Supreme Court to weigh in on thorny issue of ISPs as broadcasting undertakings

Canada’s highest court said Thursday it will weigh in on the thorny issue of whether Internet service providers (ISPs) carry on broadcasting activities and qualify for regulation by the CRTC. A coalition of cultural groups had appealed the issue to the Supreme Court, which said Thursday it will look at whether the lower Federal Court of Appeal erred when it ruled unanimously last year that ISPs play a “content-neutral role” in the transmission of data and do not carry on broadcasting activities. The CRTC had referred the issue to the court in the summer of 2009, noting that the legal question “as to whether ISPs are subject to the Act must be resolved.” The Federal Court of Appeal, in its decision last year, had referenced a key 2004 Supreme Court ruling. That decision, the Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, had identified the “content neutral” role of ISPs in digital copyright liability. The Federal Court of Appeal ruling means the CRTC does not have the legal authority to apply regulations to ISPs under the Broadcasting Act—but the cultural groups appealed it to the Supreme Court, where the issue will now be revisited. The cultural coalition, made up of the Alliance of Canada Cinema, Television & Radio Artists (ACTRA), the Canadian Media Production Association (CMPA), the Directors Guild of Canada (DGC) and the Writers Guild of Canada (WGC), has said ISPs should make contributions to support the Canadian broadcasting system, as broadcasters and broadcasting distributors do under the Broadcasting Act. “The coalition looks forward to presenting their arguments before the Court on this critical issue for the future of the broadcasting system in Canada,” the cultural groups said in a release Thursday. The CRTC has not said recently whether it intends to regulate ISPs as broadcasting distributors if it is granted the power to do so. But the commission said in July 2009 that a funding regime applied to ISPs “is neither necessary nor appropriate at this time.” A collection of ISPs is against the idea and will be arguing before the Supreme Court that they do not qualify as broadcasting undertakings. Those ISPs are Bell Aliant Regional Communications, Bell Canada, Cogeco Cable Inc., MTS Allstream Inc., Rogers Communications Inc., Telus Communications Company, Videotron Ltd., and Shaw Communications Inc. The Supreme Court said Thursday that it will look at whether the appeals court “erred in law in failing to apply the ordinary meaning of the word ‘transmission’ when interpreting the definitions in section 2 of the Broadcasting Act.” A hearing date has not been set, but the Supreme Court is likely to hear the case in late fall or early 2012. During the Federal Court proceeding, the cultural coalition noted that section two of the Broadcasting Act defines broadcasting as “any transmission of programs … by radio waves or other means of telecommunication.” They said the Copyright Act’s exception for “transmission intermediaries” was not also created in the Broadcasting Act. But the ISPs have argued that section two of the Broadcasting Act also says that transmissions must be received “by the public by means of broadcasting receiving apparatus,” and computers and wireless devices do not qualify as such an apparatus. They add that there are many players involved in broadcasting online, including ISPs, and the fact that many of them play a role in the distribution of programs does not make them “broadcasting undertakings.” ISPs have also warned that consumers could face higher prices if they are required to pay to support Canadian programming. The question of whether ISPs should contribute to the Canadian broadcasting system comes as discussion is also mounting about the role of unregulated, online content portals in broadcasting. This week the CMPA and the House of Commons heritage committee called on the CRTC to open a proceeding to look at the emergence of foreign-owned digital broadcasting players like Netflix Inc. news@thewirereport.ca

Supreme Court to weigh in on thorny issue of ISPs as broadcasting undertakings

Broadcast | March 24, 2011

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