David Watt

333 Bloor Street East

9th Floor
Toronto, Ontario M4W 1G9
david.watt@rci.rogers.com
o 416.935.3515
m 416.457.2772

October 14, 2015

FILED VIA: CRTC COMMENT FORM
Mr. John Traversy
Secretary General
Canadian Radio-television and
Telecommunications Commission
Ottawa, ON K1A 0N2
Dear Mr. Traversy:
Re:

I.

CRTC File No. 8661-P8-201510199

Videotrons Unlimited Music Service Rogers Intervention

INTRODUCTION/EXECUTIVE SUMMARY

1. Rogers Communications Inc. (Rogers) submits this intervention in support of the

above-referenced Part 1 Application that was filed by the Public Interest Advocacy
Centre (PIAC) on behalf of itself, the Consumers Association of Canada (CAC) and
the Council of Senior Citizens Organization of British Columbia (COSCO)
(collectively PIAC)1, as well as the Part 1 Application filed by Vaxination Informatique
(Vaxination)2 on September 1, 2015 and September 3, 2015, respectively (together
referred to as the Applications). Both Applicants demonstrate that Videotrons
mobile audio streaming service, known as Unlimited Music, contravenes
subsection 27(2) of the Telecommunications Act. Rogers Media Inc. is also a
member of a consortium of radio broadcasters that is filing an intervention in
response to the two Applications and Rogers supports the arguments set out in that
intervention.3
2. Videotron is a wireless telecommunications carrier. It announced on August 27,
2015 that it had launched the Unlimited Music service that currently offers to a
subset of its customers access to a small number of audio streaming services specifically Stingray, Rdio, Google Play, Deezer and Spotify. It also indicated that
1 Application 8661-P8-201510199.
2 Application 8622-V42-201510735. As noted in a letter from the Commission dated September 28,
2105, this application will be considered with the PIAC in a single proceeding using the PIAC application
number as a file reference.
3 See Radio Consortium Intervention, October 5, 2015.

[i]n the coming weeks and months, other popular services will be added to the list,
including Songza.4 Videotrons marketing materials indicate that those customers
who have Canada-wide premium plans5 are exempt from paying for mobile data
usage when they access one or more of these audio streaming services.
Videotrons mobile customers that access any other audio service that has not
entered into an agreement with Videotron will have to pay standard usage rates.
3. In Rogers view, the zero-rated Unlimited Music service provided by Videotron
suffers from the same legal flaws as the mobile television services that were offered
by Bell Mobility and Videotron earlier this year. Both of those mobile television
services were recently found to be offered in a manner that was contrary to
subsection 27(2) of the Telecommunications Act in Broadcasting and Telecom
Decision CRTC 2015-26 (BTD 2015-26). In that Decision, the Commission
determined that by exempting only certain mobile television services from standard
data charges, Bell Mobility and Videotron have:
given an undue preference in favour of subscribers of their respective
mobile TV services, as well as in favour of their own services, and have
subjected consumers of other audiovisual content services, and other
services, to a corresponding undue disadvantage. 6
4. The same legal analysis used in BTD 2015-26 should be applied to Videotrons new
Unlimited Music service. Videotron is acting as the gatekeeper with respect to the
audio services delivered over its wireless network. It has selected a handful of audio
streaming services to be exempt from data charges and it is making only those
services available to a segment of its subscriber base (i.e. those customers who
have Canada-wide premium plans) on a zero-rated basis. As a result, Videotron has
violated subsection 27(2) of the Telecommunications Act as follows:

it is giving an undue preference in favour of its customers who subscribe to

the Unlimited Music service;
it is giving an undue preference in favour of the five audio streaming services
that are currently offered as part of the Unlimited Music service;
it is subjecting to an undue disadvantage those of its customers that access
or subscribe to other audio content services (or, possibly, to those subscribers
who have Canada-wide premium plans and access the five audio streaming
services at transmission rates that exceed 128 Kbps 7);

