The Canadian Radio-Television and Telecommunications Commission (CRTC) is a regulatory agent and enforcer of the Broadcasting Act designed to promote and sustain Canadian cultural sovereignty[1]. It is ultimately a protectionist measure made to defend Canadian-owned and operated facilities and content production from foreign influence[2]. Over the decades, the CRTC has pressured broadcasters to comply with their regulatory proceedings; however, the CRTC has never once revoked a license for disobeying the conditions of a license[3]. Although the CRTC is intent on serving the public interest, the New Media Hearing was sparked by uncertainties in the broadcasting industry by stakeholders regarding the wide use of mobile devices and the internet to access broadcasting programs[4]. These uncertainties have challenged stakeholders significantly in that they have not been able to adequately respond to the implications of new media platforms (i.e. social networking tools like Facebook) and technologies (i.e. mobile telephony) with enhanced broadcast receiving capabilities[5]. The discourse surrounding this new media hearing resonates closely with stakeholder interests rather than the public’s interest. To explain this, it is important to review the CRTC’s logical arguments that have compelled these new media proceedings.

According to the CRTC, the catalyst for the new media hearings resulted from a study published outlining the stakeholder views towards the issue of new media. This document was titled Perspectives on Canadian Broadcasting in New Media. Although the title may be misleading, it specifically describes the complications that are occurring in the broadcasting system and the difficulty of applying traditional business models on an unresponsive system tailored to satisfying individual niches. In this document, the CRTC states that since the publication of the document Report on the Future Environment Facing the Canadian Broadcasting System in 2006, there have been tremendous advances in the technology[6]; however, these changes could have easily been predicted because technology is never in a static mode, it is constantly fluctuating. In this recent revision of the 2006 new media exemption order, the Commission has emphasized the growing penetration rate of residential broadband access of 93% coupled with the increasing proliferation of mobile devices which have altered and channeled traditional broadcasting to the information superhighway[7]. Stakeholders feel that advertisers are now finding it less successful to advertise through traditional ‘old’ media forms because of the attractive increase in the reliance and growth of social networking websites like Facebook, Twitter or Myspace[8]. Stakeholders also insist that the CRTC should somehow find a way to increase support for Canadian content by providing sufficient, clear “definitions concerning new media broadcasting”[9]. Stakeholders also feel that their efforts in producing Canadian content are being undermined by new media and that they feel the CRTC must revise their 2006 exemption order in accordance with the Broadcasting Act[10]. Furthermore, stakeholders feel that the unregulated aspect of new media poses a significant risk to traditional broadcasting. Stakeholders are also concerned about the shift in the audience attention, away from traditional media to “internet-enabled new media broadcasting companies”[11].

After the conclusion of their report, over 65 submissions responded to the Commission’s call and they unanimously urged the Commission to review other issues that have a related impact other than mostly stakeholder views. To further understand their logical reasoning, it will be helpful to consider their position on the following issues: levying ISPs to create a New Media Fund; reviewing the 2006 and 1996 new media exemption order as well as network neutrality[12].

Throughout the proceeding, several submissions argued in favour of an ISP levy (i.e. ACTRA)[13]. According to Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), there exists an insufficient number of quality Canadian content and that “3% of ISP broadband revenues and 0.6% of wireless service provider revenues”[14] would be enough to fund Canadian new media content. However, the CRTC’s existing behavior has been to respond favorably to stakeholder interest and proceeding with such a ridiculous levy will be out of the question. Interestingly, Konrad von Finckenstein, who is currently the head of the CRTC, was a former department head of the Competition Bureau of Canada (Bureau) which has disagreed vehemently with the concept of an ISP levy because of an undesired taxation it would be to the consumer[15]. Furthermore, telecommunication companies have insisted that such a levy will damage consumer relations, arguing that such a levy will have a detrimental effect during these economically uncertain times[16]. This ISP levy is also a response to the ubiquitous nature of peer-to-peer networks that have been responsible for damaging the music industry, film and print. Submissions representing a pro-levy position feel that such a levy will help stimulate and put money back into industries that have suffered the consequences of pirating[17].

