EXHIBIT COLLECTIVES-16

COPYRIGHT BOARD OF CANADA

File: Television Retransmission (2014-2018)

REPLY STATEMENT OF CASE

OF THE
TELEVISION RETRANSMISSION COLLECTIVES

Filed: November 9, 2015

TABLE OF CONTENTS

PART I - OVERVIEW

PART II - THE RIGHT ANALYTICAL STARTING POINT

PART III - THE CURRENT MARKET VALUE OF DISTANT SIGNALS

A.

INTRODUCTION

B.

DR. CHIPTYS ECONOMIC ERRORS: INCLUSION OF CATEGORY B SERVICES, AND AD HOC

DOWNWARD ADJUSTMENT FACTORS

C.

DR. CHIPTYS METHODOLOGICAL ERROR

D.

DR. CHIPTYS FACTUAL ERRORS

E.

CORRECTION OF DR. CHIPTYS ERRORS, AND CALCULATION OF CORRECTED PROPOSED

ROYALTIES

11

F.

RESPONSE TO CRITIQUES OF DR. CHURCHS ANALYSIS

12

G.

RESPONSE TO CRITIQUES OF DR. WALLS ANALYSIS

13

PART IV - PROCEDURAL FAIRNESS

14

PART V - WITNESSES AND DOCUMENTS

16

WITNESSES

16

EXHIBITS

17

PART I - OVERVIEW
1.

This is the Reply Statement of Case of the Television Retransmission Collectives. It

responds to the BDUs Statement of Case, and previews both the reply evidence and
reply submissions of the Collectives.

2.

As was noted earlier, this proceeding marks the first time in 20 years that the royalties
paid by retransmitters for retransmitting distant signals are before the Board for
adjudication, and the first time ever that the value of those signals has been the focus of
expert economic testimony informed by so much detailed economic information obtained
from the BDUs.

3.

It is important to note that the two sides, and their economists, agree on key starting
points for the analysis:
(a)

a fair and equitable distant signal royalty rate is one that is set at a level that
resembles the present day market value of distant signals; 1

(b)

market value can be estimated through economic analysis; and

(c)

in particular, one valid approach to determine the market value of distant signals
is to examine the amounts paid by BDUs for an analogous or benchmark or
proxy set of services whose prices are set at arms length in an open and
competitive market.

4.

Where the economists diverge in their respective proxy analyses is on the identification
of the relevant benchmark services and on the data and methods to use in their analysis.

5.

The BDUs economist, Dr. Chipty, calculates a proposed royalty rate of about $1.00 persubscriber per-month. This is, perhaps coincidentally, about the same as the actual rate in
2013, and is far less than both the rate proposed by the Collectives ($2.00 for 2014) and

Dr. Chipty Report at para 16; Professor Church Reply Report at para 5, Dr. Wall Report at para 34. See also File
1989-1, Retransmission of Distant Radio and Television Signals, October 2, 1990 at p. 27 and 29 (http://www.cbcda.gc.ca/decisions/1990/19901002-s-b.pdf).

-2-

the market values calculated by the Collectives economists Professor Church ($2.06) and
Dr. Wall ($4.97).
6.

However, as summarized below, Dr. Chiptys analysis makes several critical errors and
relies on unrepresentative and unreliable private set-top box tuning data that was
developed for her by certain BDUs for this hearing.
(a)

Dr. Chipty agrees with Professor Church that US specialty services should be
included in the benchmark group. However, she also includes a slew of small,
lightly watched and low cost Category B specialty services, which drive down
the average fees paid to the services in the group. Most of these Category B
services are owned by and traded between the vertically integrated BDUs and
their respective affiliated programming undertakings, and thus their fees are not
negotiated at arms length. For these and other reasons it is inappropriate to add
these services to a proxy group designed to reflect the fees that distant signals
might command in a competitive market.

(b)

Dr. Chipty makes a series of analytical errors that lead her to make unwarranted
downward adjustments to the prices paid for her (improperly designed)
benchmark group.

(c)

Dr. Chiptys calculations are based on set-top box tuning data (incorrectly
described as viewing data) owned by three BDUs and developed by them for her
to use in this case. 2 Analysis of these data by Collectives expert Barry Kiefl
reveals that it is completely unrepresentative of actual viewing shares and habits,
and is entirely at odds the viewing data collected and published by Numeris Inc.
that all industry participants routinely rely on but which Dr. Chipty ignores.

7.

