Supreme Court to hear whether ISPs are broadcasting undertakings

Later  this morning the Supreme Court will hear arguments in the Alliance of Canadian Cinema, Television & Radio Artists, et al. v. Bell Aliant Regional Communications, LP, et al. case.  The central issue in the case is whether the Federal Court of Appeal erred in holding that retail ISPs are not broadcasting undertakings subject to regulation by the CRTC when they provide access through the Internet to broadcasting requested by end users.

The decision of the Federal Court of Appeal being appealed from is Canadian Radio-television and Telecommunications Commission (Re), 2010 FCA 178. The factums of the parties can be found here. The case will be webcast by the court and will be available here.

A summary of the case prepared by the Office of the Registrar of the Supreme Court of Canada describes the issues in the case as follows:

Communications law – Broadcasting – Reference – Whether Court of Appeal erred in determining jurisdiction of Canadian Radio-television and Telecommunications Commission in holding that retail Internet service providers do not carry on “broadcasting undertakings” pursuant to the Broadcasting Act, S.C. 1991, c. 11 when, in their role as Internet service providers, they provide access through the Internet to “broadcasting requested by end users.” – Whether Court of Appeal erred in law in failing to apply the ordinary meaning of the word “transmission” when interpreting the definitions in section 2 of the Broadcasting Act.

The Canadian Radio-television and Telecommunications Commission applied to the Federal Court of Appeal for a reference to determine the status of Internet service providers (“ISPs”.) The question was: Do retail ISPs carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act, S.C. 1991,c. 11 when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end-users? The Applicants took the position that the answer should be in the affirmative while the Respondents submitted that it should be answered in the negative.

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