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Reference re Broadcasting Act , 2012 SCC 4, [2012] 1 S.C.R. 142 — SCC | minicounsel | minicounsel

February 9, 2012

Reference re Broadcasting Act , 2012 SCC 4, [2012] 1 S.C.R. 142

Case Summary

The appeal concerned whether retail Internet service providers, when providing end-users with Internet access to requested programming, carry on broadcasting undertakings under the Broadcasting Act. The court held that the statutory terms, read in light of the Act’s language and policy objectives, do not capture entities that merely provide a transmission mode without selecting, originating, or packaging content. Prior authorities on transmission and conduit functions were treated as consistent with this interpretation, while precedent involving content control by cable licensees was distinguished. The appeal was dismissed, confirming that access-providing Internet service providers are not broadcasting undertakings in this context.

SUPREME COURT OF CANADA Date: 20120209 Docket: 33884 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 ss. 18.3(1) and 28(2) of the Federal Courts Act , R.S.C. 1985, c. F-7. Alliance of Canadian Cinema, Television and Radio Artists, Canadian Media Production Association, Directors Guild of Canada and Writers Guild of Canada Appellants v. Bell Aliant Regional Communications, LP, Bell Canada, Cogeco Cable Inc., MTS Allstream Inc., Rogers Communications Inc., TELUS Communications Company, Videotron Ltd. and Shaw Communications Inc. Respondents - and - Canadian Radio-Television and Telecommunications Commission Intervener Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. Reasons for Judgment: (paras. 1 to 11): The Court Reference re Broadcasting Act , 2012 SCC 4, [2012] 1 S.C.R. 142 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 ss. 18.3(1) and 28(2) of the Federal Courts Act , R.S.C. 1985, c. F‑7 Alliance of Canadian Cinema, Television and Radio Artists, Canadian Media Production Association, Directors Guild of Canada and Writers Guild of Canada Appellants v. Bell Aliant Regional Communications, LP, Bell Canada, Cogeco Cable Inc., MTS Allstream Inc., Rogers Communications Inc., TELUS Communications Company, Videotron Ltd. and Shaw Communications Inc. Respondents and Canadian Radio‑television and Telecommunications Commission Intervener Indexed as: Reference re Broadcasting Act 2012 SCC 4 File No.: 33884. 2012: January 16; 2012: February 9. Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. on appeal from the federal court of appeal Communications law — Broadcasting — Internet — Internet service providers providing end‑users with access to broadcasting over Internet — Whether Internet service providers are broadcasters when they provide end‑users with access to broadcasting through Internet — Broadcasting Act, S.C. 1991, c. 11, ss. 2 , 3 . The Canadian Radio‑television and Telecommunications Commission referred to the Federal Court of Appeal the question of whether retail Internet service providers (“ISPs”) carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end‑users. The court held that they do not. Held : The appeal should be dismissed. The terms “broadcasting” and “broadcasting undertaking”, interpreted in the context of the language and purposes of the Broadcasting Act , are not meant to capture entities which merely provide the mode of transmission. The Broadcasting Act makes it clear that “broadcasting undertakings” are assumed to have some measure of control over programming. The policy objectives listed under s. 3(1) of the Act focus on content. When providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, they take no part in the selection, origination, or packaging of content. The term “broadcasting undertaking” does not contemplate an entity with no role to play in contributing to the Act’s policy objectives. Accordingly, ISPs do not carry on “broadcasting undertakings” under the Broadcasting Act when they provide access through the Internet to “broadcasting” requested by end‑users. Cases Cited Referred to: Electric Despatch Co. of Toronto v. Bell Telephone Co. of Canada (1891), 1891 11 (SCC) , 20 S.C.R. 83; Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers , 2004 SCC 45 , [2004] 2 S.C.R. 427; Capital Cities Communications Inc. v. Canadian Radio-Television Commission , 1977 12 (SCC) , [1978] 2 S.C.R. 141. Statutes and Regulations Cited Broadcasting Act , S.C. 1991, c. 11, ss. 2(1) “broadcasting”, (3), 3(1). Telecommunications Act , S.C. 1993, c. 38, s. 2(1) “telecommunications common carrier”. APPEAL from a judgment of the Federal Court of Appeal (Noël, Nadon and Dawson JJ.A.), 2010 FCA 178 , 322 D.L.R. (4th) 337, 404 N.R. 305, [2010] F.C.J. No. 849 (QL), 2010 CarswellNat 2092, in the matter of a reference brought by the Canadian Radio‑television and Telecommunications Commission regarding the Broadcasting Act . Appeal dismissed. Thomas G. Heintzman , Q.C. , and Bram D. Abramson , for the appellants. John B. Laskin , Yousuf Aftab and Nicole Mantini , for the respondents Bell Aliant Regional Communications et al. Nicholas McHaffie and Dean Shaikh , for the respondent Shaw Communications Inc. No one appeared for the intervener. The following is the judgment delivered by [ 1 ] The Court — In a 1999 report, the Canadian Radio-television and Telecommunications Commission (“CRTC”) concluded that the term “broadcasting” in s. 2(1) of the Broadcasting Act , S.C. 1991, c. 11, included programs transmitted to end-users over the Internet. At that time, the CRTC concluded that it was not necessary to regulate broadcasting undertakings that provided broadcasting services through the Internet. It exempted these “new media broadcasting undertakings” from the requirements of the Broadcasting Act . In 2008, after public hearings, the CRTC revisited this exemption. One of the issues raised was whether Internet service providers — ISPs — were subject to the Broadcasting Act when they provided end-users with access to broadcasting through the Internet. The CRTC opted to send this issue to the Federal Court of Appeal for determination on a reference ( 2010 FCA 178 , 322 D.L.R. (4th) 337). The specific reference question was: Do retail Internet service providers (ISPs) carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users? [ 2 ] ISPs provide routers and other infrastructure that enable their subscribers to access content and services made available on the Internet. This includes access to audio and audiovisual programs developed by content providers. Content providers depend on the ISPs’ services for Internet delivery of their content to end-users. The ISPs, acting solely in that capacity, do not select or originate programming or package programming services. Noël J.A. held that ISPs, acting solely in that capacity, do not carry on “broadcasting undertakings”. [ 3 ] We agree with Noël J.A., for the reasons he gave, that the terms “broadcasting” and “broadcasting undertaking”, interpreted in the context of the language and purposes of the Broadcasting Act , are not meant to capture entities which merely provide the mode of transmission. [ 4 ] Section 2(1) of the Broadcasting Act defines “broadcasting” as “any transmission of programs . . . by radio waves or other means of telecommunication for reception by the public”. The Act makes it clear that “broadcasting undertakings” are assumed to have some measure of control over programming. Section 2(3) states that the Act “shall be construed and applied in a manner that is consistent with the freedom of expression and journalistic, creative and programming independence enjoyed by broadcasting undertakings”. Further, the policy objectives listed under s. 3(1) of the Act focus on content, such as the cultural enrichment of Canada, the promotion of Canadian content, establishing a high standard for original programming, and ensuring that programming is diverse. [ 5 ] An ISP does not engage with these policy objectives when it is merely providing the mode of transmission. ISPs provide Internet access to end-users. When providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, they take no part in the selection, origination, or packaging of content. We agree with Noël J.A. that the term “broadcasting undertaking” does not contemplate an entity with no role to play in contributing to the Broadcasting Act ’s policy objectives. [ 6 ] This interpretation of “broadcasting undertaking” is consistent with Electric Despatch Co. of Toronto v. Bell Telephone Co. of Canada (1891), 1891 11 (SCC) , 20 S.C.R. 83. In Electric Despatch , the Court had to interpret the term “transmit” in an exclusivity contract relating to messenger orders. Like the ISPs in this case, Bell Telephone had no knowledge or control over the nature of the communication being passed over its wires. This Court had to determine whether the term “transmit” implicated an entity who merely provided the mode of transmission. The Court concluded that only the actual sender of the message could be said to “transmit” it, at p. 91: It is the person who breathes into the instrument the message which is transmitted along the wires who alone can be said to be the person who “transmits” the message. The owners of the telephone wires, who are utterly ignorant of the nature of the message intended to be sent, cannot be said . . . to transmit a message of the purport of which they are ignorant . [Emphasis added.] [ 7 ] This Court relied on Electric Despatch in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers , 2004 SCC 45 , [2004] 2 S.C.R. 427, a proceeding under the Copyright Act , R.S.C. 1985, c. C-42, to conclude that since ISPs merely act as a conduit for information provided by others, they could not themselves be held to communicate the information. [ 8 ] The appellants in this case argued that we should instead follow Capital Cities Communications Inc. v. Canadian Radio-Television Commission , 1977 12 (SCC) , [1978] 2 S.C.R. 141. In Capital Cities , decided under a 1968 version of the Broadcasting Act , the CRTC had amended Rogers Cable’s licence, allowing Rogers to delete and substitute the television advertisements in the American broadcasts it received before it distributed the broadcast to viewers. The American broadcasting stations argued that the Broadcasting Act was ultra vires Parliament since it purported to regulate systems situated wholly within provincial boundaries. As part of this argument, the American stations attempted to sever the function of receiving television signals from the distribution or retransmission of those signals within a particular province. The Court rejected this severance of reception and distribution, stating that it was a “single system” coming under federal jurisdiction. The appellants argue before this Court that ISPs similarly form part of a single broadcasting system that is subject to regulation under the Broadcasting Act . [ 9 ] Like Noël J.A., we are not convinced that Capital Cities assists the appellants. The case concerned Rogers Cable’s ability to delete and substitute advertising from American television signals. There was no questioning in Capital Cities of the fact that the cable television companies had control over content. ISPs have no such ability to control the content of programming over the Internet. [ 10 ] Contrary to the submissions of the appellants, we need not decide whether the fact that ISPs use “routers” prevents them from being characterized as telecommunications common carriers. Noël J.A. was not asked to decide whether ISPs are a “telecommunications common carrier” under s. 2(1) of the Telecommunications Act , S.C. 1993, c. 38. Nor, based on the record before us, do we feel it appropriate for us to do so. [ 11 ] We therefore agree with Noël J.A.’s answer to the reference question, namely, that ISPs do not carry on “broadcasting undertakings” under the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users. We would therefore dismiss the appeal with costs. Appeal dismissed with costs. Solicitors for the appellants: McCarthy Tétrault, Toronto. Solicitors for the respondents Bell Aliant Regional Communications et al.: Torys, Toronto. Solicitors for the respondent Shaw Communications Inc.: Stikeman Elliott, Ottawa.