Bell seeking costs in appeal to overturn mobile-TV ruling

BCE Inc. is seeking to recover legal costs from a range of parties — including an advocacy group representing senior citizens, private individuals and companies in the telecommunications sector — in a case it has brought before the Federal Court of Appeal to overturn a January CRTC ruling that compelled it to treat video streamed through its mobile-TV app like any other data. In a Feb. 20 court filing, Bell said it is seeking costs from those involved in the CRTC’s process, including telecom researcher Ben Klass, who filed the original complaint against Bell in 2013, the Public Interest Advocacy Centre (PIAC), the Canadian Network Operators Consortium (CNOC) and Eastlink. Bell also listed York University communications professor David Ellis, the Consumer’s Association of Canada, the Council of Senior Citizens’ Organizations of British Columbia, Vaxination Informatique, telecom researcher Fenwick McKelvey, the Samuel-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), and consumer advocate Teresa Murphy as respondents in the appeal. Klass said in a phone interview Monday the request for costs was “frightening” for an individual, because the legal fees for its appeal Bell is seeking could be in the hundreds of thousands of dollars or more. “I don’t have a million dollars,” he said. In the court filing, Bell said it only needs to establish an “arguable case” that the CRTC committed a jurisdictional error in order to have the case heard again — this time by the court instead of the commission. Klass said the company was looking to circumvent the CRTC’s authority on telecom issues. “I think they're trying to tell the CRTC how to do their job,” Klass said. “They’re just arguing the same thing they argued before at the CRTC.” On the reasoning behind the appeal, Bell spokeswoman Jacqueline Michelis said in an email: "The CRTC should be supporting Canadian broadcast innovations like Bell Mobile TV, not trying to inhibit them. The CRTC itself considers the service a broadcast undertaking and should have regulated it in that way but didn't, which is why we are turning to the court." On Jan. 29, the CRTC ruled that Bell and Quebecor Inc.’s Videotron could no longer exempt their mobile-TV services from data charges because that gave undue preference to their own wireless customers and the companies’ own content. The regulator gave Bell until April 29 to comply with the decision, and Videotron until March 31 to demonstrate it has stopped allowing Illico.tv apps on BlackBerry and Android devices to stream data while circumventing regular data tracking. On Monday, Bell filed for a stay of the CRTC's decision, pending the outcome of its court appeal. Videotron said in an emailed statement Monday that Illico.tv apps for Android and BlackBerry devices that use "time blocks" stopped being sold in mid-January and these apps will stop working March 18. Eastlink spokeswoman Jill Laing said in an email the company had no comment. Bell did not respond to followup questions for details about its request for costs in the appeal. The company said in the filing that, while the CRTC used the Telecommunications Act in its decision, the regulator had initially found that Bell Mobile TV was a broadcasting undertaking (BU) and therefore, in Bell’s argument, exempt from that act. “The case law treats BUs as indivisible entities for jurisdictional purposes,” the company said. “The CRTC therefore had no jurisdiction to apply … the Telecommunications Act to Bell Mobility in respect of Bell Mobile TV.” The Broadcasting Act lays out the CRTC’s powers over television and radio broadcasts, and Bell’s mobile-TV service, if regulated under that act, is acceptable, the company said. Bell also argued in its court filing that the CRTC didn’t have enough evidence to prove that its exclusive mobile-TV service caused harm to customers or competitors, and that it expected Bell to rebut those claims without proving their accuracy. “In making significant findings without evidence, and wrongly shifting the burden of proof to Bell, the CRTC erred in law and jurisdiction, and breached Bell's right to procedural fairness,” the company said. York University's Ellis filed an intervention with the CRTC in the original case and is listed as a respondent in Bell’s appeal. He said the case showed the importance of updating the laws governing the CRTC’s power. “Canadians are now long overdue for an overhaul of the legislative framework that makes it possible for a telecommunications carrier to stop short of fulfilling its obligations,” he said in a phone interview. “The Telecommunications Act is designed in such a way that is applies universally, except in certain cases involving broadcasting. That's not a very sensible way to regulate telecommunications, especially not in the age of over-the-top, on-demand video, when broadcasting in the conventional sense of the term is rapidly disappearing.” Television enjoys an “exceptionalism” under the law, Ellis said, adding that its separate treatment as “a kind of national treasure” was useful in building the Canadian television industry, but that idea has outlived its usefulness. “It now threatens to harm the public interest by making it possible for certain telecommunications carriers to avoid their responsibilities because of this unusual exceptionalism that has been applied to broadcasting,” he said. Ellis said that, like Klass, he is concerned with the potential responsibility for paying legal costs to Bell and considers it important to speak out. “I'm ascribing no motives to Bell, but it has had the effect, intended or unintended, of worrying a number of people about speaking out about a very important case about how the public interest is treated in communications law,” he said. Tamir Israel, a lawyer with CIPPIC, which also filed with the CRTC and is named as a respondent in Bell’s appeal, said in a phone interview Monday that Bell’s request for costs related to filing the appeal was not unusual. The listing of the interveners in the CRTC process as respondents in this case is required by law, he said, in order that those parties are notified if a decision is appealed. Yet because they are listed as respondents, those who filed in the CRTC process can’t ask the court to be protected from costs in the name of the public interest, as they could if they were filing interventions as uninvolved parties. "We're subject to costs the same way any other directly interested party might be," he said. "Our interest in this is a public interest, not a direct interest. We're not doing this so we can watch Bell Mobile TV on our phones.” Israel said the concern was that a cost award could cripple small organizations with low budgets like his. “We definitely don't have the budget to pay Bell's legal fees, forgetting our own,” he said. "It's a quirk of the process and a really problematic one. We've come up against it before. It significantly impacts our ability to participate in these appeals.” What makes it more difficult, Israel said, is that the CRTC is limited in its ability to participate because the appeal is of its own decision. He pointed to the recent litigation over an appeal of the implementation of the CRTC’s wireless code, in which large parts of the regulator’s submission were stricken from the record. Although the risk of a cost award is daunting, Israel said, there is an important role for the interveners in the CRTC process to fulfill. "Somebody needs to challenge; it can't just be a one-sided appeal," he said. "It's going to really threaten the ability of tribunals like the CRTC to make policy in Canada if it's possible for incumbents to appeal all these things in an unopposed way because nobody can afford the risk of going forward." Israel said the appeal could have broader implications for non-mobile streaming services, such as Bell’s CraveTV or Rogers Communications Inc. and Shaw Communications Inc.’s Shomi, for which access is tied to a customer’s Internet or TV subscription. “A successful appeal could mean that a similar model might be replicated for wireline,” he said. “ would hinder the ability of the CRTC to address the potential downstream innovative harms that could result from the adoption of such a practice.” On Feb. 20, the CRTC suspended two PIAC and CAC undue preference complaints against CraveTV and Shomi. — With reporting by Peter Henderson at phenderson@thewirereport.ca and reporting and editing by Derek Abma at dabma@thewirereport.ca

Bell seeking costs in appeal to overturn mobile-TV ruling

Broadcast | February 23, 2015

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Bell seeking costs in appeal to overturn mobile-TV ruling

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