GATINEAU – Bell Canada says there is nothing it can do to make content from the National Football League available to other mobile network providers in Canada, no matter what the CRTC wants.
Back in December, thanks to an original complaint by Telus, the Commission ruled that Bell Mobility gave itself a “significant competitive advantage” by entering into exclusive agreements for the mobile rights to popular National Hockey League (NHL) and National Football League (NFL) content. It gave Bell until the end of January to say what it plans to do to make the content available to other mobile carriers. (Bell’s NHL contract has since expired and is a moot point as that league is not exclusively selling its mobile rights to a single operator.)
In a letter to the CRTC Monday, however, Bell told the Commission there is nothing it can do to make NFL content available to others because it does not hold any rights to sublicense the content and the league expects the company to live up to the terms of the contract. (Ed note: A hat-tip here has to go to Mark Goldberg and his blog Telecom Trends, who first reported on this letter on Monday.)
While the letter to the Regulator from Bell’s senior vice-president of regulatory and government affairs, Mirko Bibic, was abridged to keep private certain portions of the contract, it is clear it encompasses future seasons, as well as the current one, which Bell has been touting. Bell’s submission also included a letter from the NFL itself, which made the league’s position on the whole thing crystal clear.
“Bell is not permitted to sublicence the rights granted to it under this agreement to non-affiliated third parties or to otherwise assign the agreement without the express written consent of NFLI (NFL International),” reads the letter signed by the league’s SVP, media business strategy and development, Hans Schroeder.
“As you know, NFLI engaged in a competitive bidding process for its mobility rights in Canada that included several wireless providers in the market. We offered a package of rights focused on exclusive content for live games along with a variety of non-exclusive rights. It was our belief that this model, which is one we have used often in countries throughout the world, is the best model for offering this set of rights in Canada. Bell was the winning bidder for these rights, and we continue to believe in the desirability of this model. Therefore, at this time, NFLI has no interest in amending the Mobility Agreement. NFLI fully expects Bell to honor its obligations under the Mobility Agreement throughout the full remainder of the term.
“We hope that this letter will help to ensure that Bell's report to the CRTC makes clear the limits placed on Bell by the Mobility Agreement.”
The CRTC’s December decision, as Cartt.ca reported, came as a result of a complaint filed by Telus in January 2011 after it attempted to negotiate with Bell and the NHL and NFL, without success, for the mobile rights to the content. Telus said that “to the extent that bundling of services plays an important role in delivering value to consumers, the effect of ‘carriage of content’ (Bell’s content) exclusives on mobile platforms may affect Telus’ nascent entry into the broadcasting distribution market” which will in turn negatively impact its ability to compete in the wireless market as consumers increasingly consider video applications in making their decision regarding a wireless carrier.
Bell also noted, too, its NFL deal was also signed prior to the CRTC’s moratorium on such mobile exclusives (announced when it approved the purchase of CTV by Bell in March 2011) as well as its 2011 Vertical Integration Policy which says that linear content, like live televised sports, can’t be made exclusive to any one carrier. It's worth noting Bell is not at all a fan of the new rules.
The NFL content in question includes prime-time games, all playoff games (including the Super Bowl) and access to NFL Network programming. Telus maintained that sports will be a primary driver of demand in the mobile video market, and the NFL and NHL are the most attractive sports properties.
Despite all that, Bell’s letter to the Commission yesterday says there is nothing at all it can do. “Bell can report that there are no steps that can be taken by it to ensure third party access to the NFL programming at issue because Bell lacks: (a) the necessary rights to license or sub-license the content; (b) the right to amend the agreement to license or sub-license the content; and (c) the right to terminate the agreement,” writes Bibic.
“The NFL Letter encapsulates the difficult legal position that BD 2011-765 places Bell within. The assumption underlying the Commission's Direction, namely that steps can or should be taken by Bell to ensure Telus access to the relevant programming, are outside of the Company's legal authority to take.”
So now the ball has again been punted back to the Commission’s side of the field. We'll see how it fields this kick.
What, you thought we’d go this whole story without a football pun??
– Greg O’Brien