4 See: http://www.newswire.ca/news-releases/agreement-with-leading-music-streaming-players--videotron-mobiles-new-unlimited-music-service-lets-customers-listen-to-music-without-using-data523091451.html.
5 Premium All-Inclusive Canada plans and the All-Inclusive Canada 1GB plan as part of an Internet +
Mobile Duo, which costs close to $65/month. See: http://support.videotron.com/residential/mobile/unlimitedmusic.
6 BTD 2015-26, Summary.
7 On Videotrons FAQ, it states: Unlimited Music lets you stream music at 128 Kbps, which is the average
transmission rate for todays apps. Data usage resulting from streaming music at speeds higher than 128
Kbps (high speed or high definition) may be deducted from your plans monthly data allowance. See:
http://support.videotron.com/residential/mobile/unlimited-music.
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it is subjecting to an undue disadvantage other audio services (including

Canadian radio stations that are streamed online), as well as other
audiovisual services offered online, that are delivered over Videotrons
wireless network; and
it is subjecting to an undue disadvantage other wireless carriers that have
respected the Commissions determination in BTD 2015-26 and are now at a
competitive disadvantage in the marketplace.

5. Videotrons Unlimited Music service is also being offered in a manner that is

inconsistent with the Commissions net neutrality policy and the Wireless Code. The
decision to favour certain types of audio services carried on its wireless network and
to treat the data from those services differently than the data of other audio and
audiovisual services, and online services in general, represents the thin edge of the
wedge in ensuring the integrity of Canadas net neutrality rules. There are also
indications that Videotrons customers could be subjected to overage charges that
would contravene certain provisions in the Wireless Code.
6. Each of these violations under the Telecommunications Act is discussed in more
detail below.
II.BACKGROUND
7. Rogers believes the facts relating to the Unlimited Music service offered by
Videotron are accurately summarized in paragraphs 15 to 36 of PIACs Part 1
Application. Nevertheless, Rogers provides below a brief summary of the core facts
that we believe are specifically relevant to the issue of whether Videotrons
provisioning of the Unlimited Music service contravenes subsection 27(2) of the
Telecommunications Act.
8. On January 29, 2015, the Commission issued BTD 2015-26 in which it found that
Videotrons illico.tv service and Bell Mobilitys mobile TV service violated subsection
27(2) of the Telecommunications Act by exempting these audiovisual services from
certain data charges. In that case, Bell Mobility and Videotron exempted their
mobile TV services from the standard monthly data caps and data charges that were
generally applicable to other audiovisual content and services delivered on their
wireless networks. The Commission found that, in providing the data connectivity
and transport required for consumers to access the mobile TV services at
substantially lower costs to those consumers relative to other audiovisual content
services, Videotron and Bell Mobility:
conferred upon consumers of their services, as well as upon their
services, an undue and unreasonable preference, in violation of
subsection 27(2) of the Telecommunications Act. In addition, they have
subjected their subscribers who consume other audiovisual content
services that are subject to data charges, and these other services, to an
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undue and unreasonable disadvantage, in violation of subsection 27(2) of

