The court set out the issue as follows:
the issue to be decided is whether, when providing access to the "transmission of programs ...", ISPs are broadcasting. The answer to this question hinges on a consideration of the findings of the CRTC as to how programs are transmitted on the Internet on the one hand, and the exact purport of the definition of the word "broadcasting", on the other.
The conclusion, which relied heavily on the Supreme Court of Canada Tariff 22 decision between SOCAN and the Canadian Association of Internet Providers:
Relying on the logic adopted by Binnie J. in CAIP in construing the word "communicate" under the Copyright Act, I am of the view that the definition of "broadcasting" is also directed at the person who transmits a program and that a person whose sole involvement is to provide the mode of transmission is not transmitting the program and hence, is not "broadcasting".
As for promoting the Broadcasting Act objectives, the court stated:
Because ISPs' sole involvement is to provide the mode of transmission, they have no control or input over the content made available to Internet users by content producers and as a result, they are unable to take any steps to promote the policy described in the Broadcasting Act or its supporting provisions. Only those who "transmit" the "program" can contribute to the policy objectives.
Finally, the comment that puts net neutrality back on the table:
In providing access to "broadcasting", ISPs do not transmit programs. As such, they are not "broadcasting" and therefore they do not come within the definition of "broadcasting undertaking". In so holding, I wish to reiterate as was done in CAIP that this conclusion is based on the content-neutral role of ISPs and would have to be reassessed if this role should change (CAIP, para. 92).
Broadcasting and Telecom
It did not attract much attention, but last week the CRTC ruled that it is extending its Internet Traffic Management Practices framework to wireless data services. The ITMP framework address some net neutrality concerns. The CRTC had previously indicated that it expected wireless companies to comply with the framework, but the decision (which is effective immediately) provides a stronger legal foundation on the issue.
Liberal Industry critic Marc Garneau has published an op-ed on the need for a Canadian digital strategy. Garneau calls out the lack of action on connectivity, universal access, net neutrality, and intellectual property reform.