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On May 27, 2021, the Canadian Radio-television and Telecommunications Commission (CRTC)����that it had finalized the rates that large companies can charge competitors to access their high-speed broadband networks under the industry’s existing wholesale aggregated model. This decision resolves a long-standing dispute under the industry’s current wholesale framework and allows the CRTC to now shift its focus towards the industry’s new disaggregated wholesale model that is set to be implemented in the future.

Independent service providers (i.e. the competitors) that do not have their own high-speed access (HSA) networks can pay larger companies at wholesale rates to access their networks when providing internet, telephone, and television services to customers. Under the current aggregated wholesale HSA service, a competitor connects its network to a small number of points in the larger company’s network. Although this aggregated model is primarily used by competitors today, there are no finalized rates for larger companies to charge competitors for this service, with the industry operating under interim rates for the last four years.

The CRTC’s primary goal for wholesale HSA services is to transition from the current aggregated model to a new disaggregated model, which is promised to increase industry competition by enabling competitors to access more points in the larger companies’ networks, provide faster internet speeds and more services to customers. The CRTC’s decision sets out the wholesale rates under the existing aggregated model so that the CRTC can shift focus to assessing issues under the disaggregated model.

In its decision, the CRTC sought to strike a balance between regulatory certainty, market stability, regulatory burden, and the goal to transition to the disaggregated model. It decided that the interim rates for the aggregated wholesale HSA service that were in effect prior to the issuance of Telecom Order����(reported by the E-TIPS® Newsletter��) should be deemed the final rates, with certain modifications. Absent any expressed exception, the final rates would be retroactively applied as of March 31, 2016.

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Ali��Mesbahian��is an��IPilogue��Writer and a 2L JD Candidate at��Osgoode��Hall Law School.��

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As part of a recent effort to modernize the Canadian data and telecommunications legal landscape, the federal government proposed Bill C-10: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts (“Bill”). In a nutshell, the Act provides the (“CRTC”) new powers to regulate the internet. ”, the Bill proposes to expand the scope of “ to include online broadcasters such as (as part of new “online undertakings”), and impose regulations requiring these platforms to pay for Canadian content they air. Non-compliance will lead to large fines.

The Bill has legitimate objectives; Canadian creators (of music, movies, series, documentaries, etc.) ought to be adequately compensated for enabling streaming services to generate profits using their content; however, the surrounding the Bill signifies that its impact on civil liberties are just as important.

The Controversy

Essentially, the Bill seeks to “” by allowing the CRTC to subject online undertakings to similar regulations to traditional broadcasters. The glaring question for civil liberties advocates was whether user-generated content (i.e., media uploaded to Facebook, TikTok, YouTube, etc.) qualifies as an “online undertaking” under the Bill. If it did, this could imply the government has the power to oversee and regulate anything, from your online political expression to pictures of your cat.

In its initial form in November 2020, : “the Act does not apply in respect of programs uploaded by unaffiliated users to social media services for sharing with other users.” Yet by April 2021, the government unexpectedly revoked this exemption. ensued from the public, academics, The Canadian Civil Liberties Association (“CCLA”), and parties from across the political spectrum, compelling the government to once again change its position. In response, Canadian Heritage Minister Steven Guilbeault announced that upcoming amendments would make it that the Bill will not target user-generated content.

But according to Michael Geist, a Canadian law professor in Internet and e-commerce law, the proposed amendments will only make the Bill . While they limit the CRTC’s regulatory power, the amendments do not restore the original exemption. Moreover, the amendments add a new section specifically on the regulation of social media. The government therefore seems adamant to extend its regulatory reach to social media.

Implications for Freedom of Expression

The federal government’s refusal to restore the exemption may be understood in light of their broader effort to adapt to the realities and technological advancements of the information economy. Specifically, one of their goals is to combat . These extremely necessary and urgent objectives require a robust, evidence-based policy framework that systematically addresses numerous factors related to the technological infrastructure that gives rise to these problems. There are three main considerations.