Some of the factual and methodological errors on which Dr. Chiptys calculations are
based can be corrected. When this is done, and her calculation is rerun using her own
data, her proposed methodology leads to royalty rates that are in the range of $2 to $3

The Collectives had asked for similar data in the interrogatory process, but the BDUs did not produce it then.
Interrogatories Collectives 15 and 16.

-3-

dollars per-subscriber per-month and higher 3, rather than approximately $1.00 per month
she proposes.
8.

The BDUs have filed several witness statements and reports other than Dr. Chiptys.
However, these are little more than distractions from the economic analysis. Dr. Chipty
does not rely on any of them in formulating her proposed royalty, and, in any event, they
are not capable of supporting the BDUs proposals. The reports suffer from reliance on
flawed data or incorrect inferences drawn from the regulatory regime. The proposed
evidence from BDU managers is speculative, alarmist, self-serving and inconsistent with
the actual behaviour of subscribers and the BDUs themselves.

9.

Finally, the BDUs have sought to evade the effects of a proper economic analysis in two
ways. They argue that the current value of distant signals should be maintained by
suggesting that there has been little change since 2013. Secondly, they complain that the
Collectives current request is higher than in the originally filed proposed tariff. These
arguments should not be taken seriously. On the first point, the Board has cautioned
against a practice of looking only for changes since a prior certified tariff, noting that an
incrementalist approach is bound to miss changes that occur over a longer period. On the
second point, the Federal Court of Appeal has confirmed that the Board is entitled to set
royalties at levels above those in the published proposed tariffs especially where, as here,
the relevant stakeholders have adequate notice.

10.

After the Collectives obtained the BDUs economic information during the interrogatory
process in this case, it became clear that the retransmission royalties had been
undervalued for years. This is the time to rectify that problem. As demonstrated in the
Collectives original evidence, and as confirmed by their reply evidence, a royalty rate
starting at $2.00 in 2014 is fair and reasonable and should be certified.

See the table at paragraph 44 of this Reply Statement of Case for a summary of certain correction calculations that
have been performed by Professor Church.

-4-

PART II - THE RIGHT ANALYTICAL STARTING POINT

11.

The BDUs claim that the right analytical approach involves starting from the 2013
certified rate of $0.98 and assessing whether there have been any changes since 2013 that
would justify a change in that rate. 4 This approach is flawed and designed to divert
attention from the true value of distant signals for at least two reasons.

12.

First, it completely ignores the economic analysis not only by the Collectives but also by
the BDUs themselves. Dr. Chipty attempted to determine the actual value of distant
signals, not the change in their value since 2013. The fact that the parties settled on an
amount to compromise their dispute in 2013 has no bearing on this valuation, particularly
since the BDUs have only now produced their internal and closely guarded financial
information on which much of the Collectives economic analysis is based. Further, the
BDUs acknowledge that it would only be appropriate to use the existing certified tariff
rate as a starting point if it was similar to the current value of distant signals which it is
clearly not. 5

13.

Second, and more generally, the BDUs proposed approach is designed to hamper the
assessment of the value of distant signals. Looking only at incremental change since the
last tariff certification in this case completed two years ago based on a settlement
means that broader trends and changes in value will never be perceived. The Board has
recognised this already.

In 1994, in considering SOCAN Tariff 2A (conventional

television), the Board held that it should only consider changes, if any, since the then
current rate was set in 1986. At the following hearing, the Board reconsidered this
position, reversed itself on it, and expressly held that such an approach was
inappropriate: 6
The Board respectfully disagrees with this previous position. It finds this
interpretation restricted and limiting. A valuation of this sort should be set
in relation to the whole time during which the tariff has existed. Some
account should be taken of changes that occurred incrementally over that
4

BDU Statement of Case, paras. 26-27.

BDU Statement of Case, para 28.
6
Decision of the Copyright Board regarding Tariff 2.A - Commercial Television Stations In 1994, 1995, 1996 and 1997,
at p. 12.
5

-5-

whole period in the use of music and, as a result, in the value of SOCANs
licence to broadcasters. The Board also finds that, to date, the account
taken of these changes has been insufficient. The reduction in the rate
manifests this broader approach.
14.

The expert economic evidence disproves the BDUs claim that the existing $0.98 persubscriber per-month retransmission rate resembles the current market value of distant
signals. It clearly does not support the rate. Accordingly, the correct analytical starting
point is to assess what the current market value of distant signal would be if traded at
arms length in a competitive market. As demonstrated by the evidence, a significant
upwards adjustment to the existing rate is necessary to achieve a fair and equitable
retransmission royalty rate, one based on the current market value of distant signals.

