OutTV files new complaint against Shaw

OutTV, Canada’s first and only television channel specifically for gay and lesbian people, has filed another complaint with the Canadian Radio-Television and Telecommunications Commission (CRTC) alleging that it is being treated unfairly by cable behemoth Shaw Communications.

Pink Triangle Press, which publishes Xtra.ca, is a minority shareholder in OutTV.

OutTV has what the CRTC calls a “category one” digital broadcast licence. That means Canadian cable providers like Shaw must carry OutTV and must package and market it the same way they do for all other category one channels. But while Shaw’s “All In” package encourages visitors to Shaw’s website to “Get all specialty channels for $26.95 per month,” appended fine print reads, “All In includes OutTV by request only.”

“If you are a subscriber to Shaw and you call up and say, ‘I want all the digital channels,’ you don’t get OutTV,” says OutTV chief operating officer Brad Danks. “You have to say ‘I want OutTV as well.’ You have to know about OutTV and you have to specifically request it. People who thought they were getting it automatically will find that they’re not,”

Shaw’s by-request-only caveat is applied to no other category one channel anywhere in Canada and it effectively requires gay and lesbian people, many of whom live in rural Alberta and BC where Shaw does business, to out themselves to Shaw call centre representatives. Also, digital channels like OutTV get paid on a per-subscriber basis. OutTV’s exclusion from Shaw’s All In deal reduces its revenues.

“We should have probably close to an additional 80,000 subscribers if we were put in a proper package,” says Danks. “This would have an impact of close to $35,000 a month or close to $400,000 a year that we would be able to put into Canadian programming.”

That’s not OutTV’s only beef with Shaw. Beginning in early 2007 Shaw moved OutTV’s position on the dial twice in a three-month period without even notifying Danks. Originally on channel 100, OutTV was moved to channel 200 and then to channel 370 where it is today. OutTV is a lifestyle channel that does not run porn but 370 puts it cheek-by-jowl with Shaw’s impressive lineup of adult channels: Hustler is on 371, Playboy TV is on 372 and Red Light District is on 373.

“They are supposed to notify you before they move you,” says Danks. “The other thing is they moved us right into the porn section. We’ve said, ‘We don’t have adult content. Why have you got us with adult channels?’ There’s no reason given. They say nothing.”

Danks says that even though the number of Shaw cable service customers rises steadily every year, OutTV’s subscriber rate on Shaw is actually shrinking. He says for the period between December 2006 and December 2007 the number of OutTV subscribers on Shaw dropped by almost 60 percent while the number of OutTV subscribers on virtually every other cable provider in Canada rose by an average of at least 10 percent.

Shaw president Peter Bissonette did not return Xtra’s calls before press time but Danks says the cable giant did respond to OutTV staffer Samantha Sowassey in a Jun 19, 2007 letter from Shaw director of programming Caroline Popilchak.

Danks says Popilchak wrote that the number of subscribers to OutTV on the Shaw system has increased.

“It’s not true,” says Danks. “Our subscriber base has slowly eroded. We were at a high at one point of 9,000 subscribers. We say the facts speak for themselves. Shaw is the only cable provider in Canada where our subscriber base has gone down.”

Danks alleges that Popilchak wrote that Shaw has never marketed OutTV as an adult service. But in April 2005 Xtra West reported that OutTV was mentioned only once in Shaw’s marketing materials; on a webpage labelled “adult channel options” separate from all the other category one specialty channels and accompanied only by Hustler and Playboy TV.

According to Danks Popilchak called the channel number irrelevant arguing that there are hundreds of channels on the dial. But says Danks, if channel number is irrelevant “then move us back.”

This is not the first conflict between Shaw and OutTV. In 2001 when the channel, then under different management and called PrideVision, debuted along with a score of other digital cable channels, Shaw resisted including it in its lineup at all. In order to see the CRTC-mandated free preview of PrideVision, Shaw customers had to program their set-top boxes to receive it every time they turned on their televisions. The free preview of PrideVision was accessible only through the pay-per-view menu and led subscribers to believe they’d be charged one cent every time they accessed it.

In a 2001 letter to the CRTC, founding PrideVision president Rob Malcolmson wrote, “Fair and equitable packaging of PrideVision on distribution systems owned by Shaw Communications Inc has been problematic from the outset. As the commission knows, representatives of Shaw have made public statements to the effect that Shaw will not carry the service in certain areas. Shaw representatives have also said that if the service is to be carried, it will not be packaged with other programming services. Having realized that PrideVision is a must-carry service, Shaw is now impeding the preview of PrideVision in order to make it as difficult as possible for anyone to sample the service.”

Later in 2001 the CRTC concluded that Shaw subjected PrideVision to undue disadvantage in relation to other digital cable channels and was in breach of CRTC regulations.

“The commission considers it significant that it did not specify in either its licensing decision of PrideVision or its framework for digital specialty services that it would be appropriate for distributors to accord PrideVision treatment different from that accorded any other category one specialty service,” wrote the CRTC in its decision.

In April 2005, OutTV, not yet under its current management, filed another CRTC complaint against Shaw alleging inequitable treatment in violation of CRTC regulations over the Playboy TV and Hustler packaging issue and because Shaw was charging its subscribers more than twice the price for OutTV of any other category one channel on its dial. That complaint was withdrawn before the scheduled CRTC hearing after Shaw reached an agreement with OutTV.

In a 2005 interview, Xtra West asked Bissonette, “What would you say to those who may wonder if the price and carriage structure Shaw has adopted for OutTV, which is different from the structures for virtually every other digital specialty channel, might be motivated by homophobia?”

There was a stony silence. “That’s an erroneous suggestion,” he replied. “It’s not true.”

Danks says he doesn’t care about Shaw’s motivation for treating OutTV differently, he only wants equitable treatment so he can grow the channel and improve its programming.

“A lot of people will suggest that there’s a homophobic aspect to it,” says Danks. “I’m not going to be one them for a couple of reasons: [Shaw] does some community work here in Vancouver. They also put a lot of gay programming on their video-on-demand service. I think the problem is that Shaw has no interest in promoting Canadian programming services. It’s not specific to OutTV. It goes straight to the desire of that company. They’ve been attacking Canadian programming on all fronts.”

What would it take for Danks to withdraw the most recent OutTV complaint against Shaw?

“They would have to treat us like all the other category one licences,” says Danks. “They would have to put us in a proper and appropriate package within their packaging system. They would need to do that on a retroactive basis and pay us for the subscribers we would have had during that time. They need to market us in their web and all other materials the same as they do other category one licences.”

Danks says those wishing to protest Shaw’s treatment of OutTV should write letters of complaint to the CRTC.

“They can go to the OutTV website and write to us with their experiences with cable companies good or bad,” he says. “We can provide them information about how to write to the CRTC. We’d like to hear from them directly.”