First, as Geist points out, freedom of expression also entails the freedom “,” meaning that we ought to demand transparency from Big Tech with respect to the algorithms through which content travels to other users. As Yale law professor Amy Kapczynski highlights, a broader policy analysis in such cases would include paying attention to intellectual property and trade secrecy laws that from disclosing their algorithmic models.

Second, it is unclear what criteria will be used to judge what content is “Canadian”. Such absence entails regulatory discretion¾a slippery slope that may prove problematic. As warned by Cara Zwibel, director of the Fundamental Freedoms Program of the CCLA, the concern is less about what the government will currently do with these new powers and more about the ” this Bill opens in the future. With little guidance on regulatory criteria, “Canadian content” seems highly malleable. To implement regulations without explaining how to interpret them tends to grant the government sweeping powers that may detriment online expression.

Third, it is important to learn from the problems faced by other jurisdictions that implemented similar provisions, such as Germany and Australia. Their experience shows that corporations faced with regulatory requirements tend to by broadly taking down any content that may be construed to contravene applicable legislation, in order to avoid hefty fines. Especially with the new amendments in Bill C-10 providing specifically for the regulation of social media, we must stop and ponder if it is a good idea to outsource freedom of expression to Big Tech.��

If the controversy around Bill C-10 points to one thing, it is that complex social problems require solutions that empower civil society, not ones that grant the government blanket regulatory authority.

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A 2012 acknowledged the growth of OTT services, but recommended that Canadian broadcasters respond by moving aggressively into the OTT space rather than creating a new regulatory category for internet media. Rogers and Shaw attempted this in the past few years with their OTT service Shomi, which has since failed, but Bell’s CraveTV .

At the end of 2016, Netflix and Amazon Prime announced that they were expanding their service into virtually every country in the world, with Netflix in 190 countries and Amazon Prime in 200. With OTT services now becoming truly global in scope, how will Netflix and Amazon simultaneously deal with the media regulations of every government in the world and how can Canadian content producers and distributors continue to compete?

by Brian Barrett, a senior writer at Wired and former Editor in Chief at Gawker Media answers the first question with two words: original content. If OTT services invest in creating their own shows, a significant amount of work around licensing the rights to stream movies and shows by other producers eventually gets cut out as more and more content is added directly by the provider. A previous example is Comcast’s in 2009 where a major broadcaster bought a major content producer to gain greater control of the media supply chain.

Over the past 5 years Netflix and Amazon have done just this, growing their library of original TV shows and movies. Bell has begun to produce its own shows through CraveTV, signalling an adoption of this model in Canada. The effect of a distributor owning its own content is that it makes licensing unnecessary, as a single entity now owns the rights to the content in perpetuity and therefore can distribute them without need for a license. This saves time and money and simplifies the supply chain of delivering content but it also signals a major shift that concerns media creators and distributors around the world.

If more and more content that people want to consume is produced by OTT distributors, then the ability of Canadian media companies to get licences for in-demand shows becomes far more difficult and will cut them out of the supply chain. Bell currently has licences for HBO and Showtime, two popular US content producers, but both have their own small OTT services, HBOgo and Showtime Anytime. The first is currently available in Canada with a (a subsidiary of Bell), the second is . If the big OTT’s gamble on content creation pays off, these content creators may try to grow their own OTT presence globally rather than keep selling licences.

While it is clear that Canadian distributors need to focus on content creation, it is also important that this content be marketable outside Canada. The federal government has affirmed a commitment to move from “focusing on growing the��domestic��market” to “capturing a greater share of��global��markets” in a recently commissioned Heritage Canada titled “Canadian Culture in a Digital World”. Heritage Minister Mélanie Joly told the in 2016 that the biggest challenge for content producers is “finding better ways to export the material on digital platforms around the world”. The article noted such a review of CanCon rules is a major upheaval not seen in 25 years.

The move to global OTT services signals an increase in demand for high-quality content and a reduction in the barriers to distributing content to other markets. Canada is well positioned to profit from this change, if it allows it creators and distributors the freedom to create shows that are compelling to global audience, not just a Canadian one.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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As the Government of Canada has , "new business models and new market strategies will be needed if the Canadian digital media sector is to succeed in the global digital economy. " For example, "Over-the-top" service providers, such as��Netflix, as well as an array of companies offering on-demand or��à la carte��options, notably Apple Inc. via��iTunes, are��growing in popularity, ,��and demonstrating the shifting nature of the contemporary television landscape in Canada and across the world.

