This bulletin provides an overview of key developments in telecommunications, broadcasting, and copyright law from May to October, 2024, including the Canadian Radio-television and Telecommunications Commission’s (“CRTC”) decision and orders finalizing the contribution framework for online undertakings, Bill C-288 receiving royal assent, and the most recent Copyright Board tariff setting decisions, among other topics.
Top News
The CRTC issued a decision and orders finalizing the contribution framework for online undertakings in The Path Forward – Supporting Canadian and Indigenous content through base contributions (Broadcasting Regulatory Policy CRTC 2024-121-1 and Broadcasting Order CRTC 2024-194). Online undertakings that have “annual contribution revenues” over $25 million from Canadian broadcasting activities across all services during the previous broadcasting year will be required to contribute 5% of those revenues to support Canadian and Indigenous content. The CRTC’s orders also contain conditions of service setting out how these new contributions must be allocated.
CRTC
Regulatory Policies and Decisions
Telecom Regulatory Policy CRTC 2024-180, Competition in Canada’s Internet service markets – The CRTC has mandated the provision of aggregated wholesale high-speed access services over fibre-to-the-node (FTTN) and fibre-to-the-premise facilities (FTTP) by incumbent local exchange carriers (ILECs) and large cable carriers, subject to certain exemptions and exclusions. These services allow resellers to compete in the provision of downstream retail Internet services. New ILEC FTTP deployments are excluded from the mandate for 5 years. Cable carrier FTTP deployments are also excluded from the mandate. Carriers that are required to provide mandated access and their affiliates do not have regulated access to mandated services in their incumbent wireline serving areas.
Telecom Decision CRTC 2024-233, Wholesale roaming service - Review of rates and rate-setting approach – The CRTC has determined that the tariffed wholesale roaming rates may no longer be just and reasonable. Rather than initiating costing proceedings for rates, the CRTC decided that wholesale roaming rates shall be commercially negotiated and, if carriers are unable to come to an agreement, they can ask the CRTC to set rates through final offer arbitration, similar to the approach the CRTC has adopted for its mobile virtual network operator (MVNO) framework.
Telecom Decision CRTC 2024-238, Facilities-based wholesale mobile virtual network operator (MVNO) access tariffs – Expanding the scope to include enterprise and Internet of Things customers – The CRTC has decided to extend its MVNO framework to cover enterprise and Internet of Things data services. Eligible regional wireless carriers can now seek to negotiate rates for this access with the three national wireless carriers and, if they are unable to come to agreement on rates, ask the CRTC to set rates through final offer arbitration. The MVNO regime is intended to be a temporary regime that allows regional carriers to begin providing service to end-customers while they expand their own network coverage.
Online News Decision CRTC 2024-262, Exemption Order from the Online News Act granted to Google – The Online News Act received royal assent on June 22, 2023. On June 7, 2024, Google LLC notified the Commission that it had reached an agreement with the Canadian Journalism Collective (CJC) under which it would contribute $100 million annually to Canadian news businesses and filed an application to be exempted from the Act. The Commission launched a public consultation to determine whether Google had demonstrated that it met the criteria for exemption. After examining the record for this proceeding, the Commission determined that Google’s Search platform met the requirements in the Act and Regulations for exemption and granted Google a five-year exemption. The exemption conditions include ensuring a mechanism is in place requiring the CJC to admit annually any news businesses that did not respond to the open call and that can attest they could be designated as eligible under section 27 of the Act. The Commission also requires annual reports from the CJC to ensure it operates in a transparent manner. This exemption order comes into effect October 28, 2024, and will remain in effect for five years from this date provided that the Agreement between Google and the CJC remains in effect.
Public Consultations
Broadcasting Notice of Consultation CRTC 2024-137-1 and Broadcasting Notice of Consultation CRTC 2024-138-1 – The CRTC initiated two consultations designed to receive input from the public on the use of accessibility features by online undertakings as part of the implementation of the Online Streaming Act. The two public consultations were focused on closed captioning and described video/audio description. The consultations initially closed in August, 2024, but the CRTC subsequently reopened the consultations for a second period, to allow members of deaf, deaf-blind, and hard of hearing communities and of blind and partially sighted communities to participate in the proceedings. The new deadlines for the closed captioning and described video/audio description consultations are November 13 and November 20, respectively.
Broadcasting Notice of Consultation CRTC 2024-164 – In July 2024, the CRTC issued a call for comments on modifying the Independent Local News Fund (ILNF) to account for expanding eligibility, ensuring the quality of news and accounting for recipients operating in rural, remote, and underserved communities. Additionally, the CRTC sought comments on how it should modify existing allocation methods for funding, how to ensure equitable distribution of funds, and whether a cap on funding from the ILNF should be implemented. This consultation relates to the objective of distributing additional funds from online contributors and licenced broadcast distribution undertakings in the 2024-2025 fiscal year. Comments and replies closed in September 2024.
