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Media & Communications Law - Telecommunications - Telecommunications common carriers - Rate regulation - Rates for telecommunications services - Unjust or unfair preference -  

Thursday, July 07, 2016 @ 8:00 PM  

Appeal by Bell Mobility from a decision by the Canadian Radio-television and Telecommunications Commission (CRTC) finding that certain billing practices were contrary to s. 27(2) of the Telecommunications Act. Bell offered live streaming of certain television stations and programming, including video-on-demand. The services were limited to customers who also subscribed to a wireless voice plan, a data plan or a tablet plan. Charges for the service were levied in the form of a time-based fee rather than on the basis of data consumed. The respondents, Klass and others, filed a complaint with the CRTC claiming that the exemption of mobile TV services from data-based billing conferred an undue advantage to Bell and unfair preference to its consumers. As a threshold issue, the CRTC determined that Bell acted as a Canadian carrier providing telecommunications services in the course of transporting mobile TV services to end users’ mobile devices, and were thus subject to the Telecommunications Act. The conclusion recognized that the broadcasting aspect of the delivery of such services did not transform the services into those of a broadcasting undertaking based on the data connectivity and networks required and used to deliver the services. The CRTC determined that Bell’s billing practice was contrary to s. 27(2) of the Telecommunications Act and directed it to eliminate the unlawful practice. Bell appealed.

HELD: Appeal dismissed. Based on a textual, contextual and purposive analysis, it was within the range of reasonable possible outcomes for the CRTC to conclude that Bell Mobility was not acting as a broadcasting undertaking when it provided data connectivity and delivered its mobile TV services to its customers and, therefore, that the Telecommunications Act applied to such services. The delivery of programming may have involved different activities, some of which were governed by the Broadcasting Act and others that were governed by the Telecommunications Act. Transmission of programs through a common carrier’s infrastructure did not transform a telecommunications common carrier into a broadcasting undertaking and exempt it from the application of the Telecommunications Act, as argued by Bell Mobility. Here, Bell customers accessed Mobile TV services through data conductivity and transport services governed by the Telecommunications Act. At the same time, the acquisition, aggregation, packaging and marketing of Bell Mobile TV involved a separate broadcasting function governed by the Broadcasting Act. The CRTC’s decision was thus affirmed.