Bell Mobility offered live streaming of certain television stations and related programming services to customers, including video-on-demand service, to customers who subscribed to wireless voice plan, data plan or tablet plan, charging customers not for data used but rather for time spent accessing the programs. Respondents filed complaint with Canadian Radio-television and Telecommunications Commission (CRTC), claiming that practice of exempting mobile TV services from data charges gives Bell an unfair advantage and unduly discriminates against their wireless customers and Bell’s competitors. Section 4 of Telecommunications Act (Can.) provides that it does not apply to broadcasting by broadcasting undertaking. CRTC noted that Bell was involved in “broadcasting” but found that functions performed by Bell to establish data connectivity and provide transport over wireless access networks was the same whether content being transported was mobile TV services, other broadcasting services or non-broadcasting services. CRTC also found that data connectivity required to transmit programs can only be established if customer acquires telecommunications service. From customer’s perspective, mobile TV services are accessed in same way such customers access other applications. CRTC concluded Bell was providing telecommunications services in violation of Act. Bell’s appeal dismissed. Exemption applies only “in respect of broadcasting by a broadcasting undertaking”, not all broadcasting. Person who has no control over content of programs and is only transmitting programs for another person, not transmitting such programs as broadcasting undertaking. Bell transmitted its mobile TV programs simultaneously with its voice and other data communications using same network. Transmission of voice and non-program data to customers is not “broadcasting” and Act not applicable. Reasonable result that all transmissions by Bell would be subject to same Act. Reasonable for CRTC to determine that Bell, by transmitting programs as part of network that simultaneously transmits voice and other data content, was merely providing mode of transmission and not acting as broadcasting undertaking.
Bell Mobility Inc. v. Klass (Jun. 20, 2016, F.C.A., Eleanor R. Dawson J.A., Wyman W. Webb J.A., and Donald J. Rennie J.A., A-193-15) 270 A.C.W.S. (3d) 517.