My weekly Law Bytes column (Toronto Star version, homepage version ) discusses the renewed net neutrality concerns in Canada in light of comments from Videotron President Robert Depatie promoting the establishment of a new Internet transmission tariff that would require content creators of all sizes to fork over millions of dollars for the right to transmit content to ISP subscribers. I note that there is mounting evidence that content and application discrimination is already here. In Canada, the Depatie remarks join a handful of examples that include Telus' 2005 decision during a labour dispute to block access to a website that supported its union (blocking hundreds of additional websites in the process), Shaw Cable's ten dollar surcharge for "premium" Internet telephony service (which generated a complaint to the CRTC from Vonage, a leading Internet telephony provider), and Rogers' decision to limit bandwidth for legitimate peer-to-peer software applications (without full public disclosure of the practice).
While opponents of network neutrality legislation argue that a competitive marketplace removes the need for government intervention, the reality is that the market for broadband services in Canada is at best an oligopoly. Most Canadians have limited choice, with consumers in urban areas choosing between indistinguishable cable and telephone Internet packages, while Canadians in rural communities are often left with no broadband options at all.
In light of the current environment, a recent Canadian telecommunications policy review directly addressed the network neutrality issue.
The Telecommunications Policy Review Panel report, a massive 400-page government-commissioned study that detailed a new vision to reshape Canadian telecommunications regulation recommended the establishment of a new legislative provision to "confirm the right of Canadian consumers to access publicly available Internet applications and content of their choice by means of all public telecommunications networks providing access to the Internet."
Furthermore, according to documents obtained under the Access to Information Act, this spring Industry Canada quietly conducted an informal consultation on stakeholder responses to the report that confirmed industry support for a complete implementation of report's recommendations. In a memorandum to Industry Minister Maxime Bernier, officials noted that the "department solicited stakeholders' views on their top five and bottom five recommendations" and concluded that "most firms only oppose recommendations if they are implemented separately, and believe the Panel's report should be implemented as a package."
Despite mounting consumer concerns, the Panel report's recommendation, and industry support for reform implementation that would include a network neutrality provision, there is widespread speculation that Bernier will ignore the issue by focusing exclusively on deregulation when he unveils his plans for telecommunications reform. In doing so, he would not only eviscerate many statutory consumer protections, but also risk accelerating the development of a two-tier Internet in Canada.