CAB presses CRTC to look into plans to bring TV channels to cell phones

With shades of the acrimonious debate over Internet retransmission, the Canadian Association of Broadcasters (CAB) has written to the CRTC to voice its opposition to using the 1999 New Media Exemption Order to bypass broadcasting regulations as they might affect the delivery of TV content to mobile devices. This spring, both Rogers Wireless and Bell Mobility announced plans to make content from MobiTV available to their subscribers. Neither has a license specifically for the service, but at least Rogers is counting on the provisions of the exemption order to protect it from regulation by the commission. In a quiet note to the regulator, the CAB takes exception to Rogers’ interpretation of the law. At a minimum, the CAB wants the commission to require the two mobile phone companies and Look Communications Inc., a wireless cableco with similar mobile TV service plans, to file detailed information and plans regarding their respective mobile broadcasting services, and then to urgently determine a regulatory framework for them. "The press releases issued by Rogers and Bell provide only a cursory outline of the planned services, so the CAB does not yet have a full understanding of how Bell and Rogers intend to implement their respective services," writes the CAB to the CRTC. "Based on the information provided to date, however, both mobile television services would appear to constitute broadcasting and, as such, they would be subject to the jurisdiction of the commission under the (Broadcasting) Act. The CAB notes that, at this time, neither Rogers nor Bell is licensed by the commission to carry on such a broadcasting activity." Both Rogers and Bell, however, are operating under the assumption that their mobile TV services fall under the New Media Exemption Order. Nadir Mohamed, president and COO of Rogers’ newly created communications division, referred to content being pulled down, rather than broadcasted across an entire network, during an April conference call to announce its new mobile TV service. Asked in a recent editorial board with Decima Reports’ editors about the impact of regulation on the delivery of these types of services, Rogers Communications Inc. VP of regulatory Ken Engelhart noted that: "Well, interestingly, for the video over the cellphones, it actually ends up being delivered over the Internet, so, it falls into the new media exemption order. Now, there will be future generations in a few years of wireless cellphone video services that are not Internet-delivered. But, this one is, so we get the protection of the new media exemption order even though that may not have been what folks had in mind when they wrote the new media exemption order. That’s a lucky break for us." With the New Media Exemption Order, the CRTC exempted "new media broadcasting undertakings, defined as undertakings that provide broadcasting services delivered and accessed over the Internet, in accordance with the interpretation of ‘broadcasting’ set out in the 1999 Report on New Media…" The commission ruled that regulation of such services was not necessary to achieve the objectives of the Act, taking into account that Canadian content was flourishing on the Internet. The CAB concludes that the description doesn’t preclude the use of mobile telephones as a point of contact to the Internet. "The key question is the openness of the specific network with respect to the broadcast services available to its users, i.e. that any computer – and hence any source of broadcasting – that is available on the Internet should also be available to users of the mobile phone service," states the CAB. "If a wireless operator offers only a limited subset of video or audio signals, then the user is not accessing ‘the Internet.’ It is, therefore, at the very least questionable as to whether this activity fits under the exemption order. The CAB also questions whether or not using specialized or propriety software over dedicated spectrum, constitute accessing the ‘public’ Internet?" The CAB charges that the mobile TV services are more likely acting as unlicensed, non-exempt (relay distribution undertakings) and, as such, would not be eligible to operate in Canada. The private broadcasters claim that Bell’s and Rogers’ mobile TV services will aggregate and deliver programming signals to distributors for a fee, and thus would be operating as unlicensed RDUs. The CAB points out that the MobiTV service, which will be used by both Rogers and Bell, is owned by U.S.-based Idetic Inc. The association tells the CRTC that since Idetic is a non-Canadian controlled company, it is not eligible for exemption under the commission’s exemption order respecting RDUs. The CAB in a letter to the CRTC also decries the announcement by Rogers that its mobile TV service will include three U.S. channels (Discovery, Comedy Time and Toon World) that are not currently authorized for distribution in Canada. As well, the CAB charges that the three TV channels are competitive with licensed Canadian programming undertakings. The CAB is calling on the CRTC to ensure that no unauthorized or unlicensed broadcasting services, whether foreign or Canadian, are made commercially available over mobile TV, even before a determination is made on the status of the new service. "Were the services to launch without