Appeared in the Toronto Star on July 20, 2009 as Web Neutrality Hearings Paving The Way For Action

Regulatory hearings on Internet traffic management practices held in windowless rooms in Gatineau, Quebec in the middle of summer are not likely candidates to attract much attention.  Yet for seven days this month, hundreds of Canadians listened to webcasts of Internet service providers defend their previously secret practices while engaging in a robust debate on net neutrality.

The interest in the Canadian Radio-television and Telecommunications Commission hearing may have caught the regulator off-guard (the webcast traffic was, by a wide margin, its most ever for a hearing), but it was the testimony itself that was the greatest source of surprise.

The seven-day hearing was billed as a debate over whether rules are needed to govern ISP network management practices. While many Internet users remain unaware of the issue, behind the scenes ISPs employ a variety of mechanisms to control the flow of traffic on their networks, with some restricting or throttling the speeds for some applications.

Those practices have proven highly contentious, with creator interests, technology companies, privacy rights organizations, and consumer groups all expressing fears that they may curtail innovation, invade user privacy, stifle competition, and create an uneven playing field for content distribution.  ISPs argue that such measures are essential to provide their subscribers with a good experience at an affordable price.

Days of testimony revealed the issue is far more complicated than the rhetoric might suggest. First, there is a wide variation in the use of traffic management tools with a different approach for pretty much every major ISP.  Some throttle all the time (Cogeco), some during large chunks of the day (Bell), some only during congested periods (Shaw), and some not at all (Telus, Videotron).

Second, ISP disclosures are woefully inadequate. For example, Rogers admitted that it charges tiered pricing for faster upload speeds but that all tiers are throttled to the same speed when using peer-to-peer applications.  In other words, subscribers to the Extreme service pay $59.99 per month and are promised fast upload speeds (1 Mbps) but actually get the same upload speed as Express subscribers who pay $46.99 per month and are promised upload speeds at half that rate.

Third, notwithstanding the perception that network traffic is growing dramatically, the reality is that the rate of growth is actually slowing. ISPs acknowledged the could cope with the growing demand through reasonable new investment in their networks.

Given all the competing evidence, what is the Commission likely to do? A four-pronged approach is possible.  

First, it could adopt a test advocated by the Open Internet Coalition, a group of technology companies that includes Google, that permits traffic management practices so long as they further a pressing and substantial objective, are narrowly tailored to the objective, and are the least restrictive means of achieving the objective. This test would give useful guidance to ISPs and ensure that there are appropriate limits on traffic management practices that have no clear correlation with network congestion.

Second, it can affirm the role of current law against leveraging network management for unfair advantage. Third, the Commission can establish minimum disclosure requirements including information on traffic management practices such as time, targets, and the actual speeds consumers are likely to experience. Fourth, it can dictate limits on the use of personal data that ISPs obtain from traffic management.

Alternatively, the Commission could decide to do nothing and simply retain the power to address complaints as they arise. If so, significant political pushback is likely with political parties lining up in the fall in support of net neutrality legislation.

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.