Due to these changes in how Canadians view television content, the country’s television regulator is seeking advice from the Canadian public to determine if and how television regulations must change.��For the CRTC, “making the right choices about how we shape Canadian television requires a complete and in-depth understanding of the Canadian television viewing experience.”

The regulator has, therefore,��asked Canadians to reflect��on the their habits and offer advice on three areas: “Programming: What do you think about what’s on television?;��Technology: What do you think about how you receive television programming?; and a so-called��Viewer Toolkit: Do you have enough information to make informed choices and seek solutions if you’re not satisfied?”

A common area of concern for many Canadian television viewers sits at the convergence of these first two topics: the relationship between programming — often of foreign content — and emerging technologies. Canadian consumers are often irritated to find that the content they wish to watch online is unavailable to them because of their geographic location.

Due to the nature and complexity of content licensing agreements, many popular programs are "" for viewers based in Canada or are otherwise unavailable to Canadian-based service providers. The frustrations surrounding Netflix’s��2010 entrance��into the Canadian market epitomize this. At the time, many Canadians were irritated by Netflix Canada’s relatively��limited selection��when compared to the service as offered in the United States. These sentiments continue today; have been created to track the differences between the Canadian and American services.

Geo-blocking and the unavailability of foreign content are distinct but related issues for Canadian viewers as well as service providers.��Geo-blocking��is a technological protection measure, allowing rights-holders to determine who can view content based upon the geographic location of a user’s Internet Protocol address. Rights-holders employ this technology in order to recreate traditional, geographically-based broadcast boundaries in the online environment. In , digital media consultant Alan Sawyer��argues: “since this is consistent with the realities of the physical world, it's a logical approach for broadcasters to take and makes a sensible foundation for enforcing territorial licensing agreements – and it preserves the effectiveness of the existing ad-supported model and helps broadcasters avoid disintermediation.” Foreign websites restrict access to the content that they host based on the territorial markets that they are attempting to serve and generate revenue from.

Territorial licensing agreements also determine what content Canadian websites and services can offer to their markets. Much of the television content offered by Canadian service providers as well as foreign companies operating in the country is produced internationally, primarily in the United States. Service providers in Canada must therefore negotiate����with particular rights holders in order to deliver this content to Canadian audiences. In certain cases, popular foreign programming is often unavailable to Canadian viewers.

The CRTC is not directly involved with what content service providers license from rights-holders. So while many Canadians may wish to discuss this topic during the CRTC’s��Conversation, the regulators hands may be tied in terms of addressing the problem.

Instead of attempting to solve the business model challenges of Canadian service providers, better results might be obtained if the regulator focuses on ensuring that Canadian content continues to be produced and delivered to Canadians via traditional and emerging media. As more and more content migrates to online platforms, the CRTC will need to explore whether or not Internet-based content providers need to be regulated so that they contribute to the creation of domestically produced content.

[Note: As part of the #TalkTV proceedings, (a non-partisan, student-run initiative of the 91��ɫ & Ryerson Joint , Politics & Policy stream), is hosting a ‘Flash Conference’ on December 4, 2013. More information is available .]

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91��ɫ, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

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In response to this statement BCE, Rogers, and Telus (the "Big Three" Canadian telecommunication companies) launched a . They argued that the rules intended to support new entrants into the Canadian wireless market would actually allow large foreign corporations like Verizon to squeeze out Canadian companies and jobs.

Verizon CEO, Lowel McAdam, now says that Verizon the Canadian market. In an interview with Bloomberg news service, he said that the speculation of a Verizon entry into the Canadian market was “way overblown." Nevertheless, Verizon managed to spark a polemic discussion about the new spectrum auction and rules introduced by the government to encourage the introduction of a fourth major telecom competitor into Canada.

