OTTAWA – Back in May, Videotron asked the CRTC to amend its conditions of licence so that it would not be forced to share its cable set-top box audience measurement with Numeris, and pending the decision, it abandoned the industry group working to bring to market that data as part of the ratings systems.
CRTC responded June 28th saying that the condition of licence still applies and changed the deadline for providing a measurement system to 15 January 2020.
On July 5th, however, Vidéotron announced it intended to challenge in court that CRTC refusal. The company argues “the Broadcasting Act contains no explicit provisions empowering the CRTC to force operators to share their facilities with third parties as a condition of licence, and certainly not for the purpose of giving third parties a commercial advantage,” reads its press release.
The CoL stems from a March 2015 CRTC decision (part of the whole Let’s Talk TV process), which reads: “The future success of the broadcasting industry will depend on the industry’s ability to tailor the contents of programming packages as well as the programming itself to the needs and interests of Canadians. Viewer information will be essential in this emerging viewer-centric environment. New tools, such as a set-top box-based audience measurement system, are key. In light of this, the Commission is requiring the industry to form a working group to develop a set-top box-based audience measurement system.”
Many members of the TV industry have long clamored for such viewer data to somehow be turned into ratings currency, while some have resisted. The CRTC heard their arguments and forced the issue into that BDU CoL in 2018.
So, according to Vidéotron, the question for the Federal Court of Appeal would be: should the CRTC be given the latitude to extend its jurisdiction by inference or should it apply the Act strictly as intended explicitly by the legislator.
The Federal Court of Appeal has a mixed record in terms of decisions issued in the context of the Let’s Talk TV hearing. On the Super Bowl simultaneous substitution file, the FCA agreed with the CRTC, but the Supreme Court has heard the case and is deliberating (and will likely soon be moot anyway…).
On the TV Wholesale Code issue, the FCA said the CRTC went too far.
Videotron has 30 days to file a motion in the FCA according to the Broadcasting Act and the FCA had to grant leave, which will probably be granted. Lawyers often tell us getting leave to appeal, to the Federal Court of appeal anyway, is a pretty low hurdle to leap.
Then, the Justice will pursue its course.
Let’s Talk TV – the decisions that keep on giving… work to the industry's legal eagles, anyway.