As stated above, the new media proceeding is a response to solving stakeholder perspectives. However, based on submissions by Google, wireless industry and broadcasters are urging that this proceeding will only complicate the current industrial policies. Furthermore, the mere act of regulating new media is not at all corresponding to the public interest. According to David Ellis’s submission, the CRTC is so preoccupied with content management that they do not see the most important benefit to the public—access[18]. He insists that the new media hearing is simply the result of gaining as many subsidies as possible to help them “survive another paradigm shift in their business models”[19]. On the other hand, ACTRA and Society of Composers, Authors and Music Publishers of Canada (SOCAN) feel compelled that content regulation is the answer to the internet issue[20]. SOCAN argues that there should be 51% of Canadian content present on commercial websites[21]. The reason why they feel that new media should be consider a form of broadcast distribution undertaking (BDU) is to further the license arrangements of SOCAN and ACTRA[22]. It cannot be in the complete public interest for the CRTC to fundamentally service the interests of ACTRA and SOCAN. This will result in the imminent creation of taxes intent on imposing regulatory policies on issues that have been prevalent for a very long time, which further contextualizes that ACTRA and SOCAN have a serious agenda to fulfill during these new media proceedings.

The final issue that will be touched on during the new media proceedings is network neutrality[23]. Although network neutrality is a highly complicated term, the basics are all that is necessary to understand the way the CRTC understands it. Essentially, network neutrality is defined as a networks ability to access the internet without being subject to traffic management methods, primarily through the use of Deep Packet Inspection (DPI), to place a priority on one byte and hinder another[24]. DPI is an intricate and highly intelligent technology that can “identify applications more accurately” and remove any undesired security threats[25]. The reason Internet Service Providers (ISPs) want to manage traffic is to adequately accommodate the congestion caused by video streaming[26]. However, DPI technology may be used to discriminate among applications like peer-to-peer applications as well as Voice-Over Internet Protocol (VoIP) applications like Skype, or even certain competitor websites. In this way, network neutrality becomes a significant issue for a consumer who pays a significant bill to have their service tampered with. As discussed earlier, the CRTC may not fully be in the public interest as demonstrated by their rejection of the Canadian Association of Internet Providers (CAIP) application[27]. The CAIP filed a complaint against Bell Canada for their alleged tampering of interest service; however, the CRTC ruled in favour of Bell Canada stating that their traffic management practices had little impact on the objectives of the Broadcasting Act. While this network neutrality topic is not a central tenant of the new media proceedings, it is indeed one of the discussed issues with the broadcasting environment. For instance, in Robert Hester’s submission, he argues that the ubiquitous use of traffic management technologies like DPI is inevitability and is likely to remain in practice for much longer[28]. Instead, he urges the CRTC to reflect on its use value in promoting Canadian content through geo-blocking techniques. He insists that the CBC adopt a similar platform to the BBC’s iPlayer, which he argues takes advantage of P2P technologies to ensure faster, more reliable and cost-effective measure to promoting content[29]. While Hester sets the precedence for an effective use of this technology, the CRTC under Finckenstein may adopt this technique to ensure content is managed more appropriately.

While there are many suggestions that have arisen from 186 submissions to the CRTC, Finckenstein must revert away from his insistence that market forces are distinctively in the public interest—the decisions markets make will benefit the public as a whole[30]. The intent on his speech in 2007 was to address stakeholder concerns, prompted by corporate interests to meet their needs in this ever changing broadband industry[31]. Despite his insistence on the rapid changes in technological change which have resulted in the destruction of old media business models[32], the main focus must be returned towards the public. It may not even be necessary to proceed with the NPH 2008-11 hearing, as it does not have any benefit to consumer welfare. The logic behind this recent decision to review the new media exemption order is flawed and the CRTC must review their true intentions.

Bibliography

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