PART III - THE CURRENT MARKET VALUE OF DISTANT SIGNALS

A.

Introduction

15.

The Parties and their respective economic experts agree that the appropriate objective for
a reasonable royalty rate for distant signals is the rate that would have been set as a result
of an arms-length negotiation in a well-functioning market i.e the hypothetical
competitive market price or market value of distant signals.

16.

Both parties have filed expert economic evidence which seeks to calculate that price and,
by extension, the appropriate distant signal royalty rate.

17.

Dr. Wall presents a market-based analysis that studies the actual retail price of distant
signals sold by BDUs to their subscribers. Through his analysis, Dr. Wall concludes that
the current average market wholesale value of distant signals used by BDUs (the value of
the average number of distant signals received by subscribers in 2013) is $4.97 persubscriber per-month.

18.

For their part, both Professor Church and Dr. Chipty adopt a proxy analysis in which the
market price paid for a comparable (benchmark or proxy) set of signals is observed
and used as a basis to calculate the market price of distant signals.

-6-

19.

Professor Church calculates the current market value of distant signals to be,
conservatively, $2.06. In contrast, Dr. Chipty calculates the current market value of
distant signals to be, at the highest, $1.01.

20.

While both Professor Church and Dr. Chipty adopt a proxy approach, they differ
substantially in the implementation of their analyses.

21.

As summarized below, Dr. Chiptys analysis suffers from serious economic,

methodological and factual errors. These errors result in her proposing an incorrectly low
royalty rate.

22.

Of note is the fact that once corrected, if only for factual errors, Dr. Chiptys own
methodology calculates the current market value of distant signals (equal to Dr. Chiptys
proposed royalty rate) to be $2.37 per-subscriber per-month. Correcting for her factual,
economic and methodological errors results in her methodology generating proposed
royalty rates over $3 per-subscriber per-months.

23.

Accordingly, like Dr. Walls and Professor Churchs methodologies, Dr. Chiptys
methodology also demonstrates that the current market value of distant signals is at least
in the order of $2 per-subscriber per-month and is likely significantly higher.

B.

Dr. Chiptys economic errors: inclusion of Category B services, and ad hoc

downward adjustment factors

24.

Like Professor Church, Dr. Chipty accepts and uses US specialty services as part of her
benchmark set of services (18 US specialty services). These services are appropriate to
include as part of the proxy analysis because their price is set at arms length in a wellfunctioning market and, as explained by Professor Church in his initial report, they are of
comparable quality 7 to distant signals in their ability to generate revenues for BDUs.

25.

However, Dr. Chipty also includes 47 Canadian Category B specialty services in her
benchmark set of services. As explained by Professor Church, Category B services
should not be included in the proxy analysis because:

As noted by Professor Church, references to quality refer not to the esthetics of the programming but rather to
the ability of a signal or service to generate revenues for a BDU.

-7-

(a)

Their prices are not set at arms length in a well-functioning market. Given
statutory carriage requirements, and that the majority of Category B services (31
of 47) are owned by and traded between the vertically integrated BDUs and their
respective affiliated programming undertakings, it is clear that their prices do not
reflect a market price. This, obviously, undermines their usefulness as a
market proxy.

(b)

They are of significantly lower quality8 than distant signals, and therefore
command a lower price than distant signals would. Including these less valuable
(i.e. lower priced) services as part of her proxy only serves to bias Dr. Chiptys
estimates downwards. As an illustration of the point, it is self-evident that one
would not try to estimate the price of a Rolls-Royce by averaging the price of
Bentleys and Ladas. Rather, one would look only at the price of the Bentleys.
Similarly, one should not estimate the price of valuable distant signals by
averaging the price of the comparable US specialty services and the price of quite
dissimilar Category B services.

26.

Dr. Chipty attempts to correct for not having selected a comparable set of benchmark
services by applying a series of so-called adjustments or sensitivities. Perhaps
coincidentally, all her adjustments drive her original benchmark price of $2.46 down
towards $1 dollar, and below.

27.

