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Access Copyright's Reply and Sur-sur-replies Dec 22 2010

By Howard Knopf, Esq.

AC has filed a lengthy reply  to the submissions filed on December 17, 2010.

This contains rather ample reply to the allegedly "improper"  alleged "sur-reply" from several participants.This might be called "sur-sur-reply".

In any event, this presumably completes the process of written submissions on AC's application for an interim decision in the form of a interim tariff. Amongst many interim rulings in recent days and weeks, the Board refused to have an oral hearing on this matter.

I will say that it would be quite unremarkable if the Board were to completely reject this application for any one of many obvious reasons, including lack of jurisdiction, lack of evidence, and procedural fairness grounds. The many submissions of the objectors and intervenors provide ample evidence and legal reasoning urging this result.

If, on the other hand, the Board decides to issue an interim tariff in this situation, the decision would likely be very controversial and potentially very vulnerable to being overturned on judicial review ("appeal" in non-lawyer parlance) by the Federal Court of Appeal.

Everyone should be aware that time stops between December 21 and January 7 (i.e.during the the Federal Court of Appeal's Christmas Recess) for computation of deadlines . There will be  a deadline of 30 days from the Board's decision (excluding those days, assuming that the Board's decision comes during the Recess)  to make an application for judicial review.

If the Board is going to issue an interim tariff, and accepts a version of the notion that sky will fall on January 1, 2011 without such a tariff, one can expect a ruling potentially at any moment. This would be interesting because the Board often takes many months and sometimes as much as 18 months or more after submissions are complete to deal with matters of much less controversy and financial significance. An interim tariff, in this instance, could be in effect for many, many years. Recall that SOCAN's inaugural internet tariff dates back to 1995 and is far from resolved. Of course, there was no interim tariff in that situation.

HK

Full post as published by Excess Copyright on December 22, 2010 (boomark / email).