Telecom Commission Letter Addressed to Distribution List and Attorneys General
Ottawa, 1 September 2016
Our references: 8663-P8-201607186
By Email & Facsimile
Distribution List; Attorneys General
RE: Application by Public Interest Advocacy Centre regarding section 12 of An Act respecting mainly the implementation of certain provisions of the Budget Speech of 26 March 2015, L.Q. 2016, c. 7 (Bill 74)—Call for comments on the Commission’s preliminary views related to (1) suspension of the application, and (2) interpretation of section 36 of the Telecommunications Act, S.C. 1993, c. 38
By application dated 8 July 2016, the Public Interest Advocacy Centre (PIAC) requested that the Commission provide certain declaratory and other relief regarding section 12 of Bill 74, relying on arguments that challenged the constitutionality of section 12.
On 27 July 2016, the Canadian Wireless Telecommunications Association filed an application with the Superior Court of Québec, challenging section 12 of Bill 74 on constitutional grounds.
On 5 August 2016, Commission staff issued a letter suspending all deadlines related to PIAC’s application, subject to further procedural guidance from the Commission.
The purpose of this letter is to seek comment from interested persons on the Commission’s preliminary views regarding the issues set out below. The Commission intends to carefully consider all submissions filed in response to this letter before pronouncing on these issues.
1. Suspension of PIAC’s application
The relief PIAC is seeking in its application is integrally connected to the constitutionality of section 12 of Bill 74. This is a matter now squarely before the Superior Court of Québec. The issue thus arises as to whether the Commission ought to suspend consideration of PIAC’s application.
There are circumstances in which it is appropriate that a court and the Commission be seized of the same subject matter. However, the Commission is of the preliminary view that, in the particular circumstances of this case, it would be appropriate to suspend consideration of PIAC’s application while the constitutional issues are before the courts, given the significance of the constitutional issues with respect to the relief sought and the fact that the Superior Court of Québec is a court of inherent jurisdiction.
Interested persons may file comments on this preliminary view within 15 days of the present letter. As the applicant, PIAC may file comments that include a reply to any comments filed by interested persons within 5 days of the filing date for interested persons.
2. The Commission’s interpretation of section 36 of the Telecommunications Act
Irrespective of whether PIAC’s application is suspended, it would be useful for the Commission to address the legal issue as to whether section 36 of the Telecommunications Act (the Act) applies to the blocking of end-users’ access to specific websites on the Internet. Among other things, this would provide greater clarity and certainty as to whether Canadian carriers are prohibited from blocking access to specific websites in the absence of Commission approval, and could be of assistance in the particular circumstances of any future applications seeking relief under section 36.
Section 36 of the Act states:
Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.
The Commission is exclusively responsible for the administration of this provision and will remain so, regardless of any finding with respect to the constitutionality of section 12 of Bill 74.
Further, as a matter of law, the Act binds Her Majesty, both in right of Canada and in right of any province.Footnote1
The Commission has previously provided some guidance with respect to section 36. InTelecom Regulatory Policy 2009-657Footnote2 the Commission reviewed the Internet traffic management practices (ITMPs) of Internet service providers. In that decision, the Commission found that an ITMP that led to the blocking of the delivery of content to an end-user would engage section 36 of the Act and, consequently, would require the prior approval of the Commission in order to be implemented.
The Commission also found that such an application would only be granted where it would further the telecommunications policy objectives set out in section 7 of the Act. At the time, the Commission considered that this would require exceptional circumstances.
Consistent with the above, the Commission is of the preliminary view that the Act prohibits the blocking by Canadian carriers of access by end-users to specific websites on the Internet, whether or not this blocking is the result of an ITMP. Consequently, any such blocking is unlawful without prior Commission approval, which would only be given where it would further the telecommunications policy objectives. Accordingly, compliance with other legal or juridical requirements—whether municipal, provincial, or foreign—does not in and of itself justify the blocking of specific websites by Canadian carriers, in the absence of Commission approval under the Act.
Interested persons may file comments on this preliminary view within 15 days of the present letter.
Adam Balkovec, CRTC, firstname.lastname@example.org
Laurie Ventura, CRTC, email@example.com
Geoff White, PIAC, firstname.lastname@example.org
Attorneys General (by facsimile):Footnote3
Attorney General of Canada, 613-954-1920
Attorney General of Alberta, 780-425-0307
Attorney General of British Columbia, 250-356-9154
Attorney General of Manitoba, 204-945-0053
Attorney General of New Brunswick, 506-453-3275
Attorney General of Newfoundland and Labrador, 709-729-2129
Attorney General of Northwest Territories, 867-873-0234
Attorney General of Nova Scotia, 902-424-4556
Attorney General of Nunavut, 867-975-5128
Attorney General of Ontario, 416-326-4015
Attorney General of Prince Edward Island, 902-368-4910
Attorney General of Quebec, 514-873-7074
Attorney General of Saskatchewan, 306-787-9111
Attorney General of Yukon, 867-667-5790
Distribution List (by email):
- Footnote 1
See: section 3 of the Act.
- Footnote 2
Review of the Internet traffic management practices of Internet service providers,Telecom Regulatory Policy 2009-657, 21 October 2009.
- Footnote 3
Certain attorneys general have provided notice that they do not intend to participate in the proceeding initiated by PIAC’s application. These notices are available on the public record of that proceeding, accessible through the Commission's website at www.crtc.gc.ca under "Public Proceedings" or by using the file number provided above.
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