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Focus: Bell mobile TV decision a ‘step in the right direction’

Net neutrality
|Written By Michael McKiernan

Canadians will have to keep standing up for net neutrality if they want to prevent fast- and slow-lane Internet traffic from taking hold in this country, according to a Toronto technology lawyer.

The Canadian Radio-television and Telecommunications Commission recently shut down an attempt by Bell Mobility and Vidéotron to favour their own mobile TV services over their rivals using data charges. Safwan Javed, who practises with entertainment and media firm Taylor Klein Oballa LLP, says the decision was a “step in the right direction” but fears the regulator is taking a back seat in the fight for net neutrality.

“Canada has been slow to react with respect to net-neutrality regulation. The CRTC’s mobile TV decision is in line with net-neutrality principles, but it’s worth noting that this decision was the result of complaints launched by third parties as opposed to the CRTC taking the initiative to forge policy of its own accord,” says Javed, who has written on net neutrality for the Public Interest Advocacy Centre.

“The fact the CRTC decision was reactionary suggests that while there’s a recognition of net neutrality’s value, there may not be an impetus to lead the pack in protecting or enforcing it.”

Javed says he expects the CRTC will get plenty more opportunities to weigh in on the issue as large telecommunications companies continue to push the boundaries of net neutrality but notes it will require more individual Canadians and public interest groups to step up and complain.

“Large corporations constantly look to make more money and net neutrality potentially stands in the way of some of that money,” says Javed.

“Consequently, I think the CRTC will be forced to make more decisions connected to net neutrality.”

The mobile TV case started in 2013 when a Manitoba graduate student, Benjamin Klass, launched a complaint about Bell Mobility’s Bell mobile TV application. The service allowed customers to stream up to 10 hours of programming on their mobile devices without having the usage count against their monthly wireless data caps. The same content viewed on competing platforms counted against the cap with the potential for much higher data costs. A number of consumer groups subsequently joined Klass’ CRTC application with Vidéotron added to the respondents over similar concerns about its own mobile TV application,

Bell argued the pricing for its mobile TV application caused no harm to consumers and claimed that the service should be subject to broadcast regulation rather than more stringent telecommunications rules. However, the CRTC panel disagreed and found Bell had contravened the Telecommunications Act by conferring an “undue and unreasonable” preference on subscribers to its own services.

“The CRTC always wants to ensure — and this decision supports this goal — that Canadians have fair and reasonable access to content, that everyone can access the bridges without restrictions. We also want to ensure that abuses of power in the system do not go unchecked,” said CRTC chairman Jean-Pierre Blais in a Jan. 29 speech announcing the decision.

“It may be tempting for large vertically integrated companies to offer certain perks to their customers and innovation in its purest form is to be applauded. . . . But when the impetus to innovate steps on the toes of the principle of fair and open access to content, we will intervene.”

Bell has appealed the decision to the Federal Court of Appeal, and its associate director of media relations, Jason Laszlo, told Law Times in a statement: “Bell Mobile TV is an innovative broadcasting service and it should be regulated as such, not as a telecom service.”

John Lawford, the executive director and general counsel of the Public Interest Advocacy Centre that intervened in the mobile TV decision, says Bell’s claim that its offering benefited consumers looks good at first glance but doesn’t stand up to closer scrutiny.

“We’re looking out for all consumers, not just those who happen to be customers of the most dominant players. Allowing some providers to give themselves a deal may be a short-term benefit to some customers, but in the long term, it locks out competition and innovation and everybody suffers,” he says.

Ren Bucholz, a lawyer with Toronto’s Lenczner Slaght Royce Smith Griffin LLP, says the breadth of the CRTC’s mandate as well as the size and reach of its regulatory subjects make its job more difficult.

“It’s a house divided that the CRTC rules over — broadcast and telecom — with different rules for different entities. With Bell, you have a company that is wearing both hats,” he says. “Some of the distinctions that persist in the legislation don’t make as much sense as they might have 50 years ago, which allows for the sort of shell game Bell is playing here.”

Allen Mendelsohn, an Internet law specialist based in Montreal, says he’s confident the CRTC will continue to protect net neutrality under its current leadership.

“I think they will take whatever opportunities are granted to them to address net neutrality. I think Blais has been clear that it is a concern of his. It’s not the only subject that he has gone out of his way to sound more consumer friendly on. I personally think it’s something everyone should be concerned with. Very large multimedia companies should not really be able to control what people see on the Internet.”

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