Bell Canada official says surprise over CRTC retransmission submission unwarranted

Bell Canada’s chief regulatory officer, Sheridan Scott, says it should come as no surprise that the company has come out strongly in favour of allowing some form of Internet retransmission in a recent submission to the CRTC on the issue (CNM, Sept. 18/02). While many observers were taken aback that the giant telco was in favour of creating a new exemption order for Internet retransmitters – one that would undermine the regulatory basis for Bill C-48 – Scott says the company has pushed for retransmission with restrictions since the beginning of the legislative process earlier this year. "We didn’t read the ultimate draft (of C-48) as the government completely closing the door on Internet retransmission. We saw it as the government asking the CRTC to see if there were conditions that would allow one to permit Internet retransmission in a way that would not have a harmful impact on the broadcast system," she tells Canadian NEW MEDIA. "That’s the gist of our submission: is it possible to identify conditions that would ensure you don’t have a negative effect on the system?" While broadcasters and their allies have been adamant that Internet retransmission under a compulsory licensing regime not be permitted, Scott dismisses the notion that Bell’s position necessarily renders TV broadcasters and telcos on opposite sides of the fence. "I think, conceptually, the CAB (Canadian Association of Broadcasters) or the broadcast community in general – broadcasters in general – if one can be satisfied that the conditions can be met in either a licensing or an exemption approach, and those conditions are put in place that there would be no negative impact on the broadcasting system in Canada because of the retransmission system, then conceptually they should be in agreement with us. The devil’s in the details and I’m not underestimating how difficult that is. But I think when one says that it’s the telcos against the broadcasters, that would be a mis-characterization. If one could agree – I’m not saying we do – but if one could agree conceptually, than that wouldn’t be the basis of a war to my mind." She notes, however, that several details will have to be worked out if there is to be a new compulsory copyright licensing regime for a new class of Internet retransmitter, focusing on keeping signals from leaking outside of Canada. "I understand the issues for the CAB are very pragmatically very, very important issues. Conceptually, if you could identify the proper conditions, and enforce those proper conditions, I believe that the broadcasting community should not have objections to this approach. But let me be very clear. You have to have the right conditions and they would have to be enforceable conditions. On that front, I’m really thinking about the geographic conditions which is a really important one for everyone. One wants to ensure that you can create the electronic 49th parallel and to the extent that you can do that and everyone has comfort that it has been done successfully, that’s a sine qua non of a successful framework that the commission would put in place in either the licensing approach or the exemption approach." In its September 13 submission to the CRTC, Bell argues the best way to enforce potential conditions would be to have any company covered by a new exemption register with the commission – a technical point on which several parties disagree. Speaking with CNM, however, Scott conceded that licensing, and not an exemption order, could be used to accomplish the same goal of allowing Internet companies to retransmit without seeking the permission of broadcasters under the protection of section 31 of the Copyright Act. "What we’ve proposed on the exemption side is that any party taking advantage of the exemption be registered. They would be known. People could identify them," she says. "The commission could go after them if they found that a retransmitter was not complying with the conditions set out in the exemption order. But if they preferred not to do that general exemption approach because of the circumstances, then they could do this through a licensing action. They’re the different rules the commission could use to authorize activities." Such a change in position, if it comes, would be welcomed by at least the cable companies’ main lobby, the Canadian Cable Tele-vision Association. Saying Bell and the CCTA’s general position isn’t very far apart on the matter, CCTA senior counsel Jay Kerr-Wilson says the association would prefer to see a licensing regime over a new retransmitter-specific exemption regime. "The conditions that Bell have identified we agree are the sort of things you need to consider when evaluating a potential retransmission operation…," he tells CNM. "We still disagree with Bell that it should be an exemption order. We would prefer to see case-by-case licensing. There are a couple of reasons for that. First of all, the commission’s power to exempt undertakings applies to classes of undertakings, and we don’t think that there’s enough similarities between the whole range of Internet retransmission that can take place that you can define it as a class. For instance, the kind of service that Aliant has launched or has proposed to launch is very different from what JumpTV might have proposed or what iCraveTV actually did. So we don’t think it’s efficient to try and design a common set of conditions that have to apply to that broad a range of undertakings – plus the ones we haven’t even seen yet." Secondly, Kerr-Wilson says, a licensing system would put controls on the front end of the process, barring companies from starting up until the commission gives the go-ahead, likely after public consultations. An exemption, he says, wouldn’t have the same advantage. "…Once the commission has issued the exemption order, anyone who feels they qualify under the conditions is going to start up. So we’re going to have, potentially, people starting up with untested, untrusted technology. They’re going to be operating pursuant to this exemption order. And it’s going to take a complaint from somebody to say that they’re not in compliance with the conditions of the exemption order and then a public process by the commission to determine whether or not they actually should have been operating pursuant to the exemption order in the first place, and at the same time, we might have been doing a fair bit of damage to rights holders and to the broadcast industry generally." Kerr-Wilson says he’s not necessarily surprised at the Bell position in favour of extending at least some compulsory protection to Internet retransmitters but says the optics of the debate may have changed in recent weeks. While Scott denies a broadcaster/telco dispute on the issue, Kerr-Wilson says it may look that way now that JumpTV.com Canada Inc. has bowed out of submitting any new comments. "Perhaps the face that we put to the various sides has changed because we’re now not so much talking about the Jump position versus the rights holders position. Now we have sort of a Bell position, which is mostly consistent with our own position, and a rights holders or broadcast position, which is more or less unchanged, and the (Canadian Film and Television Production Association), which is more or less unchanged. Maybe the fact that the Bell position has more profile and the Jump position has less profile makes it look like a big change? But I’m not sure at the end of the day whether people’s positions have changed substantially." One position that hasn’t changed is that of the Canadian Motion Picture Distributors Association. Its VP, Susan Peacock, says that while Bell’s submission is impressive, it does little to justify a change in the status quo. "They put in a very well-expressed, articulate brief," she tells CNM. "I think that what we will be urging the commission to do is to do nothing unless they think that there is an overwhelming broadcasting policy reason for them to resurrect non-consensual Internet retransmission. And I don’t think that Bell or any other party that is a proponent of non-consensual Internet retransmission has made a case in terms of broadcasting policy."

Bell Canada official says surprise over CRTC retransmission submission unwarranted

News | 10/03/2002 4:00 am EDT

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