By Ahmad Hathout
The News Forum allegedly entered into an affiliation agreement with Rogers knowing that the CRTC may grant it mandatory distribution, so it is inappropriate for the national news service to now ask the regulator to revisit the terms of that 2021 agreement after it was granted must-offer status, Rogers argues.
The ad-based service “understood the commercial implications of the Affiliation Agreement and was aware of the regulatory environment under which that Agreement would operate, and agreed to a [redacted] period,” Rogers said in its April 14 response to The News Forum’s application to the CRTC last month.
The national news service is alleging that Rogers is unduly disadvantaging the discretionary network by excluding it from Rogers’s legacy or grandfathered cable packages – putting it at a disadvantage compared to the likes of other news networks, including CBC and CTV. It wants the CRTC to force Rogers to enter into a new affiliation agreement to reflect its must-offer status and for the commission to impose a new wholesale rate, applied retroactively, to match that equal distribution, which includes to all institutional, commercial and transient establishments, such as hotels, airports and hospitals.
The service appears to hinge its argument on a section of the 2013 ruling by the CRTC that addresses national news distribution. That decision says the elements of the distribution order in that decision, such as packaging and negotiation of rates, “will supersede the relevant clauses in existing affiliation agreements … Other clauses will remain as agreed upon by the parties.”
But Rogers, which is asking the CRTC to dismiss the application, argues the key difference between this case and one referenced by The News Forum is that the Sun News Network entered into affiliation agreements with broadcasters before it applied for and obtained mandatory carriage and before the regulator’s policy on mandatory distribution of certain news services.
In contrast, The News Forum signed a distribution agreement with Rogers after it filed an application with the CRTC for mandatory distribution, meaning it was fully aware that the regulator could rule in its favour, Rogers argues.
“In our view, it would be highly inappropriate for the Commission to accede to TNFI’s demand for a new order under subsection 9.1(1) of the Act establishing the terms and conditions under which only Rogers must distribute the Service,” Rogers argues in its reply. “Granting TNFI’s request would override the parties’ valid commercial agreement, which was negotiated in full contemplation of TNFI’s Service being granted mandatory distribution as a national news service pursuant to a 9(1)(h) Order.
“Moreover, a finding of undue disadvantage in this case would create a critically negative precedent that would undermine the Commission’s dispute resolution process and its overriding policy of encouraging commercial negotiations,” the cable giant added. “Such unwarranted intervention in the commercial relationships between BDUs and broadcasters would create considerable uncertainty among all undertakings and seed mistrust in the Commission’s regulatory framework, which would negatively impact the health of a properly functioning wholesale commercial market and the public interest benefits associated with it.”
Rogers argues it’s not just complying with the CRTC distribution rules, but it’s exceeding its carriage requirements for The News Forum by providing the service on a free preview basis across its entire subscriber base – which it says provides the service with broader exposure than even CBC and CTV.
“In fact, offering the Service in free preview expands its distribution beyond what it would achieve if the Service was offered in all of our grandfathered news packages,” Rogers argues.
On that point, Rogers acknowledges that it is not carrying the service in those legacy packages that are out-of-market, experiencing less penetration, and no longer marketed. But that doesn’t mean it is moving the service to a limited subscriber base, Rogers argues.
“In fact, it is the complete opposite to that. Rogers is offering the Service to all subscribers on both our legacy and IPTV platforms.”
Beyond that, subscribers have the option of paying for Rogers’s News theme package that includes the service.
As for The News Forum’s request for its service to be beamed to all institutional, commercial and transient premises, Rogers says the CRTC’s distribution order for the service does not require that.
