Net Neutrality is Back but is Bernier Listening?

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.


  1. Chris Bruner says:

    I have to write as I recently moved to a farm from Cambridge ON. When I was in Cambridge I was on broadband through the phone system. (DSL). The service was rarely down, and I had few problems. The average download speed was 115K. When there was problems though, it would sometimes take a week before they would come out and fix it, and of course with the dire warning that if the problem was on my end (ie inside the house) I’d still get charged for the service call.
    When I moved to the farm I discovered that the phone service wasn’t through Bell but through a small phone company called Quadro. This phone company is a co-op which means that it’s goal is not to make money for it’s investors, but to provide the best service for it’s investors (which are also it’s customers). I’ve heard though various people that the prices are not dictated by Quadro but by the government, through regulation. This means that we pay more for the service then we really need to, but that’s ok, because if the co-op has money leftover at the year end, I get a cheque.

    Oh yes, the service. It’s either same day or next day. The speed average download speed 130 to 150K. Rarely down, and apparently they are going to be bringing fibre in to the houses in the coming years. (My area isn’t this year, other areas are).

    That’s right. I live on a farm in the middle of nowhere and I get better internet here then I got in the city, and the co-op that’s doing it is being proactive and getting fiber in before it’s needed.

    So when it comes to rural internet service, I feel sorry for the city folks. 🙂

  2. mr
    Mr Bernier is one of the most invisible people in cabinet, and telecom regulations were not on the list of 5 major things (or whatever number it was) that the conservatives thought were really important (like cutting the GST, softwood lumber agreement, the odd “accountability” act, picking the scabs on gay marriage, giving some money to send kids to daycare, and maybe a few other blandishments to its “base”).
    From what I hear, the entire federal government is in paralysis, in almost every area. Nobody does anything for fear of displeasing the government, but they get no policy direction from government either (maybe because even the cabinet is under an effective policy gag order?).
    Despite being a laissez-faire man, Bernier needs to get his act together, because if he doesn’t take control of his portfolio, the decisions he has to make will be made for him, by companies, and those decisions may not be in the best interest of Canadians, the industry as a whole, or even members of his party.

  3. Kevin McArthur says:

    Similarly to the Telus anti-union issues you mention, there are also other cases of censorship on the web. Hostonfibre and MCI-Canada(Verizon) have both been publically reported as having censored content.

    In the MCI case, they attempted to get the police involved and ended up finding that the content they were persecuting was ‘in compliance with the Criminal Code’. Then once the governement would not censor the sites, MCI decided to evict the entire ISP, Epifora from its network.

    The portions of net neutrality that demand non-discriminatory access to the internet for all legal content and subscribers are often under-reported and rarely explained. In your next column, you might give extra attention to the freedom of speech issues surrounding net neutrality and content censorship by these corporations.

  4. Mark Goldberg says:

    You left out part of the TPR recommendat
    You left out the last part of the TPR recommendation in your quote. Yes, Recommendation 6-5 says: “The Telecommunications Act should be amended 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.”

    But it continues with “This amendment should
    (a) authorize the CRTC to administer and enforce these consumer access rights,
    (b) take into account any reasonable technical constraints and efficiency considerations related to providing such access, and
    (c) be subject to legal constraints on such access, such as those established in criminal, copyright and broadcasting laws.”

    Those provisions would appear to permit Rogers traffic sculpting and even Shaws

    On September 21, in Decision 2006-61, the CRTC ruled that certain enhancements that the cable companies used in providing their own services may indeed discriminate, but this was not ‘undue discrimination.’ The TPR recommendation would concur with the CRTC as the correct place to make this determination.

    It appears that the recommendations of the Telecom Policy Review panel’s report may not be as clear as we may want on this issue, as I have been writing:

  5. mr
    Mhgoldberg, neither a nor c would apply to the generalized restricting of protocols Rogers and some other ISPs do. Copyright concerns have little to do with blocking/hindering p2p protocols in general. Firstly, beyond a metaphysical argument, that’s like saying paper or alphabets have something to do with the expression of thought that might be printed on them. Secondly, it is just a poor, prejudiced excuse to get rid of an ISPs more expensive customers. Harming their networks? Give me a effing break? I don’t want to sound too aggressive, but pretending point B is applicable to this discussion is wrong, because if efficiency were a concern to an ISP, it should be taken care of in their users’ terms of service, which often dictate a set number of GB/month that can be uploaded or downloaded. It could even dictate the number of simultaneous tcp connections, if they wanted. Blocking or strangling p2p is done so that internet telcos can freely lie about the speeds and service their internet can deliver, when what they really mean is speed and service their web-site browsing with transparent caching and email can deliver (and maybe later, their PUSH content internut).

    That we are having this discussion of what the internet should be, rather than observing what it IS, and entertaining seriously the notion that it is important that the people who deliver it to your house have some real important stake in defining its content, and some right to be strangling all other content they don’t like, despite for years having the internet GROW AMAZINGLY, and telco and cable profits GROW AMAZINGLY BY SELLING INTERNET BANDWIDTH while effectively observing the neutrality, makes me want to cry.

    Did anyone notice the controversy when Canada Post employees were lambasted (rightly) for refusing to deliver mail because they didn’t like it’s content?

    If content restrictions and protocol restrictions were to be made explicitly legal by regulation then every telco and cable company would inevitably follow them (why compete when you can collude, as allowed by regulation …)), the internet would stagnate, and companies wouldn’t compete by selling internet service, by selling competing push content to passive consumers. THAT ISN’T THE INTERNET. But that is all we’ll have, if were not careful.