Last week was a busy one in the wireless world in Canada. Just as people were debating the proposed Rogers – Shaw merger, the CRTC released its long awaited wireless decision involving the possibility of mandated MVNOs or mobile virtual network operators. While the CRTC notably concluded that Canadian wireless pricing is high relative to other countries and attributed that to insufficient competition, it ultimately was unwilling to fully embrace a broad-based mandated MVNO model. To help break down these recent developments, joining the Law Bytes podcast this week are Dwayne Winseck, a professor at the School of Journalism and Communication at Carleton University and the director of the Canadian Media Concentration Research Project, and Ben Klass, a senior research associate at the Canadian Media Concentration Research Project and board member at the Internet Society Canada Chapter. They both join the podcast in a personal capacity representing only their own views.
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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 December 2010, the U.S. Federal Communications Commission passed the Open Internet Order, which featured relatively weak net neutrality rules. Despite their limited impact (the Order did not go as far as the Canadian Internet traffic management practices which were established a year earlier), Verizon challenged their validity in court. A U.S. appeals court sided with Verizon in 2014, ruling that the FCC did not have the authority to issue the order. The Verizon win proved to be short-lived, however, since later this week, the FCC will pass new net neutrality rules that go much further than the 2010 order. As Ars Technica recently noted, the Verizon net neutrality gamble backfired.
The Verizon blunder came to mind this past weekend as word began to circulate that Bell is seeking leave from the courts to challenge the CRTC’s recent net neutrality ruling involving its mobile television service. The company argues that the CRTC does not have the jurisdiction to issue its ruling under the Telecommunications Act (which forbids undue preferences) since the service should be governed by the Broadcasting Act (which does not have an undue preference provision). From Bell’s perspective, the court challenge presumably seems like a no-brainer: if it wins, the ruling is struck down. If it loses, it still delays the implementation of the CRTC decision for months or even years, thereby maintaining its existing practice for the time being.
The CRTC has issued a major new decision with implications for net neutrality, ruling that Bell and Videotron violated the Telecommunications Act by granting their own wireless television services an undue preference by exempting them from data charges. The Commission grounded the decision in net neutrality concerns, stating the Bell and Videotron services “may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.”
The case arose from a complaint filed by Ben Klass, a graduate student, who noted that Bell offers a $5 per month mobile TV service that allows 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. Videotron was later added to the case, based on similar concerns with its mobile television service.