In a and accompanying , the CRTC rejected Sun News’ application for a mandate to be carried by all cable and satellite providers ("must-carry status"). Granting of such a status guarantees television networks a revenue stream as the cable companies of mandatory carriage onto monthly customer cable bills.

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The CRTC did approve new channels that it found “meet a real and exceptional need”, such as providing French-language content or content for Canadians living with a visual impairment.

The CRTC, however, did not end Sun News hopes for must-carry status. The regulatory body has broad jurisdiction under to award the designation “on such terms and conditions as the Commission deems appropriate”. Consequent to some of Sun News’ arguments about the importance of access to Canadian news, the CRTC has decided to hold a review of its policy on the licensing of Canadian news channels. As said by the CRTC Chairman Jean-Pierre Blais, “television news channels provide an important public service by ensuring that Canadians are exposed to different opinions and perspectives on matters that concern all citizens. We are concerned that, under the existing rules, Canadian news services are not being given a pride of place in our broadcasting system.”

This review includes public consultation by or submission. Canadians are invited to comment on the following proposed changes to the current regulatory framework:

• Distributors must offer all Canadian national news services (not necessarily on basic service).
• Distributors must place Canadian news services in close proximity in their channel lineup.
• National news services must be available in a package and on a stand-alone basis.
• National news services should be offered in the most appropriate packages according to their content.

The deadline for citizen feedback is fast approaching on September 9^th, 2013.

Despite the fact it is operating in the red to the tune of $17M in losses in 2012, Sun News it until the CRTC’s review is complete. It will also be making a submission to the commission.

Commentary and analysis

Since the CRTC’s inception, through to the , and into today’s debate on must-carry for Sun TV, domestic news coverage remains a matter of Canadian public policy. Whether it is concerns about concentration or representation, what we watch on television reflects our social identity, norms and perceptions of the world around us.

But the burgeoning area of digital media has added a new layer to the debate during the last ten years. In my opinion, online television downloading and streaming is creating a tectonic shift in programming consumption that, if the CRTC isn’t careful, will nullify their reform efforts, and potentially one day, their existence.

I’m no fan of Sun News. In my opinion, it’s a country mile from providing any real and exceptional viewer need. But that’s beside the point. I think that generally, fighting for must-carry status on cable television is like . The time horizons for cable abandonment rates, however, that there remains justifiable revenue to be made between now and the sinking for those granted must-carry status. Ironically, the gradual addition of must-carry designations and the ensuing rise in cable rates may hasten the demise.

I would like to see the CRTC and the Government of Canada get serious about a large-scale revamp of Canadian content regulation and protection in the digital media age. Yes, I think supporting domestic news coverage is sufficiently important to warrant framework updates, but I would like to see it within a larger plan to address how to bring the CRTC's measurements and requirements to online programming.

Until there is a long-term strategic plan for incorporating digital content within the vision of the Broadcasting Act and its implementation by the CRTC, for any piecemeal revisions to must-carry, I will remain much wary.

Denise Brusndon is an IPilogue Editor and a JD/MBA Candidate at Western University.

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On January 16, 2011, the Supreme Court heard an appeal in the case of

The appeal arose from the following reference question put by the (CRTC) to the Federal Court of Appeal:

Do retail Internet service providers (ISPs) carry on, in whole or in part, “broadcasting undertakings” subject to the , [S.C. 1991, c. 11 (the Broadcasting Act)] when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users?

The terms “broadcasting” and “broadcasting undertaking” are as defined in the Broadcasting Act as amended.

The Federal Court of Appeal heard submissions from two groups. The “Cultural Groups”, consisting of the (ACTRA), the (CMPA), the (DGC), and the (WGC), argued that the question should be answered in the affirmative. This position was opposed by the “ISP Coalition”, including Bell, Cogeco, MTS Allstream, Rogers, and Telus. Shaw Communications also took part with separate counsel.

The question turned on whether ISPs engage in “transmission” in the meaning of the Broadcasting Act.Ěý In its 2010 lower court decision in the same case, the answered the reference question in the negative.Ěý Reading the definition of “broadcasting” together with the purpose and applicability to ISPs of the policy objectives of the Broadcasting Act, the Federal Court of Appeal accepted the argument that ISPs were “utterly ignorant” of the nature of the messages which move through their networks, and could not therefore be “broadcasting undertakings” since they only “provide the mode of transmission”.

At the Supreme Court, , made submissions on behalf of the Appellants, the Cultural Groups. He urged the Court to consider the difference between the activities of providing Internet access, which he argued includes transmitting content, and of acting as a “telecommunications common carrier”, which the defines as owning and operating the underlying “transmission facility” or physical network links through which transmissions are made.Ěý He characterized the ISP Coalition’s and Shaw’s arguments as asserting that content-neutral “passive transmission” is excluded from the Broadcasting Act.

Justices Abella and Rothstein were particularly active in questioning whether an ISP needed to have control over the actual content of a transmission in order to fall under the CRTC’s Broadcasting Act jurisdiction. Chief Justice McLachlin ended the discussion when she asked whether there was any danger that Canada’s Internet landscape could be regulated as heavily as China’s, to which Mr. Heintzman pointed out that the CRTC is mandated to only apply regulations under the Broadcasting Act in a way that fosters freedom of expression, and only when it is necessary to achieve the Act’s policy objectives.

responded on behalf of the ISP Coalition. He emphasized the limited nature of the CRTC’s reference question, that the only issue before the Court involved ISPs “in their role as ISPs”. Mr. Laskin took issue with the concept of “passive transmission”, and argued that Parliament’s vision was apparent, that ISPs fit more comfortably under the Telecommunications Act as “telecommunications common carriers” since they are unable to fulfill most of the Broadcasting Act’s policy objectives.

made submissions on behalf of Shaw, and argued that to answer the question the Court must look to a broader statutory framework which includes the Copyright Act. Under that Act, the Supreme Court previously ruled in the decision that ISPs were content-neutral “Internet intermediaries”, and therefore exempt from civil liability for copyright infringement. Mr. McHaffie suggested that ISPs do not need to be “telecommunications common carriers”, since the entire Telecommunications Act, which does not apply to broadcasting by broadcasting undertakings, operates analogously to the Copyright Act’s civil liability carve-out for content-neutral intermediaries. On the basis of this content-neutrality principle, Mr. McHaffie argued that ISPs must be treated as a single undertaking, whether they are involved in the transmission of audio-visual programs (broadcasting), or any other form of content.

In a brief reply, Mr. Heintzman suggested to the Court that ISPs were capable of furthering the Broadcasting Act’s policy objectives, should the CRTC identify a need for them to do so. He pointed to examples such as Project Cleanfeed Canada.Ěý Project Cleanfeed Canada is a system by which certain ISPs have agreed to block access to foreign child pornography tagged as such by Cybertip.ca

The case is one of considerable complexity, involving a wide array of highly technical defined terms. It remains to be seen what effect the Court’s decision will have on the CRTC’s oversight of broadcasting over the Internet, and on the interpretation of the Broadcasting Act and Telecommunications Act.

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