Regulator says OUTtv must-carry application won’t be reviewed
By Ahmad Hathout
The CRTC ruled Friday that Rogers unjustly removed LGBTQ+ channel OUTtv from its premium pre-assembled television package while the two were negotiating a new carry rate.
Prior to the end of the previous agreement, OUTtv was in Rogers’s Premier television package, which the cable giant stopped marketing in favour of its best pre-assembled package called Ultimate TV. After the carry agreement ended, Rogers removed the channel from the Premier package and, instead of putting it in Ultimate TV, slotted it into two themed ones called Variety and Lifestyle and Entertainment.
OUTtv, whose service is required to be offered by BDUs, filed a complaint to the CRTC asking that it find Rogers in violation of the standstill agreement because the companies were in the middle of what it called good-faith negotiations on a new carry agreement, which means movement on the channel should have been frozen.
OUTtv, which said it saw a significant drop in subscribers as a result of the move, argued that it should be in the highest-penetration package. Meanwhile, Rogers, which alleged OutTV was not negotiating in good faith, said the channel was already moved into the highest-penetration packages for the carry rate it was charging, which the cable company believed it had a right to do under broadcasting rules. Otherwise, Rogers said it was willing to include the service in its best TV package, just not at what it perceived as inflated rates.
The CRTC on Friday ruled in OUTtv’s favour.
“The Commission notes that Rogers’ decision to move OUTtv from the Premier package to two lower penetration theme packages, Variety and Lifestyle & Entertainment, altered the terms and conditions of OUTtv’s existing distribution,” the regulator said. “As such, the Commission is of the view that Rogers’ actions contravened the standstill rule in section 15.01 of the BDU Regulations for having removed OUTtv from the Premier package while the parties were engaged in a dispute.”
The regulator also found that the move put OUTtv at an undue disadvantage because other similar channels in the theme packages were being distributed in the pre-assembled packages OUTtv was once in. Rogers disputed this on the grounds that there is no basis to keep the channel included at a wholesale rate that expired.
“Given that Rogers includes all comparable services, with the exception of OUTtv, in the higher penetration Ultimate TV package or the Variety and Lifestyle & Entertainment theme packages, the Commission considers that Rogers’ repackaging of OUTtv constitutes sufficiently dissimilar treatment of comparable services and therefore did subject the service to a disadvantage,” the commission said, noting that Rogers is not required to put the channel in the best pre-assembled or theme package because it has discretion.
The regulator is directing Rogers to restore the service to the Premier package, “provided that such placement is more beneficial to OUTtv than its current distribution in the Variety and Lifestyle & Entertainment theme packages, until the dispute is resolved.”
The regulator added that while there is a possible path to an agreement considering Rogers has been open to including the service in the Ultimate TV package, OUTtv’s carry rate “represents a significantly disproportionate percentage of the monthly retail rate for the Variety theme package.
“OUTtv’s current wholesale rate also represents a disproportionately high percentage of the Lifestyle & Entertainment package’s monthly retail rate and a far greater proportion of its total wholesale cost.”
As a result, the CRTC said it believes the two parties won’t be able to come to an agreement on their own and is suggesting the “most effective way” is to resolve the dispute via final offer arbitration with the commission, which will choose the rate.
In a statement, OUTtv CEO Brad Danks called the decision a “major regulatory victory” because it restores “national distribution” for the service.
A Rogers spokesperson told us the company is “reviewing the decision.”
Commissioners Stephanie Paquette, Nirmala Naidoo and Ellen Desmond had a joint dissenting view. While the trio agreed that Rogers violated the standstill rule, they thought the majority should have taken a more nuanced approach as to whether the cable company also treated OUTtv unfairly.
In this case, the dissenters say the commission did not take into consideration other factors beside the fact that OUTtv — unlike to its peers in the theme packages — didn’t graduate to Ultimate TV. Those factors should have included the “contractual rights and obligations of the parties, the fair market value of the service, the cost of offering the service, the market demand, customer choice, and the business imperatives.”
“Moreover, concluding an undue preference or disadvantage exists, based primarily on the fact that a BDU repackaged a service, sets a dangerous industry-wide precedent by interfering in the ability of the BDUs to conduct their business affairs and by interfering with their ability to optimize their programming offerings to customers,” the dissenting view reads. “A finding of undue preference or disadvantage should be approached with caution. Regulatory intervention should be predictable and objective in an evolving broadcasting landscape.”
CRTC denies must-carry application
In a parallel decision, the CRTC denied OUTtv’s application requesting it to consider giving it mandatory distribution status at a stable wholesale carry rate.
Late last year, the service had requested the CRTC either broaden its distribution on basic television, which would move its status from must-offer to must-carry, or at least set a base wholesale fee for negotiations with distributors. The application was made on the grounds that the service was seeing lower penetration numbers and thus fewer subscribers to the paid service.
While the CRTC affirmed that OUTtv must be included in BDU’s pre-assembled or thematic packages with the highest penetrates rates, it said a decision on its application is premature because the commission is reviewing the relationship between programmers and distributors. It’s the primary reason the CRTC has deferred other applications asking for a wholesale rate increase on basic TV.
“While the Commission deferred broader distribution reforms to its forthcoming 2026 review of the independent media framework, it noted that this upcoming process is expected to support services like OUTtv,” Danks said.
“Together, these decisions reinforce OUTtv’s essential role in representing 2SLGBTQI+ communities, strengthen regulatory protections for independent Canadian media, and ensure continued nationwide access to diverse Canadian programming.”
