Bell store at Rideau Centre in Ottawa Aug. 12, 2010.Blair Gable
Diehard sports fans can get ready for some football on their mobile devices – even if they aren't Bell customers.
The federal broadcast regulator on Monday ruled that BCE Inc. had given itself an unfair competitive advantage by striking deals with the National Football League and National Hockey League to offer their game content exclusively on Bell's own mobile network for phones and tablet devices, and refusing that content to other providers.
Monday's decision means that Bell's last remaining rights to exclusive TV content on mobile – since the deals directly with the NFL and NHL preceded the September "vertical integration" decision and theoretically could have been grandfathered in – has been scrapped. A complaint from rival Telus Corp. , filed last January, led the CRTC to rule that such content also must be offered to competitors who want to pay for it.
But Bell says it cannot comply with the CRTC's ruling, because its deal for the mobile rights was struck directly with the leagues, separate from TV rights, and does not include permission to resell the games to mobile competitors.
"The CRTC is imposing itself directly in how independent and in this case international content owners sell their content rights in Canada. We don't have the ability to act on the CRTC's behalf in the way they're demanding," Bell said in a statement Monday. Company representatives declined requests for an interview.
Bell has until Jan. 30 to file a report to the CRTC on "how it will ensure that Telus has access to its NHL and NFL content at reasonable terms." If it fails to offer that content to other wireless providers by that date, the CRTC would most likely call a hearing into the matter.
The regulator does not have the right to fine broadcast providers, but after the hearing it could issue a "mandatory order" filed with the Federal Court – which could fine Bell if it still did not comply.
"People are spending billions of dollars on sports enterprises. Sports content is clearly a big driver," CRTC chairman Konrad von Finckenstein said in an interview on Monday. "Who would give up their Telus subscription and go to Bell, for content? What would make them do it? … If you're a real NFL [or NHL]nut, it's absolutely essential."
Monday's ruling does not affect last week's deal for BCE and Rogers Communications Inc. to buy a majority stake in Maple Leaf Sports and Entertainment Ltd., because the Canadian Radio-television and Telecommunications Commission had already released new rules in September, banning such exclusive content.
The two telecom powerhouses went into the MLSE purchase knowing that they could not use their ownership to refuse Leafs or Raptors games to other mobile providers. (They are permitted to produce Web-only or mobile-only content and keep it to themselves, as Bell has done with its reality show about the Montreal Canadiens, for example.)
Bell's Mobile TV service, which includes content from a number of television channels, is currently available to any mobile provider for a fee. The offering to Bell phone subscribers includes extra NHL and NFL content: live audio and video feeds of hockey games – including Stanley Cup playoff matches – and live video of NFL prime-time and Sunday afternoon games, including playoffs and the Super Bowl, as well as content from the NFL network.
In its complaint, Telus said it has had "numerous meetings" with NHL and NFL officials, and both "have indicated that they would consider assigning sublicensing rights to Bell at its request."
"Sports is probably one of the most high-value properties … we think it's going to be as important online and on wireless [as it is on TV]" Michael Hennessy, Telus's senior vice-president of regulatory and government affairs said in an interview. "If you control all the content, as a carrier, then you can basically reduce competition in the marketplace."
The complaint from Telus used a rule, already in place when Bell negotiated its mobile deals for the sports content, to argue that Bell had given itself "undue preference" by refusing to negotiate on a deal that would allow Telus to provide content such as the Super Bowl, and other games and game highlights to its subscribers on their mobile devices. (Content not covered by Bell's NFL deal includes some non-prime-time regular season games.)
"Although the Canadian mobile content distribution market is an emerging market, it is likely that sports will be a primary driver in the mobile video market," the decision stated. "This serves to increase the likelihood that the arrangements between Bell and the NFL and NHL would have a significant adverse impact on Telus's ability to attract mobile subscribers for its broadcasting content."
According to documents filed with the CRTC, in December Telus wrote to Bell formally asking that the NHL and NFL content be added to its Bell Mobile TV service for Telus subscribers. In January, Nauby Jacob, vice-president of products, services and content at Bell replied in an e-mail that Bell could not discuss the sports content because the leagues "ultimately own those rights, and we don't have any arrangements with them to sublicense their content." The inability to negotiate for the content is what triggered Telus's complaint.