authorization, they may later be determined to have been broadcasting without a licence. Moreover, it would be very difficult to withdraw any ineligible broadcasting services from commercial distribution after they have been launched," writes CAB president and CEO Glenn O’Farrell. While Look Communications has a broadcasting licence that allows it to use MDS spectrum to distribute broadcasting TV signals, the CAB says that the wireless company’s plan to change to mobile reception would fundamentally alter the nature of the service and its competitive position. "At a minimum, there should be public discussion of how and whether such a service can be licensed," the CAB states. The association adds, "If the providers of mobile broadcasting services were permitted to operate without any licensing requirement or without having to adhere to any terms or conditions that the commission might deem appropriate to further the objectives of the Act, then they would undermine the integrity of the regulatory framework that applies to licensed broadcasting undertakings." The CAB tells Canadian NEW MEDIA affiliate publication Canadian Communications Reports that it is not prepared to comment further on the broadcasting to mobile phones development as it is "still in the preliminary stages of studying the issue" and that it wants to be certain that it has all the relevant information in hand before making any comments. The debate over the status of IP-delivered content hearkens back to late 2002 and early 2003 when the CRTC was contemplating the effect of the New Media Exemption Order on the broadcasting system – particularly with respect to Internet retransmitters. A three-year debate in Parliament over an apparent loophole in the broadcasting system that would have allowed JumpTV and iCraveTV to operate at will was closed by amendment to the Copyright Act. Jump’s thesis was that it could operate as an Internet-based retransmitter without a licence because of the exemption order, and that as a retransmitter it could have compulsory access to over-the-air television signals. Parliament eventually carved out a specific exception in the act to preclude retransmitters of JumpTV’s ilk from taking advantage of the same compulsory licence to over-the-air content enjoyed by licensed cable companies (CNM, June 18/02). In January 2003, the CRTC ruled that there was no need to amend the exemption order to take Internet retransmission into account (Broadcasting Public Notice 2003-2). At the time, it saw little public appetite for Internet-delivered television. It wrote: "the Commission’s assessment of the record of this proceeding is that Internet retransmission, at this stage of its development, is not a substitute for the activities of existing licensed distributors and over-the-air-radio and television broadcasters. Further, in the Commission’s view, Internet retransmission could only become a substitute for conventional broadcasting and distribution services if and when it can provide a service comparable in price, choice and quality. In the Commission’s view, significant capital investment in infrastructure and the development of successful business models will be required before this can occur." Shortly after, an application was filed by Aliant to win an experimental licence from the commission to continue to take advantage of the compulsory licence in offering its TV-on-my-PC service, which because of the amendment to the act could no longer get over-the-air signals on a compulsory basis (CNM, Jan. 20/03). It dropped that request soon after (CNM, March 6/03), as it became clear that Internet retransmission was not going to be allowed by Canada’s broadcasting watchdogs. Just two years later, however, the CRTC will have to come to grips with the consequences of the New Media Exemption Order again as broadcasters and cablecos narrow down the definition of "Internet". The recent Voice over IP ruling would indicate that IP-delivered services won’t necessarily be considered Internet services subject to the exemption order, and the CAB in this debate and the retransmission issue has been vociferous about ensuring that services that seem to threaten the status quo are dealt with outside the exemption order. Even the commission’s forecast that it would be many years before Internet retransmission becomes a viable alternative to traditional broadcast services seems to be a little off – a recent poll of Canadians shows significant interest in the service among youth: 21% of Canadians aged 18-24 said they were very or extremely interested in buying the service – and demonstrated an expectation of how much it would cost in line with market realities. (CNM, May 30/05). The Road to Retransmission is Decima Reports’ exclusive collection of archived news articles, public submissions and analysis of the retransmission battle of the early 2000s. Much of the documentation is unavailable publicly except in this collection. It is available as a free download from the Decima Reports site. Decima Reports has also made available for free its exclusive editorial board discussion with Ken Engelhart, referred to in this article. Both documents are available at http://www.decima.com/publishing/Services/index.htm.

CAB presses CRTC to look into plans to bring TV channels to cell phones

Broadcast | June 10, 2005

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