OTTAWA – In less than 24 months, the CRTC has gone from telling the industry there isn’t enough evidence to allow local broadcasters to charge BDUs for their signals, to indicating it wants to use next month’s hearing into the TV biz to decide how – and how much – can be charged.
This ride towards fee for carriage (or “value for signal” as some are now terming it) has been a long and bumpy one, culminating in last month’s Commission release which said the Regulator now favours it and that the industry now needs to negotiate its way to some agreements.
The BDUs vowed to fight and on Tuesday, Bell Canada filed an application with the Federal Court of Appeal asking for a judicial review of July’s notice of consultation (2009-411) on the basis that they (and the rest of the industry) “have been denied procedural fairness by the Commission,” reads the application.
The appeal explains the fee-for-carriage issue in detail and notes that when the Commission has confronted the issue (several times over the past two years), it has been very careful to launch full and thorough procedures in order to discuss it. The legal document also goes to great pains to point out that the Commission made it clear this April’s hearing was expressly not about FFC.
But if that was the case why does the July 6 PN for this September’s hearing into the future of the TV industry, which is a direct product of those days of discussion, say that the “Commission is now of the view that a negotiated solution for compensation for the free market value of local conventional television signals is also appropriate.”?
Adds the July 6 PN: “The Commission is now seeking comments on what mechanism should be used for establishing a negotiated, fair value for conventional signals. To that end, the Commission is seeking responses, with detailed rationale and supporting evidence, to the following questions:
a) What regulatory measures are needed to facilitate fair negotiations?
b) What methodology and criteria should be used for determining the fair market value of a conventional signal?
c) Are there any other considerations that the Commission should take into account?
d) What safeguards need to be established so that the negotiations are successful and are restricted to the issue of a negotiated fair market value for the conventional signal being distributed?
e) What is the appropriate method, if required, to achieve resolution through binding arbitration?
The deadline for submissions for this hearing is Monday.
But the July 6th PN/FFC decision is unfair and procedurally unsound because “Bell was not given an opportunity to, and did not, file any evidence or make any submissions, oral or written, at the proceeding in which public hearings commenced April 27 2009 on the issue of the appropriateness of fee for carriage,” reads its application to the Court.
(Ed note: although after non-stop regulatory study of the issue by BDUs, the Commission and broadcasters, we’re unsure what value even more reports on the same issue would bring to the table…)
“The Commission’s fee for carriage decision represents a fundamental change to the economics of the Canadian broadcast industry, a fact recognized by the Commission when it first rejected the measure in BPN 2007-53… Given that the applicants collectively represent approximately 18% of BDU subscribers in Canada, the fee for carriage decision will have a direct, significant, financial impact on the applicants and consumers of broadcasting distribution services.”
Stay tuned as we track more on this story.
