Subsequent to our original post, the CRTC issued a clarification to Broadcasting Regulatory Policy 2011-415, indicating that, in fact, broadcasting undertakings are not prevented from renegotiating the rates, terms and conditions of pre-existing carriage agreements, whether expired or otherwise.
After struggling to reconcile this with the wording of the original directive, it would appear that all that the “standstill” directive was intended to do was to ensure that during negotiations, existing services continue to be made available by broadcasters and continue to be carried by distributors.
In other words, the original directive should be read as if it said:
During any negotiations between a programming undertaking and a broadcasting distribution undertaking or the operator of an exempt distribution undertaking with respect to the terms of carriage of programming originated by the programming undertaking, the programming undertaking should continue to provide the distributor or operator with its programming services. During this negotiating period, the programming services should be provided on the same terms and conditions as contained in the last agreement reached between the concerned undertakings.
During any negotiations between a broadcasting distribution undertaking and a programming undertaking with respect to the terms of carriage of programming originated by that programming undertaking, the broadcasting distribution undertaking should continue to distribute the programming services of that programming undertaking. During this negotiating period, the programming services should be distributed on the same terms and conditions as contained in the last agreement reached between the concerned undertakings.
Services must continue, as directed above, until 30 days following the publication of the Commission’s decision in the proceeding initiated by Broadcasting Notice of Consultation CRTC 2010-783, or as otherwise agreed by the parties.
Drafting and interpretation issues aside, the fact remains that the CRTC appears to be creating an unenforceable “expectation” for some broadcasters to continue to provide service. While pay, specialty and broadcasting distribution undertakings are required by regulations to continue service during a dispute between the parties over carriage terms, there is no such requirement in regulations affecting other undertakings, such as conventional television broadcasters.