Court: Canada’s ‘Broadcasting Act’ Not Applicable to ISPs

CANADA—The Supreme Court of Canada ruled last week that internet service providers are not subject to the country's Broadcasting Act, which was passed in 1991 and “covers three main sections: a broadcasting policy for Canada; the regulatory powers of the Canadian Radio-television and Telecommunications Commission (CRTC); and the operating procedures and policies for the Canadian Broadcasting Corporation.” In making its finding, the high court confirmed a 2010 ruling by The Federal Court of Appeal, which was tasked with answering the following question: "Do retail Internet service providers ('ISPs') carry on, in whole or in part, 'broadcasting undertakings' subject to the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to 'broadcasting' requested by end-users?"  The question was important because the Canadian Radio-television and Telecommunications Commission (“CRTC”) had concluded in 1999 that the term “broadcasting” as it is used in the Broadcasting Act “included programs transmitted to end-users over the Internet.” According to Thursday’s ruling, the CRTC concluded at that time “that it was not necessary to regulate broadcasting undertakings that provided broadcasting services through the Internet.  It exempted these ‘new media broadcasting undertakings’ from the requirements of the Broadcasting Act. In 2008, after public hearings, the CRTC revisited this exemption.  One of the issues raised was whether internet service providers—ISPs—were subject to the Broadcasting Act when they provided end-users with access to broadcasting through the internet.” The CRTC referred the matter to the Federal Appeals Court, whose ruling saying ISPs were not subject to the law was then challenged. It turns out the companies who lined up on either side of this issue are the same ones facing off over laws like SOPA and Protect IP. “When [the Federal Appeals Court] said no, groups representing actors, producers, directors and writers appealed to the Supreme Court,” reported castanet.net. “The major cable and satellite companies, such as Bell Canada and Rogers Communications, opposed the idea in court of their ISPs being considered broadcasters.” It makes every bit of sense for this same cast of characters to be at odds in this case. The ultimate goal of each and every effort made by content creators and producers to pass a SOPA or get an ISP named a “broadcaster” is precisely to redefine the internet as a broadcast medium similar to television or radio. With that designation, the control the massive multinational media companies now enjoy on those other platforms will be extended to the internet, which has thus far resisted losing its freedom. This ruling was similarly limiting, but not as far as the eye can see. While granting ISPs independence from regulation under the Broadcasting Act, “the Federal Court of Appeal warned that if ISPs begin to actively make content decisions and lose their neutrality, they might indeed be subject to regulation.”