TORONTO and GATINEAU — Kids channel broadcaster WildBrain Television (formerly known as DHX Television) is asking the CRTC to step into its ongoing dispute with Cogeco Connexion over the distribution of its Family Channel, Family Jr and CHRGD channels.
According to a Part 1 application filed January 19 by WildBrain, and posted to the CRTC website on January 28, WildBrain and Cogeco have been engaged in “protracted negotiations” regarding the carriage of the three kids-oriented channels by Cogeco. (WildBrain’s French-language Télémagino channel is not part of the dispute.)
WildBrain says it presented a proposal to Cogeco on April 27, 2020, for the renewal of their existing affiliation agreement and the continued distribution of Family Channel, Family Jr and CHRGD. Since that time, WildBrain has made four subsequent proposals to Cogeco, and Cogeco responded with two different proposals, WildBrain says.
However, on October 16, 2020, Cogeco notified WildBrain it intended to drop the broadcaster’s three English-language channels from its entire BDU platform, says WildBrain’s Part 1 application.
“Cogeco’s actions in the course of our negotiations and in its threats to drop the Family services breach Cogeco’s obligations:
- to abide by the ‘standstill’ obligations under section 15.01 of the Broadcasting Distribution Regulations during a dispute with the licensee of a programming undertaking;
- to abide by the Wholesale Code in the course of its negotiations with programming services, as set out in Cogeco’s conditions of licence; and
- not to give any person an undue preference or subject a person to an undue disadvantage under section 9 of the Broadcasting Distribution Regulations,” reads the application.
WildBrain says when it became clear last summer the negotiations could be lengthy, on July 13, 2020 it provided the CRTC with notice of the dispute regarding the outstanding affiliation agreement between the two companies. WildBrain’s application argues Cogeco has breached its obligation to abide by the “standstill” rule which sets out that “until the dispute between programming undertakings and BDUs is resolved, the parties are to provide continued access to programming services and carriage,” WildBrain writes in its application.
The actual wording of the “obligation during dispute” section (Section 15.01) of the Broadcasting Distribution Regulations is as follows:
15.01 (1) During any dispute between a licensee and a person licensed to carry on a programming undertaking or the operator of an exempt programming undertaking concerning the carriage or terms of carriage of programming services or concerning any right or obligation under the Act, the licensee shall continue to distribute those programming services at the same rates and on the same terms and conditions as it did before the dispute.
(2) For the purposes of subsection (1), a dispute exists from the moment that written notice of the dispute is provided to the Commission and served on the other undertaking that is party to the dispute and ends when an agreement settling the dispute is reached by the concerned undertakings or, if no such agreement is reached, when the Commission renders a decision concerning any unresolved matter.
Regarding Cogeco’s alleged breach of its obligations to abide by the Wholesale Code during negotiations, WildBrain’s application (which is redacted in parts) seems to suggest Cogeco’s proposed economic terms for carrying the Family services have not fallen in line with the framework set out by the Wholesale Code.
“In our respectful view, Cogeco has not respected the provisions of the Wholesale Code in discussions with WildBrain. The positions that Cogeco has adopted — which have now resulted in the threat of the immediate loss of carriage of the Family services — have not been based on the requirements set out in the Wholesale Code. As a result, they have not provided for reasonable terms of carriage, packaging and retailing of those services as contemplated in the Broadcasting Act,” reads WildBrain’s application.
WildBrain is asking the Commission to order Cogeco to engage in negotiations with WildBrain pursuant to the framework set out in the Wholesale Code for a period of 30 days after the CRTC’s determination and with the assistance of a CRTC-appointed mediator; and in the absence of Cogeco and WildBrain reaching an agreement, for Cogeco to engage in final offer arbitration with WildBrain, in accordance with sections 12 and 15 of the Broadcasting Distribution Regulations and the CRTC’s Practices and procedures for dispute resolution in order to determine the terms of carriage for the Family services.
Cogeco and any other interested parties have until March 2 to file interventions with the Commission.