All of Dr. Chiptys adjustments are based on the assumption that quality and price
differences between her benchmark services and distant signals can be assessed and
corrected for by considering the ratio of viewing minutes of these two groups. That is, Dr.
Chipty assumes that there is a direct linear relationship between the price of distant
signals and the ratio of viewing minutes to distant signals and her benchmark services.
By way of example, Dr. Chipty assumes that if the ratio of viewing minutes between
distant signals and her benchmarks services is 0.5, then the price of distant signals will be
half the price of her benchmark services. If the ratio of viewing minutes is 2, then the
price of distant signals will be twice the price of her benchmark services.

See footnote 7.

-8-

28.

This assumption of linearity between price and viewing is not tested or justified
empirically by Dr. Chipty and is, in fact, wrong as explained by Dr. Wall and Professor
Church in their reply reports.

29.

In addition, Dr. Chipty applies a further 25% reduction factor to the price of all her
Category B services, and a 10% reduction factor to the price of her US specialty services.
She purportedly does so to isolate the cost of programming on those services, as
compared to the cost of the service itself.

30.

As explained in Professor Churchs reply report, this adjustment is inappropriate because

it models the wrong hypothetical competitive negotiation. Dr. Chipty violates the
principle that the compulsory licence (i.e. royalty rate) cannot be determined by
modelling a hypothetical negotiation in which both parties know that there is a
compulsory licence. The proper hypothetical negotiation must model one between a BDU
and the hypothetical owner of a distant signal (i.e. the channel), which is what the BDU is
trading for. In such a negotiation, the parties would not separate out costs of
programming or the non-capital costs of the signal. The negotiated price would be the
price paid by the BDU for the right to retransmit the signal in its entirety, which is all that
the Copyright Act allows a BDU to do and is the only right that is being valued in this
case.

C.

Dr. Chiptys methodological error

31.

Dr. Chiptys analysis also suffers from a serious methodological error as it omits payment
data for the vast majority of services that she includes in her benchmark services. This
missing data necessarily results in an underestimate of her original benchmark price and
therefore her proposed royalty rate.

32.

who together represent the vast majority of subscribers) have more

complete payment data. However, for the other BDUs (

),

payment data is missing for more than two thirds of the US specialty services, and almost
three quarters of the Category B services. The impact of the missing data is easy to see by
comparing the benchmark price that is calculated based only on the relatively complete

-9-

data ($3.47) compared to the benchmark price calculated based on the

larger very incomplete data set ($2.46). Dr. Chipty uses the lower $2.46 benchmark price
as her starting point.
33.

The fact that Dr. Chipty is missing so much payment data is very surprising considering
that her clients are the very BDUs who have this payment information, and could have
provided it to her for the purposes of her analysis.

D.

Dr. Chiptys factual errors

34.

In addition, the results of Dr. Chiptys analysis presented in her report are clearly wrong
because she bases her calculations on tuning data (incorrectly described as viewing data)
that was collected and prepared by three of the Objecting BDUs in collaboration with her
consulting firm. This tuning data is grossly flawed and unreliable.

35.

More particularly, for the purposes of Dr. Chiptys analysis, Bell, Rogers and Shaw have
provided set-top box data from a subset of their subscribers in Toronto, Montreal and
Vancouver. The data were apparently collected during a two week period in May 2015.

36.

As explained in detail by Collectives expert Barry Kiefl, the BDUs set-top box data and
Dr. Chiptys analysis of it is completely unreliable and unrepresentative of local, distant
or national viewing shares and habits. In contrast, reliable and representative viewing
data are collected, published and made available by Numeris Inc. In stark contrast to the
BDUs data, the Numeris viewing data is the industry standard data that are accepted and
relied upon by all parties in the Canadian broadcasting industry including among others,
advertisers, broadcasters and regulators (the CRTC for example). For reasons that are
unexplained, Dr. Chipty completely ignores the accepted industry-standard data in favour
of her private data.

37.

Reliance on this flawed data leads Dr. Chipty to make two factual errors that significantly
affect her proposed royalty rate.
(a)

First, Dr. Chipty calculates, based on the BDUs tuning data, that

% of viewing

to US conventional signals is distant. This is wrong. In fact, 65% of viewing to

- 10 -

US conventional signals is distant (i.e., double). Similarly, Dr. Chipty assumes

based on the BDUs tuning data, that % of viewing to Canadian conventional
signals is distant. This is also wrong. In fact, 22% of viewing to Canadian
conventional signals is distant (i.e., more than triple).
(b)

Second, Dr. Chipty calculates, based on the BDUs tuning data, that

% of all

viewing is to conventional signals (US and Canadian) and that about

% of all

tuning is to Canadian specialty/pay services. There is a marked difference

between these assumed splits and splits that can be observed from industrysources. 9 These suggest that in fact the proportion of viewing to conventional
signals (US and Canadian) is in the range of 50% of all viewing, and the
proportion of viewing to Canadian specialty/pay services is in the range of 35%.
38.

