Last year, the Canadian Radio-television and Telecommunications Commission released its new media decision, which addressed the prospect of increased CRTC regulation of Internet activities. After days of hearings and thousands of pages of submissions, the Commission side-stepped the pressure to "do something," maintaining a hands-off approach and punting the most contentious issue – the prospect of a new levy on Internet providers to fund Canadian content – to the courts.
The Internet levy proposal received strong support from several Canadian creator groups, who argued that given the video content streamed online, ISPs should be viewed as broadcasters within the Broadcasting Act. By treating ISPs as the equivalent of conventional broadcasters, they would be required to contribute to the Act’s policy objectives, which include promotion and support for Canadian content. The ISPs unsurprisingly opposed the proposal, maintaining that they are mere conduits in the transmission of video content. They argued the levy proposal was illegal since they are regulated under the Telecommunications Act as telecom companies, not broadcasters.
My weekly technology law column (Toronto Star version, homepage version) notes the two sides faced off at the Federal Court of Appeal earlier this year and last week a unanimous court sided with the ISPs, ruling that providing access to broadcasting is not the same as broadcasting. It concluded that 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.
