The Supreme Court of Canada has announced that it will hear an
important "convergence" case respecting regulatory
treatment of Internet access to broadcasting content.
On March 24, the Court granted leave to appeal last
summer's judgement of the Federal Court of Appeal, which found
that Internet Service Providers (ISPs) do not carry on
"broadcasting undertakings", within the meaning of the
Broadcasting Act, when they provide access through the
Internet to broadcasting material requested by users.
That decision, Re Canadian Radio-television and
Telecommunications Commission (2010) FCA 178, was
initiated by a Reference
Order issued by the CRTC, in order to resolve
fundamental questions respecting the distinction, for the purpose
of the Broadcasting Act and the Telecommunications
Act, between telecommunications service providers and
broadcasting undertakings. In that case, the Federal Court of
Appeal found that in providing content-neutral access to
"broadcasting" material on the Internet, ISPs do not
transmit programs, are therefore are not broadcasting undertakings,
and accordingly do not fall within the regulatory ambit of the
The reference arose from a proceeding initiated to consider issues
pertaining to broadcasting in new media, in which the
CRTC heard proposals from various cultural groups to impose a levy
on ISPs, to be paid into a fund to support the creation and
presentation of Canadian new media broadcasting content.
Stakeholders opposed to the levy, including many ISPs, argued that
the CRTC lacked jurisdiction to impose such a levy, since ISPs were
not properly considered to be "broadcasting
undertakings", and therefore fell outside of the
Commission's jurisdiction under the Broadcasting
Act. Extensive and contradictory legal opinions were
Although in its subsequent decision, Review of broadcasting in new
media, the Commission determined that additional
funding for new media content was neither necessary nor appropriate
at this time, resolution of the threshold question of applicability
of the Broadcasting Act to ISPs would clarify, in the near
term, whether the reporting requirements and undue
preference restrictions currently applicable to new
media broadcasting undertakings would apply to ISPs. In the
longer term, a finding by the Court that ISPs were broadcasting
undertakings could allow the CRTC to impose a levy, or other
regulatory restrictions, at some future date.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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