By Ahmad Hathout
The Federal Court of Appeal has set a date for a hearing into whether the CRTC erred in freezing Rogers’s ability to move and remove certain Corus channels.
The court will hear the case on September 23 at 9:30 am in a special sitting in Toronto, according to an order dated Friday.
Rogers filed the original application against two confidential November decisions of the CRTC that froze its ability to remove or relocate three Corus channels: Slice, Home Network, and Flavour Network.
Rogers has argued that the Broadcasting Act’s standstill rule – which requires the two companies to maintain the status quo on the same terms and conditions until the issue is resolved – does not apply when it wants to relocate channels or terminate their agreements, which Rogers told Corus it intended to do ahead of their set end date of December 31, 2024.
Rogers and Corus have been in a regulatory standstill for nearly two years. The cable giant has been seeking to terminate several Corus channels for claimed underperformance and because it scooped up some of the American rights to the content that makes up some of those channels’ programs.
But the CRTC ruled in those confidential November decisions that Rogers can’t terminate its agreement or repackage the channels because the standstill rule applies both to the parties’ underlying affiliation agreement and the agreement on how that programming is distributed.
“The Commission is of the view that Rogers’ interpretation of the rule is overly restrictive,” the CRTC said in the November 18 decision. “The phrase ‘terms and conditions’ as used in the rule should be interpreted broadly, and should include conditions such as those relating to the carriage, packaging and sale of programming services. The mere fact that the standstill rule does not explicitly mention the term ‘packaging’ or its synonyms such as ‘combination’ or ‘package’ cannot be construed as an exclusion.”
A second issue for Rogers is that it alleges the CRTC is unevenly applying the standstill rule by forcing it to carry the Corus channels and in the same channel slots while allowing Corus to make programming and branding changes to said channels. Those changes include the loss of Bravo content that went on Slice and the rebranding to Home and Flavour from HGTV and Food, which are the result of Rogers buying those American rights in the summer.
The CRTC has determined that the “services will continue to operate under the same discretionary service licences and will still offer programming under the same theme/genre,” according to the regulator’s November 29 decision. “There is no limitation in the licences or in the policy framework that prevents a service from changing its programming offering,” the CRTC decision continued, according to Corus’s application.
If Rogers gets its way, it will be another blow to Corus, which told us last week that it is pulling the plug on five kids channels come September 1.
Last month, Corus told the CRTC during a hearing on the dynamics between programmers and distributors that the regulator must factor in how distributors package their services when determining performance.
