Net-Neutrality Regulation in Canada: Assessing the CRTC's Statutory Competency to Regulate the Internet
| Author | Jeff Miller |
| Position | Is a third year JD candidate at the University of Victoria, Faculty of Law |
| Pages | 47-62 |
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AR T I C L E
NETNEUTRALITY REGULATION IN
CANADA: ASSESSING THE CRTC’S
STATUTORY COMPETENCY TO REGULATE
THE INTERNET
By Je Miller*
CITED: (2012) 17 Appeal 47-62
INTRODUCTION
Established in 1976, the Canadian Radio-telev ision and Telecommunications Commission
(CRTC) was c onceived as an administrative body concerned with t he maintena nce
of a distinctive Canadian culture a nd the fostering of a competitive environment for
the development of a strong domestic telec ommunications industr y. Moreover, it was
to serve as a regulatory tool to ensure the dissemination of telec ommunications and
broadcasting ser vices and technologies to all Canad ians in a manner that was affordable
and reliable.1 While its i nitial regulatory purv iew consisted principally of telephone and
broadcasting media, te chnological advance s in t he years since its creation have le d to
new technologies that use these two basic ser vices as a tech nical foundat ion, but are
distinct in their operations a nd the content that they provide. Among these, the internet
can probably be said to have had t he most profound impac t on the la ndscape of mas s
communication in Ca nada.
e internet is distinct from prior electronic mea ns of communication for thre e reasons.
First, it is a decentrali zed medium of mass communication, both in its tec hnical form
and in its ownership struct ure. Unlike broadcast ing, the internet does not disseminate
its content from a restricted number of hubs. ere are no signific ant points in its
architecture from where it can b e centrally organized and ownership of the internet
and its content is highly dispersed. Second, it is u ser-centric. In contrast to t he mono-
directional n ature of traditional broadcastin g and the single-use function of telephones,
the internet is interactive and malleable in its form. ird, the content of the internet
is beyond the capacity of any one jurisdiction to eff ectively regu late.2 e networks
which form the substruc ture of the internet are transnational in scope. e origins of
the i nternet as a United States Depar tment of Defence initiative in the late 1960’s to
* Je Miller is a third year JD candi date at the University of Victori a, Faculty of Law. He has a BA
(First Class Honours) from Simon Fras er University in Political Science a nd Communication.
He would like to thank Professor Man eesha Deckha for granting him the lat itude to explore
this fascinating topic and for h er invaluable guidance along the way. He is also inde bted to
the assiduous eyes of Appeal Edito rial Board member Miriam Isman and to J ennifer Liu for her
constant insight and suppor t.
1. CRTC, CRTC’s role in regulating broadcasting and telecommun ications systems, online:
crtc.gc.ca/eng/b ackgrnd/brochures/b299 03.htm>.
2. McTaggart, Craig, “Ne t Neutrality and Canada’s Telecommunicatio ns Act” (Paper prepared for
the Fourteenth Biennial N ational Conference on New Developme nts in Communications Law
and Policy, Law Society of Up per Canada, Ottawa, 25-26 April 200 8) [unpublished] at 10-7.
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create a computer net work capable of survivi ng catastrophic nuclear at tacks is reflected
in its current form a s highly di spersed and liberate d from dedicated infrastructure for
its operations. is is unlike traditional telephony and broadcastin g media that rely
on fixed, central production and transmission infrastructure that is ea sily subjected to
regulation.
As the prevalence of the internet as a form of mass com munication has increa sed, so
have c alls for the application of regul ations to pre serve the openness and integrity of
the internet in its current form.3 While it is not practical for the nature of the content
transmitted across the internet to be regulated, the operation of the internet across
existing telecommunic ations infrast ructure means that the treatment of this information
by telec ommunications operators ca n theoretically be subject to regul ation. Proposals
for so- called “net-neutrality” regulation have emerged which seek to place constrai nts
on the abi lity of telecom network operators to either constructively or destructively
interfere with data t raffic on their networks. is proposa l has gained significa nt
traction in North America and, in partic ular, the United States, where the Federal
Communications Commission (FCC) has acknowledg ed the vita l importance of suc h
regulation in protecting the essential nature of the internet.4 I n Canada, while public
support is strong for net-neutrality reg ulation, the CRTC has yet to seriously consider it
as either neces sary or effective. ough this stance is part ially informed by the CRTC’s
established deference to the market in reg ulatory matters relating to new technologies, it
is also influenced by a pervasive belief within the commission that the organ ization lacks
the legal authority to re gulate the internet in this way.5 e CRTC’s primary constating
statute, the Telecommunications Act ,6 makes allowances for the regulation of emergent
communications technologies not contemplated when the act was written.7 Nonetheless,
the commission ha s consistently taken a narrow view to this latitude, characterizing
the decision that it would have to make in this i nstance as one of law that it does not
have the capacit y to assess. is position has been bolstered by a recent American court
decision which found that the FCC did not have the legal jurisdiction to implement net-
neutrality reg ulations.8
is paper t akes the position that it is li kely that the CRTC does indeed have the legal
jurisdiction to mak e such a regulatory decision. is will b e evidenced by the Canadian
courts’ historically deferential approach to the CRTC on matters of subst antive
review. rough an analy sis of the relevant issue s and of the case law concernin g the
regulatory breadth of the CRTC , this paper w ill demonstrate that the implementation
of net-neutrality regulations would likely be tre ated by the courts as being within the
commission’s legitimate mandate.
e paper w ill pursue this argument by firs t outlining the two theoretical perspectives
which wil l guide its structure: Dialogue eor y and Law and Ec onomics. ese
perspectives contextu alize the legal, economic, and social factors that define the purp ose
and operation of the CRTC. It w ill then move into an analysis of t he role of the CRTC
in regulating Ca nada’s telecommunications industr y and a discussion of the issue of net-
3. Barratt N & Shade LR, “Net neutr ality: Telecom policy and the publ ic interest” (2007) 32:2
Canadian Journal of Communic ation 295 at!∀#∃%!
4. Julius Genachowski, FCC Chairman, Remarks on preser ving internet freedom and openness,
online:
openness.html>.
5. CRTC, Public Notice CRTC 1999-197, online: < http://www.crtc.gc. ca/eng/archive/1999/pb99-197.
htm>.
6. Telecommunications Act, SC 1993, c 38.
7. Ibid, s 2 “tel ecommunications” &”telecommunicat ions service”.
8. Comcast Corporation v. Federal Communications Commission and United States of America, 08-1291
(DC Cir Ct App 2010).
