As the term of former CRTC Chair Jean-Pierre Blais came to an end, I wrote a post arguing that he left behind an enviable record, commenting that “a new commissioner may bring a different perspective, but there is no reversing a more open, accessible CRTC.” Less than a year later, it is becoming increasingly clear that I was wrong. Apparently, reversing an open, more accessible CRTC was entirely possible.
Blais understood at least two things with respect to Canada’s communications laws and the CRTC. The first was that in the digital environment the commission should eschew protectionism in favour of a regulatory approach premised on competition. The second was that the CRTC would never gain the trust of the public unless it was seen to operate in the public interest in a transparent manner that offered everyone an equal opportunity to shape Canadian policy.
New CRTC chair Ian Scott has only been in the position since last September, but it feels as if both principles are under threat.
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The CRTC yesterday issued a ruling
involving a Telus complaint over Bell’s exclusive rights over NFL and NHL content for its wireless services and its inability to negotiate similar rights for mobile carriage. The Commission found that Bell gave itself an undue preference contrary to its 2009 new media decision
and ordered Bell to take steps to ensure that Telus can access the programming on reasonable terms. While there are dangers of undue preferences in the mobile environment and of unfair behaviour arising from the vertical integration, it is hard to see how this case qualifies.
The CRTC analysis involves a two-step process. First, it considers whether an undertaking has given itself a preference or subjected another person to a disadvantage. If it finds a preference, it moves to a second step to determine whether the preference is undue. Note that the burden of demonstrating that the preference was not undue rests with the undertaking that has granted it.
In this case, the Commission found that Bell granted itself a preference by entering into an exclusive contract for NHL and NFL programming. Note that the NFL programming is not something that Bell produces or otherwise owns. There is also no indication that the Bell’s wireless access to the NFL is linked to similar licenses for its broadcasting properties (Bell says the NFL deal was concluded before its purchase of CTV). If this constitutes a preference, then any exclusive contract will seemingly rise to the level of a preference and the party that enters into it may be faced with the burden of demonstrating that it is not an undue preference (which appears to be precisely what the Commission has in mind).
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The Victoria Park Racing and Recreation Grounds was a popular racecourse in Sydney, Australia in the 1930s. Built in an open fairground, the owners erected a fence around the track to ensure that only ticket buyers could watch the action or place bets on the races. In response, a neighbour built a tower that was used by an Australian broadcaster to peer over the fence and broadcast descriptions of the races on its radio stations. Victoria Park Racing sued both the neighbour and the broadcaster on nuisance and property rights grounds. The Australian High Court dismissed the suit in 1937, but the case marked the arrival of an ongoing fight over the rights of sports leagues and teams to control coverage of their events that continues to this day.
Seventy years later, the battle has shifted to the Internet. My weekly Law Bytes column (Toronto Star version, homepage version) focuses on how in recent months, a growing number of leagues and sports associations have sought to assert control over athlete blogging, posting photographs and video online, and even the use of player statistics.
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Appeared in the Toronto Star on July 9, 2007 as Giving the Internet a Sporting Chance The Victoria Park Racing and Recreation Grounds was a popular racecourse in Sydney, Australia in the 1930s. Built in an open fairground, the owners erected a fence around the track to ensure that only […]
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