Are the broadcasting services proposed by Bell and Rogers exempt under the New Media Exemption Order?

(The Canadian Association of Broadcasters on April 29 submitted to the CRTC a letter asking that the regulator take a close look at the mobile services being offered by Rogers Wireless, and proposed by Look Communications and Bell Mobility. A short excerpt of which is presented here:) ...10. As neither Rogers nor Bell has applied for a broadcasting licence, it appears that both companies are planning to distribute MobiTV on the assumption that this service falls under the New Media Exemption Order ("Exemption Order") set out in Public Notice CRTC 1999-197. However, the CAB believes that there is considerable uncertainty as to whether the activities proposed by Bell and Rogers do in fact come clearly under the scope of the Exemption Order. 11. In the Exemption Order the Commission 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, Broadcasting Public Notice CRTC 1999-94 ("New Media Report"). 12. In the New Media Report, the Commission had determined that "some new media services fall under the Broadcasting Act’s definitions of ‘program’ and ‘broadcasting.’ These include digital audio services and audio/visual signals." The Commission concluded, however, that regulation of such services was not necessary to achieve the objectives of the Act, taking into account the fact that Canadian content was flourishing on the Internet. 13. The Commission did not explicitly define "the Internet" when it issued the Exemption Order. It did, however, append a glossary to the New Media Report which provided the following description: The Internet is a distribution system that is capable of handling a wide variety of data (text, pictures and sound) in any number of formats. … The Internet is a distributed, inter-operable, packet-switched network …. A distributed network has no one central repository of information or control, but is comprised of an interconnected web of "host" computers, each of which can be accessed from virtually any point on the network …. An interoperable network uses "open protocols" …, and allows multiple services to be provided to different users over the same network. 14. This description does not appear to 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. 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. 15. In addition, the CAB notes that several other factors may be at issue in the determination of exempt status. Does the use of a mobile phone terminal, using specialized or proprietary software over dedicated spectrum, constitute "accessing" the public Internet? If services offered to one group of mobile phone subscribers are not accessible to other Internet users, are they truly accessible via the Internet? These questions also need answers before the determination of the status of these services can be determined.

Are the broadcasting services proposed by Bell and Rogers exempt under the New Media Exemption Order?

Broadcast | June 10, 2005

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