the Telecommunications Act.8
9. In reaching this conclusion, the Commission also emphasized that its Decision was
designed to ensure that the market for mobile television services would be open and
non-discriminatory:
This decision will favour an open and non-discriminatory marketplace for
mobile TV services, enabling innovation and choice for Canadians. 9
10. Rogers supports this objective and submits that the same approach should be
adopted by the Commission with respect to mobile audio services. The Unlimited
Music service offered by Videotron is fundamentally at odds with the objective of
ensuring that there is an open and non-discriminatory marketplace for mobile audio
services.
11. While Rogers is not privy to the terms of the contracts under which the five audio
streaming services have agreed to be offered to Videotrons customers, there is a
sufficient amount of information that has been publicly disclosed for the Commission
to conclude that the legal analysis and conclusions reached in BTD 2015-26 should
apply equally to Videotrons Unlimited Music service.
12. Videotron operates as a wireless telecommunications carrier and provides the data
connectivity that enables its subscribers to access the Unlimited Music service. In
this respect, it is the subscribers wireless voice plan, data plan or tablet plan that
provides the basis upon which the end user is identified as a subscriber and upon
which the subscriber is connected to the network. As such, the provision of this
telecommunications service is subject to the Telecommunications Act. That is not in
dispute.10
13. On the FAQ section of the Videotron Unlimited Music website, Videotron indicates
that its Unlimited Music service is included with Premium All-Inclusive Canada plans
and the All-Inclusive Canada 1GB plan as part of a Internet + Mobile Duo. 11
14. Videotron also makes it clear on its website that there is a difference in the cost to
the subscriber for accessing audio content over the Internet when compared to
accessing the five audio streaming services through the Unlimited Music service.
The Unlimited Music service allows users to stream music without using their
Mobile plans data allowance when they access those five audio streaming services
through the mobile apps provided by Videotron.12
15. A subscriber that has the Premium All-Inclusive Canada plan or the All-Inclusive
Canada 1GB plan as part of an Internet + Mobile Duo does not have to pay data
8 BTD 2015-26, at paragraph 61.
9 BTD 2015-26, at Summary.
10 The Commission noted this with respect to Mobile TV services in BTD 2015-26, at paragraph 22.
11 See http://support.videotron.com/residential/mobile/unlimited-music.
12 Ibid.
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usage charges to access the five audio streaming services. Other Videotron mobile
subscribers, however, will pay additional charges to access that same audio content.
In addition a subscriber that accesses any other audio service (even those offering
audio streaming services, like Canadian radio stations, that are substantially similar
to those offered by Stingray, Rdio, Google Play, Deezer and Spotify) on Videotrons
wireless network would be subject to Videotrons standard data fees.
III.BREACH OF SUBSECTION 27(2) OF THE TELECOMMUNICATIONS ACT
16. As was the case with Videotrons illico.tv service, Rogers submits that the companys
Unlimited Music service similarly contravenes the prohibitions against undue
preferences, unjust discrimination and undue disadvantages set out in the
Telecommunications Act in a number of different ways. Many parties are being
impacted by the manner in which Videotron is providing the Unlimited Music service,
including:

subscribers who are not required to pay additional data charges when they
access the Unlimited Music;
subscribers who are required to pay additional data charges when they
access other audio services on Videotrons wireless network;
the five audio streaming services offered as part of Unlimited Music;
every other audio service (including Canadian radio stations that are
streamed online) that is not offered as part of Unlimited Music; and
wireless competitors that have arranged their offerings to comply with the
determinations set out in BTD 2015-26.

17. In BTD 2015-26, the Commission outlined its two-step process for analyzing an
allegation of undue or unreasonable preference or disadvantage under subsection
27(2) of the Telecommunications Act: (i) it must first determine whether the conduct
in question constitutes a preference or subjects a person to a disadvantage; and (ii)
where it so determines, it must then decide whether the preference or disadvantage
is undue or unreasonable.13

