Bell vs. Quebecor battles continue
MONTREAL – In an unusual twist in a legal saga between two rivals, Bell Canada said Quebecor’s Groupe TVA should not be forced to provide its specialty services for distribution if it doesn’t want to, because that would violate the Copyright Act.
Bell, which submitted a new legal filing in Federal Court, also said the CRTC has no jurisdiction to force a program provider to “participate in a commercial relationship with a BDU without the [provider’s] consent.” The Regulator only has the ability to resolve disputes between those program providers and distributors about carriage, Bell said in the Monday submission.
That said, Bell is still asking for the court to dismiss TVA’s case because the CRTC mandatory order which forced Quebecor to supply Bell with TVA Sports, was valid at the time it was made. Back in April, at the start of the NHL playoffs, Quebecor cut its TVA Sports signal to Bell TV because it said the service is undervalued compared to Bell’s equivalent RDS channel. The CRTC called Quebecor Media CEO Pierre Karl Péladeau on the carpet for that move, which we covered here and here.
The only reason Quebecor was providing the signal at all was because it was required to by the CRTC after the regulator chose Bell’s offer at the last arbitration hearing. The two have never agreed on a price that satisfied Quebecor since the original agreement was signed in 2011.
Bell, which is an owner of content as well as a distributor, is however also asking the Federal Court to effectively do away with forcing program providers to continue to provide their copyright against their will – but only after this appeal has been dealt with. After Quebecor pulled the signal, it was forced to reinstate it under the CRTC’s “standstill rule,” which essentially means the status quo must be maintained in a carriage dispute until two sides can come to an agreement on terms.
Quebecor asked for a judicial review of the decision, which was granted, in part claiming that the CRTC violated the Copyright Act by forcing it, as a copyright holder, to hand over its rights to its license without its consent. Bell agreed in that respect, despite the fact that it benefited from the laws. It argues that these provisions for which the CRTC relied to make a decision “have not yet been set aside” and are part of the laws.
While Bell is arguing to have the provision struck down by the court – in that it conflicts with other laws – after it deals with this appeal, it said that TVA’s appeal should still be dismissed because the mandatory order was valid at the time it was made.
On the Copyright Act matter, Bell argues the CRTC violated section 3(1)(f) and 13(4) of that statute, which gives program providers the “sole right” to authorize and set the price of other terms for the “retransmission by BDUs of their copyrighted programs.”
Without this, the BDU can “unilaterally trigger the CRTC’s dispute resolution process, at which point the [program provider] must continue to supply the BDU with its copyrighted programs even if it wishes to withdraw completely from their commercial relationship and no longer provide its copyrighted content” at rates and terms set by the CRTC, not the program provider, Bell said.
What’s more, Bell said Parliament, under NAFTA, only granted limited user rights of a BDU over copyrighted programs carried in over-the-air signals, not in discretionary program signals as is the case here.
Bell also said the CRTC also doesn’t have the jurisdiction to get into those kinds of affairs anyway: Section 10(1)(h) of the Broadcasting Act, on which the CRTC based its ruling, “is not intended to allow the CRTC to require that [program providers] provide their programming services to BDUs unwillingly, at the BDU’s unilateral behest,” Bell said, which is now asking the court to look into the correctness of the CRTC’s decision following the Supreme Court’s ruling in the Super Bowl case.
The argument effectively says that it’s not fair – in the event the program provider wants to withdraw – for a BDU to enter a dispute and trigger the standstill rule to its benefit, and to the detriment of the owner of the copyright.
The filing comes after Bell submitted an appeal of another CRTC decision that said it gave RDS an undue preference and TVA Sports an undue disadvantage by packaging the two channels differently.
