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Federal Court of Appeal Rules ISPs Not Broadcasters: May Be End of ISP Levy Proposal

The Federal Court of Appeal issued is decision today [not online yet] on whether Internet providers can be considered broadcasters within the context of the Broadcasting Act.  The case is the result of last year’s CRTC New Media decision in which many cultural groups called on the Commission to establish an ISP levy to fund Canadian content.  The ISPs argued that such a levy was illegal since they fell under the Telecommunications Act, not the Broadcasting Act.  The cultural groups argued that ISPs should be considered broadcasters in the case of the transmission of video programs.  The CRTC punted the issue to the Federal Court of Appeal.

The Federal Court of Appeal sided with the ISPs, ruling that providing access to broadcasting is not the same as broadcasting.  So long as ISPs maintain a content-neutral approach, they fall outside of the Broadcasting Act and should not be expected to play a role in promoting the policies found in the legislation.  The case is a huge win for the ISPs and – subject to an appeal to the Supreme Court of Canada or a legislative change – puts an end to the ISP levy proposal.  The case is also noteworthy from a net neutrality perspective, since the court emphasized that ISPs fall outside the Broadcasting Act so long as they remain content-neutral.  Should ISPs play a more active role, their ability to rely on the broadcast/transmission distinction would be lost.

The court set out the issue as follows:

the issue to be decided is whether, when providing access to the “transmission of programs …”, ISPs are broadcasting. The answer to this question hinges on a consideration of the findings of the CRTC as to how programs are transmitted on the Internet on the one hand, and the exact purport of the definition of the word “broadcasting”, on the other.

The conclusion, which relied heavily on the Supreme Court of Canada Tariff 22 decision between SOCAN and the Canadian Association of Internet Providers:

Relying on the logic adopted by Binnie J. in CAIP in construing the word “communicate” under the Copyright Act, I am of the view that the definition of “broadcasting” is also directed at the person who transmits a program and that a person whose sole involvement is to provide the mode of transmission is not transmitting the program and hence, is not “broadcasting”.

As for promoting the Broadcasting Act objectives, the court stated:

Because ISPs’ sole involvement is to provide the mode of transmission, they have no control or input over the content made available to Internet users by content producers and as a result, they are unable to take any steps to promote the policy described in the Broadcasting Act or its supporting provisions. Only those who “transmit” the “program” can contribute to the policy objectives.

Finally, the comment that puts net neutrality back on the table:

In providing access to “broadcasting”, ISPs do not transmit programs. As such, they are not “broadcasting” and therefore they do not come within the definition of “broadcasting undertaking”. In so holding, I wish to reiterate as was done in CAIP that this conclusion is based on the content-neutral role of ISPs and would have to be reassessed if this role should change (CAIP, para. 92).

15 Comments

  1. Common Sense
    Why’d the CRTC even have to go to the courts with this? IT’S COMMON SENSE!

    This is dead proof that the CRTC members are completely out of sync with today’s technology. It’s a *given* that “he who merely operates the conduit” has zero control on “he who decides what’s in the conduit”.

    If this goes up to the Supreme Court, I’ve lost all hope.

  2. Graham J says:

    Neutral?
    So is torrent traffic shaping and imposition of ridiculous caps considered content-neutral? It seems pretty clear to me that these limitations are in place to protect their video broadcasting businesses and thus are not neutral at all.

  3. ISP’s broadcast content in roughly the same way the universe does. It’s just a carrier.

  4. Content Neutral
    Michael, How does this apply to Bell’s situation with IPTV? They prioritize their own IPTV services for real-time (read minimal lag and guaranteed throughput) over other IP communications.

  5. Content Neutral
    Although the notion is still rolling loosely around in my head, shouldn’t this also bode well for solidifying ISP neutrality for MAFIAA’s anti-consumer legal endeavours? IIRC, one of the goals is to make ISPs liable for what they carry.

  6. Marcus C says:

    About time
    With a bit of luck this will go a long way to killing the CRTC’s mad dash towards “Convergence” and melding Telecom and Broadcast into the same bucket of CanCon excrement.

    I have to agree with … it’s common sense.

  7. Wake up CRTC
    I wish this organization would just end already. They are ruining it for the everyday Canadian. They are so out of touch with technology. They really had to waste the courts time with this? Disgusting.

  8. 3G Mobile internet?
    Does it apply to mobile internet providers in Canada too?

  9. nofriendofisps says:

    just a carrier?…no control over what goes thru the conduit?

    hey, are you forgetting, rogers commissioning its own content, for online delivery?

    all the ISP want to control the content, don’t kid yourself, so they can sell it to us multiple ways

  10. *ALL* information on the internet is really just 0′s and 1′s. It is the end user that actually applies some meaning to it, such as this is a video, this is an html page, this is a jpeg, etc.

    Yes, ISP’s want to control content, but they can’t really succeed except on a highly superficial level.

  11. Specifying
    Should point out, Big Business ISPs want to control content (ROgers, Bhell..)

    Smaller ISPs want to remain content neutral and don’t want to mess with our traffic whatsoever (Teksavvy, Acanac)

  12. nofriendofisps says:

    right…there is a difference between the goals of big and smaller ISPs…but they all have the ability to control ‘content’ whether they want to – or do – or not. But in a few years, do you not think that all ones and zeroes, no matter what they signify, will be in the hands of the controlling delivery mechanism…that is just what the old broadcasters had, and, I think, that is what the new broadcasters want.

  13. Wrong, they do not have the ability to control content.

    They do have the ability to control bandwidth, but that’s not the same thing. Content is really all just 0′s and 1′s, and there is practical way that the ISP would be able to tell what the connected computer is actually doing. They may be able to make an educated guess, and maybe even program a computer to make that guess, but that will wholly depends on the client not using some sort of encryption – and it’s even entirely possible to encrypt something so that the presence of any encryption itself is undetectable to anyone except people who already know that it is there, and the ISP in such circumstances would not be able to discern any difference between encrypted and unencrypted communications.

    So no. No matter how much ISP’s may want to control content, they can’t.

  14. “Content is really all just 0′s and 1′s”
    Yep, and analog content is just these wavy things. But, hey, computation!

  15. ISP
    Two years later, and at least Southern California isp still has more problems.