13 At paragraph 44.
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(i) Preferences and Disadvantages

18. With respect to this first step, there is no doubt that the manner in which Unlimited
Music is being offered to Videotron subscribers constitutes a preference for some
parties and a disadvantage for others.
19. Specifically, it is Rogers submission that Videotron is giving a preference to those of
its wireless customers who subscribe to its Unlimited Music service. The fact that a
certain group of Videotron customers is being given access to the five audio
streaming services without being subject to the same standard data charges
applicable to all other Videotron customers who access audio content means that a
preference is being given to those customers. Similarly, the five audio streaming
services (Stingray, Rdio, Google Play, Deezer and Spotify) that have entered into
agreements with Videotron to have their content accessed by Videotron customers
without the standard data charges applying are being given a preference. By
ensuring that Videotron customers can access these five audio streaming services
without incurring additional data charges is clearly a significant competitive
advantage for the companies that operate these services.
20. As for those parties that are disadvantaged by the Unlimited Music service, they
include Videotrons wireless customers who do not subscribe to the Premium AllInclusive Canada plan or the All-Inclusive Canada 1GB plan as part of an Internet +
Mobile Duo, as well as those customers that want to access other audio services
through Videotrons wireless network. Today, a Videotron customer who accesses
any other type of music or audio service, that is not provided by one of Stingray,
Rdio, Google Play, Deezer or Spotify, will be required to pay standard data charges
imposed by Videotron. In addition, other online audio content providers and audio
streaming services, which include many of Canadas licensed radio stations that
stream their services online, are disadvantaged because any Videotron mobile
customer that accesses one of those services will be required to pay additional data
charges. Significantly, this disadvantage is being given despite the fact that many of
these audio services offer content that is substantially similar to the music offered by
the Unlimited Music service. Moreover, as PIAC notes in its Part 1 Application,
providers of online content in general are disadvantaged for the same reason. 14
21. Another group that is being disadvantaged by Videotrons new service are wireless
carriers that compete with Videotron in the marketplace. This group includes Rogers
Wireless, which has designed its mobile audio and television offerings to comply
with the determinations made by the Commission in BTD 2015-26. The fact that
Videotrons Unlimited Music service is being offered in a way that is contrary to the
legal principles set out in that Decision places Rogers and other wireless carriers at
a significant disadvantage in the marketplace.
22. In view of the above, it is very apparent that Videotron has given a preference in
favour of certain of its customers who are not charged for accessing the audio
14 PIAC Part 1 Application, September 1, 2015, at paragraph 67.
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streaming services, as well as in favour of the five audio streaming services that
agreed to be delivered as part of Unlimited Music. In addition, every other audio and
audiovisual service accessible online through Videotrons wireless network and each
competing wireless carrier are being subjected to a corresponding disadvantage.
(ii) The Preferences and Disadvantages are Undue
23. Having established the presence of preferences and disadvantages in respect of the
Unlimited Music service, it is also clear that each preference and disadvantage is
undue or unreasonable. Pursuant to subsection 27(4) of the Telecommunications
Act, Videotron has the burden of establishing that any preference or disadvantage is
not undue or unreasonable.
24. Charging some customers significantly more, with respect to data charges, for
accessing those audio services that are not included as part of Unlimited Music
represents a material disadvantage that is clearly undue and unreasonable. It is
simply unfair to those customers that may not want to subscribe to Stingray, Rdio,
Google Play, Deezer or Spotify, and instead choose to listen to other audio content
online. These customers will be forced to pay considerably more, in terms of data
charges, for obtaining that audio content.
25. At the same time, Videotron is unduly preferring certain audio services by entering
into agreements with only a select group of audio streaming service providers and
