GATINEAU – The NHL season was barely under way when Bell Canada filed a complaint with the CRTC over how Rogers is keeping an exclusive lid on some of the content for which it paid $5.2 billion.
In an application filed October 10th and just made public Tuesday on the CRTC web site, Bell says Rogers’ new digital services which extend the NHL experience online and on mobile, GameCentre and GamePlus, violate sections 3 and 5 of the Exemption Order for Digital Media Broadcasting Undertakings by giving the company an “anticompetitive advantage.” Rogers bought the NHL rights for 12 years from the NHL for $5.2 billion.
GameCentre is Rogers’ new online platform that allows fans to stream over 1,000 regular season and playoff games online and to whatever device they like for $200 a season, a subscription which is open to anyone. Rogers wireless data and high speed internet customers, however, can get it free until December 31, 2014.
“Rogers has not announced what price, if any, its wireless and Internet customers will pay beginning next year,” notes the Bell complaint.
Two days prior to the start of the season, however, Rogers announced GamePlus, a feature within GameCentre which lets customers take advantage of different camera angles, exclusive interviews, highlights and advanced stats. “Rogers' wireless and Internet customers receive GamePlus as part of their free GameCentre subscription and Rogers' Home Phone and Digital TV customer can access GamePlus when they purchase a GameCentre subscription,” explains the Bell application. “Consumers who are not Rogers' customers cannot access GamePlus even if they pay for a GameCentre subscription. The content is exclusive to Rogers' customers.”
Bell believes that Rogers is providing video online and via mobile under the New Media Exemption order, and it violates sections 3 and 5 which dictate:
“3. The undertaking does not give an undue preference to any person, including itself, or subject any person to an undue disadvantage. In any proceeding before the Commission, the burden of establishing that any preference or disadvantage is not undue is on the party that gives the preference or subjects the person to the disadvantage.
“5. [T]he undertaking does not offer television programming on an exclusive or otherwise preferential basis in a manner that is dependent on the subscription to a specific mobile or retail Internet access service,” reads the Bell submission.
"This gives an advantage to Rogers' own wireless and Internet distribution businesses. That is precisely why Rogers is doing it." – Bell Canada
As well, in its Vertical Integration policy, continues the Bell document, the Commission further decided there would be harm to Canadian consumers if popular programming were held back by rights holders. “In its decision implementing changes to the regulations, the Commission indicated that as a result of the rule distributors could ‘not restrict access to programming on the basis of a consumer's specific mobile or retail Internet access service, as the case may be.’ Ultimately, the regulations place consumers first with the goal of ensuring consumers are not compelled to subscribe to the services of multiple distributors in order to access all of the content they desire,” reads the Bell submission.
“While theoretically a consumer could be a mobile and Internet customer with another provider and access GamePlus if they have a Rogers' TV or Home Phone subscription, such a situation is exceedingly unlikely to occur in practice. In any event, GamePlus is being offered on an otherwise preferential basis to Rogers' mobile and retail Internet access subscribers. This gives an advantage to Rogers' own wireless and Internet distribution businesses. That is precisely why Rogers is doing it,” it continues.
“The programming included in GamePlus is additional television programming that is fully integrated with and inseparable from the programming broadcast on traditional television (and also in the GameCentre application). The Commission’s intention was that the exception would apply to ‘the creation and delivery of programming designed for mobile and retail Internet platforms.’ But the camera angles available in GamePlus were designed and are created as part of a single production with the other traditional television programming. This is evident from the fact that the GamePlus camera angles were used seamlessly and extensively during the traditional television broadcasts on the opening night of the season and will continue to be used throughout the season.”
Given the fact the NHL season is already under way Bell has asked the Commission to expedite this proceeding and force Rogers to make the GamePlus feature available to all GamePlus subscribers.
“This is necessary to ensure all consumers can access must-have NHL content on the platform and through the mobile and Internet access provider of their choice. If Rogers is allowed to skirt the Commission's rule there is no doubt that they will continue to pursue increasingly aggressive strategies using their exclusive 12-year control of NHL content,” adds the complaint.
Rogers’ deadline to reply is November 20th.
