Canadian Radio-television and Telecommunications Commission (Re), 2010 FCA 178 (2010)

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Canadian Radio-television and Telecommunications Commission (Re), 2010 FCA 178 (2010)

Federal Court of Appeal - Canadian Radio-television and Telecommunications Commission (Re) [Anonymoused]

Source: http://decisions.fca-caf.gc.ca/en/2010/2010fca178/2010fca178.html Federal Court of Appeal

Cour d'appel fédérale

Date: 20100707

Docket: A-303-09

Citation: 2010 FCA 178

CORAM: NOËL J.A.

NADON J.A.

DAWSON J.A.

BETWEEN:

IN THE MATTER OF THE BROADCASTING ACT , S.C. 1991, c. 11;

AND IN THE MATTER OF THE CANADIAN RADIO-TELEVISION

AND TELECOMMUNICATIONS COMMISSION’S BROADCASTING

REGULATORY POLICY CRTC 2009-329 AND BROADCASTING

ORDER CRTC 2009-452

AND IN THE MATTER OF AN APPLICATION BY WAY OF A

REFERENCE TO THE FEDERAL COURT OF APPEAL PURSUANT

TO SECTIONS 18.3(1) AND 28(2) OF THE FEDERAL COURTS ACT ,

R.S.C. 1985, c. F-7

Heard at Ottawa, Ontario , on June 1, 2010.

Judgment delivered at Ottawa, Ontario , on July 7, 2010.

REASONS FOR JUDGMENT BY: NOËL J.A.

CONCURRED IN BY: NADON J.A.

DAWSON J.A. Federal Court of Appeal

Cour d'appel fédérale

Date: 20100707

Docket: A-303-09

Citation: 2010 FCA 178

CORAM: NOËL J.A.

NADON J.A.

DAWSON J.A.

BETWEEN:

IN THE MATTER OF THE BROADCASTING ACT , S.C. 1991, c. 11;

AND IN THE MATTER OF THE CANADIAN RADIO-TELEVISION

AND TELECOMMUNICATIONS COMMISSION’S BROADCASTING

REGULATORY POLICY CRTC 2009-329 AND BROADCASTING

ORDER CRTC 2009-452

AND IN THE MATTER OF AN APPLICATION BY WAY OF A

REFERENCE TO THE FEDERAL COURT OF APPEAL PURSUANT

TO SECTIONS 18.3(1) AND 28(2) OF THE FEDERAL COURTS ACT ,

R.S.C. 1985, c. F-7

REASONS FOR JUDGMENT

NOËL J.A.

[1] This is an application for a reference by the Canadian Radio-television and Telecommunications Commission (the CRTC). The question being referred is:

Do retail Internet service providers (ISPs) carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act, [ 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.

[2] Two groups take opposite views as to how this question should be answered. The Coalition, composed of Bell Aliant Regional Communications, LP, Bell Canada, Cogeco Cable Inc., MTS Allstream Inc., Rogers Communications Inc., Telus Communications Company and Videotron Ltd., along with Shaw Communications Inc. (Shaw) submit that the question should be answered in the negative.

[3] The Cultural Group, composed of the Alliance of Canadian Cinema, Television & Radio Artists (ACTRA), Canadian Film & Television Production Association (CFTPA), Directors Guild of Canada (DGC) and Writers Guild of Canada (WGC) argues that the question should be answered in the affirmative.

[4] In conformity with the order issued by this Court on July 31, 2009, the supporting affidavits and documentary exhibits filed by the members of the two groups, along with the affidavit of Namir Anani, Executive Director, Policy Development and Research at the CRTC, filed by the CRTC, are the materials that constitute the case to be determined on the reference pursuant to Rule 322 of the Federal Courts Rules , SOR/98-106.

[5] The statutory provisions that are relevant to the analysis are set out in the Annex appended to these reasons.

RELEVANT FACTS

[6] On May 17, 1999, the CRTC issued a report of broadcasting in new media: New Media , Broadcasting Public Notice CRTC 1999-84; Telecom Public Notice CRTC 99-14, Notice of Application of the CRTC, Tab A (the New Media Report). It concluded that while some new media services fell within the meaning of “broadcasting” in the Broadcasting Act , their regulation was not necessary to implement the Act’s broadcasting policy. By CRTC Public Notice 1999-197 (the New Media Exemption Order), the CRTC exempted those undertakings, classified as “new media broadcasting undertakings”, from any or all of the requirements of Part II of the Broadcasting Act and Regulations , pursuant to its powers under subsection 9(4) of the Broadcasting Act .

[7] On October 15, 2008, the CRTC issued Broadcasting Notice of Public Hearing CRTC 2008-11, initiating a public proceeding to determine, amongst other things, whether the New Media Exemption Order continued to be appropriate or needed to be revised.

[8] Having reviewed the legal opinions filed by the interested parties, the ...

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