Rogers Licence Renewal

When the Rogers Licence Renewal decision came out last week (July 31, 2014) it didn’t create much fuss. That’s partly because it is the middle of summer and partly because it is a short term licence renewal – many of the issues will be addressed again and perhaps in more depth at the Group Licence Renewal in 2016.

As a reminder, Rogers had an earlier licence renewal because at the time of the Group Licence Policy and the group licence renewals, Rogers was still a group of not yet national conventional stations and a few specialties but had already started buying up what they needed to become a third diversified group (Corus is part of the group licensing framework but with almost no conventionals so is a different beast altogether). Rogers wasn’t a group in 2010 but they are now.

Being an official group (they were sort of a group before in the way that they were licensed but not fully) puts Rogers on the same footing as Bell, Rogers and Corus going into the Group Licence Renewals. That’s important.

There are a lot of picky little details in the licence renewal but I would like to highlight a few things that caught my attention.

There were a lot of concerns about Sportsnet 360 being included in the group. It is not a Category C (news and mainstream sports) service but a Category B so there is no regulatory reason to exclude it. There were concerns expressed at the hearing that Sportsnet 360 combined with CITY broadcasts of NHL games would allow Rogers to spend all of their non-PNI CPE on sports and specifically NHL hockey. The Commission in the decision advised that they shared stakeholders concerns but they didn’t think much could be done to change programming plans during the coming two years so rather than impose regulatory safeguards they would instead require detailed reporting and monitor the situation. So the message is ‘don’t do what we’re all afraid you’re going to do or we will regulate’.

The level of reporting required is also interesting in a wonky way. Rogers has a multiplatform deal for the NHL rights and that means an ability to deliver programming across multiple platforms but also an ability to allocate revenues and expenses across those platforms. There is huge opportunity to game the system here and the Commission knows it. They have asked not only for detailed reporting of NHL revenue and expenses across regulated and unregulated platforms but also details on how the allocation formulas were arrived at.   The reporting requirement is an enforceable condition of licence and not one of those ‘expectations’ that can be ignored.

Rogers had asked for a lot of concessions on their ethnic programming on OMNI which basically would allow them to air a lot less Canadian and ethnic programming on the basis that the business model was broken. You may remember in the public hearing when Commissioner Shoan repeatedly asked intervenors if they watched third language news online because that was Rogers’ argument for asking for a reduction in prime time commitments. The answer was universally no. So Rogers didn’t get most of the concessions requested. Their Canadian exhibition requirements were slightly reduced but only to bring them in line with the exhibition requirements under the Group Licensing Policy. There are a few other reductions but in the interest of harmonizing the requirements across the OMNI stations. They were once individual services and as a result each had different conditions of licence.

Then there is my favourite part. For the third time Rogers tried to expand the interpretation of OLN’s nature of service to allow it to broadcast programs that have nothing to do with outdoor adventure. You may remember the first time when they tried to argue that “Lost” was outdoor adventure and they should be allowed to use OLN to air more US prime time dramas like “Lost” in second run. In the second attempt some of us cut and paste our arguments from the first intervention for the second intervention because so little had changed. This time the argument was that “Baggage Battles”, “Operation Repo” and yes, “Whisker Wars” (really – it’s a show about competitive beard growing – I kid you not), should all be part of a more vaguely interpreted outdoor adventure nature of service.  Not only did the Commission disagree strongly but they gave Rogers till January 31, 2015 to fix their schedule. This short time frame came in the same decision where the Commission said they understand how long it takes to change programming schedules so they didn’t think Rogers would fill its schedule in 2015 with hockey.   Finally, the requirement to report by January 31, 2015 to demonstrate how they have fixed their schedule is an enforceable condition of licence.

This nature of service decision is also interesting because it suggests that at the Talk TV hearing in September, the Commission is not likely to drop nature of service definitions as requested by some broadcaster intervenors.  Arguments have been made that enforced nature of service definitions are essential to diversity of programming and it could be that the Commission is open to this argument.  We will see.

Why am I excited about the enforceable conditions of licence in this decision? In the past these sorts of provisions would be ‘shoulds’ and were often ignored or half-fulfilled.  As a broadly written ‘must’ if the broadcaster fails to perform the required activity they can be called to a show cause hearing to give it the chance to explain why they didn’t do it and why the CRTC should not issue a mandatory order (enforceable by Federal Court) or any number of other harsher penalties such as refusing to reissue a licence. As Rogers is up for renewal in only two years they are not going to want a show cause hearing with licence renewal in question. I am hopeful that we won’t have a ‘History replaces CSI: New York with NCIS’ situation based on how the decision has been worded. We may not have a NMBU reporting situation with the NHL reporting – though I have to admit that I’m less hopeful with that one. Broadcasters do have a long history of fighting detailed reporting requirements.

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