Appeared in the Toronto Star on March 2, 2009 as Little New in New Media Hearings

The Canadian Radio-television and Telecommunications Commission new media hearings take a break over the next few days before concluding with a steady stream of appearances by Internet service providers, who are certain to argue next week against the imposition of a new ISP tax to fund the creation of Canadian new media.  The break is much needed, as the past two weeks have been huge disappointment with submissions short on specifics, long on rhetoric, and filled with inconsistencies.

While there is plenty of blame to go around, criticism must start with the CRTC, since it set the tone for the hearings with a series of conditions that make little sense.  The Commission tried to limit the hearings to "new media broadcasting," explicitly excluding issues such as net neutrality and the potential regulation of user generated and non-commercial content.

Yet each of these distinctions cause the entire new media hearing edifice to crumble.  In the case of net neutrality, Chair Konrad von Finckenstein opened the hearings by stating that he could not see a connection between new media broadcasting and network management.

Comments and submissions from many groups see an obvious link, however.  For example, the Canadian Conference of the Arts recently noted that "one cannot argue simultaneously that Canadians' access to content is now unlimited, if the companies from which Canadians obtain access to that content, decide to and actually impose their own limits on users' access to, that content, for reasons that involve profit, as much as or even more than they involve ‘pure' traffic management to manage traffic congestion."

While the CRTC approach is designed to follow the Canadian legal model that separates broadcast from telecom, the reality is that the delivery of new media is almost exclusively a telecom matter.  The faulty distinctions point to the need for fundamental reform of Canadian law by converging broadcast and telecom policy.

The divisions between user generated and professional content similarly serve to cloud rather than clarify the situation since there is no generally accepted definition of either term. Millions of Canadians create content (user generated content), much of which could be treated as "commercial" if the presence of advertisements is treated as sufficient to meet the commercial threshold.

The new media disappointment extends beyond the CRTC, however.  The ISPs have yet to appear, but in media commentary some have implausibly argued that they cannot be expected to distinguish between forms of content since they maintain "dumb pipes." Yet these same companies filed hundreds of pages with the CRTC last week in the net neutrality proceeding arguing for the right to employ "smart pipes" that actively manage and monitor their Internet traffic using deep packet inspection technologies.

The who's who of Canadian cultural groups have not done themselves proud either.  While the subject matter may be new media, most groups have offered distinctly old media solutions, focusing on subsidy programs (the ISP tax) or licensing of new media activities without offering much in the way of data or specifics on how such programs would work.

The lack of specifics (other than the general sense that the monies should come from ISPs and be used for the creation and/or promotion of Canadian new media) may be attributable to the inappropriateness of both approaches.  

There are good reasons to support new media funding (which already receives millions from the Department of Canadian Heritage) but the House of Commons, not the CRTC, is the right place for this debate.

Licensing may have been the preferred solution for broadcast in times of scarcity, when limited bandwidth meant limited licenses with conditions for television and radio, but the Internet world is one of abundance, with no place for license-based models of yesteryear.

If blame is to go around, then the public commentary also deserves mention.  The hysterical reaction to the hearings with claims that it represents a massive threat to Canadian freedoms is an unnecessary overreaction to a policy process that may be broken, but hardly foreshadows the end of the Internet in Canada.  With little new or innovative in these new media hearings, they seem destined to end not with a bang but a whimper.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.