In 2012, the government to allow foreign companies to enter the market with some limitations. Companies with are now open to foreign investment, while large carriers are still restricted to one-third foreign ownership. In 2014, the Government plans to����four blocks of the 700-megahertz wireless spectrum to carry voice and data services. As a part of the government’s ongoing attempts to develop competition in the wireless market, the "Big Three" carriers will be restricted to bidding on only one block. The Government further "��from purchasing either Wind or Mobilicity - the current small providers in Canada.

The "Big Three" argue that the rules will favour foreign carriers who enter the market because they would be able to bid on more than one block since they are not incumbents. Two of the four blocks are for new entrants and current speculation is that these blocks will therefore sell for a lower price since the big three cannot bid, making them attractive to a foreign competitor. Verizon is currently four times larger than the "Big Three" combined, which does not seem to be the underdog the government had in mind when it implemented the policy to encourage competition.

The withdrawal of Verizon has not put an end to the protest from the "Big Three". Rogers CEO, Roger Nadir, claims that while welcomes competition, the current policy in place do not provide a level playing field. laid out three loopholes in the rules that still need to be closed. A spokesman for said, “It’s never been about Verizon coming to Canada. It has been and continues to be about fair access to the spectrum.” The "Big Three" maintain that the rules provide an unfair bidding advantage to new entrants at their expense.

In late August, members of the country’s largest private sector union outside of Industry Canada offices, citing their disapproval of the new rules that will open telecom to foreign investment. They fear that the introduction of another provider will result in Canadian job losses as a result of corporate streamlining to remain competitive. The union is also concerned with privacy and security if an American corporation enters the market, especially in light of Verizon’s involvement in recent .

In my opinion, the concern from the "Big Three" may be unwarranted at this point. After all, despite government attempts to diversify the market over the last few years,��remain with the "Big Three". The introduction of Wind and Mobilicity has already resulted in an nearly in the last few years; however, Canadian carriers still have per user. Moreover, Canada has among the most expensive wireless plans according to the and the .��Canada��is a relatively small and rural market, which presents a huge undertaking of development of infrastructure to enter competitively in all areas. Thus, even under the new relaxed rules, one does not simply walk into the Canadian market.

According to digital public affairs analyst Mark Belvis, one poll indicates that��would support entry of Verizon into Canada as they believe it would lead to better service and lower rates. Consumers already feel they have little choice and the attempt by the "Big Three" to gain sympathy did not gain much traction with frustrated consumers who used this campaign to air their grievances against their providers. Continued opposition from the "Big Three" to changes in the Canadian wireless market may prove to be a consumer-alienating strategy in the long run.

Even without the entry of Verizon, feels that “the way we’ve designed our policies, we are going to have more competition in the marketplace from other players.”�� The government does not seem to have changed its position and still wants a fourth major competitor despite the media frenzy caused by the Verizon inquiry.�� The auction remains for January and companies wishing to bid still must submit their applications by September 17^th.

Allison McLean is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.��

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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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Key Messages

There were three messages intertwined throughout Blais' presentation. He first discussed the CRTC having the courage to both step up and step back in regulating. He elaborated that it was the role of the Commission to intervene when market forces were insufficient to accomplish objectives in the public interest. With respect to telecommunications, he highlighted the recent release of the����as a need to interject in what he sees as a largely unregulated wireless��market. He also discussed the need to impose conditions on the CBC's broadcasting����to ensure it meets the needs of Canadians, and why Bell's proposed��acquisition��of Astral Media's assets was in the public interest. Blais then spoke of recent times when the CRTC relaxed regulation, presenting only one example - when minor specialty channels were����from regulation until reaching 200,000 subscribers. He did acknowledge, however, that regulation can sometimes become an end unto itself, and an ineffective instrument only creating needless complexity.

