IMCAIP insists Rogers spots are promos

The Independent Members of the Canadian Association of Internet Providers (IMCAIP) does not buy arguments by Rogers Cable Inc. that announcements it made about how to convert from its @home service to @rogers were not promos. The group contends the cableco promoted its Internet service in violation of CRTC rules. An excerpt of the group’s response to Rogers’ claims that were filed to the CRTC on January 29 follow. Editor’s Note: For the view of Rogers, see the story in this issue. In sum, Rogers has admitted to each aspect of the conduct alleged by IMCAIP. Moreover, the activity is continuing. Rogers’ conduct in making available preferential access to its regulated BDU system through the insertion of unpaid promotional messages of an unregulated, commercial service (high speed Internet service) is the central issue in this application. Rogers has asserted that none of the material complained of by IMCAIP constitutes an advertisement or a promotion because each of the messages is intended to "educate an audience about issues of public concern" rather than sell or promote goods or commercial services…None of the @Rogers.com conversion messages, of whatever duration, can reasonably be said to be intended to: educate about a matter of public concern, encourage public support and awareness of a worthy cause or promote the work of a non-profit group or organization dedicated to enhancing the qualify of life in local communities or the society or the world at large (the only permitted activities). None of the messages is targeted at a general audience. Rather, each is intended to reach a narrow and defined sub-set of the audience, namely those viewers having a commercial and contractual relationship with Rogers to receive the Rogers@home high speed Internet service. The purpose of the messages is narrower than ensuring the continued ability of Rogers’ customers to maintain e-mail service, as suggested by Rogers. The purpose is the promotion and continuation of Rogers’ contractual relationship with its customers. Rogers has a commercial interest in ensuring these customers do not migrate their Internet service to a competitive ISP. This commercial purpose is confirmed by the fact none of the messages informs Rogers’ customers of alternative Internet service providers ("ISPs") in their communities, or advises customers how to migrate to another ISP in order to maintain e-mail service following the discontinuance of the Rogers@home accounts. ...Given customers’ well-documented dissatisfaction with Rogers’ Internet service earlier in 2001, each of these messages is clearly intended to minimize the possible migration of Rogers@home customers to competitive Internet services in view of previous ongoing and repeated service interruptions. ...Rogers’ assertion that the "extraordinary" facts associated with the demise of the @Home service renders the messages a public service is similarly without foundation. In any event, the facts associated with At Home’s bankruptcy are hardly "extraordinary," as Rogers would have the commission believe. The deteriorating financial performance of the At Home Corporation ("At Home") was a matter of public knowledge and had begun long before At Home filed for bankruptcy in September 2001. …As early as August 20, 2001, the company issued a Securities Exchange Commission warning that At Home was running out of cash and might not be able to continue operating as a going concern. Given these indicators, Rogers could have followed Shaw Cablesys-tems and taken steps before At Home’s bankruptcy filing, on September 28, 2001, to guarantee the uninterrupted provision of e-mail service to its subscribers. In other words, the "unprecedented" and "extraordinary" urgency which Rogers claims to have faced was caused by Rogers’ own conduct. …Viewed from another perspective, the Rogers’ justification for its actions should mean that if a competitive ISP was to experience a situation whereby its customers’ continued ability to send or receive e-mail was threatened, then Rogers should provide exactly the same opportunity to inform the customers of the competitive ISP with respect to appropriate remedial action. The difficulty with such a result...is that the Broadcasting Act and BDU Regulations as well as commission decisions and policies, prohibit such activity…

IMCAIP insists Rogers spots are promos

Broadcast | January 31, 2002

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