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neutrality. Subsequently, the paper wi ll delve into the general attitude s displayed by the
judiciary towards the CRTC on matters of substantive review through the ana lysis of
four sign ificant cases. Finally, the principles and positions elicited through these cases
will be applied to t he net-neutrality issue to ascertai n whether the courts would l ikely
treat such regulat ion as being within the purview of t he commission.
I. THEORETICAL PERSPECTIVES
is paper’s arguments will be informed by two theoretical perspectives: Dialog ue
eory and Law and E conomics.
A. Dialogue Theory
First proposed by Peter Hogg and A lison Bushel l, Dialogue e ory conceives of the
legislative a nd judicial branches as being engaged in a dialectic al relationship with one
another.9 is relationship causes each body to be responsive to the actions of the other in
an ongoing cycle of statute development and judicial rulings. Both parties work mutually
to guide legislation towa rd effect ively addres sing polic y concerns while maintaining
fidelity to the precepts of the Constitution. Hogg and Bushell assert that Dialogue
eory i s an importa nt normative underpinning of the ability of the courts to engage
in judicial review.10 While t his statement was made in regard to the revie w of legislation
that engages C harter rights, t he general notion that judici al review is part of an ongoing
process of dialogue bet ween the two branches serves to legitimate the substantive rev iew
of administrat ive decisions as well.
is theoretic al perspective provides a foundation on which the essential nature of t his
paper’s t hesis ca n be understood. e question of whether the CRTC has aut hority
to enforce net-neutrality regu lation is premised, in part, on the ambiguity of the
articulat ions made by the judiciar y on the breadth of the commission’s authority. While
the CRTC has adapted its practices to accommodate the limits defined by the courts ,
the absence of clarity in the cour ts’ communications as to how internet regulation is
likely to be treated has prevented the CRTC from con fidently movi ng forward on th is
endeavour. In t his instance, the so-called dialogue between the courts a nd a delegated
decision-making authority has yielded uncertaint y due to the absence of a clear signal
from the courts to which the CRTC could respond. Despite this lack of a definitive
signal, however, th is paper will ar gue that the CRTC al ready has the lega l competency
to enter this new regul atory arena.
B. Law and Economics
e paper will also employ theoretical assumptions origi nating from the Law and
Economics school of t hought. Drawing from the work of Richard Posner, the Law
and Economic s theory yields valuable insight as to the relationship between a society ’s
legal structures and its economic practice s. It is founded on the assumption that t he
principal dynamic underlyi ng t he e volution of the law is the accommodation and
institutionali zation of the dominant economic s ystem.11 e mea ns by which the law is
expressive of economic concerns is both direct and indirect. In the area s of law wh ich
directly touch upon matters of explicit economic concern, such as contracts and torts,
9. Peter Hogg and Allison Bushell, “ The Charter Dialogue Bet ween Courts and Legislatures” (1997)
35 Osgoode Hall LJ 75.
10. Ibid at 79.
11. Richard A Posner, Economic Analysis of Law, 6th ed (New York: Aspen Pub lishers, 2003) at 3.
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this relationsh ip is obvious. But in lega l disciplines more grounded in socia l or political
regulation, this relationsh ip is also evident, albeit more implicitly, as a result of the social
norms and value s perpetuated by the hegemonic e conomic structure finding e xpression
in judicial de cisions on these matters. For ex ample, the tendency of the cou rts to adopt
individualis t and market-based solutions to questions of economic concern can be said to
reflect the progression of Ca nada’s political economy towards ma rket liberalism.
is theoretical perspective will be used in this paper to explain the approach of the courts
towards the substa ntive review of CRTC decisions over t ime. While the courts have
traditionally granted significant deferenc e to the CRTC, this de ference has nonetheless
been constrained by t he interest of the courts in maintain ing the primacy of the market
as the principal ordering mec hanism in this important indust rial sector.
II. THE CRTC AND NE TNEUTRALITY
A. The CRTC: Background
e CRTC was es tablished in 1976 to consolidate the various federal regulatory bod ies
which had jurisdiction over electronic communication me dia. Since 1993, its authority
has been vested in two federal acts: e Broad casting Act and the Telecommunications
Act. For the purposes of net-neutrality reg ulation, the latter act is the most relevant. e
2010 Supreme Court of Canada decision in Re Broadcasting Act 12 effectively ru led out
the possibility of fi nding justification in the Broad casting Act for regulations concerni ng
the internet.
Section 7 of the Telecommunication s Act outlines the broad policy object ives pursued by
the Act and, by extension, the CRTC, in the field of telecommunications. ese objectives
are premised on the acknowledgement by Parliament that the telecom munications
industry i s a vita l component of t he integrity and maintenance of Canadian
sovereignty: “...telecommunications performs a n essential role i n the maintenance
of Canada’s identity and sovereignty.”13 Academics, such as the eminent Canadian
economic h istorian, Harold Innis, have asserted that the historical impor tance of the
communications industry to Canada has been a function of the country’s highly dispersed
population and c lose proximity to the United States, the globa l cultur al hegemon.14
12. Broadcasting Act (Can.) (Re), [2010] FCJ no 849 (QL).
13. Telecommunications Act, supra note 6 at s 7.
14. Innis, Harold, Essays in Canadian Economic Histo ry (Toronto: University of Toronto, 1956), edited
by Mary Q Innis at 220.
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Section 7 enumerates nine specific objectives.15 ese goals can be distilled into two
broad overarching themes: (i) the effective provisions of telecom munications ser vices to
the consumer, and (ii) the facilitation of a robust domestic telecommunications industr y.
On t he first theme, subsect ions (a), (b), (h), and (i) e mpower the CRTC to promote
the development of con sumer services that are affordable, reliable, re spective of privacy
and social needs, and which provide rea sonable levels of service to all areas of C anada’s
geography. On the second theme, subsections (a), (c), (d), (e), and (g) direct the CRTC to
act to preserve domestic control over the industry, enhance the national and international
competiveness of the sector, and stimulate research a nd innovation. Section 7 grants
regulatory jurisdic tion to the CRTC to ensure that these interests are met, but constrains
this jurisdiction by way of subsection (f), which a sserts t he intention of Parliament
“...to foster increased reliance on market forces for the provision of telecom munications
services.” Regulat ion is intended to be minimalistic a nd focussed on instanc es where the
market is patently unable to ac hieve the desired ends of the Act.
e reg ulatory tools that t he CRTC is ve sted with to implement t hese objectives are
various, rang ing from the setting of rates for c onsumer ser vices, the granting of license s
to telecommunications operators, and t he creation of guidel ines for the operat ion of
these companies.
