Reference re Broadcasting Act

Reference re Broadcasting Act

Interpreting the Broadcasting Act in light of its language and purposes, a broadcasting undertaking presupposes control over programming and contribution to statutory policy objectives; retail ISPs providing only access to Internet content do not select, originate or package programming and therefore do not carry on broadcasting undertakings under the Broadcasting Act when they provide access to broadcasting requested by end-users.

Citation
2012 SCC 4
Parties
Appellants: Alliance of Canadian Cinema, Television and Radio Artists; Canadian Media Production Association; Directors Guild of Canada; Writers Guild of Canada; Respondents: Bell Aliant Regional Communications, LP; Bell Canada; Cogeco Cable Inc.; MTS Allstream Inc.; Rogers Communications Inc.; TELUS Communications Company; Videotron Ltd.; Respondent: Shaw Communications Inc.; Intervener: Canadian Radio-television and Telecommunications Commission
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
9 February 2012
Procedural Posture
Reference Under Federal Courts Act; Appeal to Supreme Court of Canada / Appeal From Federal Court of Appeal Regarding a Reference Question Answered by the Fca; SCC Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Broadcasting Act Interpretation, Internet Service Providers, Broadcasting Undertakings, Statutory Interpretation, Jurisdiction
Source Language
English
Communications Law Administrative Law Constitutional Law Regulatory Law Broadcasting Act Interpretation Internet Service Providers Broadcasting Undertakings Statutory Interpretation +1 more

Case Brief

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Parties

Alliance of Canadian Cinema, Television and Radio Artists; Canadian Media Production Association; Directors Guild of Canada; Writers Guild of Canada

Appellants

Bell Aliant Regional Communications, LP; Bell Canada; Cogeco Cable Inc.; MTS Allstream Inc.; Rogers Communications Inc.; TELUS Communications Company; Videotron Ltd.

Respondents

Shaw Communications Inc.

Respondent

Canadian Radio-television and Telecommunications Commission

Intervener

Procedural Posture

Reference Under Federal Courts Act; Appeal to Supreme Court of Canada / Appeal From Federal Court of Appeal Regarding a Reference Question Answered by the Fca; SCC Judgment on Appeal

Legal Issues

  1. 1 Whether retail Internet service providers carry on, in whole or in part, broadcasting undertakings subject to the Broadcasting Act when providing access through the Internet to broadcasting requested by end-users
  2. 2 Whether the terms broadcasting and broadcasting undertaking encompass entities that merely provide the mode of transmission
  3. 3 Whether the Broadcasting Act should be read as capturing ISPs as part of a single broadcasting system

Ratio Decidendi

Interpreting the Broadcasting Act in light of its language and purposes, a broadcasting undertaking presupposes control over programming and contribution to statutory policy objectives; retail ISPs providing only access to Internet content do not select, originate or package programming and therefore do not carry on broadcasting undertakings under the Broadcasting Act when they provide access to broadcasting requested by end-users.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs
  • Answer to reference: Retail ISPs do not carry on broadcasting undertakings under the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to broadcasting requested by end-users