On Tuesday, the Commission conducted hearings with leading broadcast and telecom companies including Astral Media, Rogers Communications, Cogeco Cable, Shaw Communications, CTV GlobeMedia, and the CCSA. The lively discussion focused on the ISP levy, with strong opposition to the levy and even the hearings themselves. The following review was compiled by University of Ottawa student Yael Wexler.
Canada's leading telecommunications and cable companies have formed the Canadian ISP Alliance as they gear up for the forthcoming fight at the CRTC over a potential new levy on ISP services. The ISP Alliance, which includes all the major Canadian players (Quebecor, Rogers, Cogeco, Telus, MTS Allstream, Shaw, Sasktel, Eastlink, Bell, and Bell Aliant) argues that the CRTC's plans to revisit the 1999 new media exemption order is unnecessary. While the ISP Alliance is not alone in making that argument (the Canadian Chamber of Commerce and ITAC reach the same conclusion), their submission is noteworthy because it includes a legal opinion that argues that the CRTC does not have the legal authority under the Broadcasting Act to impose a new levy on ISPs (the levy is being promoted by several groups including ACTRA).
The legal opinion from Fasken Martineau DuMoulin first tries to make an analogy to satellite services, which similarly transmit video and audio content, yet have not been regulated as broadcast undertakings. The opinion also notes the functional separation between telecommunications and broadcast regulation, arguing that it was the clear intent of Parliament to regulate broadcasters in the Broadcasting Act and telecom companies in the Telecommunications Act.
While the legal opinion makes no reference to net neutrality, the issue could ultimately play a pivotal role.
CBC's Marketplace features an eye-opening investigation into the misleading ISP claims about consumer broadband services.
Engadget reports that some Canadian cable providers, particularly Rogers and Shaw, are activating the broadcast flag onto a questionable amount of content. The site says that "users who are trying to record said programming via their own Windows Vista Media Center setup are receiving all sorts of errors and messages […]
My weekly Law Bytes column (Toronto Star version, homepage version) discusses the recent revelations that Industry Canada is highly skeptical about the need for net neutrality legislation. I argue that the need to prevent a two-tier Internet in Canada has never been greater. The Canadian competitive landscape is dominated by a handful of companies, with the top five providers controlling 84 percent of Canadian Internet connections. Indeed, Canadian consumers who have access to broadband networks (many communities are still without access) invariably face steady price increases and service limitations from the indistinguishable choice between cable and DSL.
Leveraging their dominant positions, Canadian telecommunications companies have been embroiled in a growing number of incidents involving content or application discrimination. Over the past two years, Telus blocked access to hundreds of websites during a dispute with its labour union, Shaw attempted to levy surcharges for Internet telephony services, Rogers quietly limited bandwidth for legitimate peer-to-peer software applications, and Videotron mused publicly about establishing a new Internet transmission tariff that would require content creators to pay millions for the privilege of transmitting their content.
The government documents uncovered last week confirm that Industry Minister Maxime Bernier is aware of the situation.
The Law Bytes Podcast, Episode 202: David Soberman on the Reality Behind Claims Canadian Wireless Prices Have Been Cut in Half 
The Law Bytes Podcast, Episode 201: Robert Diab on the Billion Dollar Lawsuits Launched By Ontario School Boards Against Social Media Giants 
The Law Bytes Podcast, Episode 200: Colin Bennett on the EU’s Surprising Adequacy Finding on Canadian Privacy Law 
Debating the Online Harms Act: Insights from Two Recent Panels on Bill C-63 
The Law Bytes Podcast, Episode 199: Boris Bytensky on the Criminal Code Reforms in the Online Harms Act
Michael Geist
mgeist@uottawa.ca
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