OTTAWA – Telus and Cogeco are arguing in court that the standstill rule that has effectively forced Quebecor to deliver its TVA Sports signal to Bell customers is a completely valid way for the CRTC to enforce the status quo in the public interest, contrary to the claims of the two principal players in this legal battle.
The role of the CRTC under section 10 of the Broadcasting Act is to ensure consumers don’t become “collateral damage when either [party] attempts to leverage its market position in an anti-competitive fashion to extract unfair benefits from its counterparty,” Telus said in its submission to the Federal Court.
Crucially, the argument put forth by Bell and Quebecor that the standstill agreement violates the Copyright Act because it authorizes a broadcasting distribution undertaking (BDU) to retransmit a program without the consent of a programming undertaking (PU) is flawed because the standstill rule enforced by the CRTC just bridges the original consensual agreement between the two companies, signed in 2011, according to new filings this month by Telus and Cogeco.
In other words, the CRTC isn’t imposing any new agreements on the parties; it’s just temporarily enforcing the status quo that the parties originally agreed in their first retransmission agreement nine years ago to the benefit of viewers and until the two parties can come to amicable terms.
Last April, Quebecor was forced by the CRTC to redistribute its TVA Sports signal after cutting it from Bell subscribers at the start of the NHL playoffs because it feels the channel is undervalued compared to Bell’s RDS, which led to a call from the CRTC to come in and explain. The two parties have never agreed on a new distribution deal on the channel since the original agreement in 2011; the CRTC selected Bell’s offer for TVA when negotiations failed and went to final arbitration in 2015.
In appealing the CRTC order in Federal Court, Quebecor argued the standstill rule runs counter to the Copyright Act because it does not allow the company to freely control how it would like to distribute its copyright – and it shouldn’t be forced to deliver its property against its will. Bell agreed in a later submission that the standstill rule should be terminated, with the caveat that Quebecor’s current case should be dismissed on the basis that the standstill rule was valid at the time the CRTC made its order to reinstate TVA Sports.
But Cogeco said in its intervention in the case the CRTC’s power to resolve disputes and ultimately shield Canadians from company fights is an all-encompassing power that extends to “all disputes,” as Parliament intended. It also relayed Telus’ argument that the Copyright Act does not conflict with that power because the CRTC is simply maintaining what the two companies had agreed to at conception.
Telus also argued that, by triggering the dispute, TVA “has consented to the consequences flowing from the existence of a dispute – including the application of the Standstill Rule.” By broadcasting TVA over traditional TV, as opposed to on the rules-exempt internet, Telus also argues that Quebecor has essentially signed itself up to be governed by the broadcasting rules.
