Timothy M. Denton

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Despite this...

Posted by on in Industry News
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You have to hand it to McCarthy’s. Their communications legal luminaries have pursued the goal of subjecting the Internet to the Broadcasting Act since they first became aware of this loathsome innovation, sometime in the mid-2000s, when email attachments  challenged the dominion of the fax machine in the legal profession. (I surmise).


What I am about to show you may take a bit of explaining, but I ask you to trust me that this is worth the effort. Please open your texts of the Holy Writ to page 8 of McCarthy’s legal opinion appended to the Fair Play coalition’s CRTC petition. It deals with the status of “programs” over the Internet, which McCarthy’s, the CRTC, and a great deal of the broadcasting industry would like to believe is true, but is not. I quote:


The CRTC has concluded that the transmission of programs over the Internet constitutes a form of “broadcasting”, a term defined in s. 2(1) of the Broadcasting Act to mean “any transmission of programs,  whether  or  not  encrypted,  by  radio  waves  or  other  means  of  telecommunication  for reception  by  the  public  by  means  of  broadcasting  receiving  apparatus, but ...not ...any  such transmission of programs that is made solely for performance or display in a public place”. 

Despite this, the  Supreme  Court  of  Canada  held  in  the ISP  Reference that  ISPs  do  not  qualify  as “broadcasting undertakings” subject to regulation under the Broadcasting Act when acting solely in their capacity as ISPs , since ISPs only provide the mode of transmission and have no control over the content of the programming.


I think what the “despite” signifies goes like this: “despite the ruling of the CRTC that McCarthy’s in its wisdom managed to persuade a majority of willing Commissioners was true”, the Supreme Court, “in its temerity and ignorance of the CRTC’s assertion of jurisdiction, dared to contradict our long established view”.

These people do not lack intellectual confidence. Pride goeth before a fall.

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Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.


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Guest Thursday, 02 July 2020
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