offering them as part of the unlimited Music service. Videotron is, in effect, picking
winners and losers by adopting a business model that would require an online audio
service provider (including Canadian radio stations that stream content online) to
accept Videotrons contractual requirements in order to receive the benefit of having
its content zero-rated.
26. The fact that Videotron appears to be limiting participation in its Unlimited Music
offering to a class of service is not relevant to the issue of whether Videotron is
giving the chosen class an undue preference or subjecting all other audio services to
an undue disadvantage. In fact, it is not apparent what that class would be. While
Videotron appears to suggest that any audio streaming service could be offered in
Unlimited Music,15 it is evident that this is not true. Only those audio streaming
services that have accepted the terms imposed by Videotron and entered into
agreements with the wireless carrier are granted the right to have their services
zero-rated. Even then, any audio service that does not accept Videotrons terms of
carriage or that finds those terms too onerous, would not be included in Unlimited
Music.
27. By choosing which audio services are included in its Unlimited Music service,
Videotron is positioning itself as a gatekeeper. It is creating an environment that will
cause significant harm to those other audio services that do not choose to do
business or enter into commercial agreements with Videotron because their content
will continue to be subject to data charges. Under Videotrons model, customers
15 See http://support.videotron.com/residential/mobile/unlimited-music.
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who subscribe to a select group of audio streaming services will incur no additional
data charges, while customers who subscribe to other audio services will incur
significant data charges. It is Rogers view that this will likely have a material
adverse impact on consumers and on the growth and development of these other
audio services.
28. Videotrons decision to adopt a business model for mobile audio services that
encourages customers to access data-intensive services is inconsistent with the
approach outlined in BTD 2015-26 and the manner in which it charges for other data
services, which is to impose data caps in order to optimize the efficiency of these
networks. If access to audio services continues to grow and consumers are
encouraged to access Videotrons Unlimited Music service because of the absence
of data charges, this might contribute to network congestion and result in a
degradation of those audio, video and other online services that have not accepted
Videotrons access terms.
29. Finally, competing wireless carriers in Canada, including Rogers Wireless, are also
being subjected to an undue disadvantage. Following the issuance of BTD 2015-26,
Rogers and other wireless carriers reassessed their mobile offerings and entered
into business arrangements that were designed to respect the conclusions reached
by the Commission in that Decision. The Commissions findings with respect to data
charges for mobile TV and the broad legal principles underlying those findings have
been accepted by Rogers and incorporated into our mobile offerings. Now, with the
launch of Unlimited Music, we are being subjected to an undue competitive
disadvantage in the marketplace because Videotron refuses to respect the legal
principles outlined in BTD 2015-26.
30. We would also note that, under section 28 of the Telecommunications Act, the
Commission must have regard to the broadcasting policy set out in subsection 3(1)
of the Broadcasting Act in determining whether any preference or disadvantage is
undue or unreasonable in relation to the transmission of programs. Section 28 is
particularly relevant in this case because of the impact Videotrons Unlimited Music
service could have on Canadian radio stations and other Canadian audio content
providers that have not accepted Videotrons terms of carriage or have not been
chosen by Videotron to participate in Unlimited Music. As the Commission is aware,
subsection 3(1) of the Broadcasting Act contains several policy objectives that
encourage the growth and development of Canadian programming, including
paragraph 3(1)(d) which provides that the Canadian broadcasting system should:
3(1)(d)(ii) encourage the development of Canadian expression by
providing a wide range of programming that reflects Canadian attitudes,
opinions, ideas, values and artistic creativity, by displaying Canadian
talent in entertainment programming and by offering information and
analysis concerning Canada and other countries from a Canadian point of
view.

