Federal Court of Appeal justice considers sending matter back to CRTC

OTTAWA--Justice Marc Noël questioned Tuesday the CRTC's decision to refer a jurisdictional matter to the Federal Court of Appeal—whether Internet service providers (ISPs) qualify as broadcasting undertakings—and raised the possibility of returning the issue to the commission. In June 2009 the CRTC held a review of broadcasting in new media, but did not decide “whether ISPs carry on, in whole or in part, ‘broadcasting undertakings’ subject to the Broadcasting Act when they provide access to broadcasting through the Internet.” The CRTC instead referred the matter to the Federal Court of Appeal to decide whether the commission has the jurisdiction to regulate Internet service providers (ISPs) under the Broadcasting Act. If ISPs are found to qualify as broadcasters, the CRTC could regulate them under the Broadcasting Act and require them to pay into cultural programming funds. But at a court hearing Tuesday, Justice Noël said experts at the CRTC should have dealt with the question, and openly considered returning the decision to the commission. Noël said that while the CRTC made it clear that broadcasting occurs over the Internet, they did not specify who is doing the broadcasting. “It would have been useful if had expressed , because they are the experts. I’m a little troubled by that. Have we become the experts? That’s what the CRTC is there for,” he said. “Can we say we can’t decide on that, because we don’t want to, and refer it back to the CRTC?” Noël said during the court hearing. “Now we’re being asked to decide who is doing the broadcasting, when the panel of experts at the CRTC could not say.” Nicholas McHaffie, a partner at Stikeman Elliott LLP who is representing Shaw Communications Inc. for the proceedings, said the CRTC referred the case precisely because a decision likely would have been challenged to the court. Reynolds Mastin, counsel for the Canadian Film and Television Production Association (CFTPA), told The Wire Report that it is clear the court would have preferred that the CRTC settle the matter. “They haven’t indicated one way or the other whether they will send the matter back to the CRTC,” he said. Peter Grant, counsel at law firm McCarthy Tétrault and the author of Communications Law and the Courts in Canada (McCarthy Tétrault, 2010), said in an interview that it would be unusual for the court to refer the matter back to the CRTC. “It’s possible, but it would never happen. The court would have to find some rationale why this is not an issue that could be dealt with in the court,” he said. Grant said there have only been three instances, including this case, in which the CRTC referred matters to the courts. During the hearing, Thomas Heintzman of McCarthy Tétrault, representing the CFTPA, the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), the Directors Guild of Canada (DGC) and the Writers Guild of Canada (WGC), argued that ISPs are broadcasting undertakings. He said that as long as ISPs participate in the act of distributing broadcasting, they fall under the definition of broadcasting undertakings—and the Broadcasting Act. “In order to be excluded from the Broadcasting Act, you have to be only telecommunications ,” he said. “Broadcasting is occurring and is being delivered to subscribers through ISPs.” But Joel Laskin from the Torys LLP law firm, representing ISPs Bell Aliant, Bell Canada, Cogeco Cable, MTS Allstream, Rogers Communications Inc., Telus Corp., and Videotron Ltd., said Heintzman’s definition of a broadcasting undertaking is too broad. He said ISPs do not enjoy the same freedoms as broadcasters under the Broadcasting Act, such as freedom of expression and journalistic, creative and programming independence. “When you consider what ISPs do in providing only … access to the Internet, and when you consider what they don’t do—they don’t create the content, they don’t decide on the content … they don’t charge for the content—ISPs do not fall under broadcasting undertakings,” he said. McHaffie argued that it does not make sense to define ISPs as broadcasting undertakings because they cannot decide how, or know when, they are delivering programming as opposed to “alphanumeric text”—and they would only fall under the Broadcasting Act when they are delivering programming. “That would be an usual regulatory situation, ISPs switch on and off a thousand times a second,” he said. Approached by The Wire Report, lawyers for the parties, as well as Bell Canada and the CRTC, would not comment on the proceedings Tuesday. kfournier@thewirereport.ca

Federal Court of Appeal justice considers sending matter back to CRTC

Broadcast | June 1, 2010

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