TELUS

215 Slater Street, 8th Floor

Ottawa, Ontario
Canada K1P 0A6
www.TELUS.com
Ann Mainville-Neeson, LL.B.
Vice President, Broadcasting Policy and Regulatory Affairs

February 13, 2015

613 597 8308 Telephone

ann.mainville-neeson@telus.com

Filed Electronically

Mr. John Traversy

Secretary General
Canadian Radio-television and
Telecommunications Commission
Ottawa, ON K1A 0C8
Re:

Procedural Request re Part 1 Application by PIAC-CAC concerning CraveTV

Dear Mr. Traversy,

1. TELUS Communications Company (TELUS) has taken note of the application filed jointly
by the Public Interest Advocacy Centre and the Consumers Association of Canada (PIACCAC) concerning the new programming service called CraveTV which TELUS provides to
its Optik TV subscribers. This application1 was published on the Commissions website on
February 10, 2015.
2. For the reasons set out below, TELUS requests that the Commission exercise its powers
pursuant to section 7 and section 8 of the CRTC Rules of practice and procedure2 to either
return the CraveTV application to PIAC-CAC in order for deficiencies to be remedied or to
close the file. TELUS makes this request on the grounds that PIAC-CACs application:

is primarily based on unsubstantiated allegations and arguments, which although

they can be proven false, create an undue burden on the Commission and
respondents; and

consists mainly of arguments for amending the existing policies and rules and is thus
incompatible with an allegation of undue preference.

Application by PIAC-CAC regarding CraveTV, dated February 6, 2015.

Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure, SOR/2010-277, section 8: If
an application or complaint does not comply with a requirement of these Rules, the Commission may return the application or
the complaint to the applicant or the complainant so that the deficiencies may be remedied or it may close the file.
2

-23. TELUS has taken note of the procedural request by Vaxination Informatique on February 9,
2015 and the Commissions determination to maintain separate proceedings regarding the
complaints filed by PIAC-CAC against CraveTV and shomi. TELUS agrees with the
Commissions determination. There are issues that warrant consideration in the shomi
complaint that are simply not present with respect to how CraveTV is offered.
Unsubstantiated allegations/arguments create a burden on the Commission and on
respondents
4. PIAC-CACs application is rife with completely unsubstantiated allegations. For example,
PIAC-CACs numerous references to being unable to confirm or that it cannot ascertain3
crucial facts which underpin its arguments beg the question as to why PIAC-CAC would file
a complaint regarding something about which it has so little knowledge. It also begs the
question did PIAC-CAC even ask relevant stakeholders about any concerns prior to making
its complaint? TELUS hereby confirms that it did not encounter any issues regarding the
launch of CraveTV which it could relate to non-compliance by Bell Media with the
Commissions safeguards set out in its Vertical Integration Policy. In fact, TELUS believes
that Bell Media was very transparent with BDUs regarding the launch of CraveTV, providing
all the necessary information for potential distributors to make informed and timely decisions
for their own launch. This is in contrast to the manner in which shomi was launched by
Rogers and Shaw.
5. PIAC-CACs application also shows a demonstrable lack of understanding of the nature of
the service in question and the applicable regulatory frameworks. The entire premise of the
PIAC-CAC application is that the CraveTV service is (or should be) an over-the-top (OTT)
service accessible to any and all carriers. However, CraveTV is no different than the
numerous other broadcasting services offered by BDUs which also have a digital media
component. PIAC-CAC fail to address how CraveTV is any different from the many
conventional, specialty and pay services which also make their content available on-demand
and on multiple platforms to authenticated subscribers of their linear services.
6. PIAC-CACs only attempt to distinguish CraveTV from these other services is based on the
erroneous allegation that CraveTV has failed to obtain appropriate VOD authorization.4
Due diligence in preparing this application would have uncovered that no authorization is
required for the offer of SVOD packages by licensed VOD operators. In its most recent
update to its VOD policy, the Commission made clear that the offer of SVOD packages by
licensed VOD services provides an innovation that is attractive and convenient for
consumers and therefore that it does not agree with the views of parties who advocated
prohibiting VOD undertakings from offering SVOD packages.5

See, for example, PIAC-CAC Application, supra note 1, at paragraphs 13, 16, 35 and 52.
Ibid., at paragraph 35.
5
Broadcasting Regulatory Policy CRTC 2010-190, Regulatory framework for video-on-demand undertakings, March 29, 2010 at
paragraph 75.
4

