ISPs tell Federal Court of Appeal they transmit programming just like satellites

OTTAWA—Major Internet service providers (ISPs) are arguing before the Federal Court of Appeal that the distribution of programming via telecommunications networks does not amount to broadcasting, and that if it did, major satellite companies like Telesat would qualify as “broadcasting undertakings” under the Broadcasting Act. “Telesat delivers broadcasting signals from its satellites to homes for viewing by Canadians, yet it is not regulated under the Broadcasting Act,” ISPs Bell Aliant, Bell Canada, Cogeco Cable, MTS Allstream, Rogers Communications Inc., Telus Corp., and Videotron Ltd. wrote in a joint reply to the Federal Court of Appeal on April 21. “Instead, it is the direct-to-home satellite television operator, which uses Telesat’s carrier facilities to deliver programming signals, that is subject to the Broadcasting Act as a ‘broadcasting undertaking,’ because it is that undertaking that buys, packages and sells programming to Canadians.” Cultural groups and ISPs are currently arguing before the Federal Court of Appeal whether ISPs—which allow consumers access to broadcast programming online—can be subject to regulation under the Broadcasting Act. The CRTC referred the matter to the court last summer, noting that the “question as to whether ISPs are subject to the Act must be resolved.” If the Federal Court of Appeal rules that ISPs carry on broadcasting undertakings, the commission could apply the Broadcasting Act’s Canadian content regulations to ISPs. The cultural groups, comprised of the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), the Canadian Film and Television Production Association (CFTPA), the Directors Guild of Canada (DGC), and the Writers Guild of Canada (WGC), have said that ISPs should support Canadian programming through a contribution regime, like broadcasters. The ISPs have warned that consumers would face higher prices if ISPs were forced to pay into cultural programming funds under the Broadcasting Act. The CRTC said last July that a funding regime or levy on ISPs “is neither necessary nor appropriate at this time.” Cultural groups jointly filed a reply memorandum with the court on April 21, noting that subsection 2(1) of the Broadcasting Act defines broadcasting as “any transmission of programs … by radio waves or other means of telecommunication.” But the definition in the act also says that the transmissions must be received “by the public by means of broadcasting receiving apparatus,” and in a separate reply memorandum from Shaw Communications, also filed April 21, the company argued that a home computer does not qualify as such an “apparatus.” Initial memorandums were submitted with the court in early April, and parties issued reply memorandums on April 21. The cultural groups argue that ISPs are not simply wires, cables, or electromagnetic systems—mere “transmission facilities” or “telecommunications common carriers.” “he functions of an ISP must be distinct from the functions of a telecommunications common carriers,” the groups wrote. They said ISPs play a “vital role” in receiving Internet data, copying it onto computers, and transmitting it to subscribers. “Indeed, the routers and other network infrastructure which are the very essence of an ISP and which are used by them to interconnect their subscribers with other networks are exempted from being a ‘transmission facility’ under the Telecommunications Act … Without an ISP’s equipment and undertaking, programs cannot be transmitted by that ISP to a subscriber.” The cultural groups argue that Parliament did not create an exception in the Broadcasting Act for “transmission intermediaries” the way it did for the Copyright Act. The exception in the Copyright Act excludes people from copyright liability when they simply provide “a means for telecommunication necessary for another person to so communicate the work.” “If Parliament had wished to similarly exclude retransmitters or other transmission intermediaries from the definition of ‘broadcasting’ or ‘broadcasting undertakings’ in the Broadcasting Act, it could have done so. It did not,” the cultural groups wrote. The court has scheduled a hearing for June 1, 2010. Some sources say a decision could be issued as early as the fall. The cultural groups also argue that the intent of the Broadcasting Act was to be “technology neutral.” They quote a Department of Communications policy paper released with the introduction of legislation that became the 1991 Broadcasting Act. At the time, the government policy paper said that, faced with technological change, “the Act needs to be freed from restraints inherent in a snapshot of broadcasting at any given time. A technology-neutral approach is necessary in which broadcasting is defined in terms of its content, its programming.” The groups say the 1991 act redefined broadcasting to include the transmission of programs “by radio waves or other means of telecommunication.” But the ISPs argue that whether the Broadcasting Act was intended to be technology neutral is not the question before the court. The court is considering “whether ISPs, in enabling end-users to get access to ‘broadcasting,’ are ‘broadcasting undertakings,’” they wrote. Broadcast programming may be available on the Internet, but this does not make all ISPs “broadcasting undertakings,” the ISPs said. “There are many players involved in ‘broadcasting’ over the Internet, and the mere fact that some or all of them might touch a ‘program’ at some point during its journey from content-provider to end-user does not, as ACTRA et al. suggest, make them all ‘broadcasting undertakings.’” Spokespeople for the ISPs or the cultural groups could not be reached for comment Tuesday. sdoyle@thewirereport.ca

ISPs tell Federal Court of Appeal they transmit programming just like satellites

Broadcast | May 18, 2010

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