Along with his message of stepping up and stepping back, Blais next discussed the role of public consultation. He cited robust public consultation as an important contributing factor to the successes of both the Wireless Code and CBC's license renewal, while continually being able to balance the opinion of the majority with the needs of the minority. Blais ended his presentation outlining the next public consultation, which will begin this fall, concerning the future of television. He described this as an unprecedented opportunity for the Canadian industry and public, particularly to question the assumptions underlying the CRTC's regulatory policies. This led to his third key message - a recognition that broadcasting has changed and will never be the same. He stated further that the actions of the��Commission��need to evolve as technology has, in order to ensure the objectives of the��Broadcasting Act��remain fulfilled.

Positive Steps

It is refreshing to see Blais commenting on the new world the CRTC lives in, and that the one in which��the����and����were born in no longer exists. As YouTube channels proliferate and broadband����is as ubiquitous as����TV, Blais also understands the focus must shift from protection to promotion. Quotas for Canadian content and cable channel bundling are ineffective policies in an on-demand internet access world. This is underlined by Blais' suggestion of a shift from rules to outcomes, and an overall sentiment that protecting Canadian interests requires a new perspective.��It is good to see the chief regulator understand the need to change tactics in the new world to ensure the objectives of these two acts remain relevant. This also highlights Blais' understanding that the new issues challenging the mandate of the CRTC cannot be addressed by an outdated paradigm of thinking.

Future Opportunities

Blais' presentation leaves two major areas of concern. While stating the need to sometimes step back, he was hard pressed to find substantial examples of reducing regulation. Also, he focused��heavily��on the role of the CBC, particularly in creating creative content to serve the needs of Canadians. Given that the presentation was made to content creators, it was natural for him to focus on the role of regulating the CBC.

There was little discussion, however, that the needs of Canadians could be better served through other mechanisms. While publicly funded content through the����and����may have been needed in the old world of media production and distribution, there are a myriad of alternatives now available, which seemed to be noticeably lacking in Blais' speech. Barriers to entry have fallen with the rise of the internet and high-quality, low-cost recording hardware and editing software. Producers can now create content at a vastly lower cost, and easily distribute them through avenues such as YouTube and Twitter, which feature built-in monetization systems. While Blais did stress the role of public consultation, he failed to explain why the free market is failing in creating the content��Canadians��need. He also referred to a statistic of higher conventional television consumption than internet television, but overlooked many other forms of��.

Looking Forward

While it was refreshing to see Blais express sentiments about the evolving world of media, it seemed there are still further opportunities for the CRTC to embrace the new world of media. More encouraging was his commitment to public consultation and an input from ordinary Canadians, whom Blais��describes��as often having extraordinary insights into the industry. We can only hope that this��extraordinary��insight will come through, and the CRTC can pave a path for Canadian media well beyond the model that has pervaded until now.

Alex Buonassisi is an IPilogue Editor and a JD Candidate at Thompson Rivers University.

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Following the bid, campaigns such as and have been created with the purpose of informing the public about the potential consequences of such an acquisition and to persuade the government, the Canadian Radio-television Telecommunications Commission (CRTC), and the Competition Bureau that such a move by BCE should be blocked in order to protect consumers across the country. While there is some doubt as to whether steps being taken by BCE’s competitors are being done with consumer rights as the main motivator, important issues have been raised by both sides concerning the potential deal. From September 10^th – 14^th, 2012, the CRTC��heard arguments��from all parties involved at a and will be presenting their decision in the near future; a decision that could have heavy implications on consumer access to media in Canada, regardless of what is chosen.

According to OpenMedia.ca – the group behind Stop the Takeover – , with Bell, Shaw, Rogers, and Quebecor contributing the overwhelming majority of cable/satellite transmissions as well as raking in the majority of revenues for wireless and internet services. The CRTC has placed limits on the English and French content any one company can control – 35% in the case of English content. With the acquisition of Astral, Bell states that it would own 33.5%, just under this threshold. However, rival and the . Much of the��arguments presented at��the hearing concerned these figures as well as the impact the��Astral deal could have on the Canadian consumer.

