ON MONDAY, WE described a Federal Court of Appeal decision as one that strikes down the CRTC’s TV Wholesale Code.
Bell Canada had appealed the Code to the Court, saying the way it was implemented fell outside the CRTC’s jurisdiction – and in its decision released Monday the Court agreed with Bell, saying the Commission had no authority under section 9(1)(h) of the Broadcasting Act to meddle in private carriage contracts the way the Wholesale Code mandates.
The decision seemed to us to be the end of that Code – and we were bolstered in that view when we heard from an independent broadcaster and an independent network operator who thought the decision was a “catastrophe” for them. They believe they need this Code in place to have any hope of being able to negotiate fair affiliate arrangements with Bell Canada and other large, vertically integrated media company-BDUs.
But the court decision is not that cut and dried and seems to have broadcasting law specialists scratching their heads a bit (we spoke to a few, who asked not to be on the record) about what will or can come next because while the Court said using 9(1)(h) to set the Code was wrong, that Code is already part of the Conditions of Licence for Bell and others.
That means the Court decision does not change the fact it’s in those CoLs, meaning Bell still must abide by them – and the experts we talked to aren’t sure if the Code can be carved out of those in the middle of its licence term.
The decision could also be read in a way which says the Court has only said the way the Code was implemented is what’s invalid, not the Code itself, and that the CRTC involving itself in wholesale relationships does not go against the Copyright or Broadcasting Acts.
In fact, one of the things all three judges agreed on is that there is no conflict between the Copyright Act and the Code, which was one of the pillars upon which Bell based its appeal. The three also agreed: “Whether the Code exceeds the power granted to the CRTC under the (Broadcasting) Act remains a live issue. Whether the Code diminishes or conflicts with Bell’s copyright interests also remains unsettled.”
However, the summary of the decision of the majority (it was a 2-1 decision) does read: “Paragraph 9(1)(h) of the Act cannot be reasonably interpreted as granting the CRTC a general power to regulate the terms and conditions of affiliation agreements. This interpretation goes beyond the ordinary meaning of the language in paragraph 9(1)(h) and is not reasonably supported by a textual, contextual and purposive interpretation of the legislation. Furthermore, it is not reasonable to expand the language of paragraph 9(1)(h) by way of necessary implication to include powers necessary to fulfill the CRTC’s mandate.”
Now that seems to us to be an indictment of the code itself, but others have said no, it only relates to how it was implemented and again, it is baked into Bell’s Conditions of Licence and an amendment of licence conditions in the middle of a licence term would be highly unusual. The folks we talked to don’t know how that could be done.
Hopefully readers can sense the reason why we’re a little confused – and we’re not alone in that.
We contacted both Bell and the CRTC for word on what they think and might do next, but both, unsurprisingly, declined to comment as they digest the decision.
Bell can appeal the decision further, looking for a more stringent decision from the Supreme Court, the federal government can appeal on behalf of the CRTC or the Competition Bureau, or any of the other respondents named in the Bell appeal (which is a roster of independent, non-vertically integrated entities including Access Communications, Allarco Entertainment, Blue Ant Media, CCSA, CBC, Cogeco, DHX Media, Eastlink, Groupe V Média, Independent Broadcast Group, Pelmorex, Public Interest Advocacy Centre, Québecor Média, SaskTel, Sogetel, Stingray, Teksavvy, Telus, TV5 and VMedia) could also try to take the matter to the Supreme Court.
Want to try decide for yourself what the Court said and what it means? Here’s the summary and here’s the full decision.
If you’d like to let us know what you think this means and what could happen next, we’d love to hear from you. Please use the public comments box below or email editor Greg O’Brien confidentially at greg.obrien@cartt.ca.