Although the internet as a mode of popular communication was not contemplated at the
time of the c onstating statute’s formation a nd is theref ore not mentioned speci fically in
the Act as a regulated medium, se ction 7 grants flex ibility to the CRTC to discer n the
appropriate reg ulations to be applied to new tec hnologies. Putting aside, temporari ly,
the question of whether the con stating statute grants sufficient flexibi lity to enforce net-
neutrality, aca demics have proposed that the technic al grounds for the enforcement of
net-neutrality can be found in section 36 of the Act.16 Section 36 provides an explicit
statement against the ability of in frastructure operators to interfere w ith the content
transmitted over thei r systems on behalf of the public.17
15. Telecommunications Act, supra note 6 at s 7:
7. It is hereby armed that telecommunications p erforms an essential role in the ma intenance
of Canada’s identity and soverei gnty and that the Canadian telecommu nications policy has as its
objectives
(a) to facilitate the orderly develop ment throughout Canada of a telecommu nications system that
serves to safeguard, e nrich and strengthen the social and e conomic fabric of Canada and its re gions;
(b) to render reliable and aordab le telecommunications servi ces of high quality accessible to
Canadians in both urban and ru ral areas in all regions of Canada;
(c) to enhance the eciency and comp etitiveness, at the national and internat ional levels, of
Canadian telecommunicati ons;
(d) to promote the ownership and control o f Canadian carriers by Canadians;
(e) to promote the use of Canadian transmissio n facilities for telecommunications w ithin Canada and
between Canada and p oints outside Canada;
(f) to foster increased reli ance on market forces for the provision of tele communications services and
to ensure that regulation, where r equired, is ecient and eective;
(g) to stimulate research and developm ent in Canada in the eld of telecommunicat ions and to
encourage innovation in the p rovision of telecommunications ser vices;
(h) to respond to the economic and so cial requirements of users of teleco mmunications services; and
(i) to contribute to the protection o f the privacy of persons.
16. Adeyinka, Alexander J, “Avoiding ‘dog in the mang er’ regulation – A nuanced approac h to net
neutrality in Canada” (20 08-2009) 40 RD !∀#∃#%∃%∋()∗(∃%+,
17. Telecommunications Act, supra note 6 at s 36:
! ∀#∃ Except where the Commissi on approves otherwise, a Canadian ca rrier shall not control the
content or inuence the meaning or p urpose of telecommunications car ried by it for the public.
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B. Net-Neutrality Dened
Historically, te lephone net works were heavily reg ulated in Nort h America by national
regulators so as to ensure adequate competition and to foster innovation in the development
of new technologies. In Cana da, the CRTC and its predecessor agencies used provisions
allowing for the prohibition of network operators to interfere wit h the content moving
across their sy stems to create a “neutral” environment for the g rowth of new enterprises
and technologies.18 Under t his regulator y model, incumbent telecommunicat ions
operators such as BCTel and Bell Canada were prevented from d iscriminating ag ainst
traffic on their proprietary networks belonging to smaller operators who did not have the
resources to constr uct networks of their own. is promoted diversi fication in Canada’s
telecom industry a nd prompted the development of novel voice and data ser vices by
these smaller indu stry players.
With the proliferation of the internet, however, network operators have cal led for the
restriction of these provisions to solely voice traffic.19 Voice traffic i s in contrast to data
traffic, which h as expanded exponentially since the popu larization of the internet in the
late 1990’s. Telecommunication operators have argued that this i ncrease has severely
strained the capacity of their net works and h as diminished the quality of service that
they can provide. ey have argued that the traditiona l network neutrality ru les that
have applie d to voice communications are functiona lly and legally incompatible with
data communications.20 Unlike voice, data traffic is heterogeneous, meaning that it is
comprised of multiple types of transmissions which can be prioritized, such as worldwide
web traffic and traffic emanating from file-shari ng applications like BitTorrent. ey also
argue that current laws do not grant sufficient disc retion to regulatory bod ies to regulate
data tra nsmissions in the same way as voice transmissions.21 In regards to the CRTC’s
competency on this matter, they note that such re gulation would, in fact, contradict the
broad objectives of the CRTC as enumerated in section 7 of the Telecommunication s Act.
Specifically, they poi nt to subsections ( b) and (f), which address consumer interests and
regulatory mi nimalism, respectively.22
C. Methods of Regulating Data Trac
Without a definitive statement from regulators indicating an intention to extend the
traditional neutra lity provisions to cover data services, four options have emerged which
enable network operators to influence t he traffic on their networks with t he goal of
making t hem more efficient.23
e first involves the outright blockin g or degradation of content and applications usi ng
the network. e possibility of this occurrin g was made apparent in 2005, when TELUS
blocked public access to the then-striking Telecommunications Workers Union’s (TWU)
website because it contained pict ures depicting company employees crossing the union’s
picket lines. 24 TE LUS justi fied this action by arguing t hat the display of such pictures
jeopardized the safet y of those depicted. While this is an extreme exa mple of an operator
directly impinging on the content transmitted over a network, it nonetheless indicates
that it is well wit hin the techn ical capacity of an operator to do so a nd that operators
consider this form of interference a s a valid option to deploy on their networks.
18. Barratt, supra note 3 at 297.
19. Adeyinka, supra note 16 at 18.
20. Barratt, supra note 3 at 296.
21. McTaggart, supra note 2 at 10-28.
22. Barratt, supra note 3 at 297.
23. Adeyinka, supra note 16 at 14.
24. Ibid at 18.
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e second option involves the implementation of discrimi natory network ma nagement
practices. is option c oncerns the preferential treatment of specific classes of data.
