In football terms, we’re going up to the booth for a review of the call on the field.
Bell is appealing the CRTC’s NFL Mobile Decision (2011-765) in the Federal Court of Appeal on the basis that the CRTC made errors of law and jurisdiction.
Bell’s application sets out 5 grounds of appeal, the first four said to be errors in law, breaching Bell’s right to procedural fairness:
- The CRTC wrongly applied a reverse onus to Bell (in requiring that Bell establish that any preference or disadvantage was not undue);
- The CRTC held Bell to an improper standard of proof;
- There was no evidence to support significant CRTC findings;
- The CRTC misapplied the reverse onus to find evidence; and,
- The CRTC decision infringes the Copyright Act.
The court filing has the case files that the CRTC had in reaching its decision under the alternative dispute mechanism – as an aside, had anyone been able to find this file on the CRTC’s website?
The CRTC’s ruling set an important precedent for content delivered on new media platforms. This appeal will determine the way the game will be played.
Update (1:10 pm February 20, 2012): Bell’s 157 page filing with the Federal Court of Appeal was dated January 10 and TELUS submitted a 31 page answer on January 30. In its answer, TELUS argues that the CRTC made no error in law or jurisdiction on the first 4 points of the appeal and is entitled to judicial deference ‘since the Commission is involved in the interpretation of its “home statute” and policy issues which involve the exercise of its broad, polycentric mandate.’ On the 5th point, TELUS argues that Bell’s filing is premature, since the CRTC’s decision only asked for a report.
In a separate response to the CRTC regarding Bell’s January 30 report to the CRTC, TELUS observed that “Bell has indicated that it has complied with the prohibition against exclusivity set out in the Vertical Integration Policy by entering into a new, non-exclusive, mobile content licensing agreement with the NHL.’ TELUS has asked the CRTC to clarify that auto-renewal of an existing agreement would be considered a new contract, for the purposes of Vertical Integration Policy.