Avis de recherche using desperate legal measures to stay on the air

Control room and studio at Avis de recherche

Control room and studio at Avis de recherche

Avis de recherche, the specialty channel devoted to listing missing people and wanted suspects and talking about other aspects of public safety, got a punch to the gut two and a half years ago when the CRTC decided to end its special status as a must-distribute service that every TV subscriber in Quebec was forced to pay for.

Without that mandatory distribution, providers would no longer want to carry the channel, it would lose its subscription revenue and would cease to exist. Owner Vincent Geracitano knows this well because before ADR got that status, he had to pay Videotron to distribute the channel.

Knowing the channel had value as a public service, the commission gave ADR a two-year grace period to find a new business model. That grace period ended on Aug. 31, 2015, despite ADR’s ill-fated request for another extension.

Now, ADR is using every trick in the book to stay alive:

  • It has politicians writing letters to the federal government asking it to order the CRTC to review and reverse its decision.
  • It filed an application to the federal court seeking a judicial review of the decision.
  • It filed a complaint with the RCMP, alleging political interference in the CRTC decision (based mainly in hearsay evidence).
  • It took Videotron to court, arguing it had a distribution agreement until Dec. 31 and got a temporary injunction keeping it on Videotron’s system.
  • For Bell, ADR has gone to the CRTC and filed for dispute resolution. (A standstill provision says Bell must continue distributing the channel while the dispute resolution process proceeds.) ADR also filed a complaint of undue preference, arguing that Bell’s decision to pull ADR benefits its similar service Canal D Investigation. (I find that hard to understand. ADR is a news and information channel, while Investigation is entertainment. It’s like saying the Weather Network competes with a channel that shows nothing but Sharknado movies.)
  • UPDATE (Jan. 31): ADR has also filed an undue preference complaint against Videotron, arguing ADR is similar to LCN.

ADR proposes some solutions to Bell’s actions, which basically involve ordering Bell to keep the channel. It suggests the commission use its power to order Bell to keep distributing the channel until 2018, when all specialty channels will have lost their protections as a result of decisions taken in the CRTC’s Let’s Talk TV process.

Even if ADR is successful at keeping Bell and Videotron from pulling the channel, it’s just kicking the can down the road. Both distributors have made clear they have no desire to keep distributing the channel because there’s no demand for it.

A survey ADR provided in its application seems to confirm that. It shows only 16% of the 1,000 Quebecers surveyed had ever heard of the channel, and after being told what it was only 18% said they’d ever watched it.

Nevertheless, respondents said public security is important, and after some very leading questions about the value of such a channel, respondents expressed support for it and disagreement (69% vs. 18% support) with the CRTC’s decision to remove its mandatory status.

Respondents were asked how much they’d be willing to pay for it at four price points:

  • At its current 6 cents per month: 89% in favour
  • At 25 cents per month: 73% in favour
  • At 75 cents per month: 52% in favour
  • At $1 per month: 43% in favour

ADR makes it clear that without an order keeping it on some form of mandatory distribution, it would go off air “within days.”

The channel notes it is in a unique position as an independent service that once had mandatory distribution and has since lost it. And Geracitano has devoted his life to public service and this channel. It’s entirely understandable that he’s doing everything he can to keep it going.

But the CRTC has determined the public doesn’t absolutely need Avis de recherche, and it’s not about to change its mind on that. Rather than seek a way to offer programming that might generate demand, ADR is going all in on lawyers. I doubt it will work.

The CRTC is treating ADR’s complaint about Bell seriously but expeditiously, allowing only three days for comment. You can download the complaint here (.zip) and file comments here before 8pm ET on Friday, Dec. 11. Note that all information filed with the CRTC, including contact information, becomes part of the public record.

UPDATE (Dec. 14): This proceeding has resulted in dozens of interventions, almost all of them from politicians, public safety agencies and non-profit groups lined up behind ADR.

One group definitely not on ADR’s side is Quebecor. It notes in its intervention that ADR is a Category B specialty service, which means distributors are free to drop it if they want. It suggests allowing ADR to stay on Bell’s system this way would open the door to abuse of process:

ADR doit se rendre à l’évidence qu’elle n’a pas d’autre choix que d’assumer sa part des risques liés aux différentes politiques du CRTC et d’accepter la perte de son statut de distribution obligatoire.

UPDATE (Dec. 17): Bell’s reply has been published by the commission. Among the key quotes (with my highlights):

  • ADR has known since 24 September 2015 that their service would be removed from carriage on 1 December 2015.  Yet they waited two months to file their second standstill request and to file the Application.
  • ADR has already had two years to adjust to the lack of access rights.  In particular, Decision 2013-372 extended ADR’s 9(1)(h) status for two years to allow the licensee time to adapt its business plan. Bell has not seen any evidence of ADR changing its business plan; rather its plan appears to be to argue for continued carriage at its existing wholesale rate.  Bell does not consider this to be adapting to new distribution circumstances.
  • Given that ADR’s programming is a public benefit for law enforcement agencies, it could attempt to obtain sponsorship from various levels of government. … If such an attempt was made and rejected, then it would appear that law enforcement agencies do not see the value in ADR.
  • At mediation, there was a good exchange of information between the parties, but in the end, Bell’s position did not change. Our subscribers see little or no value in receiving this service as evidenced by the viewership chart for the service provided further below.
  • There is no regulatory requirement for BDUs to make reasonable attempts to ensure that programming services remain viable if they do not believe the service appeals to their subscribers.
  • The Wholesale Code does not afford independent services, such as ADR, penetration guarantees; rather, it only allows them the ability to negotiate for one.
  • There is no similarity between the programming offered by ADR and Canal D/Investigation.
  • The programming on Canal D/Investigation takes the form of documentaries, dramas and reality television shows related to justice and forensic science. It is an entertainment service that broadcasts programs on resolved criminal stories of national and international scope, it is not interactive, nor is it a “Crimestoppers” channel.
  • ADR’s viewership pales in comparison to Canal D/Investigation.
  • There is no evidence on file of their ability to solve crimes.
  • ADR suggests … there is no evidence that Bell plans to rebate its customers for the loss of service of ADR. … We do not make rate adjustments each and every time the cost of a programming service increases or decreases or when a service is added or removed from a package.
  • This Application is simply another attempt to have the Commission extend its mandatory-to-basic 9(1)(h) distribution order; a proposal that has already been rejected.

Bell makes reference to viewership data for ADR above. Because ADR does not subscribe to Numeris, Bell instead used set-top box viewership data from Fibe TV customers. The figures it uses are redacted from the public record, because Bell argues that information is commercially sensitive. So we don’t know what ADR’s actual viewership is among Bell customers, either in real numbers or compared to Investigation, other than it being lower.

UPDATE (April 20, 2016): After its CRTC complaints were rejected, the channel has appealed to Canada’s heritage minister to force the commission to force cable companies to keep paying for it to stay on the air.

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