Without a definitive st ance on net-neutrality by the CRTC, Bell Canada has alrea dy
implemented a technology called Deep Packet Inspection (DPI) to interrogate and
classif y data on its network. According to Be ll Canada’s submissions to the CRTC, this
technology is specifically targe ted at data produced by peer-to-peer file sharing programs,
which Bel l Canada and other major networks argue are c onsuming a disproportionate
share of network bandwidth relative to the small number of customers actua lly using it.25
Once identified, t he speed at which this data is transferred over the network is reduced
to accommodate conventional internet traffic. Comcast, the largest provider of internet
services in t he United States, has a lso implemented this technology on their network.26
e third option involves the prioritization of a network ope rator’s ow n applications
and services on its ne twork, thus reducing the amount of bandwidth consu med by non-
proprietary applications. It is suspected that this practice has already been adopted by
Shaw Communicat ions, whic h Vonage Can ada has accused of “de-throttling” its voice
over IP (VOIP) solution in favour of Shaw’s own service.27
e fourth option t hat would enhance the abilit y of network operators to manage their
networks is the creation of a tiered service struct ure. Although this model ha s not yet
been pursue d by network oper ators a nd internet service providers (ISPs) in Canada, it
would al low thes e companies to e xert the greatest control over how their networks are
utilized a nd would be the most lucrative of the f our options. A lexander Adeyinka, Vice
President of Regulatory Law & Policy at Rogers Communications Inc., proposes that
this option would alter the character of t he internet.28 While the basic structure wou ld
remain the sa me, speciali zed content would be compartmentalize d. e provision of
the internet to consu mers would resemble the way in which c able television is currently
provided; acc ess to certai n areas of the internet and higher bandwidth utiliz ation caps
would be contin gent on what t ier a customer subscribed to. Davina Sashkin, noted
American communications lawyer, rema rks that several American telecommunic ations
providers are already actively consideri ng the creation of such a “two-tiered” model for
internet delivery whereby content providers would be charged additional fees to have
their content made available on the hi gher speed broadband tier.29
D. Arguments in Favour of Net-Neutrality
Proponents of net-neutrality argue that the internet has only developed into its current
form because of t he now-waning assumption that data traffic was protected by the
traditional net work neutrality principle. ey arg ue that the assumed neutral ity of dat a
networks ha s facilitated the innovation and entrepreneurship which has come to typify
the internet.30 With network operators being unable to intervene in the content or form
of d ata traffic, no p arty ha s been able to exert holist ic control over the development
of the med ium. Unlike more centralized media such as te levision and radio, where
ownership and editorial control ca n be concentrated, t he internet is open to anyone as
a plat form for communication and innovation. Innovative companie s such a s Google
have only been able to emerge because of the absence of entry bar riers, such as expensive
25. Ibid at 19
26. Comcast, supra note 8.
27. Adeyinka, supra note 15 at 15.
28. Ibid.
29. Sashkin, Davina, “Failure of imaginatio n: Why inaction on net neutralit y regulation will result in
a de facto legal regime p romoting discrimination and consumer ha rm” (2006) 15:1 CommLaw
Conspectus 261 at 265.
30. Ibid at 266.
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infrastr ucture or t he domi nation of restr ictive ownership conglomerates. erefore,
proponents of network neutrality a rgue that the continued evolution of the internet as a
tool with seemingly infinite applications is driven by the absence of established structures
otherwise prohibited by network neutr ality regulations.31
Proponents a lso argue that the regulat ion of data networks by their operators would
constrain i nnovation by positioning network operators as the principal architects of the
internet.32 With only a handful of operators controlli ng the networks over which the
internet predominantly exists, decisions as to the further development of the internet and
the applications on it would be made by a concentrated set of interests.33 For innovations
to be successful in this environment, the y would have to accord with the interests of
the operators in order to receive favourable placement and treatment on the internet.
e interests of internet users wou ld still be relevant, albeit filtered throug h those of the
operators. us, the growth of the internet would likely be less spontaneous and more
homogenous, with spa ces for innovation and nic he interests being reorganized to agree
with the profit motive of the operators.
Proponents of net-neutrality have also a rgued that the advantages of dereg ulation
proposed by network oper ators are, in fact, contradictor y. Spec ifically, the arguments
made by operators t hat deregulation would promote greater innovation in content a nd
delivery services are considered by proponents to be untr ue for the aforementioned
reasons.34 Proponents contend that the c oncentration of control and ownership, which
would likely occ ur in the case of a dereg ulated internet, would suppress innovation a nd
that efficienc y arguments are a distraction from the underlying interest of operators to
avoid the expense of having to increase network capacity. Sashkin argues that the absence
of public regulat ion would faci litate the emergence of a private regu latory para digm
in which ne twork operators would self-regulate . Industry self-regulation would exclude
interests contra ry to those of the operators and jeopardize the free-market character of
the internet otherwise protected by ensuring that network operators remain neutr al
entities in the tran smission of information.35
E. The CRTC’s Position on Net-Neutrality
While t he CRTC currently lacks a coherent policy position on ne t-neutrality, it ca n be
deduced from the commission’s decisions on internet regulation and policy positions
on the internet, generally, that it presently does not favour regulat ion in t his area. is
position stems, in part, from the historical predilect ion of the commission to defer to
market forces and the increasi ng prevalence of a neo-liberal ideolog y in government that
eschews economic reg ulation.36 But, also contributing to this position i s a belief held by
the CRTC th at its constating leg islations do not grant it the jurisdiction to regulate in
the way required to enforce net-neutralit y.
is senti ment was expressed in its wel l-known “New Media” policy paper released in
1999.37 In it, the CRTC defined its li kely jurisdiction as covering on ly audio and visual
services on the internet. is notably excluded pr imarily alphanumeric services. Given
that the bulk of ser vices over the internet at that time were alphanumeric, t his lent itself
31. Ibid.
32. Ibid at 276.
33. Ibid at 278.
34. Barrett, supra note 3 at 297.
35. Sashkin, supra%−./(%01%#/%012 ,
36. Barrett, supra%−./(%3%#/%014,
37. CRTC, supra%−./(%5,%
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to a policy orientation that w as decidedly passive and which rema ins unmodified today,
even despite the increasing availability of audio-visual media online and the opportunities
which this would the oretical ly present for regulat ion. is limited defi nition was in line
with the CRTC’s organ izational competency in reg ulating solely audiovisual mediums,
but it was also crafted in response to previous judicial reviews of CRTC decisions, which
the board believed limited its discretion to interpret the constating statutes. eir primary
concern was that the section 36 constraint on the ability of network operators to interfere
in the traffic crossing thei r networks could only be acti vated in egregious circumstances,
such as where the operator del iberately blocks specific content.38 is reasoning i s based
on the type of network neutrality traditionally enforced on voice services. D ue to the
homogenous nature of voice tr affic, operators can only regu late it in a binary fashion: it
is either admitt ed or rejected. Data traffic, conversely, is more diver se and is susceptible
to more forms of operator regulation as disc ussed previously, thus making it unsuited to
this rudimenta ry conception of network interference.
is orientation was operationalized by the CRTC in its 2008 decision on an application
by the Canadian Association of I nternet Prov iders (CAIP) against Bel l Canada.39 e
subject of this application concerned a complaint regarding Bel l Canada’s deployment
of traffic-shapin g technologies on its network. C AIP argued that this tech nology
discriminated against legitimate voice-over IP and file-sharing applications that used
the net work.40 ey advanced the contention that such intervention by an operator in
its network was prohibited under sec tion 36 without explicit approval from t he CRTC.
