Three years ago, when the CRTC ruled against Bell with respect to exclusive mobile access to NHL/NFL programming, then Chair Konrad von Finckenstein said:
Canadians shouldn’t be forced to subscribe to a wireless service from a specific company to access their favourite content. Healthy and fair competition between service providers will promote greater choice for Canadians.
As I wrote at the time, I disagreed with the decision – and I continue to think that the CRTC got it wrong.
I disagree with the concept that all carriers offering the same content promotes “greater choice for Canadians.” Exclusives create increased opportunities for differentiation, with not all carriers carrying the same content. If one carrier has such compelling content that it causes customers to switch service providers, then the other service providers will have to step up their game and find other ways to win those customers back.
We aren’t talking about essential services like access to emergency calling. It is an entertainment service.
Let’s fast-forward to today. Following a $5.2B investment in rights to NHL broadcasting, Rogers has launched a number of multi-platform delivery services, enabling a number of options for Canadian consumers to access more hockey games than ever before.
The games themselves are available to all Canadians, whether or not they subscribe to Rogers access services – cable, internet or mobile. Some capabilities, such as the GameCentre app, are available for a fee to all Canadians, although Rogers customers have free access until the end of the year; other capabilities, such as GamePlus (additional camera angles, statistics, analysis, etc), are exclusively available to Rogers customers.
Bell says that exclusive access to GamePlus constitutes a violation of sections 3 and 5 of the CRTC’s New Media Exemption Order.
3. The undertaking does not give an undue preference to any person, including itself, or subject any person to an undue disadvantage. In any proceeding before the Commission, the burden of establishing that any preference or disadvantage is not undue is on the party that gives the preference or subjects the person to the disadvantage.
5. Subject to paragraph 6, the undertaking does not offer television programming on an exclusive or otherwise preferential basis in a manner that is dependent on the subscription to a specific mobile or retail Internet access service.
Interestingly, in Bell’s application, it left out the first part of Section 5 in its quotation – that little bit about the exclusivity prohibition being “subject to paragraph 6”. We will see how relevant that exemption becomes.
Among the questions to be explored will be whether GamePlus is television programming. What is “television programming”? The Exemption Order defines it as “programming designed primarily for conventional television, specialty, pay or video-on-demand services.” Can you get those GamePlus capabilities on your TV set or were they designed primarily for some other form of delivery, like, say, a mobile app?
To what extent is Bell’s application more of a case of seeking clarification of the restrictions inherent in the 2011 NFL decision? Is Bell trying to determine the conditions under which an integrated carrier can lock up Canadian rights to an NFL version of GamePlus?
That may be one of the reasons that TELUS has joined in the fray, urging “the Commission to put a swift end to content exclusives”.
TELUS believes that the Commission should take immediate steps to establish a new clear and unequivocal prohibition of exclusives relating to online content where the content is owned or controlled by Canada’s large vertically integrated communications companies. The Commission must ensure that Canadians don’t have to subscribe to multiple networks in order to access all the content they want.
It was TELUS – the largest service provider in Canada with no content broadcasting assets – that launched the original complaint that led to the CRTC’s 2011 NFL decision.
TELUS says in its comments this week that Rogers is “using the coveted NHL rights to drive subscriptions to its network access services.”
I doubt there is any argument about that point.
The question to be resolved by the CRTC is whether a regulatory response is needed. If the CRTC rules that Rogers is entitled to package GamePlus as it wants, how will the marketplace respond? Will it drive lower prices, improved service and increased innovation by other service providers?
Will those responses serve the interests of consumers?