The following charts summarize these comparisons.

Table 1: Comparison of the Proportions of Local and Distant Viewing
BDUs Set-top
Tuning Data
Proportion of viewing to US
conventional signals that is
distant
Proportion of viewing to
Canadian conventional signals
that is distant

box Correct Industry-Standard

Data

65%

22%

Table 2: Comparison of the Proportions of Conventional and Category B viewing

BDUs Set-top
Tuning Data
Proportion of viewing to
conventional signals (Canadian
and U.S.)
Proportion of viewing to
Canadian specialty/pay services

box Correct Industry-Standard

Data

~ 50%

~ 35%

See Professor Church Reply Report at para 91 citing to a study produced by Armstrong for Bell and the Television
Bureau of Canada TV Basics 2014-2015, which reports viewing shares based on Numeris diary data.

- 11 -

39.

In fact, Dr. Chipty concedes that the BDUs tuning data likely underestimates the
proportion of distant viewing to US conventional signals. 10 To correct for this error, she
re-calculates and bases her proposed royalty rate of $1.01 using accepted industrystandard (Numeris) proportions of US distant viewing. However, Dr. Chipty fails to
recognize or correct for the fact that the BDUs tuning data also underestimate the
amount of distant viewing to Canadian distant signals.

40.

Similarly, Dr. Chipty fails to recognize or correct for the fact that the BDUs tuning data
underestimate the proportion of viewing to conventional signals (US and Canadian) and
overestimate the proportion of viewing to Category B services.

41.

Each of the above noted errors, separately and cumulatively, result in Dr. Chipty
underestimating the actual current market value of distant signals.

E.

Correction of Dr. Chiptys errors, and calculation of corrected proposed royalties

42.

Some of Dr. Chiptys errors can be corrected, as explained and set-out in detail in the
responding report of Professor Church.

43.

Once corrected, even if only for the factual errors and methodological errors, it becomes
immediately apparent that, like Dr. Walls and Professor Churchs methodologies, Dr.
Chiptys methodology also demonstrates that the current market value of distant signals
is at least equal to, and likely significantly higher than, $2 per-subscriber per-month.

44.

A summary of certain corrections, and the resulting proposed royalty rates, is set out in
the table below:

10

Dr. Chipty Expert Report Exhibit BDU-2 at para 75.

- 12 -

Summary of Corrections and Resulting Royalty Rate

Correction Made

Revised Corrected Rate

Correction 1

Use correct proportions (65% and 22%) of

distant viewing in US and Canadian
conventional TV viewing

$1.55

Correction 2

Use correct proportions of conventional

versus specialty viewing obtained from
Numeris and local/distant split

$2.37

Correction 3

Adjusts Correction 1 by further removing

Category B channels

$2.92

Correction 4

Adjusts Correction 2 by further removing

Category B channels

$3.77

Correction 5

Performs Correction 1 using the relatively

more complete
data only

$1.97

Correction 6

Adjusts Correction 5 by further removing

Category B channels

$3.63

F.

Response to Critiques of Dr. Churchs Analysis

45.

Unlike Dr. Chipty, Professor Churchs proxy analysis is based on observing what the
BDUs paid for a comparable set of services the US specialty services traded under
competitive market conditions between unaffiliated parties.

46.

In her report, Dr. Chipty has criticized Professor Church, mainly for failing to adopt the
various downward adjustments and sensitivities.

47.

As explained in Professor Churchs reply report, Dr. Chiptys downward adjustments are
unfounded and, in any event, inapplicable to Professor Churchs analysis. Specifically,
there is no need for Professor Church to adjust his analysis to account for quality
differences between US specialty services and distant signals because the US specialty
services are, as a group, already a comparable set of services.

- 13 -

48.

Dr. Chipty also alleges that Professor Church miscalculates the amount of viewing to
distant signals. As Professor Churchs reply report explains, Dr. Chipty is mistaken, and
his calculations are correct.

49.

BDU witness Ms. Blackwells critique of Professor Church is based on a

mischaracterization of his analysis with respect to market power. In any event, her
critiques are irrelevant as Professor Church neither increases nor decreases his proposed
royalty rate on that basis, and Ms. Blackwell also does not propose a specific adjustment.