ISED
Right to Repair Consultation - As reported in our July 2024 bulletin, ISED and Environment and Climate Change Canada held a consultation to gather feedback from Canadians and inform policy direction regarding Canadians’ ability to repair consumer products such as household appliances and consumer electronics like cell phones and computers. The consultation is part of a broader effort by the federal government to reduce electronic waste and ensure Canadians can keep their devices working longer. The consultation closed on September 26, 2024 with roundtable consultations to follow.
Policy, Licensing and Technical Framework for Supplemental Mobile Coverage by Satellite Consultation – As reported in our June 2024 bulletin, ISED commenced a consultation on use of satellite services to supplement terrestrial mobile coverage. The consultation contemplates a supplemental mobile coverage by satellite framework in the 600 MHz, 700 MHz, 800 MHz cellular, AWS-1, AWS-3, and the Personal Communications Systems bands. The period for comments has closed.
Court & Copyright Board Decisions
Teksavvy Solutions Inc. v Bell Canada (2024 FCA 121) – In July 2024, the Federal Court of Appeal (FCA) ruled that the CRTC has discretion in determining how it will establish wholesale internet access rates. This decision comes in response to TekSavvy's argument on appeal that the CRTC failed to apply a method to establish rates. The FCA interpreted the plain meaning of ‘method’ or ‘technique’ broadly to find the CRTC may set rates that are just and reasonable for the purposes of the Telecommunications Act by taking into account a variety of interests. Additionally, the FCA dismissed TekSavvy’s arguments concerning bias due to conduct by the CRTC Chair. Teksavvy has sought leave to appeal this decision to the Supreme Court of Canada.
Federal Court File T-743-24 – In July 2024, the Federal Court granted a website-blocking order that requires broadcasters to block websites streaming sports league matches. This order is unique in that it pertains to multiple live sports broadcasts, including live National Basketball League games, National Hockey League games and Premier League Soccer matches for next year, in a single order. Additionally, the order permanently bans the defendants from broadcasting unlicensed content. The order includes a mechanism to add other live sports events via a court judgement, as was used on July 12, 2024, to block sites from illegally streaming the UEFA Euro 2024 final between Spain and England. This order follows precedents set by the court for other site-blocking cases including: Bell Media Inc v. GoldTV.Biz, 2019 FC 1432; TekSavvy Solutions Inc v. Bell Media Inc, 2021 FCA 100; Rogers Media Inc. v. John Doe 1, 2022 FC 775.
SOCAN Tariff 22.D.3 – Online Allied Audiovisual Services (2014-2024) – In September 2024, the Copyright Board set rates for the last ten years of communication over the Internet of musical works in SOCAN’s repertoire that are part of audiovisual programs. The Tariff established a main royalty rate of 1.9% of relevant revenues and a low-use royalty rate of 0.8% of relevant revenues. If the service provider charges per-programming fees, it will pay at least 1.3¢ per program communicated. If the service provider sells subscriptions to end-users, it will pay at least 7.5¢ per subscriber. Finally, in the case that the service provider has no revenues whatsoever in a given year, the royalties are $15.
Retransmission of Distant Radio Signals (2019-2023) – In October 2024, the Copyright Board set rates for the years of 2019-2023 for the distribution by cable operators and other broadcasting distribution undertakings of out-of-market conventional radio stations. The Tariff established a royalty rate of $12.50 per retransmission system per year for Small Retransmission Systems, Unscrambled LPTVs and Unscrambled MDSs, and a rate of 8 cents per premises served for any other retransmission system.
Other Legislation
Bill C-288 An Act to amend the Telecommunications Act (transparent and accurate broadband services information) – Bill C-288 (An Act to amend the Telecommunications Act (transparent and accurate broadband services information) received royal assent on June 20, 2024. The legislation amends the Telecommunications Act to require Canadian carriers offering fixed broadband services to provide certain transparency indicators and measures along with information related to broadband services (e.g. ‘typical’ download and upload speeds in addition to service quality metrics during peak periods).
Bill C-69 An Act to implement certain provisions of the budget tabled in Parliament on April 16, 2024 – Bill C-69, the federal government’s budget implementation legislation, received Royal Assent in June 2024. Bill C-69 amended the Telecommunications Act to, among other things, require telecommunications service providers to provide subscribers with a self-service mechanism allowing them to cancel or modify their contract for telecommunications services and to inform subscribers, before the expiry of their fixed-term contract, of other service plans that they offer. It also amends that Telecommunications Act to prohibit the charging of certain fees (for example, fees related to the activation or modification of a telecommunications service plan).
