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Court File No. 34231 in the SUPREME COURT of CANADA

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Court File No. 34231 in the SUPREME COURT of CANADA Court File No. 34231 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) BETWEEN: COGECO CABLE INC. Appellant -and- BELL MEDIA INC. (FORMERLY CTV GLOBEMEDIA INC.), CANWEST TELEVISION LIMITED PARTNERSmp, NEWFOUNDLAND BROADCASTING CO. LTD., V INTERACTIONS INC. AND ATTORNEY GENERAL OF CANADA Respondents AND BETWEEN: ROGERS COMMUNICATIONS INC. and TELUS COMMUNICATIONS COMPANY Appellants -and- BELL MEDIA INC. (FORMERLY CTV GLOBEMEDIA INC.), CANWEST TELEVISION LIMITED PARTNERSmp, NEWFOUNDLAND BROADCASTING CO. LTD., V INTERACTIONS INC. AND ATTORNEY GENERAL OF CANADA Respondents AND BETWEEN: SHAW COMMUNICATIONS INC. Appellant -and- BELL MEDIA INC. (FORMERLY CTV GLOBEMEDIA INC.), CANWEST TELEVISION LIMITED PARTNERSmp, NEWFOUNDLAND BROADCASTING CO. LTD., V INTERACTIONS INC. AND ATTORNEY GENERAL OF CANADA Respondents -and- CANADIAN RADIO-TELEVISION AND TELECOMMUNICATIONS COMMISSION Intervener FACTUM OF THE APPELLANT, SHAW COMMUNICATIONS INC. (Pursuant to Rule 42 of the Rules ofthe Supreme Court of Canada) Davies Ward Phillips & Vineberg LLP Gowlings LLP 1 First Canadian Place 160 Elgin Street 100 King Street West Suite 2600 Suite 4400, Box 63 Ottawa, ON KIP 1C3 Toronto, Canada M5X 1B1 Ed Van Bemmel Kent E. Thomson James Doris Tel: 613.233.1781 Sarah Weingarten Fax: 613.563.9869 Tel: 416.863.0900 Fax: 416.863.0871 Counsel for the Appellant Shaw Communications Inc. ORIGINAL TO: THE REGISTRAR Supreme Court of Canada 301 Wellington Street Ottawa, Ontario KIA on COPIES TO: Parties Counsel Agent Attorney General of Department of Justice Canada Canada Civil Litigation Section, Bank of Canada Building East Tower - Room 1104 234 Wellington Street Ottawa, ON KIA OH8 Alexander Gay Noreen Majeed Tel: (613) 941-2353 Fax: (613) 954-1920 Bell Aliant Regional 160 Elgin Street Communications and Bell 19th Floor Canada Ottawa, ON K2P 2C4 Denis E. Henry Tel: (613) 785-6361 Fax: (613) 560-0472 Mirko Bibic Tel: (613) 785-0615 Fax: (613) 594-4628 Canadian Radio­ Central Building Television and 1 Promenade du Portage Telecommunications Gatineau, QC J8X 4B1 Commission John Keogh Tel: (819) 953-3990 Fax: (819) 953-0589 Valerie Dionne Tel: (819) 953-4889 Fax: (819) 953-0589 Crystal Hulley Tel: (819) 956-2095 Fax: (819) 953-0589 Cogeco Cable Inc. McCarthy Tetrault LLP Cavanagh Williams Suite 5300 Conway Baxter LLP Toronto-Dominion Bank Suite 401 Tower 1111 Prince of Wales Drive Toronto, ON M5K 1E6 Ottawa, ON K2C 3T2 Colin S. Baxter Neil Finkelstein Steven G. Mason Tel: (613) 780-2011 Daniel G.C. Glover Fax: (613) 569-8668 Tel: (416) 601-8200 Fax: (416) 868-0673 Bell Media Inc. (formerly Goodmans LLP Nelligan O'Brien Payne CTVglobemedia Inc.), Bay Adelaide Centre 55 O'Connor, Newfoundland 333 Bay Street Suite 1500 Broadcasting Company Suite 3400 Ottawa, ON KIP 6L2 Limited and V Toronto, ON M5H 2S7 Interactions Inc. Benjamin Zarnett Dougald Brown Tel: (416) 597-4204 Tel: (613) 231-8210 Fax: (416) 979-1234 Fax: (613) 788-3661 Robert Malcolmson Tel: (416) 597-6286 Fax: (416) 979-1234 Peter Ruby Tel: (416) 597-4184 Fax: (416) 979-1234 Rogers Communications Fasken Martineau Dumoulin Inc. and TELUS LLP Communications 55 Metcalfe Street Company Suite 1300 Ottawa, ON KIP 6L5 Gerald Kerr-Wilson Julia Kennedy Tel: (613) 236-3882 Fax: (613) 230-6423 TABLE OF CONTENTS PART I - STATEMENT OF FACTS ....................................................................................................................... 1 A. OVERVIEW ........................................................................................................................................... 1 B. THE PROPOSED REGIME ...................................................................................................................... 3 C. LEGISLATIVE FACTS - THE CAREFULLY CALIBRATED SCHEME GOVERNING RETRANSMISSION IN CANADA .............. : ............................................................................................... 5 D. LEGISLATIVE HISTORY ........................................................................................................................ 13 E. THE U.S. EXPERIENCE, INCLUDING BLACKOUTS ................................................................................ 21 F. THE UNDERLYING CRTC PROCEEDINGS AND THE CRTC'S DENIAL OF ITS OWN JURISDICTION ...................................................................................................................................... 22 G. THE DECISION OF THE FEDERAL COURT OF APPEAL .......................................................................... 23 PART II - ISSUES ...................................................................................................................................................... 