50.

Professor Churchs proxy analysis and conclusions are robust and, if anything,
conservative.

G.

Response to Critiques of Dr. Walls Analysis

51.

Dr. Walls valuation of distant signals is based on actual market prices of distant signals
sold by BDUs to subscribers in theme packages, basic packages and extended basic
packages.

52.

By considering the price of distant signals in each of these packages, Dr. Wall concludes
that 9.2 cents per-subscriber per-month is a reasonable average wholesale price per
distant signal offered in all BDU packages (i.e. whether in a distant signal theme
package, basic package or extended basic package).

53.

Therefore, as explained by Dr. Wall, it is correct and appropriate to multiply the average
market wholesale price of a distant signal by the average number of distant signals
received by subscribers (54 in 2013) to calculate the aggregate average wholesale value
of distant signals used by BDUs.

54.

Dr. Chiptys critique of Dr. Walls analysis and allegations to the contrary are unfounded
and incorrect.

55.

Further, Dr. Chiptys critique and suggestion that the calculated average wholesale
market price of distant signals should be modified to account for the relative amount of
viewing to distant signals, simultaneous substitution and bundling is also inappropriate
and incorrect.

- 14 -

56.

As explained by Dr. Wall, it is critical to understand that, by its very nature, an observed
market price already reflects the particular market conditions in which the market price
was set. As such, modifying an observed market price to account for one or another of the
perceived market conditions would only serve to arbitrarily distort the observed market
price.

57.

Ms. Blackwells critique of Dr. Walls analysis and her allegation that it fails to account
for the portion of costs that are attributable to a BDUs basic network costs is also
inapplicable and incorrect.

58.

Dr. Walls analysis is based on taking the BDUs observed retail prices for distant signals
and then calculating a wholesale price by applying a retail-to-wholesale mark-up. That
mark-up reduces the retail price to account for expenses such as non-programming
related operating costs incurred by BDUs. Ms. Blackwells proposed modification is
inappropriate as it would amount to a double counting of distribution network costs.

59.

Dr. Walls direct market analysis and conclusions are robust, and no modifications are
required.

PART IV - PROCEDURAL FAIRNESS

60.

The BDUs suggest that the Board cannot, or should not, consider the Collectives revised
rate proposals because they exceed the amounts sought by them in their proposed tariffs
filed in March 2013. 11 However, the BDUs ignore both the relevant jurisprudence and
the facts in this proceeding.

61.

The BDUs complain that the Collectives are trying to avoid the statutory notice period
under the Copyright Act. In reality, the data needed to accurately calculate a fair and
reasonable tariff was in the possessions of the Objectors and not provided to the
Collectives until the interrogatory stage of this proceeding. Moreover, the Federal Court
of Appeal has already ruled that the Board is empowered to certify royalties higher than
those sought in the original statutory proposal. The Boards obligation to certify royalties

11

BDU Statement of Case, paras. 36-39.

- 15 -

on such terms and conditions related to those royalties as the Board considers
appropriate overrides what might otherwise have been the constraints imposed by the
doctrine of ultra petita. 12
62.

Other than their formalistic reliance on the statutory notice requirements, the BDUs
provide no evidence and make no argument that they were prejudiced in fact by the
Collectives revised rate proposals. Nor could they. As explained in the reply evidence
of Carol Cooper, the President and Chief Executive Officer at the Canadian
Retransmission Collective, the current Objectors represent collectively

% of all royalty

payments made by large and medium BDUs (small systems are not affected by the
revised rates). Thus, essentially all of the affected stakeholders, measured by size, had
adequate notice of the revisions and have responded to them in their evidence. Moreover,
as indicated in Exhibit Collectives-20, all BDUs (not only the current objectors) were
sent a letter in June 2015 alerting them to the revisions, but none of these non-Objector
BDUs responded or sought to involve themselves in the hearing process.
63.

Accordingly, there is no formal or fairness impediment to the Board considering the

Collectives revised rates.

12

Canadian Private Copying Collective v. Canadian Storage Media Alliance, 2004 FCA 424 at paras. 167-177.

