Earlier this year, I launched an access-to-information request with the CRTC requesting all records related to net neutrality complaints filed under the Commission’s 2009 Internet traffic management practices decision. The result was a post titled Canada’s Net Neutrality Enforcement Failure, which listed dozens of complaints and a discouraging lack of CRTC investigation into them. The post concluded:
After more than 30 investigations in nearly two years, it is clear improvements are needed. At a minimum, the CRTC should be publishing all public complaints and resolutions so that the issues obtain a public airing. Moreover, the system needs penalties for violations as well as pro-active audits to ensure Internet providers are compliant with their obligations. Without change, the CRTC’s net neutrality rules offer little protection for Canadian Internet users.
Yesterday the CRTC took a first step in this direction by releasing new guidelines for responding to complaints and enforcing the rules. The best aspect of the ruling is a commitment to publish quarterly reports featuring a summary of the number and types of complaints it has received, including the number of active and resolved complaints. Moreover, any findings of non-compliance will be published on the Commission’s website and will include the ISP’s name and the nature of the complaint. The move toward greater transparency is welcome and an important step in pressuring ISPs to comply with the guidelines. The new guidelines also establish a strict timeline for responses by complainants and ISPs, which should help avoid Xplorenet-type situations that dragged on for months before the ISP addressed complaints over its traffic management practices.
The remainder of the guidelines set out the specific requirements for individual complaints. The CRTC says complaints are appropriate if:
- the ISP has not met the disclosure requirements of the ITMP policy;
- the ISP’s ITMP adversely affects his or her ability to access certain applications (for example, if he or she is continuously disconnected from an application, resulting in the application becoming unusable);
- the ISP has changed an ITMP to make it more restrictive or has introduced a new ITMP without providing 30 days’ notice;
- the ISP has otherwise failed to comply with the requirements of the ITMP policy; or
- the ISP’s ITMP violates the Act.
The CRTC says the complainant must provide evidence describing:
- what part of the ITMP framework the complainant believes the ISP has not followed (see the list above for examples of circumstances that would warrant a complaint);
- when the problem occurred and whether it is a recurring problem;
- what application was affected;
- how the application was affected; and
- any steps taken to resolve the complaint directly with the ISP, including the ISP’s response(s).
Unfortunately, these requirements will be beyond the capabilities of most Internet users, who typically lack the technical expertise to mount an effective complaint. If the Commission is serious about enforcement, it should supplement the user complaints-based approach with pro-active audits of ISP practices (the Commission contemplates third-party audits only after a statistical pattern of user complaints about a specific ISP).
The pro-active audits should include regular reviews of ISP disclosure practices (and analysis of whether the traffic management practices as described by the ISPs meet the ITMP requirements) and technical analysis to determine whether the actual practices create unintended consequences that violate the rules. When combined with the new transparency commitments, it would help ensure that Canadian net neutrality rules can be more effectively enforced and remove the fiction that users can easily file complaints against their ISP.