ISPs not neutral, control video traffic, cultural groups tell Supreme Court

OTTAWA—Internet service providers (ISPs) that block some pages of content and prioritize others effectively control the transmission of online videos and as a result should fall under the Broadcasting Act, a lawyer representing a coalition of cultural groups argued before the Supreme Court Monday. That argument was central to a hearing that will determine whether the CRTC can require ISPs to make monetary contributions to Canadian programming funds, as it requires broadcast distributors to do under the Broadcasting Act. The case pits the appellant coalition—comprised of the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), the Canadian Media Production Association (CMPA), the Directors Guild of Canada (DGC), and the Writers Guild of Canada (DGC)—against some of Canada’s largest ISPs, including Rogers Communications Inc., Shaw Communications Inc., and a pair of BCE Inc. subsidiaries. At question is whether the ISPs should be classified as broadcast distributors for the role they play in delivering content to the public online or whether they merely serve as the highway on which content is delivered and should be exempted under the Broadcasting Act. The coalition argues that ISPs should be treated as broadcast distributors whenever they transmit television programming to end users over the Internet. “Parliament intended that the highway itself is exempt , but it’s not the trucks carrying the blue books along the highway that’s exempt,” lawyer Thomas Heintzman told the Supreme Court justices on behalf of the cultural coalition. “The trucks are not part of the highway,” he said. Section 4(4) of the Broadcasting Act provides an exemption for any “telecommunications common carrier, as defined in Telecommunications Act, when acting solely in that capacity.” The Telecommunications Act defines a common carrier as “a person who owns or operates a transmission facility used by that person or another person to provide telecommunications services to the public for compensation.” Heintzman argued Monday that ISPs act as broadcast distributors because they enforce some level of control over the content that travels over their transmission facilities. “ can affect content in various ways: they can block it so it doesn’t get in the system … they can develop priority connections to caches with Canadian content … and they have all sorts of deep packet technology that allows them to know what’s going through their system,” Heintzman said. “Any transmission through that wire is not acting solely as a telecommunications carrier.” ISPs are “passive transmitters,” he said, which the Supreme Court said fall under the Broadcasting Act in a 1977 case that ruled cable distributors fall under the federal regulator’s jurisdiction. Chief Justice Beverley McLachlin and several other justices questioned whether this type of manipulation of transmissions mean the ISPs transmit the content as opposed to offering the infrastructure for others to transmit broadcast material. “When people go on the net, perhaps they’re wrong because they don’t understand advanced telecommunications law like you, but they have the idea at least that they’re transmitting that message,” Justice McLachlin said. Heintzman responded that the bits and bytes that make up the content don’t get to end users “just by magic. They get to you because they’re delivered to you by transmission by the routers.” McLachlin said she was having trouble “seeing the routers as more than just part of a dumb pipeline.” John Laskin, a lawyer arguing on behalf of BCE Inc. and a majority of the ISPs, argued that blocking illegal websites—such as those associated with child pornography—does not mean ISPs are broadcasting the materials they allow to pass through. “The mere fact that ISPs are used to transmit content that others create, that ISPs provide a means for those requesting content to get it, does not turn ISPs into broadcasting undertakings,” he said. Laskin stressed that the question before the court should focus solely on what the ISPs do in their business operations as ISPs and not on other services provided by them or their parent companies. “ISPs, in their access role, are the means, the mode or the intermediary. They are not themselves transmitting,” he said. “What do ISPs sell to their subscribers in this access role?” he asked later. “They sell access. They do not sell content.” The case arrives before the country’s highest court more than two years after the CRTC originally referred the issue to the Federal Court in the summer of 2009. Since then, the rise of Netflix and other over-the-top services has led to an increasing number of Canadians looking for broadcast content in the unregulated online world. The Federal Court of Appeal decided last year that ISPs play a “content-neutral role” in the transmission of data and do not carry on broadcasting activities. During Monday’s hearing, Heintzman argued that the availability of content online threatens the “total regime that the Broadcasting Act brings to bear,” which helps ensure that Canadian programming is both funded and featured prominently on Canadian TVs. “It is my submission to you today that the integrity of that framework has protected and enhanced the freedom of expression and the strength of the Canadian broadcasting system,” Heintzman told the court. “The integrity of that system is now confronted face-to-face with one of the most revolutionary technologies: the Internet.” Lawyer Nicholas McHaffie, who argued separately on Shaw’s behalf, said it would be “absurd” to consider ISPs as broadcasters when they transmit broadcast programming but not when transmitting other types of Internet signals. “In this case there is no dispute that when an ISP relays a packet that is part of a webtext of a website it is subject to the Telecommunications Act, it is a telecommunications service provider,” he said. “What the contention is, is that if that packet happens to be a piece or small piece of a broadcast, then you flip over and now you’re in the Broadcasting Act.” Considering the speed and volume at which Internet traffic is transmitted, he said, the requirement to “flip” back and forth between the two regulatory regimes “at a rate of millions of time a second is absurd in and of itself.” He added that ISPs do not typically know what data packets carry and would not know when they would be subject to the Broadcasting Act and when they would be subject to the Telecommunications Act. In that case, “it becomes even more absurd,” he said. nkyonka@thewirereport.ca

ISPs not neutral, control video traffic, cultural groups tell Supreme Court

News | 01/17/2012 2:55 am EST

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