As the Canadian Radio-television and Telecommunications Commission began its two-week hearing into television policy on Monday, the various interest groups began planting their self-serving stakes. Google doesn’t want YouTube to be regulated by the commission. The Ontario government and others want the CRTC to force Netflix and similar services to contribute to Canadian content. And funds like the Canada Media Fund and Shaw Rocket Fund want to ensure they don’t lose their funding.

It’s all so predictable, which makes sitting through hours of these presentations so boring. But, despite chairman Jean-Pierre Blais’s best efforts, we’re not getting to practical solutions here or any concrete idea of what TV is going to look like in 10 years or even five.

The CRTC’s Communications Monitoring Report shows that the adoption of Netflix alone in Canada is on a dramatic rise. Now almost a third of English-language households have subscriptions. But this hasn’t resulted in a dramatic drop in cable and satellite subscriptions. About 85% of Canadian households have some sort of regulated pay TV subscription, either through cable, satellite or IPTV (Bell Fibe/Telus Optik etc.). The percentage is falling, but not fast enough to panic. At least not yet.

As technology evolves, the difference between YouTube, Netflix and Bell TV becomes more and more irrelevant from a regulatory perspective. Internet-based television connections like Bell Fibe use the same data links to send TSN’s five feeds as they do to send House of Cards and that latest cat video. At this point, we could deliver all television services in Canada to most consumers via the Internet. We have the technology to do that.

Bureaucratic momentum

The biggest reason we haven’t moved everything online is bureaucratic. And not in the sense of regulation (though that’s part of it), but in the sense of having large media empires like Bell, Shaw, Rogers and Quebecor, that own the exclusive rights to high-value programming and deliver it through the regulated system because the regulated system pays them for it and consumers haven’t been too tempted to change that.

So long as the CRTC imposes a 5% tax on cable revenues that are to be redirected to Canadian content (including community television channels), and forces content channels to devote certain parts of their schedules and certain percentages of their revenue to Canadian content, there will be an incentive to move more content out of the regulated system and onto an unregulated one. And eventually we will pass that tipping point where there’s no must-see TV on the regulated system and consumers start abandoning it in droves.

Fortunately for the CRTC, it has time. It can prepare for this. But it has to decide now which way it will go: expand its reach to include purely online forms of video delivery, or contract its reach to eventually get out of the TV regulating business completely.

You can’t regulate Internet content

There have been some cases for the former that try their best to pass the sanity test (Jason Kee, Public Policy & Government Relations Counsel at Google, asked rhetorically if the CRTC would start regulating animated GIFs, too). Proponents of regulatory expansion say the CRTC should only regulate video that is sold, not stuff put on YouTube for free. They say there should be a minimum revenue before regulation kicks in. They say we should focus on companies like Netflix instead of trying to regulate all video.

But there isn’t really a way to do this sanely. Not without censoring the Internet, or dissuading companies like Netflix from making their videos available here, or forcing them to blackout their videos to Canada for fear of being taxed. Or creating some sort of grey market for content, where some content is legal and other content is illegal. Or creating a chill among all content creators in this country. Or just pissing off the Canadian public.

(And the federal government didn’t waste any time making it clear that it will not support any move to tax Netflix or YouTube, with heritage minister Shelly Glover issuing a statement Monday evening.)

The CRTC’s New Media Exemption Order is a policy decision in which it has convinced itself that it can regulate content on the Internet but simply chooses not to do so. It is trying to make rules out of de facto reality to maintain the illusion of control. And while it can control the online activities of companies it already regulates like Bell and Shaw, it can’t control Google, Apple and Netflix without prompting a war that might just end in those companies abandoning our country.

So the CRTC has little choice but to maintain a hands-off approach to Internet content. And that means that eventually, maybe five or 10 or 20 years down the road, it will have to take its hands off television content as well, because there won’t be any difference between the two.

The CRTC needs to start now to plan for the day when television regulation becomes irrelevant. while not allowing the telecom giants to abuse their power in the meantime.

It’s taking steps in that direction, proposing relaxing rules for specialty channels and third-language services, and giving consumers more choice in terms of channel selection. And it’s trying to find ways to encourage more competition for cable TV providers, by extending an exemption order so that smaller players like Colba.net and VMedia can set up TV distributors in big cities using IPTV without needing a licence first.

Cancon’s future

But it faces a bigger challenge in determining how to promote Canadian culture in the future. So much of the Canadian television industry is based on regulated transfers of money, from broadcasters and distributors to production funds to independent producers. That system will eventually collapse or evaporate, and we need to find a replacement.

One possibility is by doing something like taxing Internet access and sending that money to the federal government or a fund like the Canada Media Fund (which is already funded in part by the government anyway). But that creates a system where one government-appointed body acts as the gatekeeper, deciding what Canadian content is worth supporting. It discourages competition and innovation.

Or the CRTC could do nothing, and let Canadian video content stand on its own with little support from the broadcasting system. This could result in Canadian media giants collapsing or being taken over by larger U.S. giants. We could lose a large part of our identity.

It’s a scary thought for the industry, and those champions of Canadian content, but I haven’t seen a viable long-term alternative.

The CRTC’s future

I’m not saying the CRTC will cease to exist. It will still have a vital role to play, so long as there are aspects of telecommunications that need regulatory help. Radio is still broadcast through scarce radio frequencies which need to be regulated, though they too will eventually move to Internet-based distribution.

Internet access needs a regulator so long as there’s a finite number of cables reaching into our homes. And though the technology used to deliver it bears little resemblance to what it was at first, the telephone is still a tool we use regularly and will be with us for some time.

The CRTC has a job to do, to ensure that the TV industry plays fair with itself and keeps the best interest of consumers, workers and the Canadian public in mind. But it also has to look forward to the day when it has to decide to stop regulating the unregulateable and focus on where it can make a difference for the better.

But the commissioners are only human. So we — the industry, the public, the government — have to be part of that discussion. Through our comments and guidance, we must help the regulator build this road toward the future where choice is infinite and the only limit to content is creativity and no one but us can decide what we can and cannot watch.