In its ruling , the CRTC did not provide direct approval of Bell ’s me asures. Inste ad,
they determi ned that section 36 of the Telecommunications Act was not engage d in this
instance for t wo reasons. First, this action did not enta il the exercise of editorial control
by Bell over the content on its network and, second, the measures were not targeted at
excluding the abilit y of particular applications to acce ss the network.41 ese conditions
represent the extreme end of traffic regu lation and prevent the regulation of increasingly
popular discrete mo des of network regulation, such as Bell ’s DPI technology, by section
36. is narrow i nterpretation of section 36 was li kely founded in the CRTC’s b elief
that it lacked the stat utory authority to interpret t he legislative intent of the section as it
applied to these more discrete, albeit similarly adverse, mea ns of network management.
is ruling wa s not appea led and, to date, no similar cases h ave appeared before the
commission.
is restra ined interpretation of section 36 of the Telecommunications Act found fu rther
justification in the April 2010 US District of Columbia Circuit Court of Appeal ruling
in Comcast v. FCC.42 e subject of this case was a decision m ade by the Americ an
equivalent to the CRTC (the FCC), preventing Comcast from deploying the sa me
traffic-shaping technology that Bell Canada used in the CAIP decision. App ealing this
decision to the courts , Comcast argued that the FCC did not h ave the legal ju risdiction
to expand existing neutr ality provisions protecting voice traffic to encompass data traffic
as well. e c ourt agreed with thi s statement and rendered FCC regulat ions targe ted at
the enforcement of net-neutrality ultra v ires.43 While t he constating statutes of the FCC
and CRTC differ, this case has nonetheless serve d as a signal to the CRTC of the p erils
it may potentially face if it pur sues the enforcement of net-neutrality.
38. Adeyinka, supra note 16 at 40.
39. CRTC(2), Telecom Decision CRTC 2008-108, online:
dt2008-108.htm>.
40. Ibid at para 13.
41. Ibid at par a 5.
42. Comcast, supra note 8.
43. Ibid at para 36.
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III. TREATMENT OF THE CRTC BY THE COURTS
Historically, the c ourts have granted the C RTC broad deference to make decisions and
regulations concerning matters under its juri sdiction. However, the question of what
constitutes the commission’s legitimate jurisdiction is a question on which the courts have
yielded mixed results. In this section, four cases will be used to chart the general attitudes
of the court in subs tantive review proceedings concerning the regu latory pur view of
the commission. Spe cifically, the courts’ treatment of t he four factors enunciated in the
Dunsmuir44 test for substantive revie w will be assessed : (i) the presence or absence of
a privative clause, (ii) the expertise of the administ rative body, (iii) the purpose of t he
specific provision, a nd (iv) the nature of the question as being one of fact or law.45 is
will a ssist in determining w hether the courts would approve of t he use of section 36 of
the Telecommunications Act to justif y the enforcement of net-neutrality.
A. Canadian Broadcasting Corp. (CBC) v. Metromedia CMR Montreal
(“CBC”)
e first ca se is a Federal Cou rt of Appeal decision c alled Canadian Broadca sting Corp.
(CBC) v. Metromedia CMR Montreal.46 It concerns an appeal of a CRTC decision
wherein the commission rejected t he CBC’s appl ication for an additional r adio station
licence in the Montréal market. While the subject matter of this case does not deal with a
question of jurisdiction directly, it does serve to outline the general attitude of the courts
on two issues that are relevant to the substantive review process a s adopted in Dunsmuir:
expertise a nd the privative claus e.
On the issue of expertise, the Court noted the highly specialized role that the CRTC had
in regulating the telecommunications industry in Canada.47 Recogniz ing the importance
of this indust ry to the economic and cultu ral vitality of the c ountry, the Cour t
acknowledged t hat the expertise required to make decisions on matters withi n this area
required a hig h level of expertise wh ich the courts did not possess. e highly nua nced
nature of t he commission’s decisions t hat often entailed the balancing of importa nt
competing factors, na mely the goods of the public and of the industry, necessitate d that
these decisions be vested in an organization which had the capability to gather and assess
the broad range of facts relevant to the de cision. As well, t he position of the CRTC as
promoting cultural a nd economic nationalism mea nt that its activities were inflected
by part icular ideological elements whic h were beyond the competency of the cou rts to
objectively assess.48 Because of the significa nt weight that courts often assig n to expertise
in t he D unsmuir approach, the hig hly specialize d nature of the CRTC’s exp ertise has
resulted in a historica l deference towards the c ommission in inst ances of judicial review.
On the issue of the privative clause, the Court in CBC noted the peculiar absence of
a negat ive privative c lause in the Telecommunications Act shielding the proceedings of
the CRTC from judicial review.49 ey noted that without the explicit intention of
Parliament, c ommunicated through the inclusion of a negat ive privat ive clause, court s
have been considerably less likely to grant such broad deference to administrative bodies.
Indeed, t he inclusion of a positive privative clause in section 63 of the Act invites the
characteriz ation of t he CRTC a s a qu asi-judicial body and thus exposes it to a more
44. D unsmuir v New Brunswick, [2008] 1 SCR 190.
45. Ibid at para 64.
46. Canadian Broadcasting Corp (CBC) v Metromedia CMR Montrea l, [1999] FCJ No 1637 (QL).
47. Ibid at para 3.
48. Ibid at para 6.
49. Ibid at para 3.
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rigorous a ssessment by the judiciary. e Cour t reconciles th is apparent contradic tion
by emphasizing, once aga in, the distinctive nature of the expertise possessed by t he
commission. e weight of thi s expertise extends to questions of law as wel l as fact,
thereby limiting the v iability of section 63 as a successful avenue of appea l.
