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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