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 â€œtransmission of programs â€¦â€, 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 â€œbroadcastingâ€, 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 â€œcommunicateâ€ under the Copyright Act, I am of the view that the definition of â€œbroadcastingâ€ 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 â€œbroadcastingâ€.
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 â€œtransmitâ€ the â€œprogramâ€ can contribute to the policy objectives.
Finally, the comment that puts net neutrality back on the table:
In providing access to â€œbroadcastingâ€, ISPs do not transmit programs. As such, they are not â€œbroadcastingâ€ and therefore they do not come within the definition of â€œbroadcasting undertakingâ€. 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).