By Ahmad Hathout
Rogers says if OUTtv wants to be placed in a cable package with broader distribution, it must come to the negotiating table instead of asking the CRTC to intervene in what it says are squarely commercial matters.
Otherwise, the LGBTQ+ streamer is currently slotted in the best available theme pack that Rogers offers, which the cable giant argues is precisely what is contemplated for services that are designated as “must offer.”
Rogers is responding to an application by OUTtv that alleges the cable giant is violating Wholesale Code rules after it pushed the service out of its eastern Canadian “Premier” package, which saw explosive growth in viewership, in December 2024. Premier is now known as “Ultimate TV,” which is the cable company’s highest television tier.
But Rogers says removing the service from that pre-assembled package is not offside of the Wholesale Code because the cable giant already includes the service in the best possible themed package.
“Section 9 clearly provides a BDU with the ability to choose whether to offer an independent programming service in the best available pre-assembled or theme package,” emphasized the cable company, which added that it currently slots the service in entertainment, lifestyle and human-interest programming genres.
If the commission interpreted the section to mean that OUTtv must be offered in both the best pre-assembled package and best available theme package, it would “result in the absurd outcome that every independent programming service” would need to be treated similarly, Rogers argues.
OUTtv charges that Rogers is unduly disadvantaging the service versus the 40 other services in the theme packages because those other services are also included in the pre-assembled “Popular TV” and “Ultimate TV” tiers. But Rogers argues the onus is on OUTtv to show – for the undue preference/disadvantage argument to work – that its service is comparable.
“A BDU’s defence entails proving: (a) the services are not comparable; (b) the services are not subjected to dissimilar treatment; and/or (c) the dissimilar treatment is justified,” Rogers says in its response. “OUTtv’s sweeping and unsupported claim places an impossible evidentiary burden on Rogers. We cannot reasonably be expected to prove the absence of an undue preference/disadvantage related to the packaging of the Service vis-à-vis 40 other discretionary services, particularly when OUTtv has provided no substantive analysis establishing comparability for any of these services 40 services.”
Rogers also disputes whether it needed to provide a 60-day notice before it moved the service out of “Premier,” saying such a notice – which OUTtv cites from a decades-old policy decision – doesn’t find its way into the CRTC’s code of conduct for commercial arrangements or the Wholesale Code. And even if there is a 60-day requirement, it wouldn’t apply to this situation because it’s stipulated for channel realignments, which did not happen in this case, Rogers further argues.
Rogers also takes issue with OUTtv’s claim that it breached the standstill/status quo rule because it removed the service while the two were engaged in a commercial dispute. The cable company says there wasn’t a standstill in effect when it removed the service in December because OUTtv hadn’t filed a notice of dispute until March 5, which is the application to which Rogers is responding. Rogers disputes an interpretation that the standstill rule was automatically triggered 90 days after the start of commercial negotiations that didn’t result in a deal.
That said, the cable company says it is willing to resolve OUTtv’s concerns by distributing the service in its Ultimate TV package – but only on mutually agreeable terms. Rogers alleges OUTtv has “strategically refused to engage in meaningful rate discussions.”
“The present application constitutes yet another instance wherein OUTtv has positioned itself as aggrieved when in fact the circumstances complained of are the direct result of OUTtv’s own unreasonable commercial decisions and negotiating posture,” Rogers alleges in its application.
OUTtv CEO Brad Danks told Cartt that the company is not prepared to comment on the allegations now, but will file a response to the commission next week.
The Forum for Research and Policy in Communications (FRPC) filed an intervention in support of OUTtv’s application, calling the service “exceptional” in its importance. The organization said private negotiations have not improved the economic prospects for the sustainability of the must-offer service in question.
“FRPC submits that the CRTC should grant the OUTtv Application because to date, the half-steps, unenforceable expectations and encouragements that it has tried have all left OUTtv on an ever-sharpening knife’s edge of financial failure – and because these measures have ill-served Canada’s LBGTQ2 communities. Implementing Parliament’s Broadcasting Policy for Canada requires the CRTC to do what it was established to do: to serve the public interest by ensuring that all BDU subscribers have access to programming that reflects them. Simply trying is not good enough: the CRTC must do more, as Parliament’s Broadcasting Policy envisages.”
The organization asks that the CRTC order Rogers to distribute OUTtv “in the package to which it had agreed or, in the alternative in Rogers’ largest general-interest package” and to make a decision before April 30, per OUTtv’s request.
Prior to this application, OUTtv asked the CRTC to again consider granting it “must-carry” status that would make it available to all subscribers of the BDUs for a higher wholesale rate. The commission had previously rejected such a request in 2022, when it instead granted it “must offer” status – which forces the BDUs to carry the service but leaves it up to the subscriber to pay for it. In arguing its position, the FRPC said there is a substantial delta in viewership between must-offer and must-carry services
While OUTtv, which has garnered the support of other LGBTQ+ production companies, argues it has faced extreme marginalization, Rogers and other BDUs have said its dwindling financial situation lies not at their feet, as has been alleged, but on other factors, including cord cutting and allegedly OUTtv’s own conduct during negotiations.
“Instead of actively negotiating with Rogers and referring the matter to the Commission for dispute resolution where the parties failed to agree, it is apparent from the comments filed by other BDUs in this proceeding that it was always OUTtv’s strategy to improperly rely on the Commission’s s. 9.1(1(h) [must carry status] regulatory tool as a means to establish wholesale rates without consideration of its Service’s fair market value,” Rogers said in a follow-up February submission requested by the CRTC.
With the exception of one unnamed BDU, Danks alleged in a November submission that “all of the BDUs required that OUTtv accept a steeply reduced per subscriber wholesale fee before they would meet their regulatory obligation to distribute OUTtv in the highest penetration suitable package,” and that the “most efficient and direct remedy to address both the non-compliance by BDUs … and to establish a reasonable rate for OUTtv, either through negotiation with BDUs or through carriage of OUTtv as a basic service.”
He also said that a CRTC final offer arbitration process, which BDUs have said is the preferred avenue for dispute resolution, “on its own would not address OUTtv’s packaging – which is a fundamental issue on all BDUs. OUTtv does not have the resources to engage in what would, in effect, amount to an extended battle of attrition on this scale.”
