Door still open to Internet retransmission issue even as Bill C-48 passes

While the regulatory door has been shut to JumpTV.com Canada Inc. to take advantage of this country’s compulsory licensing regime, several avenues remain open to its owners to pursue network retransmission in future. Until the amended Bill C-48 becomes law this fall after being dealt with by the Senate, retransmission remains a grey area, says Jump lawyer Sunny Handa (CNM Update, June 19/02). And, observers say, even if the bill becomes law there is nothing to prevent a company such as JumpTV to apply to the Canadian Radio-television and Telecommunications Commission (CRTC) for a broadcast distribution undertaking (BDU) licence to operate outside of the 1999 new media exemption order. On June 17, the House of Commons passed Bill C-48, which has been amended to create a regulatory carve-out for Internet companies such as iCraveTV.biz and JumpTV. The bill has the effect of creating a tenuous moratorium, however, since the only ban is on companies operating under the CRTC’s new media exemption order – something the government has asked the commission to revisit. In an order to the commission, Canadian Heritage minister Sheila Copps asked the CRTC to "review this matter, taking into account the objectives of the broadcasting policy set out in the Broadcasting Act." The commission has been told to report on the issue no later than January 17, 2003. The exemption-defined carve-out suits the Canadian Cable Television Association (CCTA) just fine. As one of the main opponents to a total ban on Internet retransmission, the cable lobby is ultimately satisfied that the legislation won’t interfere with plans to use the Internet in delivering services such as interactive television. "We had said all along that we would not support an Internet carve-out. From our perspective, what they did was not an Internet carve-out; it was a sort of regulatory carve-out," says CCTA senior counsel Jay Kerr-Wilson. "The amendments don’t talk about use of technology. They don’t talk about technology at all. They don’t impact on us at all." A June 6 letter by the cable lobby to the Standing Committee on Canadian Heritage clarified its position. "Cable operators do not operate pursuant to the New Media exemption order, therefore the (amendments do not) raise the same concerns about the impact on cable operations as would a general prohibition against the use of Internet technology." In the same vein, the door also remains open to JumpTV to seek a licence to retransmit outside of the exemption order, observers point out. If, for example, the company applied to the CRTC for a BDU licence of some kind, complete with the obligations of cablecos and direct-to-home satellite TV providers, Jump could be granted on-par rights with those distributors. However, Handa says it’s still not certain whether Jump will approach the CRTC. In fact, he believes the way is still clear to proceed according to the company’s original plans until C-48 receives Royal Assent sometime this fall. "JumpTV is going to hold its course. It thinks it should be allowed to retransmit like everyone else. To us, nothing has really happened. We’ve gone through a lot of excitement and a lot of rigmarole and, frankly, the old law is still in place. It’s more of the same sort of stalling that’s happened to date. Certainly we’re going to be considering all options," he tells Canadian NEW MEDIA."Right now, as far as JumpTV is concerned, there is no immediate need to go to the CRTC. There’s a new media exemption in place. There’s a – from our point of view at least – a technologically neutral copyright retransmission law in place, so why would one have to go to the CRTC?" Handa doesn’t rule out the possibility that either his client or another upstart such as iCraveTV.biz might still light up its service over the summer (CNM, Mar. 27/02). "Given the way the winds shift in this particular file, anything could happen between now and the fall. God knows what could happen. Look at what happened in the span of two weeks. We’re going right and then, all of a sudden, a left turn was made within a day. Who’s to say what will happen with this issue between now and then? It could be that an Internet retransmitter decides to light up."

Door still open to Internet retransmission issue even as Bill C-48 passes

Broadcast | June 26, 2002

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