Mark Goldberg


www.mhgoldberg.com






Is Mobile TV broadcasting or telecom?

A few weeks ago, in a speech in London Ontario, CRTC Chair JP Blais said:

In our opinion, providers such as Bell and Vidéotron that offer linear content via their mobile TV apps cannot provide undue preferences or advantages. We therefore ordered Bell and Vidéotron to eliminate their unlawful practices.

The Mobile TV Decision, Broadcasting and Telecom Decision 2015-26, starts off by stating:

The Commission finds that Bell Mobility Inc. (Bell Mobility) and Quebecor Media Inc., Videotron Ltd. and Videotron G.P. (collectively, Videotron), violated subsection 27(2) of the Telecommunications Act by exempting their mobile TV services Bell Mobile TV and illico.tv from data charges. Subsection 27(2) prohibits Canadian carriers from conferring an undue disadvantage to others, or an undue preference to itself or others.

Keen eyes noticed that the Decision was issued as a Broadcasting and Telecom Decision; it deals with a TV service, but starts off with a citation claiming a violation of the Telecom Act.

What is a broadcast undertaking? That appears to be the core question for the Federal Court of Appeal in determining whether to grant Bell’s application to review the CRTC’s Mobile TV decision.

The Chair’s speech calls the service “linear content” – broadcast TV. At paragraph 15 of that decision, the CRTC said that Bell and Videotron’s Mobile TV service is broadcasting:

The Commission considers that Bell Mobility and Videotron, in acquiring the mobile distribution rights for the content available on their mobile TV services, in aggregating the content to be broadcast, and in packaging and marketing those services, are involved in broadcasting. In this regard, it notes that no party to this proceeding disputed that mobile TV services constitute broadcasting services as contemplated by the DMBU exemption order.

In the “Concurring Opinion” appended to the Decision, Commissioner Raj Shoan reiterates this point:

The majority decision considers that Bell Mobility and Videotron are involved in broadcasting and notes, in this regard, that no party to this proceeding disputed that mobile TV services constitute broadcasting services as contemplated by the DMEO. I agree.

The problem arises in Paragraph 17 of the decision, where the majority decides that the Mobile TV broadcast is taking place over a separate telecommunications network.

The Commission finds that in order to transport their mobile TV services from their servers to subscribers’ mobile devices, Bell Mobility and Videotron use their respective wireless access networks.Footnote 6 These are the very same networks they use to deliver their wireless voice and data telecommunications services, which are clearly telecommunications services subject to the Telecommunications Act.

So, the Mobile TV decision was based on a view that the Mobile TV broadcast (regulated under the Broadcast Act and the Digital Media Exemption Order) was still captured under Telecom Act regulation by virtue of the transmission facilities being used to deliver the service.

Bell points out that under the Broadcast Act, the transmission facilities are integral to the broadcast:

2.
(1) In this Act,
“broadcasting” means any transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place;
• • •
“program” means sounds or visual images, or a combination of sounds and visual images, that are intended to inform, enlighten or entertain, but does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text;
• • •
(2) For the purposes of this Act, “other means of telecommunication” means any wire, cable, radio, optical or other electromagnetic system, or any similar technical system.

Of course this makes sense. A TV station generates the programs and transmits them, without its operations coming under Telecom Act regulation. The TV services from a cable company are governed by the Broadcast Act.

All broadcasting, by definition, are transmitted using a kind of telecommunications, be it radio waves, copper, fibre or string and soup cans. But the Broadcast Act includes consideration of those transmission facilities and indeed, Section 4 of the Telecom Act specifically carves out broadcasting from its mandate:

4. This Act does not apply in respect of broadcasting by a broadcasting undertaking.

How much more clear can it be? The CRTC argues that “[t]he threshold issue in dispute in this proceeding is whether Bell Mobility and Videotron, in the transport of the mobile TV services to end users’ mobile devices, are operating as Canadian carriers providing telecommunications services and are therefore subject to the Telecommunications Act and policies made pursuant to that Act.” Bell says that its Mobile TV service is sold as a broadcasting undertaking, as acknowledged by the CRTC.

If the Court agrees that the Telecom Act does not apply to the Mobile TV service, then it is simply not possible for the CRTC to have ruled the service to be unlawful under the Telecom Act.

Indeed, this argument would also appear to apply to complaints filed by PIAC about Shomi and Crave TV, which may be why the CRTC issued a note that it was suspending those processes.

These issues and more are certain to be explored during the Regulatory Blockbuster at The 2015 Canadian Telecom Summit, taking place June 1-3 in Toronto. Early Bird savings are available through February 28. Be sure to reserve your place today!

1 comment to Is Mobile TV broadcasting or telecom?

  • Len St-Aubin

    With respect, there is no confusion in the Mobile TV Decision. At its core, the issue before the CRTC was whether a wireless telecommunications common carrier can escape its common carriage obligations under the Telecommunications Act vis-à-vis its jointly-owned content service (mobile-TV) by labelling that service “broadcasting”. The CRTC found that mobile TV is “broadcasting” but that it is being delivered by the common carrier on the same network capacity used to deliver all telecoms traffic. In that configuration, the Commission rightly concluded that the common carrier cannot confer an undue preference on itself, i.e.: on its own content service — “broadcasting” or otherwise.

    In context, whether or not mobile TV is “broadcasting” is mostly a side-show. Since 1991, the Broadcasting Act does not require that broadcasting undertakings own or operate transmission facilities, so an argument based on a link between a broadcaster and transmission facilities has no basis in the Act. Broadcasters can, and do, lease capacity from carriers to reach the public. In some instances, where the same network infrastructure is used by an entity that is both a carrier and a broadcaster, capacity is dedicated — either physically and/or virtually — to either service. For example, telecom services offered by cable-TV operators; and IPTV services offered by telephone companies. Such arrangements have normally been subject to CRTC approval, given the potential: a) in the case of a cable-TV operation, to negatively impact broadcasting; or, b) in the case of a carrier, to negatively impact telecommunications common carriage. In the mobile TV case, there was no evidence of any such dedicated capacity — let alone any approved by the CRTC. Rather, mobile TV was being delivered via the public telecoms network alongside all other traffic, and hence subject to the same common carriage expectations. Any other outcome would give vertically-integrated “converged” companies tremendous opportunity for self-dealing anti-competitive behaviour.

    As for network capacity…. if mobile carriers really have enough to offer bandwidth-intensive multi-channel mobile-TV services subject to such favourable usage allowances, maybe the CRTC should take a close look at whether the much-more-constrained generally applicable usage caps are legitimate economic Internet Traffic Management Practices grounded in real network capacity constraints, or just revenue-maximizing pricing strategies…