B. Barrie Public Utilities v. Canadian Cable Television Association
(“Barrie”)
e second case is Bar rie Public Utilities v. Canadian Cable Television Association.50
e 20 03 Supreme Cour t of C anada decision regards a determination by the CRTC
that it has the jurisdict ion to compel utility operators to acce pt the connection of
telecommunications lines to their transm ission poles. e CRTC based t his finding on
section 43(5) of the Telecommunications Act wh ich gives the CRTC jurisdiction over
“the supporting structure of a transmission line.”51 e commi ssion interpreted this
to extend to support str uctures of a ll types, not just those specifically u sed to support
telecommunications lines. e Court found that the CRTC did not have such jurisdiction
and overturned t he original C RTC decision involving the liti gants, which was based on
this fa lse determination.52 is ca se is significant bec ause it demonstrates an important
limit to the deference that t he courts are willing to gra nt to the CRTC.
In reaching this verdict, the Court applied the four-factor Pushpanathan53 test, which was
the acc epted substantive rev iew model at t he time, to determine the degre e of judicial
deference that t he CRTC was w arranted. On the first fac tor, the presence or abs ence of
the negative privative clau se, the Court did not find one.54
On the second factor, expertis e, the Court ruled that the CRTC lacked t he competency
to decide on the ques tion of what constituted a suppor ting structure for the purposes
of the Telecommunications Act.55 While the Court acknowledged t he Federal C ourt of
Appeal’s character ization of the CRTC’s expertise in CBC, the Supreme Court held that
the question in this case exceeded the commission’s core expertise in telecommunications
technology. Because utility support struc tures used for purp oses other than support ing
solely telecommunications infr astructure are sites of convergence for multiple regulatory
arenas, such as elec trical a nd gas, the CRTC’s exper tise in telecommunications was
insufficient to regulate i n the interests of these sectors as well.
On t he third factor, t he purpose of the prov ision, the Court ruled that section 43(5)
did not induce the commission to make a de cision that the character of which was
polycentric.56 According to Pushpanathan, polycentricity is a condition of administ rative
decision-making whereby the admi nistrative actor balances multiple interests in mak ing
decisions. e Court ruled that section 43(5) does not, in fact, empower the CRTC
to decide on what constitutes a “supporting structure”; it does not vest the C RTC
with a particu lar duty that require s the consideration of competing interests prior to
its application. R ather, the Court interprets the principal function of the sec tion as
granting adjudicative authority to the CRTC to hear d isputes concerning the access
of telecommunications companies to shared telecommunications infrastructure. e
duty explicitly given to the CRTC by this provision is to hear these disputes. e
implementation of the commission’s discretion as to the balancing of competing interests
50. Barrie Public Utilities v. Canadian Cable Television Association, [20 03] SCJ No 27 (QL).
51. Telecommunications Act, supra note 6 at s 43(5).
52. Barrie, supra note 50 at para 43.
53. Pushpanathan v Canada (Minister of Citizenship an d Immigration), [1998] 1 SCR 982.
54. Barrie, supra note 50 at para 11.
55. Ibid at paras 12-16.
56. Ibid at para 17.
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occurs subsequent to this and is influenced by the relevant provisions engaged in the
adjudicative process.
On the fourth factor, the nature of the problem, the Court determined that it is a “purely
legal” question.57 What const itutes the “supporting str ucture of the transmission line”
is an interjurisdictional decision that requi res input from stakeholders from be yond
the telecom sec tor. While Justice Gonthier notes that “...even pu re questions of law
may be granted a wide degre e of deference where other factors sugges t the legi slature
so intended,” the Court determines that the interjursidictiona l nature of this decision
would place it beyond the legitimate pu rview of the CRTC.58
As a result of this test, the Court determined that a correctness standard was appropriate.59
On this basis, t he original de cision was overturned.
C. Re Broadcasting Act
e third case is more recent, having been decided in 2010 by the Federal Court of Appeal.
It is entitled Re Broadcasting Act60 and was a reference case submitted to the Court by the
CRTC on the issue of whether the commission could classify network operators and ISPs
as broadcasters for the purposes of the CRTC’s other constating statute, the Broadcasting
Act.61 e CRTC’s ground for this proposal was that, since the operators support the
transmission of tele vision programs through their net works, they are servin g a function
analogous to broadcasters as defi ned by the Act. e case is signific ant because it deal s
with a scenario simila r to that at issue in the net-neutrality i ssue; namely, the at tempt
to use existing statutory parameters to classify emergent communications technologies
such as the internet.
In t his case, the Court ruled that the CRTC cannot subsume the internet under the
regulatory pa rameters of the Broadcasting Act bec ause the Act deals with fu ndamental ly
dissimila r subject matter. Here, the Court recog nizes that t he principa l distinguishin g
trait of the internet is the interactive user-experience that it facilitates.62 is sta nds
in stark contrast to the mono-d irectional nature of broadc asting, whereby t he user
passively rec eives information transm itted from a central source. Despite the flexibility
contained within both of the CRTC’s constating statutes to enable it to respond to
emergent technologies, the Court emphasizes that it will only permit the extension of the
commission’s regulatory purview where the t ype of regulation is supported by a concrete
statutory foundation.63
D. Bell Canada v. Bell Aliant Regional Communications (“Bell”)
In the fou rth and final case, Bell Cana da v. Bell Aliant Regional Communications,64 the
Supreme Court of Canada provides timely insight i nto the type of situation where the
CRTC can establish new regulatory tools not specifically contemplated by the constating
statute. e dispute at issue concerns t he legal juris diction of the CRTC to use funds
collected from a “deferrals” accou nt paid into by telecom ca rriers for t he purposes of
57. Ibid at para 18.
58. Ibid at para 18.
59. Ibid at para 19.
60. Broadcasting Act (Can.) (Re), supra note 12.
61. Broadcasting Ac t, SC 1991 c 11.
62. Broadcasting Act (Can.) (Re), supra note 12 at para 59.
63. Ibid.
64. Bell Canada v Bell Aliant Regional Communications, [20 09] SCJ No 40 (QL).
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subsidizing broadband internet access for targeted disadva ntaged groups. On application
of the Dunsmuir test, the Court determined that a reasonableness stand ard applied and
ruled that the deci sion to create this new re gulatory mechanism was rea sonable.
