Abridged 2012 01 30 To: Mr.

John Traversy Secretary General Canadian Radio-television and Telecommunications Commission Ottawa, Ontario K1A 0N2 Follow-up Report to Broadcasting Decision CRTC 2011-765, Complaint by TELUS Communications Company against BCE Inc., Bell Canada or Bell Mobility Inc. alleging undue preference and disadvantage, contrary to the provisions of the New Media Exemption Order

Subject:

Dear Mr. Traversy, Introduction In Broadcasting Decision CRTC 2011-765 (BD 2011-765) at paragraph 27, the Commission issued the following direction in relation to Telus' complaint regarding Bell Mobility's distribution of National Hockey League (NHL) and National Football League (NFL) content on mobile devices (the Direction):
1.

The Commission directs Bell to file a report with the Commission, by 30 January 2012, outlining the steps it will take to ensure TELUS access to the programming at issue at reasonable terms and to provide a copy of this report to TELUS. In accordance with the Direction, Bell Canada on behalf of Bell Mobility Inc. (the Company or Bell) hereby provides the following report (the Report) on the accessibility and availability of the NHL and NFL programming at issue.
2.

Confidentiality Claim Pursuant to the Access to Information Act and sections 31 and 32 of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (the Rules), the Company designates as confidential all information contained in this Report and the attached letter from the NFL (the NFL Letter) relating to: the terms of past or continuing confidential content licensing agreements between Bell, the NHL and NFL, respectively, including without limitation, any references to: (i) the duration of the contracts; (ii) the applicable rates, terms and conditions; and (iii) any rights to amend such agreements. The basis of this confidentiality claim is as follows. The information over which confidentiality is claimed is
3.
Bell Canada Mirko Bibic Floor 19 160 Elgin Street Ottawa, Ontario K2P 2C4 Telephone: (613) 785-0615 Facsimile: (613) 560-0472 bell.regulatory@bell.ca

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commercially sensitive and confidential information that is subject to reciprocal, binding, nondisclosure obligations. As such, it is information that is consistently treated in confidence by Bell and the NHL and NFL, respectively, not to mention the Canadian communications industry more generally, and by the Commission in the underlying dispute giving rise to BD 2011-765. As the Commission is aware, these agreements were entered into following competitive licensing processes. Disclosure of this information would prejudice the competitive position not only of Bell, but also of the leagues in any future negotiations regarding the licensing of such content in Canada. As such, the disclosure of this information can reasonably be expected to affect contractual or other negotiations in relation to such content. Accordingly, the Company is filing an abridged version of this Report and the Attachment and providing Telus with the abridged versions of these documents. Report on the accessibility and availability of NHL and NFL programming for mobile distribution (a) NHL Content The content licensing agreement between Bell and the NHL that was at issue in BD 2011-765 expired on #. It was entered into effective #. As is evident, this agreement was entered into many months prior to the announcement of the Commission's 7 March 2011 temporary moratorium against the entering of new exclusive programming agreements in Broadcasting Decision CRTC 2011-173, issued as part of the Commission's approval of BCE's acquisition of CTV. It was also entered into well before the Commission's temporary moratorium, and later prohibition against exclusive licensing agreements announced in the Regulatory framework for vertical integration, Broadcasting Regulatory Policy CRTC 2011-601 (the VI Framework). In keeping with the VI Framework prohibition against exclusivity, the Company entered into a new, non-exclusive, mobile content licensing agreement with the NHL, dated ,# which covers the period # to #.
4.

Bell does not have the right to sublicense this content to Telus, but because the licence granted by the NHL under the new agreement is no longer exclusive to Bell, Bell can confirm that access to this content is available to mobile distributors directly from the NHL. Therefore, no steps are required to be taken by Bell to ensure access by third party mobile service providers to this programming.
5.

(b)
6.

NFL Content

The content licensing agreement between Bell and the NFL at issue in BD 2011-765 is dated # and is discussed in a letter from the NFL to Bell, dated 19 January 2012, (the NFL Letter) attached to this Report, portions of which are filed in confidence pursuant to the confidentiality claim above. As noted in the NFL Letter, the agreement between the NFL and Bell expires on ,# meaning that there are # # NFL seasons covered under that agreement.
7.

The NFL Letter provides useful background confirming key facts adduced by Bell in the proceeding culminating in BD 2011-765, in particular that the NFL conducted a competitive bidding process for its Canadian mobile distribution rights when they were first made available in Canada. The package of rights to NFL content includes exclusive distribution rights in
8.

# Filed in confidence with the CRTC.

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respect of certain live games along with a variety of non-exclusive rights, a model which the NFL considers to be the best model for mobile distribution of its content in Canada and other countries throughout the world. As is evident, this agreement was also entered into many months prior to the announcement of the Commission's 7 March 2011 temporary moratorium against the entering of new exclusive programming agreements in Broadcasting Decision CRTC 2011-173, issued as part of the Commission's approval of BCE's acquisition of CTV, and before the VI Framework prohibition against exclusivity announced on 21 September 2011. The NFL Letter summarizes the key provisions and Bell's obligations under the agreement for the purposes of this Report as follows: first, the agreement can only be amended with # .# Neither Bell nor the NFL has any right to # # the agreement.
9.

Second, the NFL continues to own the copyrights to the mobile NFL content licensed under this agreement. In other words, Bell has no rights to sub-license or otherwise make such content available to a third party mobile service provider.
10.

Third, the NFL has clearly indicated that it has no interest in amending the agreement. The NFL expects Bell to honour its obligations as a licensee for the balance of the unexpired term of the agreement.
11.

Accordingly, consistent with the Direction, Bell can report that there are no steps that can be taken by it to ensure third party access to the NFL programming at issue because Bell lacks: (a) the necessary rights to license or sub-license the content; (b) the right to amend the agreement to license or sub-license the content; and (c) the right to terminate the agreement.
12.

The NFL Letter encapsulates the difficult legal position that BD 2011-765 places Bell within. The assumption underlying the Commission's Direction, namely that steps can or should be taken by Bell to ensure Telus access to the relevant programming, are outside of the Company's legal authority to take.
13.

Yours truly, [ Original signed by M. Bibic ] Mirko Bibic Senior Vice-President Regulatory & Government Affairs Attachment c.c.: JB/vh Michael Hennessy, TELUS Hans Schroeder, NFL Media Business Strategy & Development

# Filed in confidence with the CRTC. *** End of Document ***