Aliant is unlikely to appeal a ruling by the CRTC that EastLink has the right to refuse advertising on its TV listings channel, says one of the Atlantic telco’s lawyers. Aliant filed a part VII application under the Telecommunications Act after EastLink refused to carry the telco’s advertising for its wireless services on its cable community TV channels in Nova Scotia and Prince Edward Island (CCR, March 11/05, Jan. 14/05). But the CRTC dismissed the complaint on April 1, concluding that the TV listings channel is a program as defined under section 2(1) of the Broadcasting Act and is, therefore, subject to that act (CCR, March 29/05). In ruling on the matter under the Broadcasting Act, following an expedited process, the CRTC stated that while it considered that the Bragg Communications Inc. subsidiary had subjected Aliant to a disadvantage, it was not undue. Therefore, the commission determined that EastLink had not breached section 9 of the Broadcasting Distribution Regulations, which prohibits a licensee from giving undue preference to any person. Aliant argued that EastLink’s TV listings channel was primarily alphanumeric text and should thus fall under the Telecommunications Act. Aliant’s senior counsel Paul Fitzpatrick says an appeal likely won’t be forthcoming. "I suspect that the probability of it (the commission’s decision) being appealed is less than half," he notes. "This is a discretionary matter, which the commission has within its purview..." He adds that the issue isn’t cut and dry. "We felt we had interesting and novel arguments to make in terms of whether it would be characterized as a programming or non-programming channel, and we advanced those arguments," he tells Canadian Communications Reports. "The commission has a discretion in these things. It’s not a black and white issue, and the commission disagreed with our submissions." "We feel the CRTC’s decision was fair," says EastLink’s director of regulatory affairs Natalie MacDonald. In its decision, the regulator writes: "The commission considers that Bragg’s control of the TV listings channel does not confer upon it market power in advertising likely to cause material harm, due to the nature of the channel and of the viewing of it, and in light of the fact that Aliant has numerous, likely more effective, advertising alternatives that it can use to reach potential customers…The commission is, therefore, unable to conclude that Bragg’s refusal of Aliant’s advertising on the TV listings channel has had, or is likely, to have, a material adverse impact on Aliant." The CRTC further notes that EastLink’s refusal to accept Aliant’s ads "is unlikely to have an impact on the achievement of the objectives of the broadcasting policy for Canada set out in the Broadcasting Act." Fitzpatrick says it’s too early to determine what alternative advertising avenues Aliant will seek out for its mobile services now that EastLink has the CRTC’s blessing to deny its advertising. Aliant advertised its wireless products on EastLink’s TV listings channel up until October 2004, at which time the cableco informed its advertising agency it would no longer accept them. "It (EastLink’s television-listings channel) was a very cost effective and valuable advertising avenue that was open to Aliant," he says. "That has been taken away from us. Therefore, we have to reformulate our advertising strategy to account for that. I can’t comment on any specific steps that would have to be taken into action to the decision, but suffice to say that our advertising approach and strategy will have to be adjusted accordingly."