-37. Applications such as this one filed by PIAC-CAC which are improperly researched,
misguided and baseless create a burden on the Commissions dispute resolution services.
As set out in Broadcasting and Telecom Information Bulletin 2011-222,6 the Commission
aims to publish decisions on Part 1 applications within four months of the close of record.
Frivolous applications like this one filed by PIAC-CAC place unnecessary strain on the
Commissions resources, and may affect the timeliness of decisions on applications that
raise real substantiated concerns about anti-competitive behavior that contravenes existing
rules, such as the one recently filed by Bell, and supported by TELUS, regarding Rogers
GamePlus service.7
8. Moreover, frivolous and unsubstantiated complaints raise concerns with respect to
procedural fairness for the respondents, especially in light of the reversal of onus that
requires respondents to demonstrate that any preference or disadvantage is not undue.
TELUS submits that it is procedurally unfair and overly burdensome to require respondents
to address any and all complaints particularly when they have no basis in fact or law, which
would have been obvious to PIAC/CAC in this instance if it had employed an adequate level
of diligence in its preparation. The Commission is the master of its own procedures. By
exercising the control it has over its own procedures the Commission can ensure the
integrity of its processes, judiciously allocate its resources while focusing those of other
stakeholders and prevent a chill descending over the development and launch of new and
innovative services.
PIAC-CACs application consists mainly of a request for changes to existing policies
9. Much of the PIAC-CAC complaint of undue preference is based on a call to review existing
policies or on the adoption of new policies. While the Commission has discretion to consider
such requests for a policy review, arguments in support of such policy change are not
properly considered as part of an undue preference complaint. Allowing requests for a
policy review to underpin undue preference complaints would put respondents in the
untenable position of having to demonstrate that their actions not only do not constitute an
undue preference under existing rules, but also pursuant to new rules being advocated by
the applicants which are not even currently in force and which may not ever be adopted by
the Commission.
10. If the Commission intends to consider the arguments for policy change advocated by PIACCAC in its application, it should do so as part of a separate proceeding. In this case
however, it is relevant to note that the policy areas in which PIAC-CAC seek reform are
related to matters already under consideration by the Commission in the Lets Talk TV
proceeding. Given that the Commission has announced that it will render decisions on
some of these policy matters in the coming weeks, it is likely that a policy discussion spurred

Broadcasting and Telecom Information Bulletin 2011-222, New service objectives for processing of broadcasting and
telecommunications application as of 1 April 2011, April 1, 2011.
7
Allegation of undue preference/disadvantage - Bell Canada vs. Rogers Broadcasting Limited, Application reference #20141056-3, filed October 21, 2014.

-4by this PIAC-CAC application would be rendered moot by the upcoming pronouncements of
the Commission.
Conclusion
11. In light of the lack of due diligence applied to this complaint and the invocation of policy
amendments to support its arguments, TELUS submits that the Commission ought to
exercise its powers under s. 7 and 8 of the Rules of procedure and return this application to
PIAC-CAC without further process. TELUS notes that there is precedent for refusing to
consider this complaint on the basis that it would represent a significant departure from the
existing regulatory framework for licensing VOD undertakings.8
12. While TELUS considers that a full return of the application to PIAC-CAC is warranted in this
case, in the alternative, the Commission should issue a procedural letter containing
guidance on whether any of the policy arguments made by PIAC-CAC will be considered in
its determination of this undue preference complaint.
13. In the event that the Commission considers it appropriate to proceed with this application in
any form, TELUS reserves the right to respond to the substantive arguments made by PIACCAC.
14. All of which is respectfully submitted on behalf of TELUS.
Sincerely,

Ann Mainville-Neeson

* * * END OF DOCUMENT * * *

Broadcasting Decision CRTC 2007-391, Rogers on Demand Licence amendments, October 24, 2007, at paragraph 10. The
Commission also declined to consider licence amendment applications by Corus (Broadcasting application 2012-0877-8) and
Rogers (Broadcasting application 2012-1089-8) to change the nature of service of their respective OWN and G4Tech television
services, issuing staff letters indicating that these applications raised policy issues not appropriately the subject of a Part 1
proceeding.