By Ahmad Hathout
Rogers is asking the Federal Court of Appeal to review whether the CRTC erred when it approved a request by Timeless Inc. to have staff-assisted mediation instead of accepting its own proposal to privately negotiate terms to carry OneSoccer.
The cable giant said in the judicial review application filed Monday 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.
Instead, the application claims, the CRTC approved in a letter last month Timeless’s request for staff-assisted mediation with final offer arbitration (FOA) as a last resort. The deadline to come to an agreement before triggering FOA was Monday.
The crux of the issue, according to Rogers, is that the CRTC is forcing dispute resolution where 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 says 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 alleges.
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.
Since then, Rogers said it has consistently submitted what it says amounts to a complete resolution of the matter: carry OneSoccer on similar terms as the three directly comparable services it already carries: Sportsnet World, EuroWorld Sport (Goal TV), and beIN Sports Canada.
But, according to Rogers, the regulator rejected the proposal without adequate reasons and on the basis that it would simply produce the status quo, which Rogers rejects.
“The Commission’s finding of undue preference in BD 2023-94 [March decision] was based on Rogers’ ‘refusing to carry’ OneSoccer while providing linear distribution to the Comparable Services,” the cable company says in the court application. “Rogers’ proposal to carry OneSoccer on equivalent terms to the Comparable Services makes the Commission’s statement that the remedy Rogers proposed would ‘…maintain the status quo’ factually incorrect.
“Status quo can only be interpreted to mean the situation in place at the time of the undue preference/disadvantage decision. At that time, there was no offer of BDU carriage. Rogers’ proposed remedy would result in carriage of OneSoccer on comparable terms to the services identified in the Commission’s decision and as such directly addressed the root of the CRTC’s undue preference finding.”
Rogers also claims that, after the March decision and contrary to commission rules, the CRTC allowed Timeless to submit additional evidence related to the services OneSoccer was being compared to in the roster of channels Rogers was carrying, including Sportsnet, Sportsnet One, and TSN.
Rogers also claims the CRTC made an inherently problematic statement when it said that “further delays in negotiations would undermine … public policy goals and could threaten the plurality of ownership in Canadian sports programming services.”
“It chose as its remedy a mandated dispute resolution process that includes mediation and FOA, which would take many months, if not longer, to conclude rather than Rogers’ remedy which could have been implemented immediately.”
Rogers is asking the court to hear its case, set aside or quash the CRTC’s dispute resolution decision, and order the regulator cease requiring the parties to use staff-assisted mediation and FOA to determine the carry terms.
Screengrab via OneSoccer
