OTTAWA – The Federal Court of Appeal is being asked to weigh in on an issue that seems to combine a bunch of hot-button issues facing the CRTC: vertical integration, consumer rights, net neutrality, wireless service billing and the blurring line between telecommunications and broadcasting.
And all because of a student from Manitoba.
Bell Mobility has filed for leave to appeal CRTC Broadcasting and Telecom Decision 2015-26, rendered Jan. 29, which orders Bell and Quebecor’s Vidéotron to cease providing mobile video applications that are exempt from counting toward the cap on their wireless data plans. Bell argues that the CRTC made errors in law by ignoring Section 4 of the Telecommunications Act (which says the Act doesn’t apply to broadcasting undertakings), and by finding that Bell was giving itself an undue advantage without any evidence on the record that its competitors suffered any actual harm.
Ben Klass, the political science student whose complaint in 2013 started this process, isn’t buying those arguments.
“I think the fundamental issue is whether Bell’s delivery of the service is itself a broadcasting service,” Klass told Cartt.ca. But while Bell Mobile TV could be considered a broadcasting service, Bell Mobility’s exemption of that application from its data cap is unfair because “Bell uses the same exact facilities to deliver this content than for any other Internet content.”
“Bell’s doing the same thing when it’s delivering Netflix to you and when it’s delivering Mobile TV to you, but it’s cutting a deal for itself that it isn’t offering its competitors. It’s charging customers to receive Netflix and not charging customers to receive its own video content.”
“This is a billing decision by Bell.”
Vidéotron had already agreed before the decision to withdraw its mobile TV app and replace it with one that counts toward the data cap by the end of next month.
The CRTC ruled in January (in a decision which was completely overshadowed by the Super Bowl simsub decision announced the same day) that while Bell and Vidéotron’s mobile TV offerings were broadcast undertakings, and exempt from licensing under the digital media exemption order, the Telecommunications Act still applies to the networks used to distribute their content.
“Section 4 of the Telecommunications Act does not apply as a shield to the application of the Telecommunications Act in this case,” it said, and the two companies “are operating as Canadian carriers, when they provide the data connectivity and transport necessary to deliver Bell Mobile TV and illico.tv, respectively, to their subscribers’ mobile devices. In this regard, they are subject to the Telecommunications Act. This is the case whether or not concurrent broadcasting services are also being offered.”
A large part of the Commission’s argument, as well as Klass’s, was that there’s no technical difference between mobile TV content and online video content as far as Bell and Vidéotron’s networks and devices were concerned — either way it’s just data delivered over the wireless network.
“It is the nature of the activity that defines a service, not the nature of its platform.” – Raj Shoan, CRTC commissioner
Commissioner Raj Shoan disagreed with that point. In his concurring opinion published along with the decision, he argued that “it is the nature of the activity that defines a service, not the nature of its platform,” and though he also felt the unfair billing practice should end, he argued the Commission should have put more emphasis on Section 28 of the Telecommunications Act, that undue preference in the transmission of programming.
IF THIS ALL SOUNDS CONFUSING, THAT’S BECAUSE IT IS. Not only are broadcasting distribution and telecommunications networks becoming technically indistinguishable from one another, but the same companies control both (plus the programming they distribute), which makes it hard to draw the line between the two, which the Telecommunications Act requires.
Now it will be up to the court to figure it out. Which worries Klass a bit, because Bell is seeking costs, and Klass is just a guy who complained to the CRTC.
“I think there’s a tremendous intimidation factor,” he said. “In order to fight this case, Bell had a number of other options. It opted to go straight to the federal court. And from my perspective, that choice is intimidating.”
“I would be ruined if there was a cost award. I’m weighing my options at the current moment. We’ll have to see what happens.”
The fact that Klass and consumer groups such as the Public Interest Advocacy Centre got involved in this case but most of Bell and Vidéotron’s competitors did not was not lost on Shoan, who worried that this lessening of competitive spirit might be a result of increased vertical integration.
“When industry dynamics are such that students, not-for-profits and charities are forced to contend against the deep pockets of large, national, vertically integrated entities in order to bring to light relevant issues of public interest without the support of affected parties (i.e. Canadian broadcasters), it does not bode well for future developments, regulatory or otherwise, in an industry,” Shoan wrote.
Klass said learning the CRTC’s system was a steep learning curve, one he started to climb in 2011 with the process on usage-based billing. “It’s something I’m passionate about,” he said. “That’s my interest. I guess I’m just trying to do my part.”
Asked how much time he’s spent on this proceeding, he said he couldn’t count, but it was easily hundreds of hours, all of which were unpaid.
“Maybe some day I’ll turn it into an academic publication.”