25 PART III - ARGUMENT .......................................................................................................................................... 26 A. STANDARD OF REVIEW - THIS COURT HAS BROAD SCOPE TO CONSIDER JURISDICTION DE Novo ...................................................................................................................................................26 B. SUBMISSION 1-SUBORDINATE LEGISLATIVE BODIES ARE CONFINED TO THEIR JURISDICTION, AS CONFERRED BY PARLIAMENT AND ASSESSED BY THE COURTS ............................ 26 C. SUBMISSION 2 - MULTIPLE OPERATIONAL CONFLICTS ARE FATAL TO THE CRTC'S JURISDICTION ...................................................................................................................................... 31 D. SUBMISSION 3 - THE BROADCASTING ACT DOES NOT AUTHORIZE THE PROPOSED REGIME ............ 37 PART IV - SUBMISSIONS ON COSTS .................................................................................................................. 40 PART V - ORDER SOUGHT ................................................................................................................................... 40 PART VI - TABLE OF AUTHORITIES ................................................................................................................. 41 PART VII - LEGISLATION ..................................................................................................................................... 43 - 1 - PART I - STATEMENT OF FACTS A. Overview 1. This appeal arises from a Reference submitted to the Federal Court of Appeal by the Canadian Radio-television and Telecommunications Commission (the "CRTC"), and concerns the jurisdiction of the CRTC using its general powers under the Broadcasting Act to impose a so-called "fee for carriage" or "value for signal" regime on participants in the Canadian broadcasting industry (the "Proposed Regime"). The Proposed Regime, if implemented, would create rights for broadcasters to seek payment from Shaw and other providers of cable and satellite services! in the form of a "fee for carriage", in exchange for the right to retransmit the broadcasters' otherwise free over-the-air broadcast signals. It would also give broadcasters the right to impose blackouts by deleting programs transmitted in those signals in circumstances where an agreement on fees is not reached. As a result, if the decision of the Court of Appeal is permitted to stand, the Proposed Regime will reconfigure the manner in which the industry operates. Millions of ordinary Canadians who watch television will face substantial increases in their monthly bills as fees paid to broadcasters are passed on to them, and be forced to endure blackouts when negotiations with broadcasters fail, as they inevitably will from time-to-time. Broadcasting Order CRTC 2010-168: Reference to the Federal Court of Appeal- Commission's jurisdiction under the Broadcasting Act to implement a negotiated solution for the compensation for the fair value of private local conventional television signals (22 March 2010) ("CRTC Order") (AR, Tab 2 at 7); Broadcasting Regulatory Policy CRTC 2010-167: A group-based approach to the licensing of private television services (22 March 2010) ("CRTC Policy") at paras. 163-67 (Appellants' Joint Record ("AR"), Tab 10 at 33-35) 2. The majority of the Federal Court of Appeal held that the CRTC has jurisdiction to implement the Proposed Regime. This is so even though: (a) the Copyright Act, rather than the Broadcasting Act, contains a comprehensive, carefully crafted and narrowly tailored retransmission regime that was put in place by Parliament through amendments to the Copyright Act following years of consultation, study and analysis; Cable and satellite providers are referred to, on occasion, as "Broadcast Distribution Undertakings" or "BDUs". -2- (b) the Proposed Regime conflicts squarely, in a number of material respects, with the retransmission regime provided for in the Copyright Act. Indeed, the CRTC proposes to confer upon broadcasters the very same sorts of rights that Parliament has repeatedly refused to create, and that the Government of Canada has opposed on a number of occasions in more than a decade of international treaty negotiations; and (c) no provision of the Broadcasting Act empowers the CRTC to implement a regime of this nature, either expressly or by implication. Judgment and Reasons for Judgment, Federal Court of Appeal, Reference re Broadcasting Act (Can.), 2011 FCA 64 ("FCA Decision") (AR, Tab 3) 3. The decision of the majority rests upon a clear misreading of the salient provisions of the Copyright Act that govern retransmission rights in Canada. Unfortunately, the majority interpreted those provisions without regard to closely-related statutory definitions of key
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