On the quest ions of the privative clause and of expertise, respectively, the Court found
a positive privat ive clause and determ ined that the CRTC possessed a higher degree of
competency to evaluate this matter tha n the courts.65 e Supreme Court’s reasoning on
both of the se considerations was consiste nt with that deployed by the Federal Court of
Appeal in CBC.
On the question of the purpose of the govern ing statutory provision for th is
regulatory tool, t he Court agreed with t he CRTC that the relevant provision of t he
Telecommunications Act was section 7(b), which empowers the commission to ensure t he
“reliable and affordable” provision of telecommunications service s to consumers.66 e
Court also ag reed with the commission’s a ssessment that section 7(b) grants it broad
authority to balance competing interests in the fulfillment of the object ives put fort h
by this sec tion. Here, Justice Abella adopts the CRTC’s statement in Telecom Decision
CRTC 94-19 that “e Act... provides the tools necess ary to al low t he comm ission to
alter the traditional ma nner in which it regulates” and interprets a clear intention on the
part of Parliament to confer broad authority on matters such as the pre sent one on the
CRTC.67
Finally, on the inquiry as to the nature of the problem, t he Court de termined that it
was a mixed quest ion of fact and law.68 e Court rea soned that section 7(b) necessarily
gave the commission authority to devise new reg ulatory tools not spe cifically provided
for in the wording of the statute a nd that the creation of these tools was c ontingent on
an expertis e which was only held by the CRTC.69 e Court goes on to disti nguish this
case from Barrie by pointing to the fact that the present question is not one pu rely of
law and that even if it was, it deals with “...an authority fully supported by unambiguous
statutory lang uage.”70
IV. ANALYSIS OF POTENTIAL FOR NETNEUTR ALITY
REGULATION
Before eng aging in an assessment of the lega l feasibility of regulations protecting net-
neutrality, it would be useful to briefly explain the likely reasons for the CRTC’s reticence
thus fa r in pursuing such regulation based on t he principles articu lated through these
four cases. In particula r, two principles stand out as being most likely responsible for this
restraint.
First, as a matter of institutional practice, the courts have tended to restrictively interpret
the constating statutes of the CRTC. e nature of the commission as having to
regulate a rapidly transform ing industry invalidates some of the assumptions historically
employed by the judiciary i n its approach to interpreti ng statute law. Despite Driedger’s
assertion that provisions are to be interpre ted broadly and liberally,71 the type of chang e
evidenced in the telecommunications sector is incompatible with the judicial assumption
65. Ibid at paras 37 - 38.
66. Ibid at para 45.
67. Ibid at paras 46 & 48 .
68. Ibid at para 38.
69. Ibid at para 55.
70. Ibid at para 50.
71. Barrie, supra note 50 at para 20.
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that subject matter is largely stable and u nchanging. e emergence of the internet
has fundamentally altered the disposition of t he industr y and has caused the rapid
displacement of trad itional tech nologies and busi ness norms.72 ough provisions, such
as section 7 of the Telecommunications Act, exi st within the CRTC’s constating statute to
afford regu latory flexibility to the commission, the judiciary seems hesitant to transl ate
this into a llowances for expanded authority without a concrete ba sis for this regul ation
in existing provi sions.
is trend is high lighted in Barrie where the Court nar rowly construed section 43(5) of
the Telecommunications Act to apply only to supporti ng structures used principally for
telecommunications purpose s. is interpretation was made in spite of the fact that there
was no unambiguous speci fication within the provision qualifyi ng the term “supporting
structure” and the otherwi se broad regulator y purview given to the CRTC by section
7. is deci sion doe s not account for the incre asingly common practice of integ rating
telecommunications in frastructure into hybrid utility s ystems. Robert Leckey, a leading
Canadian admin istrative law scholar, argues that this interpretation ignored the statutory
nuances and tech nical facts which inflected t his decision.73 On the correctness standa rd
established for th is case, Leckey contends t hat the judiciary is inadequately e quipped to
manage t he deliberate ambiguity of t he act, let alone the h ighly technical natu re of the
considerations which its implementation requi res.
e tendency towa rds restrictive interpretat ion is a lso evidenced in Re Broadcasting Act
where the Court wa s averse to accommodating t he regulation of television broadc asts
over the internet under the Broadcast ing Act on the ground s that the new medium was
insufficiently similar to the ones specifically contemplated by the Act at t he time of its
formation.
e second principle affi rmed through these ca ses that has likely i mpacted the CRTC’s
treatment of net-neutrality regulation is the tendency of the judici ary to favour neo-
liberal explanat ions in its understand ing of economic phenomena. In one of the seminal
cases typify ing this tendency, RJR-Ma cDonald,74 the Supreme C ourt of Canada’s
conceptualiz ation of the role of corporate communication and advertising in societ y was
firmly premised in a neo-liberal understanding of economics.75 e assertion by the Court
that un impeded corporate advertisi ng was a public good on which educ ated consumer
decisions could be ba sed reflects the fundamenta l neo-liberal belief in the superiorit y of
the market in determining consumption habits.76 e restrictive interpretation of the
statute in RJR-MacDona ld denotes the historic al inclinat ion of the judiciary to defer
to market forces in questions of economic allocation that go beyond the unambiguous
intention of Parliament.77
is trend has been evidenced at various junctures in the judiciar y’s tre atment of the
CRTC’s regulatory purview. A s canvassed previously, t he cour ts have historically
interpreted the CRTC’s constating provisions in a n arrow fashion, allowing for ne w
regulatory initiatives only where there is a concrete statutory fou ndation indicating a n
unambiguous parliamentary intention to allow them. is occurs despite the inclusion
of provisions which provide for t he exp ansion of the reg ulatory purview of the CRTC
72. Sashkin, supra note 29 at 295.
73. Leckey, Robert, “Territoriali ty in Canadian Administrative Law ” (2004) 54:327 University of
Toronto Law Journal 327 at 342.
74. RJR- MacDonald Inc v Canada (Attorney Ge neral), [1995] 3 SCR 199.
75. Schneiderman, D avid, “A Comment on RJR-MacDonald v Can ada (AG)” (1996) 30 UBC L Rev 165-
180 at para 32.
76. Ibid at para 2.
77. Ibid at para 25.
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to cover e merging technologies. It is a pparent in cases such as Re Broadcast ing Act and
Barrie t hat the courts d e-emphasize these ex pansive provisions in favour of identifying
an explicit statement of parliamentary intent. is is consistent with the historical
fashion in which the cour ts have treated statutes of an economic nat ure, such as the
Telecommunications Act.
