By Ahmad Hathout
Rogers is accusing Bell of refusing to carry channels crafted out of new American rights it acquired in the summer.
The cable giant alleges its Discovery and Investigation Discovery (I.D.) channels are being subject to a double standard by the rival broadcaster: while Bell, the second-largest broadcaster, complains that Rogers wants to push its new USA Network and Oxygen True Crime channels down the dial, the former allegedly doesn’t even want to carry the channels that are intended to replace them.
“Granting Bell’s requested relief is unquestionably not in the public interest and would perpetuate asymmetrical treatment of Bell vis-à-vis its fiercest competitor in Canada’s traditional broadcasting system, to the detriment of consumer choice, value, and a vibrant and dynamic Canadian broadcasting system,” Rogers says in its reply to Bell’s complaint.
Bell alleged in a Part 1 application early last month that Rogers is giving itself an undue preference by moving Discovery and I.D. into the channel slots that are currently held by what it says are the similar USA and Oxygen, which are replacement services after Bell lost the rights to the Discovery and I.D. monickers when Rogers signed a multi-year deal with Warner Bros. Discovery (WBD) last summer. Rogers has said it wants to replace the channels so customers don’t get confused about the location of the American programming.
Bell’s application has triggered a standstill, which forces the status quo until the parties can agree to something or until the CRTC can make a decision on the matter. Rogers wants the regulator to lift the standstill and let commercial negotiations be.
“The present complaint is yet another example of Bell’s regulatory gamesmanship and reinforces the public interest in granting Rogers’ request to lift the standstill,” Rogers alleges. “Put simply, Bell’s undue preference complaint is clearly designed to extend Rogers’ carriage of its services at historic (and excessive) rates for as long as possible using every regulatory tool available to them, while refusing to carry the Five RMI Services,” which include WBD programming that launched January 1.
“Rogers strongly submits that: (a) Bell’s refusal to carry the Five RMI Services including Discovery and ID undermines any claim of undue preference or disadvantage resulting from Rogers’ decision to discontinue USA and Oxygen (or its other services formerly offering WBD content); and (b) there is no public interest that warrants intervention from the Commission,” the cable company adds.
Rogers claims Bell’s refusal to carry its programming is harming its ability to monetize its “significant investments” in these services, lessens its ability to invest in Canadian programming, and deprives Bell’s customers of the ability to access the American programming.
Bell did not respond to a request for comment in time for publishing.
Rogers further alleges that the application is ultimately just an extension of Bell’s inability to move on from the loss of those programming rights. Bell swiftly filed a legal action against the deal, at one time accusing WBD and Rogers of conspiracy and prematurely ending a contractual obligation. Bell ended up settling the case with the American content company in the fall.
“Through the Commission’s dispute resolution framework, Bell has, to-date, largely succeeded in improperly undermining competition in a manner that it was unable to do through its abandoned legal action,” Rogers alleges. “With each new filing of a notice of dispute, Bell has received de facto access rights and an effective veto power over Rogers BDUs’ carriage, packaging, and channel realignment decisions.”
Bell’s complaint came after Rogers filed an application to the Federal Court of Appeal in December challenging a confidential CRTC decision in November that requires Rogers to continue carrying certain Corus channels it wants to shuffle out and to maintain the channels’ numbers on Rogers cable.
In that case, Rogers says it wants to bump Corus’s “Slice,” “Flavour,” and “Home” channels from their existing channel slots in part because they don’t have the key American programming rights that it acquired in the summer. Similar to its position in the Bell case, Rogers says it wants to replace Flavour and Home – formerly Food Network Canada and HGTV Canada, respectively – with its own Food Network and HGTV channels so that its customers are not confused about where to find that programming.
Like Bell’s position, Corus argues that its newly branded channels contain very similar programming to Rogers’s services, and allowing the cable company to push its channels many slots down the dial will ensure that its customers won’t see them, thus starving it of much-needed eyeballs. Rogers has argued that this reasoning doesn’t really apply in the modern world because there are now convenient ways for companies to communicate service changes to subscribers and new ways for customers to seek out channels, including by using Rogers’s voice-activated search capabilities on its remote control.
Rogers makes the same argument in response to Bell’s complaint. “The factors that supported the Commission’s decision to refrain from dictating Rogers’ channel placement of an independent over-the-air station in 2020 are even more relevant in the present dispute, involving Bell, Canada’s largest VI company, which has exponentially greater means to communicate with viewers and advertisers.”
Before these latest developments, Rogers obtained a ruling from an Ontario Superior Court judge in early November that stated it has the right to repackage Corus’s channels per the terms of their carriage agreements, but didn’t wade into the CRTC’s standstill authority, whose oversight domain is with the Federal Court.