- 16 -

PART V - WITNESSES AND DOCUMENTS

Witnesses
Dr. Gerry W. Wall
Dr. Wall will appear as a witness at the hearing of this matter to present his expert report in-chief
and reply expert report both entitled The Economic Valuation of the Tariff Rate for the
Retransmission of Distant Television Signals for 2014-2018. The estimated time for Dr. Walls
evidence in chief is 3-4 hours.
Professor Jeffrey Church
Professor Church will appear as a witness at the hearing of this matter to present his expert report
in-chief and reply expert report both entitled Competitive Royalties for Retransmitted Distant
Signals in Canada, dated May 8, 2015, and his reply expert report dated November 9, 2015. The
estimated time for Professor Churchs evidence in chief is 3-4 hours.
Peter Grant
Peter Grant will appear as a witness at the hearing of this matter to present his expert report
entitled Factors Affecting the Valuation of Distant Television Signals. The estimated time for
Peter Grants evidence in chief is 2-3 hours.
Barry Kiefl
Barry Kiefl will appear as a witness at the hearing of this matter to present his expert report
entitled Comments on the Data Relied on in the Reports of Strategic Inc. and Dr. Tasneem
Chipty. The estimated time for Barry Kiefls evidence in chief is 1-2 hours.
Carol Cooper
Carol Cooper is the President of CRC and will appear as a witness at the hearing of this matter.
Ms. Cooper will testify as to the respective percentages of retransmission royalties paid by the
BDUs and non-objector retransmitters under the current certified tariff and steps taken by the

- 17 -

Collectives to put Canadian retransmitters on notice of the Collectives revised tariff proposal.
The estimated time for Ms. Coopers evidence in chief is 15-30 minutes.
Exhibits

The Collectives intend to rely upon the following documents, including the additional exhibits
Collectives 16-21, filed with the Collectives Reply Case.

Exhibit Number

Description

Collectives-1

Collectives Statement of Case

CONFIDENTIAL information]

Collectives-2

Expert report of Dr. Gerry Wall entitled The Economic Valuation

of the Tariff Rate for the Retransmission of Distant Television
Signals for 2014-2018. [Contains HIGHLY CONFIDENTIAL
information]

Collectives-3

Expert report of Professor Jeffrey Church entitled Competitive

Royalty for Retransmitted Distant Signals in Canada. [Contains
HIGHLY CONFIDENTIAL information]

Collectives-4

Expert report of Mr. Peter Grant entitled Factors affecting the

valuation of distant television signals

Collectives-5

Forum Research Inc. report entitled Report to CBRA and CRC

Collectives-6

Mediastats Retransmission Report, January 2004 to 2014, dated

August 15, 2014 and Revised Retransmission Report, January
2004 to 2014, dated February 2015.

Collectives-6A
Collectives-7

[Contains

HIGHLY

Underlying Data to Mediastats Retransmission Report (Microsoft

Access Database) [HIGHLY CONFIDENTIAL]
Cogeco Responses to Collectives Interrogatories 4, 5, 8, 9, and 17
(HIGHLY CONFIDENTIAL Version)

Collectives -7/Q4

Appendix 4 (December 5, 2014) to Response to Collectives

Interrogatory 4 [HIGHLY CONFIDENTIAL]

Collectives -7/Q5

Appendix 5(e) (December 5, 2014) to Response to Collectives

Interrogatory 5

- 18 -

Exhibit Number

Description

Collectives -7/Q8

Appendix 8 (December 5, 2014) to Response to Collectives

Interrogatory 8 [HIGHLY CONFIDENTIAL]

Collectives -7/Q9

Appendix 9 (December 5, 2014) to Response to Collectives

Interrogatory 9 [HIGHLY CONFIDENTIAL]

Collectives -7/Q17

Appendix 17(H) (August 20, 2014) to Response to Collectives

Interrogatory 17

Collectives-8

Rogers Responses to Collectives Interrogatories 4, 5, 15, and 17

(HIGHLY CONFIDENTIAL Version)

Collectives-8/Q4

Supplementary Appendix 4(b) and 4(c) (December 5, 2014) to

Response to Collectives Interrogatory 4 [HIGHLY
CONFIDENTIAL]

Collectives-8/Q5

Appendix 5 (August 20, 2014) to Response to Collectives

Interrogatory 5 [HIGHLY CONFIDENTIAL]

Collectives-8/Q15

Appendix 15(b) (August 20, 2014) to Response to Collectives

Interrogatory 15

Collectives-8/Q17

Appendix 17(a)(i) (August 20, 2014) to Collectives Interrogatory

17

Collectives-9

Shaw Responses to Collectives Interrogatories 1, 2, 4, 5, and 17

(HIGHLY CONFIDENTIAL Version)

