In the fall of 2013, Ben Klass, a graduate student in telecommunications, filed a complaint with the CRTC over how Bell approach to its Mobile TV product. Klass noted that Bell was offering a $5 per month mobile TV service that allowed users to watch dozens of Bell-owned or licensed television channels for ten hours without affecting their data cap. By comparison, users accessing the same online video through a third-party service such as Netflix would be on the hook for a far more expensive data plan since all of the data usage would count against their monthly cap.
In January 2015, the CRTC released its decision in the case, siding with Klass. The Commission expressed concern that the service “may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.” While Bell argued that the mobile TV service was subject to broadcast rather than telecom regulation, the CRTC ruled that mobile television services effectively invoked both broadcast and telecom regulation, since a data connection was required to access the service.
In light of the applicability of telecom regulation, the CRTC considered whether the Bell service (and a similar service by Videotron) constituted an undue preference, ruling that it did:
the Commission finds that the preference given in relation to the transport of Bell Mobility’s and Videotron’s mobile TV services to subscribers’ mobile devices, and the corresponding disadvantage in relation to the transport of other audiovisual content services available over the Internet, will grow and will have a material impact on consumers, and other audiovisual content services in particular.
The decision generated both supportive and critical commentary with the focus squarely on the issue of broadcast and/or telecom regulation of the mobile TV service. When Bell appealed the ruling to the Federal Court of Canada, that was unsurprisingly the key issue. Yesterday, the court issued its decision, rejecting the Bell appeal.
The decision once again affirms the applicability of telecom regulation to the service, providing some helpful language on distinguishing between broadcasting (which involves a transmission of programs for reception by the public) and a broadcasting undertaking (which has some control over the programming). The court concludes that “a person who has no control over the content of programs and is only transmitting programs for another person, would not be transmitting such programs as a broadcasting undertaking.”
The court proceeds to emphasize the separation of content and carriage:
In my view it was reasonable for the CRTC to determine that Bell Mobility, when it was transmitting programs as part of a network that simultaneously transmits voice and other data content, was merely providing the mode of transmission thereof – regardless of the type of content – and, in carrying on this function, was not engaging the policy objectives of the Broadcasting Act. The activity in question in this case related to the delivery of the programs – not the content of the programs – and therefore, the policy objectives of the Telecommunications Act related to the delivery of the ‘intelligence’ were engaged.
A concurring opinion went further, concluding that both the Telecommunications Act and the Broadcasting Act could apply to the different Bell activities within the same service:
In light of these provisions, in my view the CRTC reasonably concluded on the evidence before it that customers accessed Bell Mobile TV through data conductivity and transport services governed by the Telecommunications Act. At the same time, the acquisition, aggregation, packaging and marketing of Bell Mobile TV involved a separate broadcasting function governed by the Broadcasting Act.
The decision provides an important affirmation of the CRTC ruling, which was grounded in net neutrality principles that will be tested again this year in a hearing on much the same issue (zero rating). It also serves a reminder that efforts to bring broadcasting law into the Internet world – perhaps through ISP levies or CanCon contributions – faces significant legal barriers.