Terms of trade called ‘effectively dead’ after court decision

The Federal Court of Appeal on Friday dismissed the Canadian Media Production Association’s attempt to appeal the CRTC’s decision to eliminate terms of trade agreements, in what a former head of the organization said is a “huge disappointment to producers.” Norm Bolen, a consultant who negotiated the agreement during his time as CMPA president and CEO, said in a phone interview that he was “surprised and disappointed” by the decision. The terms of trade agreement was signed between the CMPA and large broadcasters in 2011, following pressure from the CRTC to reach a deal. In March 2015, the CRTC decided to eliminate the agreement, which guaranteed certain rights for producers, stating that it would “allow programming services to apply to remove requirements to adhere to a terms of trade agreement, effective 29 April 2016,” because it was “no longer necessary” for the commission to intervene in the relationship between broadcasters and producers. The CMPA said at the time that it was “shocked and stunned” by the move, and applied to the Federal Court of Appeal for the right to contest the decision in April. It argued it was not given sufficient notice that the CRTC was considering getting rid of the agreement during its Let’s Talk TV proceeding. The CMPA said the CRTC’s notices of hearing never mentioned terms of trade, “let alone stated that its status as a condition of licence was under review,” and that the CRTC never brought up the issue during the CMPA’s appearance at the proceeding. Rogers Communications Inc. and Corus Entertainment Inc. asked the court to dismiss that application, arguing that there were several instances where the issue of terms of trade was brought up leading up to and during the Let's Talk TV proceeding. The court granted costs to the two companies. The CMPA declined to comment Monday, while the CRTC did not respond to a request for comment. A Corus spokeswoman said in an emailed statement that the company “is pleased that the Federal Court of Appeal supported the company’s position and did not grant leave to the CMPA.” Rogers spokesman Kevin Spafford said in an email: “We're pleased with the decision and we'll continue to work with our partners in the independent production sector to create and invest in Canadian content that will attract audiences here at home and around the world.” Bolen said it was disappointing that the court did not give any reasons for the dismissal, adding that “it’s hard to know what was going on behind the curtain.” He said the court could have dismissed the leave to appeal on a technicality, or chosen to defer to the CRTC’s jurisdiction. “There’s no way of knowing,” he said. Bolen added that the documents the CMPA submitted amounted to “one of the most impressive submissions to a court that I’ve ever seen, and provided massive evidence that there had been a violation of due process in the CRTC process, and that an injustice had been done, and that the producers should have been given a fair opportunity to have their issue discussed in a proper form at the CRTC.” Bolen said “there is no further appeal possible” to the court’s decision, and that it means “terms of trade is effectively dead,” because broadcasters won’t enter into such an agreement without the CRTC requiring them to do so. “It’s actually a sad, sad thing for our production sector,” he said. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Derek Abma at dabma@thewirereport.ca

Terms of trade called ‘effectively dead’ after court decision

News | June 1, 2015

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Terms of trade called ‘effectively dead’ after court decision

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