The CRTC has released its 2009 new media decision (full decision here) and it looks not unlike the 1999 new media decision. Days of hearings, thousands of pages of submissions and the Commission has side-stepped the pressure to "do something," by maintaining its hands-off approach. It concluded that regulatory intervention would get in the way of innovation and that a compelling case was not made that additional support through an ISP levy was needed. Indeed, the decision notes that "the Commission is of the view that parties advocating repeal of the exemption orders did not establish that licensing undertakings in the new media environment would contribute in a material manner to the implementation of the broadcasting policy set out in the Act."
There is at least one very noteworthy change to the new media exemption, however. The CRTC was clearly troubled by allegations of undue preferences being granted by wireless providers (the issue raised by the Weather Network and discussed in this March column). It has therefore proposed amendments prohibiting such practices:
The Commission proposes amendments to the New Media Exemption Order, prohibiting new media broadcasting undertakings from conferring an undue preference on themselves or another person, or subjecting any person to undue disadvantage. To provide guidance on the type of situation that could give rise to an undue preference in the new media environment, the Commission offers the example of a new media broadcasting undertaking engaged in programming distribution that acquires content from an affiliated programming undertaking either to the exclusion of non-affiliated programming undertakings or on more favourable terms or conditions than those applicable to non-affiliated programming undertakings.
Looking ahead, the Commission now plans to review this decision within five years, initiate a reference at the Federal Court to sort out the status of ISPs within the Broadcasting Act (there were competing legal opinions on whether ISPs qualify as broadcasters under the Act), and it has called for the creation of a comprehensive national digital strategy. It is also extending the scope of new media monitoring by requring "new media broadcasting undertakings to report details of their new media broadcasting activities, which may include broadcasting content usage and offerings, revenues and expenditures, at such time and in such form, as requested by the Commission."
The decision also includes a powerful concurring opinion from Commissioner Tim Denton, who makes the case that the problem lies with the Broadcasting Act itself. He argues that the legal framework must be changed, concluding that
The rights of Canadians to talk and communicate across the Internet are vastly too important to be subjected to a scheme of government licensing. If more Canadians were aware how close their communications have come to being regulated by this Commission, not by our will but because we administer an obsolete statute, they would be rightly concerned. Fortunately, good sense prevailed and the evidence for intervention was not yet present. But this confluence of facts may not always be there. Thus the call for a government review of a digital transition strategy is both wise and opportune. Let us fix this problem.
Overall, the decision to avoid new regulations and levy schemes is a good one. Further, the intervention on undue preferences is both welcome and represents a potential first step in addressing the broader concerns associated with net neutrality. The CRTC is the first to get criticized when it gets things wrong (or does nothing at all), but deserves praise when it gets things right.