that they can.

309 We submit that the Commission should leave negotiations in such cases to the parties. We will always be motivated to reach agreements with the largest number of distributors possible, but we don't believe that in a competitive market we should be told to do so at a price that does not reflect the value and costs of our service.

310 In closing, I would just observe that it can be tempting to think that you might be able to intervene with just a small surgical adjustment.

311 Madam Chair, we submit this is not the case. Any a small adjustment will send huge messages to the market, messages in favour of regulation, not negotiation; messages in favour of delay; messages that undermine business certainty and competition.

312 There is no doubt in my mind that if you intervene others will insist on the same regulated deal to Sportnet's significant detriment. Increasingly, parties will be reluctant to reach commercial agreements knowing that a sweeter deal is just a regulated step away.

313 That's why we submit that intervening in this case would not be a good use of CRTC resources and would undermine your policies aimed at encouraging competition to the benefit of all Canadians.

314 Thank you.

315 THE CHAIRPERSON: Thank you, Mr. Viner.

316 Ms Townsend...?

CLOSING REMARKS

317 MS TOWNSEND: Thank you.

318 It could be no more clear in the Act and Regulations that the Commission does have the authority and the responsibility to assist with resolution of disputes such as the one that's here before you today.

319 Such assistance necessarily include the decision as to rates and commercial terms based on the specific fact situation.

320 From the outset of this proceeding Sportsnet has resisted the CRTC's legitimate and legislated process by raising a number of red herring issues.

321 Sportsnet submits that it is not subject to the Commission's dispute resolution mechanisms because there is no access commitment applicable to Sportsnet's regional HD feeds or small systems. CCSA has dealt with that argument in it's April 2 filing at pages 6 to 9.

322 There is nothing in the regulations that supports this position and if Sportsnet's interpretation was to be accepted the whole dispute resolution process would be useless.

323 We note as well that the Commission has in fact already accepted this referral for resolution under its dispute resolution mechanisms.

324 Sportsnet has made an artificial distinction which we haven't heard much of here today but is in a number of other documentation about the primary feed on one hand and the regional feeds and the HD component on the other.

325 This is contrary to Sportsnet's licence. In the CRTC letter decision of May 6, 1999 the Commission stated:


"The Commission notes that its intention at the time of licensing SportsNet was that it would be primarily one service with four separate regional feeds, not four distinct services provided on four separate channels."

326 Sportsnet was allowed to distribute in HD format as a result of an amendment to its licence in 2007. Nothing in that amendment created a new service, a new discretionary service. To be clear, there is only one licensed Sportsnet service. Everything the Commission has said in its decisions regarding Sportsnet's licence supports this conclusion.

327 Sportsnet is making the distinction discretionary service for the sole purpose of avoiding the Commission's intervention in this matter and to give it justification for cutting off signals during negotiation.

328 So, in summary, the Commission can decide as to rates and other commercial terms in this matter pursuant to its express authority flowing from section 10(1)(h) of the Act through sections 12 to 15 of the BDU regs, and to the procedural rules set out in PN 2008-39.

329 The imbalance of power between the parties before you and the substantial harm to Canadian consumers that has already occurred and is likely to increase if the Commission does not determine an enforceable commercial settlement in this matter and these are compelling reasons why the Commission should make such a determination.

330 Thank you.

331 THE CHAIRPERSON: So I would like to thank you all for your comments to this point.

332 We are going to take a 15-minute break and I would remind anybody who is not supposed to be in the room when we come back that we would appreciate it if they leave and the transmission will also be terminated during the break.

333 So we will reconvene at quarter to 11:00.

334 Thank you.

--- Upon recessing at 1030

--- Upon resuming at 1435

335 THE CHAIRPERSON: Thank you. I understand we are back on the record.

336 So this is just to say that the in camera session has finished and thank you very much, it was a useful exchange I think.

337 We would like to remind everybody the undertakings are due by May 1. And I just overheard Mr. Gagnon say that if you wanted to just check with him once the transcript is out, you will be able to see, if you have any doubts about what undertakings you have.

338 Also, as we have mentioned a few times during the in camera session, that certainly we encourage you to continue your negotiations and in the interest of coming up with a commercially acceptable agreement.

339 At any rate, unless anybody else has any other comments. Thank you very much, Mr. Viner and your team and Ms Townsend and your team, and I hope you get back home easier than you had to coming up.

340 Thank you very much.

--- Whereupon the hearing concluded at 1436


REPORTERS


____________________ ____________________

Johanne Morin Jean Desaulniers


____________________ ____________________

Sue Villeneuve Jennifer Cheslock

Date modified:

2009-04-24