By Ahmad Hathout
The Federal Court of Appeal on Tuesday granted Rogers its request to appeal two decisions of the CRTC that froze its ability to move certain Corus channels in its cable packages.
Rogers had provided notice that it was terminating its carriage agreement with Corus by the end of 2024 and, as part of that, wants to remove Corus’s Slice from certain television packages and replace the media company’s Flavour and Home networks with its own Food Network and HGTV so customers, it says, are not scrambling to find the American programming it secured, and Corus lost, in a rights deal with Warner Bros. Discovery (WBD) past summer. Corus says it’s concerned that moving the channels down the dial would make it more difficult for Rogers subscribers to find their new channels.
The November 18 decision by the commission ordered Rogers not to move those channels from their current positions on Rogers TV. A follow-up November 29 decision rejected a request by the cable giant to find that the standstill rule – which forces a carriage status quo until a CRTC decision or a private reconciliation – did not apply to the three channels because Corus was allegedly breaking that status quo by making changes to the channels.
Rogers therefore alleges that the CRTC is enforcing a one-sided application of the standstill rule by forcing Rogers to maintain carriage while allowing Corus to make changes, including rebranding Food Network to “Flavour,” HGTV to “Home,” and changing Slice’s constitution after it lost Bravo content owned by NBCUniversal, which was scooped up by Rogers in that same rights deal this summer.
But the CRTC said in the confidential decision – made public by the appeal court filings – that Rogers’s interpretation of the standstill rule is “overly restrictive” and that the rule applies both to the parties’ underlying affiliation agreement and the agreement on how that programming is distributed.
“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,” the CRTC said, according to a submission by Corus requesting the appeal court reject Rogers’s application.
To Corus, if the CRTC intended to limit the standstill to just the affiliation agreement, then it would have made that explicit, it wrote to the high court in its submission to reject the leave application. “Indeed, other dispute resolution provisions in the BD Regulations specifically refer to a ‘commercial agreement’ between the parties. Similarly, s. 9.1(1)(j) of the Broadcasting Act speaks of the ‘terms and conditions of service in contracts between distribution undertakings and their subscribers.’ The fact that s. 15.01(1) does not use similar language is telling.”
The media company also argues that the CRTC has interpreted the standstill holistically with the objectives of the Broadcasting Act as intended by Parliament, and that the changes to its channels were done not by its own hand but forced onto it by Rogers securing those American programming rights.
In early November, Rogers secured an Ontario Superior Court opinion that said it had the ability to repackage channels based on a reading of the companies’ distribution agreements, but did not wade into the standstill matter, which is in the Federal Court’s domain.
Rogers’s deal with WBD and NBCUniversal has also affected Bell, which is alleging that the cable giant is giving itself an undue preference for wanting to move its Discovery and Investigation Discovery (I.D.) networks into the channel slots that are currently held by what it says are the similar USA Network and Oxygen True Crime — replacement services after Bell lost the rights to the Discovery and I.D. monickers. Similar to its argument with Home and Flavour, Rogers says it wants to replace the channels so customers don’t get confused about the location of the American programming.
