By Ahmad Hathout
The Federal Court of Appeal said Monday that the CRTC did not err by forcing Rogers to negotiate a deal through staff-assisted mediation or go to final offer arbitration (FOA) to carry OneSoccer.
In a decision from the bench after a hearing Monday, the court said the CRTC was not wrong in deciding that Rogers’s proposed remedy – to negotiate a deal privately – was unlikely to be acceptable to OneSoccer parent Timeless Inc., and that staff-assisted dispute resolution, requested by Timeless, was required.
The cable giant said in its original appeal application that it proposed to carry the OneSoccer channel on similar terms as the three directly comparable channels on Rogers TV, thus claiming to resolve an undue preference decision made against it in March 2023. It argued that the alternative – dispute resolution – was unacceptable because there was never a commercial dispute to begin with.
“Parties have not been compelled to submit to dispute resolution to establish the terms and conditions of carriage where the parties had no existing commercial relationship and carriage had not been granted, or where the CRTC had not issued an order or regulation requiring the BDU to distribute the service under specific terms and conditions,” Rogers said in its application, noting that OneSoccer has not been granted must carry status.
“It [CRTC] did not follow its established policies, procedures, and previous decisions where it addressed findings of undue preference or disadvantage,” it alleged.
But the court disagreed, especially where Rogers accused the regulator of not providing sufficient reasons.
“The Commission found that Rogers’ proposal ‘may not necessarily lead to a resolution of the dispute in a timely manner,’ there is an ‘imbalance in the parties’ bargaining positions,’ and further delays would undermine several important public policy goals in the Broadcasting Act, S.C. 1991, c. 11,” the court said. “In saying this, the Commission considered the record placed before it and the reasons given in its undue preference decision.
“Here the Commission was dealing with a discretionary, factually suffused matter, one with some urgency,” the decision continued. “A long reserve with reams of court-style analysis was not called for.”
The court also noted that the regulator did not depart from earlier cases, despite ordering dispute resolution in this matter and not others.
Requests for comment to Rogers and to a OneSoccer email were not returned.
The issue first emerged in a Part 1 application filed in 2022 in which Timeless alleged Rogers was giving itself an undue preference by refusing to carry OneSoccer – which launched in 2019 – because it was concerned about competition with Sportsnet.
“It is reasonable to presume that Sportsnet would not want a competitor on Rogers Cable, which would divert audiences and ad dollars from Sportsnet, and may also inflate future broadcast rights fees, due to increased competition,” Timeless alleged at the time. “Simply: Sportsnet would not want a competing sports service to achieve financial stability, which carriage on Rogers Cable would provide.”
Rogers had maintained that the service has limited appeal with its viewers despite claims that there has been a surge in popularity and success for Canadian soccer. Telus, the only linear Canadian broadcaster carrying the channel, asked the CRTC to investigate a possible undue preference.
The CRTC sided with Timeless less than a year later, in March 2023, when it ruled that Rogers was giving its own sports channels an undue preference by refusing to carry the competitor. The regulator then asked the two parties to submit proposals to resolve the carry issue.
More than a year later, in the summer of 2024, Rogers said it was pausing carry talks because it said it believed that OneSoccer was operated by foreigners at the time Timeless filed its Part 1 application, which would have made said application invalid, per commission rules.
This past summer, the CRTC disagreed and again asked for proposed remedies to resolve the carry issue by August 11.
