Broadcasting Procedural Letter Addressed to Lenore Gibson (Bell TV)

Ottawa, 31 May 2017

VIA E-MAIL

Mrs. Lenore Gibson
Senior Counsel
Regulatory Affairs
Bell TV
lenore.gibson@bell.ca

Dear Mrs. Gibson,

Re: Bell TV compliance with its obligation to offer all discretionary services in small packages

This is in response to your correspondence dated 28 February 2017 in which Bell TV requested a Commission ruling with regard to whether Bell TV (Bell) is in compliance with section 23 of the Broadcasting Distribution Regulations (the Regulations). The following is the Commission’s determination.

Background

On 6 December 2016, the Commission received a complaint from an Ontario resident questioning whether Bell’s practice of allowing subscribers to only purchase one custom package of ten programming services for a fixed price is in compliance with the requirement to offer all channels in packages of up to 10 channels.

In response, Bell submitted that by allowing subscribers to choose one custom package of ten programming services for a fixed price and offering all additional programming services on an à la carte basis, it was in compliance with section 23 of the Regulations.

In an email to Bell dated 15 February 2017, Commission staff stated that section 23 of the Regulations requires that all discretionary services be offered in packages of up to ten programming services. Commission staff reasoned that, under Bell’s approach, once a subscriber chooses one custom package of ten services for $20 per month, the remaining discretionary services are no longer offered to that subscriber in packages of up to ten programming services. As a result, Commission staff was of the view that Bell’s current programming service offering does not comply with section 23 of the Regulations.

In an email dated 28 February 2017, Bell indicated that it did not agree with Commission staff’s interpretation of the Regulations and requested a Commission ruling on the interpretation of s.23 of the Regulations, preceded by a public process in which stakeholders could comment including other broadcasting distribution undertakings (BDUs) who may offer custom packages in a similar way.

Regulatory framework

Section 23 of the Regulations provides the following with respect to the offering of discretionary programming services by BDUs:

  1. Except as otherwise provided under a condition of its licence, all authorized non-Canadian programming services, other than the programming services of non-Canadian television stations, and all discretionary services that are offered by a licensee in a licensed area shall be offered as follows: […]
    1. "on or after December 1, 2016, both on a stand-alone basis and in packages of up to 10 programming services.
  2. In addition to the packages required under subsection (1), a licensee may offer any programming services that are not distributed as part of its basic service in packages of more than 10 programming services.
  3. For purposes of subsections (1) and (2), the licensee may offer either or both of the following:
    1. packages that consist of programming services that are chosen by the licensee; and
    2. packages that consist of programming services that are chosen by the subscriber.

Procedural request

With respect to Bell’s request for further process, the Commission notes that the process for addressing the complaint has been consistent with Part 2 of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (customer complaints), and considers that no further public process is required to reach a determination on the interpretation of section 23 of the Regulations.

The Commission, therefore, denies Bell’s request for additional process.

Bell’s compliance

In A World of Choice – A roadmap to maximize choice for TV viewers and to foster a healthy, dynamic TV market, Broadcasting Regulatory Policy 2015-96 (the Choice Policy), the Commission emphasized consumer choice and flexibility and the importance of the ability of consumers to create their own value proposition. To this end, the Commission modified the Regulations so that BDUs would be required to offer all discretionary services on both a pick-and-pay basis and in packages of up to 10 programming services (small packages). Further, at the discretion of the BDU, these small packages may be comprised of programming services that are chosen by the licensee or that are chosen by the subscriber (or a combination of both). BDUs may also choose to offer discretionary services in larger packages but are not required to do so.

Regardless of whether a BDU chooses to offer programming services in licensee-assembled small packages, or allows the subscriber to choose the programming services included in the small packages (or some combination of both), the obligation set out in the Regulations, and the intent of the Choice Policy, is that all discretionary services must be made available in small packages. If a BDU does not make all discretionary services available to the subscriber in a way which allows the subscriber to access those services in small packages, they will be in non-compliance with the Regulations. As noted above, BDUs also have the option of offering discretionary services in larger licensee-assembled or subscriber-assembled packages.

In this specific case, Bell’s choice to limit subscribers to only one custom package of ten programming services means that any discretionary services that the subscriber does not choose in that one package are no longer available to them in small packages. The Commission considers this failure to make all of the discretionary services offered by Bell available to subscribers in small packages to be contrary to s.23 of the Regulations.

Based on the above, the Commission finds Bell in non-compliance with s.23 of the Regulations. Specifically, that by allowing subscribers to subscribe to only one custom package of 10 programming services, Bell has failed to make all discretionary services available to its subscribers in small packages as required under the Regulations. The Commission directs Bell to modify its offering to come into compliance with the Regulations by no later than 1 July 2017.

Yours sincerely,

Danielle May-Cuconato
Secretary General

c.c.: kevin.goldstein@bellmedia.ca

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