Collectives9/Q1Q2Q4

Supplementary Appendix 1/2/4 (December 5, 2014) to Response

to Collectives Interrogatories 1, 2 and 4 [HIGHLY
CONFIDENTIAL]

Collectives-9/Q5

Appendix 5 (August 20, 2014) to Response to Collectives

Interrogatory 5

Collectives-9/Q17

Appendix 17(a) and 17(b) (August 20, 2014) to Response to

Collectives Interrogatory 17

Collectives-10
Collectives-10/Q4

Eastlink Responses to Collectives Interrogatories 4 and 5

(HIGHLY CONFIDENTIAL Version)
Appendix 1 (August 20, 2014) to Response to Collectives
Interrogatory 4 [HIGHLY CONFIDENTIAL]

- 19 -

Exhibit Number
Collectives-10/Q5
Collectives-11

Description
Appendix 5.5 (August 20, 2014) to Response to Collectives
Interrogatory 5 [HIGHLY CONFIDENTIAL]
Bell Responses to Collectives Interrogatories 4, 8, 9, and 17
(HIGHLY CONFIDENTIAL Version)

Collectives-11/Q4

Appendix 4(b), 4(c), and 4(d) (August 20, 2014) to Response to

Collectives Interrogatory 4 [HIGHLY CONFIDENTIAL]

Collectives-11/Q8

Appendix 8 (August 20, 2014) and Supplementary Appendix 8

(December 5, 2014) to Response to Collectives Interrogatory 8
[HIGHLY CONFIDENTIAL]

Collectives-11/Q9

Appendix 9 (August 20, 2014) to Response to Collectives

Interrogatory 9 [HIGHLY CONFIDENTIAL]

Collectives-11/Q17

Appendix 17(a) and 17(b) (August 20, 2014) to Response to

Collectives Interrogatory 17

Collectives-12

TELUS Responses to Collectives Interrogatories 4, 5, 8, 9, 10, 15,

17, and 21 (HIGHLY CONFIDENTIAL Version)

Collectives-12/Q4

Appendix 4 (August 20, 2014) to Response to Collectives

Interrogatory 4 [HIGHLY CONFIDENTIAL]

Collectives-12/Q5

Appendix 5 (August 20, 2014) to Response to Collectives

Interrogatory 5

Collectives-12/Q15

Appendix 15 (December 5, 2014) to Response to Collectives

Interrogatory 15 [HIGHLY CONFIDENTIAL]

Collectives-12/Q17

Appendix 17-12 (August 20, 2014) to Response to Collectives

Interrogatory 17

Collectives-12/Q21

Appendix 21 (August 20, 2014) to Response to Collectives

Interrogatory 17 and 21 [HIGHLY CONFIDENTIAL]

Collectives-13

Videotron (Quebecor) Responses to Collectives Interrogatory 9

(HIGHLY CONFIDENTIAL Version)

Collectives-13/Q9

Appendix 9 (Highly Confidential) (August 20, 2014) to Response

to Collectives Interrogatory 9 [HIGHLY CONFIDENTIAL]

Collectives-13/Q9p

Appendix 9 (Public) (August 20, 2014) to Response to Collectives

Interrogatory 5, 9, 10, and 11

- 20 -

Exhibit Number

Description

Collectives-14

CCC, Retransmission Tariff Revenues 2009 to 2013, Response to

Interrogatory CCC-1

Collectives-15

CMRI Media Trends Survey 2011

Collectives-16

Collectives Reply Statement of Case [Contains HIGHLY

CONFIDENTIAL information]

Collectives-17

Reply expert report of Dr. Gerry Wall entitled The Economic

Valuation of the Tariff Rate for the Retransmission of Distant
Television Signals for 2014-2018. [Contains HIGHLY
CONFIDENTIAL information]

Collectives-18

Reply expert report of Professor Jeffrey Church entitled

Competitive Royalty for Retransmitted Distant Signals in
Canada. [Contains HIGHLY CONFIDENTIAL information]

Collectives-19

Reply expert report of Barry Kiefl entitled Comments on the Data

Relied on in the Reports of Strategic Inc. and Dr. Tasneem
Chipty. [Contains HIGHLY CONFIDENTIAL information]

Collectives-20

Report of Carol Cooper entitled Percentage of Royalties Owed by

Objectors [Contains HIGHLY CONFIDENTIAL information]

Collectives-21

BDUs Responses to Collectives Interrogatories 15 and 16

[Contains HIGHLY CONFIDENTIAL information]

8820990