Telus wins Bell’s court challenge of CRTC vertical integration ruling

The Federal Court of Appeal ruled from the bench at a hearing in Toronto Tuesday, dismissing BCE Inc.'s challenge of the CRTC's use of a “reverse onus” rule in its process for complaints about anti-competitive practices. Bell had challenged a CRTC order issued in December 2011, which the commission later dropped, that asked Bell to disprove a complaint from Telus that said Bell's exclusive NFL and NHL mobile content put the competing telco at a competitive disadvantage. The reverse onus rule requires companies accused of uncompetitive behaviour to prove they did not violate the regulations. The commission dropped the order against Bell in February 2012, acknowledging that Bell's exclusive deal with the NHL had expired and that its agreement with the NFL did not permit the company to sub-license the content to other mobile carriers. Bell had argued the CRTC erred when it said Bell's exclusive offering of NFL games on mobile gave it a competitive advantage in mobile services, and that the commission demanded too high a standard of conclusive proof. The court agreed with Telus that Bell's appeal was “moot” because the CRTC acknowledged Bell could not abide by the commission's original order. “Having considered the written and oral submissions of Bell, and having reviewed the decisions to which we were referred ... we have concluded that the appeal is moot and that this Court should not exercise its discretion to hear it,” the Federal Court of Appeal decision said. The court upheld the CRTC's authority on its rules governing multiplatform distribution by vertically integrated companies. “In this case, it cannot be disputed that the Commission has the legal authority to consider and deal with a complaint alleging a breach of the New Media Exemption Order,” the decision said. Ann Mainville-Neeson, director of regulatory affairs at Telus who attended the court hearing Tuesday, said in a phone interview that the court ruled from the bench after hearing Bell's arguments. Telus did not present its arguments. “The fact that Bell brought this challenge is indicative of the long road ahead as we deal with a vertically integrated industry,” Mainville-Neeson said, referring to broadcast industry consolidation in which telecom and broadcast distributors also own broadcasting content. Telus, a mobile and wireline telecom company, does not own broadcast assets. The court said the challenge of the CRTC's application of the rules for new media, as well as the weight that the commission gives to evidence related to complaints, must be determined on a case-by-case basis. “Those are issues that are likely to be raised in any number of future appeals, but the appeals would have to be determined on a case by case basis,” the decision said. The court decision, issued by Justice Karen Sharlow and supported by justices Eleanor Dawson and David Stratas, dismissed Bell's challenge as "moot” and awarded costs to Telus. —With reporting by Simon Doyle at sdoyle@thewirereport.ca and copy editing by Danika Grenier at dgrenier@thewirereport.ca

Telus wins Bell’s court challenge of CRTC vertical integration ruling

News | 02/27/2013 6:13 pm EST

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