OTTAWA – While ruling that Internet Service Providers are not, in fact, broadcasters and therefore not subject to Canadian content exhibition or contribution requirements, the Federal Court of Appeal today also issued a bit of a caution on the issue of net neutrality.
When the CRTC issued its broadcasting in new media report in June of 2009, it also decided to ask the Federal Court of Appeal to decide whether the act of providing a pipe through which customers can bore into the Internet and draw programming to their various devices makes ISPs broadcasting entities – and therefore subject to the same rules and regulations (exhibition and contribution requirements) as, say, a cable company.
Today’s ruling, written by Justice Marc Noel, sides with the major ISPs (many of which are also cable companies), who appeared together as a coalition and insisted that because ISPs do not select, originate or package programming, they can not be considered broadcasters. They say they are content-neutral. Besides, the CRTC has long considered the function of an ISP to be that of mere conduits and fall under the auspices of the Telecommunications Act and not the Broadcasting Act.
The cultural groups (the Writers Guild, Directors Guild, the Canadian Media Production Association and others) , of course, had a different opinion. The Broadcasting Act is technologically neutral and ISPs do, in fact, transmit video content and so they should be thought of like BDUs or some other new class of media broadcasting undertakings.
Primarily, the cultural groups were hoping to institute some sort of levy on ISPs, the funds from which would be used to produce Canadian content. This ruling may kill that idea for good.
The court decided that simply being the conduit to deliver content does not make ISPs broadcasters. “I am of the view that the definition of ‘broadcasting’ is also directed at the person who transmits a program and that a person whose sole involvement is to provide the mode of transmission is not transmitting the program and hence, is not ‘broadcasting’,” reads the decision.
“Because ISPs’ sole involvement is to provide the mode of transmission, they have no control or input over the content made available to Internet users by content producers and as a result, they are unable to take any steps to promote the policy described in the Broadcasting Act or its supporting provisions. Only those who ‘transmit’ the ‘program’ can contribute to the policy objectives.”
The cultural groups, as the decision termed them, have not yet decided what to do next, but told Cartt.ca that an appeal to the Supreme Court of Canada is a possibility. “We are disappointed with the decision and will be undertaking a detailed analysis of its reasoning,” said CMPA (formerly CFTPA) counsel Reynolds Mastin in an e-mail. “We will also be carefully examining whether to seek leave to appeal to the Supreme Court of Canada.”
WGC executive director Maureen Parker said she questions how content-neutral ISPs are, and “we will be looking into that issue and other possible grounds of appeal,” she said.
And the court decision itself, right at the end, sounded a cautionary note for ISPs, basically telling them if they do try to alter, change or get a little less neutral about the content they transmit, such an action might then alter this decision down the road.
“In providing access to ‘broadcasting’, ISPs do not transmit programs. As such, they are not ‘broadcasting’ and therefore they do not come within the definition of ‘broadcasting undertaking’,” writes Justice Noel. “In so holding, I wish to reiterate… that this conclusion is based on the content-neutral role of ISPs and would have to be reassessed if this role should change.”
Sounds like somewhat of a warning to us (and some others) that should ISPs become less content neutral, they could be considered something like a broadcaster after all.
