BCE Inc. is again turning to the courts over a disagreement with Canada's broadcast and telecom regulator, this time seeking to appeal a new set of rules around how television programmers negotiate the distribution of their content.
The Montreal-based company filed a motion Thursday with the Federal Court of Appeal for leave to appeal the "wholesale code," which the Canadian Radio-television and Telecommunications Commission (CRTC) introduced last month.
The code, which is set to come into force on Jan. 22, came out of the Let's Talk TV proceeding, the CRTC's broad review of the television industry that concluded earlier this year.
It expanded on an earlier set of guidelines regarding negotiations between content creators or producers and distributors – such as cable and satellite providers – and was meant, in part, to curb some of the bargaining power held by "vertically integrated" companies. Those are players such as BCE, Rogers Communications Inc. and Shaw Communications Inc., which own both content and distribution businesses and control much of Canada's broadcast media industry.
The code includes provisions that bar content providers from: demanding minimum distribution or revenue levels (independent programmers are exempt from this), requiring distributors to buy one or more additional services to get one desirable service (known as "tied-selling") and generally charging rates not considered "commercially reasonable."
BCE said in its filing that the code goes beyond the regulator's jurisdiction, arguing that the CRTC cannot override the rights of content creators under the Copyright Act and also that the commission has no power under the Broadcast Act to directly regulate the financial terms of the relationships between programmers and distributors.
This spring, the company won leave to appeal two CRTC rulings to the Federal Court of Appeal, one on the pricing of its mobile TV application and another that would open the door to American Super Bowl ads on Canadian TV.
Last week, BCE filed a petition with the federal cabinet asking it to review the CRTC's July ruling on wholesale Internet services, arguing that forcing the company to give small Internet providers access to its highest-speed fibre-optic services will discourage investment. BCE also asked the CRTC itself to "review and vary" a separate aspect of that decision.