Despite t he deterrent effect of these t wo principles, the CRTC likely does retain the
authority to implement regulations enforcing net-neutrality. On conducting a substantive
review of the competency of the CRTC to regulate in this manner under section 36 of the
Telecommunications Act, the c ourts wou ld likely deter mine that it is within Parlia ment’s
intention, as expressed throug h the Act, for the CRTC to do so. Since there are no prior
decisions w hich dictate a standard of review for this pa rticular problem, this decision
would be reached on the application of the fou r factor test affirmed in Dunsmuir.
On the first factor, the presence of the privative clause, the court would identify a positive
privative claus e in section 63 of the Act which allows parties the right of appeal to the
Federal Court of Appea l. Despite the absence of a negative privative clause providing an
explicit indication of Parlia ment’s intent for a high degree of defere nce to be afforded to
the commission, t he court would likely interpret this as it has historic ally done in cases
concerning the CRTC – re ducing it to a level of secondary import ance relative to the
remaining th ree factors.78
On the sec ond factor, exp ertise, t he court would likely determine t hat the problem
engages the highly spec ialized expertise of the CRTC and is beyond the capability of the
courts to decide. e issue of whether section 36 of the Telecommunications Act can be
construed to serve as a foundation for net-neutrality regulations engages the commission’s
institutional experti se by requiring the CRTC to make two decisions. First, it requires the
commission to engage in an assessment of the interests at stake. It must ascertai n whether
the interference of operators w ith dat a traffic on their net works constitutes a legiti mate
network management practice and, if so, whether the implications to the public outweigh
the benefits of doing so. Second, the CRTC must eng age in an interpretive exercise to
determine whether net-neutrality regulations can be accommodated within the scope
of the provision. Specifically, it must ask whether these network m anagement practices
“...influence the meaning or purpose of telecommunications ca rried [on the network]
for the public.”79 Both of these decisions require the application of high ly specialized
technical a nd legal expertise.
While the Court in CBC stated that the CRTC is to be granted a wide deference by
the cou rts in its regulatory endeavours on the basis of its highly specialized ex pertise,
Barrie qua lified this by decid ing that, particu larly on questions of law, the authority of
the commission is circu mscribed where it is not otherwise provided for in unambiguous
parliamentar y langu age.80 Barrie c an be distinguishe d from the present case on t wo
grounds. First, unl ike the situation in Barrie, the question here regardi ng section 36
is enti rely within the regulatory domain of the CRTC. It is a question whic h strictly
relates to matters within the gamut of telecommunicat ions. Second, section 36 explicitly
empowers the commission to apply its expertise to a particular problem. is is in contrast
to Barrie where the Court determined that the impugned provision was principally of an
adjudicative charac ter.
On the thi rd factor, the pu rpose of the particular provision, t he court would likely
characteriz e it as high ly polycentric and thereby warranting a high degree of def erence
78. See CBC, for example. Su pra note 46.
79. Telecommunications Act, supra note 6 at s 36.
80. Barrie, supra note 50 at paras 25 and 26.
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as it did in Bell.81 As discus sed in the previous factor, the CRTC’s decision requires that
it balance an array of interests in deter mining the relevance of such regulation to section
36. It must weigh the interests of network operators in mainta ining the integrity and
efficiency of their systems a gainst the intere st that the public has in a neutral internet.
Because this asse ssment has multiple likely outcomes based on the diverse array of inputs
into the decision-making process, this factor strong ly pushes towards a standard of
reasonableness, which lend s greater deference to the decision of the commission.
On the fourt h, and fina l, factor in the Dunsmuir te st, the court will likely find that the
CRTC is competent to decide this mixed question of fact and l aw. As c anvassed under
the second factor, the question requires that two decisions be made. e first, concerning
the bala ncing of the competing interests is technica l, while the second, concerning the
accommodation of net-neutrality regulation within the word ing of the provision, is
legal. On questions of mixed law and fact, t he court ha s typically granted the CRTC
significant deference, a s in Bell, for example. However, the caveat provided by the Court
in Barrie, th at the authority to determine questions of law be premised in either an
explicit statutory discretion or “...where other factors suggest the legislatu re so intended,”
limits this authorit y somewhat.82 e present situation would nonethe less likely wa rrant
a hig h degree of deference for t wo reasons. First , as mentioned previously, the subject
matter in the present ca se is clearly within the doma in of telecommunicat ions. is is
in c ontrast to Barrie where the interpretative issue at bar impinged on subject matter
outside of the field of telecommunications. Second, it is implied throughout the statute
and the provision that t he CRTC be able to decide questions of law, such as this, which
are withi n its expressed jurisd iction. For example, sect ion 7 empowers the CRTC with
broad authority to e xecute its statutory mandate, re cognizing that the subjec t matter of
the regul ation is inherently unstable due to the rapidly evolving nature of the industr y.
Moreover, the Supreme Court of Canada has explicitly acknowledged in Bell that the Act
provides for the evolution of the CRTC’s regulatory fac ilities as technology changes.83
Cumulatively, the four Dunsmuir f actors point towards reasonableness as the standard
of review for thi s problem. Given the hig h degree of deference granted to the CRTC by
the cou rts on the finding of reasonableness,84 it is likely t hat the cour ts would do the
same here and would consequently find that the enforcement of net-neutrality regulation
under section 36 of the Telecommunications Act would be within the statutory jurisdiction
of the CRTC.
CONCLUSION
e dra matic growth of the internet as a med ium of ma ss communication has placed
the oper ators of the net works over w hich internet t raffic flows in a p owerful position
to influence the integrity a nd structure of the internet in its current form. As a means
of maintaining the vitality and openness of the internet, regulations protecting the
neutrality of these networks from interference by their operators have been propos ed.
While the CRTC has been reluctant to adopt such regulation on the g rounds of an
absence of political will and leg al competency, this pa per has demonstrated that the
latter is not an obst acle to its implementation. Section 36 of the Telecommunications Act
likely provides a legally sound basis on which such regulation could be promulgated.
With this aspect of the regu latory problem settled, the focus of the debate can thus shif t
to the policies of the CRTC, itself, and, by e xtension, of Cabinet on this critical issue.
81. Bell, supra note 64 at par as 46 & 48.
82. Barrie, supra note 50 at para 18.
83. Bell, supra note 64 at para 48.
84. For example, CBC and Bell where origina l decisions were unchanged.
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