OTTAWA – The change of a single word, which the CRTC insists is a correction of a mistake, has many people in the regulatory side of the TV business wondering aloud if, in fact, the Commission caved a little to the wishes of Bell Canada.
Last Friday, October 14, the CRTC tweaked its regulatory framework relating to vertical integration, where the much ballyhooed code of conduct for vertically integrated companies was softened, with the words “shall” or “shall not” replaced with “should” or “should not” (or, in French, from “doit” or “ne doit pas” to “devrait” or “ne devrait pas”) in several places.
It’s a big deal, legally. Should adds a lot more wiggle room than shall. The former is an expectation. The latter, a requirement. Safe to say many (especially the independent broadcasters) liked the “shall” requirement much better. The independent broadcasters we have talked to so far are angry about the switch, and some didn’t care for the policy anyway.
ALSO ON FRIDAY, THOUGH, the Commission responded to an October 5th letter from Bell which had asked the CRTC to “issue urgent and expedited clarifications and further details” to the VI Policy after claiming to have “encountered situations where Commission policies are operationally unworkable.” This was sent just 14 days after the policy was announced.
“These operational challenges arise variously from ambiguity in the VI Policy or potentially contradictory interpretations of the policies between industry stakeholders,” reads the letter, which was signed by Bell’s SVP of regulatory and government affairs, Mirko Bibic.
(Ed. note: For what it’s worth, the industry rumour mill says negotiations between Bell Media and Rogers Cable for a new carriage deal for TSN and other specialties stopped right after the new VI policy release, part of which denies channel owners the right to remove their signal in a contract battle.)
In its response to the Bell letter, the Commission said that it believes the company’s letter “goes much farther than its stated purpose and effectively requests changes to the VI Policy,” something the Regulator says it is not prepared to do at this time.
“The Commission notes that it identified in Appendix 2 of the VI Policy, a number of follow up proceedings, such as the call for comments on specific audit provisions for Vertically Integrated Entities,” reads the CRTC’s letter back to Bell. “The Commission also notes that the VI Policy indicated that it will issue a number of draft regulatory amendments, such as the ones to implement the standstill rule. It is the view of the Commission, that Bell Canada should raise its concerns as part of the public consultation process of those proceedings.”
When contacted by Cartt.ca today, a Commission spokesperson said that despite the timing and optics, the shall--should change was not done in response to Bell’s complaints and was just a mistake that needed to be fixed, that the Commission always wanted to have wiggle room in the code and that “should” should’ve been there from the beginning.
And perhaps the reaction from Bell’s Bibic in an e-mailed response to our Monday, October 17 queries about all this, backs that up, because he remains unsatisfied.
Said Bibic: "Quite apart from the policy decisions made by the Commission in the VI decision, it has become apparent, given gaps in the decision and our early experience to date, that the decision is commercially unworkable. This is inevitable given that the Commission has essentially decided to become a price regulator in broadcasting, encouraging parties to run to it at the first hint of dispute. We are already seeing that and believe further early clarification would have been preferable to waiting on multiple proceedings at some unspecified future date."
We’re thinking there will be much more to come yet on this file.
- Lesley Hunter and Greg O’Brien