By Ahmad Hathout
OUTtv is arguing that Rogers cannot have a choice in how it distributes its service if that choice means putting the channel in a television package with less penetration.
The LGBTQ+ service, which must be offered by broadcasters, said in a response filing provided to Cartt that Rogers’s interpretation of section 9 of the Wholesale Code – which appears to offer the cable giant the option of putting the discretionary service in either the “best available pre-assembled or theme package” – cannot be read without the full scope of the CRTC’s objectives when it comes to independent services, especially one it considers of “exceptional importance.”
Rogers removed OUTtv from its highest television tier – what was then called “Premier” and what is now called “Ultimate TV” – in December 2024, which triggered OUTtv’s complaint. The cable giant has claimed it is willing to reinstate the service in that package but OUTtv must come to the negotiating table and be amenable to an adequate carry rate. OUTtv has alleged that it hasn’t heard a fair offer.
Otherwise, Rogers argues that it already offers OUTtv in the best available theme package, as it believes that is a choice contemplated in section 9. But OUTtv says it should also be included in its pre-assembled Ultimate TV package, which, it says, has the higher penetration.
“The Commission expects broadcasting distribution undertakings to include the OUTtv programming in pre-assembled or thematic packages, consistent with its theme, programming and language and with the highest penetration rates,” emphasized OUTtv in a CRTC determination from 2022.
OUTtv also pointed to paragraph 134 of the CRTC’s decision to approve Rogers’s acquisition of Shaw’s broadcasting assets, which spells out its expectation that the cable giant avoid dropping channels and avoid “significantly changing packaging or otherwise materially reducing wholesale payments.”
“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 Rogers, which added that it currently slots the service in entertainment, lifestyle and human-interest programming genres.
Now that it’s only in what Rogers says is the best available theme pack, OUTtv believes it is not being served in the best package available and with the highest penetration.
“Rogers’ unilateral repackaging of OUTtv has resulted in a precipitous and unprecedented decline in OUTtv’s subscriber base on Rogers’ systems,” OUTtv said in its response. “This represents a deeply cynical and harmful step by Rogers made in flagrant defiance of the Commission’s explicit [sic] stated expectations and Rogers’ regulatory obligation to distribute OUTtv in the best available package.”
OUTtv is backed by LGBTQ+ production companies and public interest group, the Forum for Research and Policy in Communications.
