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.