In an attempt to preserve the status quo leading up to
its decision on the regulatory framework for vertical integration
in the broadcasting industry, the CRTC has indicated that existing
carriage arrangements between broadcasters and distributors should
remain in place for now.
On July 8, 2011, the CRTC issued Broadcasting Regulatory Policy CRTC
2011-415 (the Policy), coincident with the filing
of final written comments respecting the recent CRTC public
hearings on vertical integration in Canada.
The Policy states that where a programming undertaking (a
broadcaster) is in terms of carriage negotiations with a
broadcasting distribution undertaking (a cable or DTH system) or
the operator of an exempt distribution undertaking, the programming
undertaking should continue to provide programming services on the
same terms and conditions as their last agreement with the other
party. Similarly, broadcasting distribution undertakings in such
negotiations should continue to distribute the programming services
of programming undertakings on the same terms and condition as the
last agreement. These requirements are to remain in effect until 30
days after the CRTC publishes its decision on the vertical
The policy also reminds broadcasting distribution undertakings
and pay and specialty service licensees of the requirement in
sectoral regulations that signal carriage must continue during a
dispute between the parties over terms of carriage.
Interestingly, however, the standstill policy itself may be more
in the nature of an expectation by the regulator, rather than an
enforceable directive. Under the terms of the Broadcasting
Act, the CRTC could impose restrictions on
the terms of carriage agreements through the imposition of
conditions of licence, the publication of regulations, or the
issuance of mandatory orders; but each of these carries procedural
obligations that require a comment period - and in some cases a
public hearing - before giving the restrictions legal effect.
The vertical integration hearing, held in late June, was
prompted by several recent instances of industry consolidation,
including the acquisition of Canwest Global (now Shaw Media) by
Shaw Communications and the reacquisition by Bell Canada
Enterprises of full control of in CTVglobemedia (now Bell Media).
In commencing the public
hearing, the CRTC noted that the possibility
exists in vertically integrated broadcasting enterprises to provide
preferential treatment to affiliated entities or to engage in
anti-completive conduct generally. It also noted that a number of
parties had proposed various safeguards to discourage or prevent
anti-competitive behaviour. Much of the discussion at the hearings
focused on the terms and conditions for carriage for unaffiliated
broadcasters and broadcast distributors.
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