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31. If the number of Canadian consumers who use their mobile devices to satisfy their
music and other audio needs continues to grow,16 the Commission must ensure that
Canadian radio stations and other content providers have a fair and equal
opportunity to reach those consumers online. This means that wireless carriers, like
Videotron, should not be able to adopt new business models and service offerings
that position themselves as gatekeepers. This would enable Videotron to force
Canadian radio stations and other Canadian content providers to accept Videotrons
business arrangement just to ensure that they could remain competitive with those
audio streaming services that have already accepted the wireless carriers terms.
32. In view of the fact that more and more Canadians are listening to radio stations
online through mobile devices, there is a very real likelihood that the Canadian radio
industry will suffer material harm if Videotron and other wireless carriers require
customers to pay additional data charges to access Canadian radio stations online,
while allowing the content offered by audio streaming services like Stingray, Rdio,
Google Play, Deezer and Spotify to be zero-rated. Moreover, this would severely
undermine Canadian audio services successful transition to digital platforms and
their ability to further the policy objectives of the Broadcasting Act.
IV.NET NEUTRALITY
33. Videotrons Unlimited Music service is also being offered in a way that is inconsistent
with the Commissions approach to net neutrality. The decision to favour certain
types of audio services carried on its wireless network and to treat the data from
those services differently than the data of other audio and audiovisual services, as
well as online services in general, represents the thin edge of the wedge in
ensuring the integrity of Canadas net neutrality rules. If permitted to stand,
Videotrons discriminatory pricing policy will only encourage other wireless service
providers (and perhaps ISPs) to adopt similar business models that grant significant
advantages to only certain content providers online. This will have a material
adverse impact on those audio service providers whose content is not zero-rated, as
well as those consumers who do not want to pay higher data charges just to access
the content of their choice online and through wireless devices.
34. The Commission has consistently expressed the view that ISPs (and presumably
wireless carriers) should not be permitted to act as gatekeepers or to favour or
disadvantage particular kinds of traffic on their networks:
We want to make sure that Internet service providers (ISPs) are neither
favouring nor disadvantaging particular kinds of traffic on their networks.
ISPs should not act as gatekeepers or censors. They should allow content
providers and users to communicate freely.17
16 This growth of online streaming is expected to continue. See, for example, Music streaming services
have racked up a trillion plays in 2015 alone, Chris Leo Palermino, August 13, 2015 (see:
http://www.digitaltrends.com/music/streaming-music-services-pass-1-trillion-plays-2015/).
17 Speech by Konrad von Finckenstein, Q.C., Chairman, Canadian Radio-television and
Telecommunications Commission, To the International Institute of Communications Telecommunications
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35. Videotrons Unlimited Music service does not respect these net neutrality principles.
V.THE WIRELESS CODE
36. In addition to the above, it is also Rogers view that Videotrons pricing policy for its
Unlimited Music service contravenes the provision relating to overage charges in the
Wireless Code. In the proceeding that resulted in the Wireless Code, consumers
expressed frustration with plans that are advertised as being unlimited, but are then
subject to unclear usage limitations or overage fees. As a result, the Commission
imposed the following obligation in section 3(i) of the Wireless Code:
(i) A service provider must not charge a customer any overage charge for
services purchased on an unlimited basis.
37. In the section of Videotrons Unlimited Music website dealing with frequently asked
questions (FAQs), Videotron indicates that customers who subscribe to Unlimited
Music and believe that the service can be accessed on an unlimited basis will, in
fact, be subject to additional charges. The FAQ provides as follows:
Does Unlimited Music work on the extended network? Yes. Data
usage generated on partner networks is not deducted from your plans
monthly data allowance. However, your total data usage is subject to
extended network usage rules.
What is the transmission rate for streaming music?
Unlimited Music lets you stream music at 128 Kbps, which is the average
transmission rate for todays apps. Data usage resulting from streaming
music at speeds higher than 128 Kbps (high speed or high definition) may
be deducted from your plans monthly data allowance. 18
38. If a Videotron Unlimited Music customer is streaming at a high speed and data
usage is generated on partner networks, the customer would then incur overage
charges in violation of the Wireless Code. In addition, as noted above, if a customer
streams audio via the five audio streaming services at transmission rates that
exceed 128 Kbps, data usage may be deducted from the customers monthly data
allowance.
VI.CONCLUSION
39. For all of these reasons, Rogers supports the Part 1 Applications filed by PIAC and
Vaxination and firmly believes that the Unlimited Music service is being offered by
and Media Forum Washington, D.C. (December 14, 2011).
18 See http://support.videotron.com/residential/mobile/unlimited-music.
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Videotron in manner that contravenes the unjust discrimination provision in

subsection 27(2) of the Telecommunications Act. By acting as a gatekeeper and
selecting which audio services receive special zero-rated data usage treatment on
its wireless network, Videotron has conferred upon consumers of these services, as
well as upon the five audio streaming services that make up Unlimited Music, an
undue and unreasonable preference. At the same time, Videotron has subjected
their customers who subscribe to other audio content services, these other audio
services and wireless competitors to an undue and unreasonable disadvantage.
40. In addition, the Unlimited Music service is being offered in a manner that is contrary
to the Commissions net neutrality rules and certain provisions in the Wireless Code.
41. Rogers appreciates the opportunity to address the issues raised in the Applications.
We would be pleased to provide any additional information upon request.

Yours truly,

David Watt
Senior Vice President Regulatory
Corporate Affairs
c.c.
Vaxination Informatique, jfmezei@vaxination.ca
Consumers Association of Canada, the Council of Senior Citizens Organization of British
Columbia, and the Public Advocacy Centre, gwhite@piac.ca and jlawford@piac.ca
Vidotron, dennis.beland@quebecor.com, yanick.boily@quebecor.com and regaffairs@quebecor.com

*** End of Document ***

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