The Canadian Radio-television and Telecommunications Commission last week issued its much-anticipated ruling on the legality of Internet throttling, a controversial practice employed by some Internet service providers that reduces speeds for certain applications. The Canadian Association of Internet Providers, which represents smaller, independent ISPs, filed a complaint with the CRTC over Bell's practices earlier this year.
The Commission denied CAIP's complaint, ruling that Bell treated all of its customers – both retail and wholesale – in the same throttled manner.
There is little doubt that Bell comes out the winner in this round as the CRTC sided with the company on most key issues. It agreed that there was network congestion due to peer-to-peer usage and that Bell was therefore acting reasonably by implementing some network management techniques to address the congestion concerns. Moreover, it rejected fears that Bell's actions were motivated by a desire to undermine competition and it concluded that the mere act of reducing Internet speeds does not rise to the level of controlling content (a violation of the Telecommunications Act).
While the CRTC's decision to permit Bell's throttling practices is disappointment to CAIP and net neutrality advocates, the decision is not a total loss for them since the Commission made a clear commitment to addressing the issue of net neutrality and network management in a formal proceeding in July 2009.
In fact, after Bell issued a press release claiming that the decision "confirmed that network operators are in the best position to determine how to operate their networks effectively and efficiently, to allow fair and proportionate use of the Internet by all users," Len Katz, the Vice-Chair of the CRTC, quickly responded by cautioning that "someone told me Bell put out a press release that said the commission upheld its position that network management practices are a fundamental right of theirs. That's not what we said at all."
The CRTC decision is therefore not the final word on net neutrality in Canada, but rather the first word on it. Moreover, should the Commission come to the conclusion that downgrading some applications is consistent with current Canadian law, there is the likelihood of growing calls from within Parliament to change the law (New Democrat MP Charlie Angus, the author of Private Member's bill on net neutrality, was quick to condemn the CRTC decision).
Indeed, it is important not to lose sight of how much has changed in the past year. In the fall of 2007, net neutrality was viewed as a fringe issue in Canada without much political traction. In the span of 12 months, there has been a major CRTC case, the Angus bill, a rally on Parliament Hill, a more vocal business community supporting net neutrality, and a gradual shift of this issue into the political mainstream.
In the United States, the change has been even more dramatic – a Federal Communications Commission ruling on the throttling activities that aggressively ordered a cable provider to stop certain practices, proposed legislation in the U.S. Congress, and a President-elect who has been outspoken on the need to preserve net neutrality.
In light of these developments, the net neutrality debate has shifted from whether there should rules on network management, to what those rules should be. Opponents of net neutrality legislation argue that the current Canadian law is sufficient to address any significant network management concerns. Yet the CRTC seemed unable to fit the concerns associated with Internet throttling into the current prohibitions against discriminatory practices and interfering with content.
Canada is still in the early stages of addressing tough questions of what constitutes reasonable network management practices. While the slow pace of regulatory hearings is a source of frustration for many, the Commission's acknowledgement last week that it "will try to establish the criteria to be used in the event that specific traffic management practices need to be authorized" indicates that the issue is still far from settled.
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 email@example.com or online at www.michaelgeist.ca.