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.
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MTS Allstream, CAIP, and the Canadian Federation of Independent Business are among the companies and groups that have launched the Campaign for Competitive Broadband, an effort to overturn a recent CRTC decision on competitor access to broadband networks.
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The CBC.ca posts copyright wish lists for ACTRA, CAIP, CAUT, CLA, ITAC, ESA, and PIAC.
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Day four of the CRTC's network management hearings featured three of the world's leading experts on networks along with a trio of ISP perspectives. The panelists included the Canadian Association of Internet Providers, CIPPIC on behalf of the Campaign for Democratic Media (CDM) (who brought experts Dr. David Reed, Dr. Andrew Odlyzko, and Bill St. Arnaud), Execulink Telecom, and Primus Telecommunications.
An important theme during the day was debate on whether there really is a network congestion crisis. CAIP argued that it is competition, not congestion that is at issue. Odlyzko surprised the Commissioners by noting that traffic growth is actually declining and that a steady rate of capital expenditures should be sufficient to meet demand (this was later confirmed by Execulink). Moreover, St. Arnaud and Reed emphasized the diminishing importance of P2P as a video delivery channel, urging the CRTC not to fight yesterday's war.
The second important development was the clear divide that has emerged on traffic management at the wholesale vs. retail level. The wholesale issue was at the heart of the CAIP vs. Bell case and that case is effectively being re-argued during these hearings. Many ISPs have argued against any form of traffic management of wholesale traffic, noting that it prevents the potential for competition between providers. Moreover, in repeated questions about the impact on carrier networks (such as Bell) it is becoming apparent that the problem may lie with Bell, not with the ISPs. Independent ISPs note that Bell promises certain speeds and bandwidth at the wholesale level, but seemingly has difficulty meeting those promises. Some providers (ie. MTS Allstream) have network architectures that ensure that this is not a problem. The sense is that Bell does not and so resorts to traffic management practices. It is noteworthy that CAIP focused very heavily on the wholesale issue and basically abandoned any pretext of protection against traffic management for consumers.
The retail side of the issue has many ISPs arguing that anything should be permitted with appropriate disclosure. Fighting for some limitations are consumer groups, creator group, Saveournet.ca, and the Open Internet Coalition. They have proposed a test to determine whether the traffic management practice is permissible under Canadian law. The Commission will ultimately have to decide both (1) the wholesale issue, which may involve an acknowledgement that it got the CAIP decision wrong; and (2) the retail question including disclosure practices and tests (if any) to determine appropriate conduct.
Today's summary was again compiled by Yael Wexler, a law student at the University of Ottawa. Other coverage available from the National Post liveblog, CBC.ca and twitter feeds from CIPPIC and me.
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Day three of the CRTC's network management hearings brought in the views of several additional stakeholders along with the first large telco of the week. Witnesses included the Independent Film and Television Alliance, the Canadian Film and Television Production Association, Council for Canadians with Disabilities, the ARCH Disability Law Centre ACTRA, and MTS Allstream.
While all the creator and producer groups expressed support for net neutrality, it was their position on BitTorrent that was particularly noteworthy. Perhaps heralding an end to the demonization of file sharing, ACTRA emphasized that it wants to compete with illegal downloading and that the best way to do that is to ensure that its members can use applications like BitTorrent to distribute their content. In other words, copyright alone won't address their concerns (they added the need for copyright reform) as network management practices that create a level playing field are essential. Meanwhile, the independent producers emphasized the economic potential of BitTorrent-based distribution. Moreover, ACTRA argued that it was not the role of ISPs to determine the legality of content on their networks. That position is a far cry from what groups like CRIA would like to see happen.
The other big story of the day was MTS Allstream arguing that dominant carriers should never be permitted throttle wholesale services (ie. they argue that any throttling should only occur at the retail level). This led to repeated discussion about the nature of wholesale services (referred to as GAS or Gateway Access Service) with MTS explaining that wholesale service is not like buying Internet access as a retail customer (it was described as akin to a private virtual network). For that reason, there is no valid claim that congestion concerns are the basis for throttling wholesale services (left unsaid is why a company like Bell would throttle – competition from the very ISPs to whom it supplies wholesale access). The discussion was stunning since it left the distinct impression that the Commission did not fully understand what was at issue in the CAIP throttling case.
There was two other exchanges involving Commissioner Len Katz worthy of note. The first was a question in which he suggested that Bell and Rogers do not have a dominant position in Ontario, something that will be news to the overwhelming majority of broadband subscribers in the province. The second was the recognition that prioritization of content is effectively the same thing as throttling of content since the effect in both instances is to place some content on a fast lane and other content on a slow one.
These issues may arise again tomorrow when CAIP appears. Today's summary was compiled by Yael Wexler, a law student at the University of Ottawa. Other coverage available from the National Post liveblog, CBC.ca, and the cippic twitter feed (or mine for MTS).
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