During the CRTC hearing on the matter, George Cope – CEO of BCE – , “Canada should not have to wait any longer to deploy a viable, national multi-platform solution, backed by a company with the resources to compete against well-funded global competitors.” Without the content that Astral Media owns, Bell fears that it will not be able to stand up to the likes of Netflix and other companies that have been using updated business models (other than the expensive subscription fee that cable TV is well-known for) in order to attract new customers. However, executives at competing Canadian companies don’t believe this argument. Ken Engelhart, a Senior VP at Rogers (another company against the purchase)��that��a number of cable companies in Canada and the US have launched their own services to compete with Netflix and this makes Bell’s situation no different than that of any other.

One of the issues with the Astral bid that could affect consumers is the possibility that Bell could leverage its new-found position to unfairly overcharge other cable companies that want to broadcast Bell-owned programming. Such increases would then be passed off to consumers, resulting in higher prices and less options for Canadians – one of the issues with having content and distribution controlled by the same company. and have both cited times where Bell has exhibited this type of behaviour, and there is potential for future dealings to follow a similar pattern if the Astral deal is allowed to go forward. In addition, unnecessary duplication of positions between the two companies will mean within the sector.

The government of Canada and the Competition Bureau both have the ability to veto the purchase, whether or not the CRTC does so. However, are unsure as to whether either of those bodies will step in. Making matters more uncertain is the by the Harper government of Jean-Pierre Blais as the CRTC chair. in order to provide Canadian consumers with better accessibility to content and services (a change from the previous objectives under previous chair Konrad von Finckenstein), the decision on this case may probe deeper into the Commission’s motivations.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

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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.�� In its 2010 lower court decision in the same case, the answered the reference question in the negative.�� 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.�� 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.�� 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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The (CRTC), an independent public authority that regulates and supervises broadcasting and telecommunications in Canada, recently released a detailing the present and estimated future state of the communications industry in Canada. The report offers several illuminating and surprising insights into the Canadian communications landscape and paints Canadians as leaders in the adoption of cutting edge digital technologies.

Titled , the report contains a thorough review of independent research and perspectives from a wide variety of CRTC stakeholders. was published by the CRTC in February 2010.

The report highlights a number of important factors and trends among Canadians. Interestingly, the report portrays Canadians as avid adopters of digital technologies, projecting traffic over Canadian networks to quadruple from 2009 to 2014, in contrast to global traffic which is projected to triple by 2015 according to . Additionally, , Canadians spend more time online than any other nation and are nearly twice the worldwide average of 23.1 hours online per month. Notably, Canadian television viewing trends have not been significantly affected by time spent on the Internet according to the .

The evolving digital environment is significantly altering Canadians’ approach to consuming content, with convenience and flexibility being driving motivators, particularly behind the adoption of mobile devices. Between 2010 and 2014, the number of wireless subscribers is to increase to nearly 30 million from 25.8 million, half of which will own smartphones. Furthermore, Canadian mobile Internet subscriptions are to spike from 5.5 million in 2011 to 14 million in 2015.

However, the surge in bandwidth intensive mobile device services has put the potential for a spectrum shortage within regulators sights, not only within Canada, but worldwide. The results of such a shortage would be poor quality and a lack of reliability for users, with networks needing to implement traffic management practices to deal with such over-demand. In turn, wireless data prices would likely increase. The report calls for carriers to pay attention to their current and make appropriate investments based on future projections. Also related to spectrum shortages is the discovery that a small portion of users account for the a disproportionately high consumption of bandwidth. For example, found that 1% of North American upstream users are responsible for over 75% of downstream traffic. In the CRTC report, Cisco was also cited as finding the trend also applied to mobile data subscribers, with the top 10% generating 60% of mobile data traffic.

Another significant hurdle to the industry raised by the report was the support of original Canadian content. The Canadian requires that the Canadian broadcasting system maintain and enhance national identity and cultural sovereignty. With the globalized nature of the Internet, online digital content can originate from many sources and the report notes that enforcing Canadian content requirements is difficult since it is nearly impossible to regulate access to non-Canadian content. As a result, support for Canadian content may be threatened by the continued adoption of digital media by Canadians.

The CRTC’s report provides a detailed and valuable glimpse into the state of the Canadian communications industry. While many findings are hardly surprising, the report is full of enlightening statistics and raises important alarm bells on several key issues.

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