While the early focus of the CRTC New Media hearings are unsurprisingly focused on levies and regulation, an important additional issue is quickly emerging. CRTC Chair Konrad von Finckenstein tried to set the stage for the hearings by noting that they are limited strictly to new media broadcasting. He then followed with a question to Alain Pinot of the CCA in which he stated that he does not see the relationship between this hearing and the network management hearing. Von Finckenstein's comments come on the heels of the comment from Rogers over the weekend that they run a "dumb pipe" with respect to content.
It seems to me that the comments are related as they present a vision that puts content in one box (new media hearings and the Rogers dumb pipe) and network management in another (net neutrality hearings and a smart pipe/traffic shaping). I think this is wrong and points to key question. To use Rogers' terminology – can an ISP that engages in active network management but does not directly filter content be said to run both a smart pipe (the network management) and a dumb pipe (for content)?
I think the answer is no – current network management necessarily leaks into content and cannot be said to be a dumb pipe. First, it is clear that the deep packet inspection technologies employed by ISPs may already leak into content management. The expert report on DPI for the CRTC lists the following uses:
- Off-line tool to analyze network traffic
- Identify and block or shape P2P traffic
- Handle security threats or nuisances such as Distributed Denial of Service (DDoS) attacks
- Service tiering and premium service control
- Parental control & URL filtering
- Personalized advertising, targeted service offers etc
- Third party service management
I would argue that this list already involves content management including URL filtering, personalized advertising, and targeting service offers. All of these services can have an effect on the end-user's experience and is not consistent with a dumb pipe.
Second, the ongoing talk of traffic prioritization based on a particular website (ie. fast lane vs. slow lane) is quite obviously not a dumb pipe for content purposes. If ISPs move in that direction (as many have openly speculated), there will be little doubt that network management and content management will have merged.
Third, it is important to recognize that degrading bandwidth on certain applications necessarily has a spillover effect on content. In other words, you cannot have a smart pipe for applications and a dumb pipe for content. The application at issue is BitTorrent, which Rogers and many other ISPs believe can be degraded without having an effect on the content itself. From a competitive perspective, this is wrong since BitTorrent distribution can/does compete with other on-demand video services. By degrading one form of distribution, the other is clearly advantaged. Moreover, the degrading of BitTorrent can arguably "influence the meaning and purpose of the telecommunications" since the slower speeds will have an effect on how the end-user ultimately experiences the content that they are trying to access.
This inability to distinguish between content and application is obvious in the telecommunications space where ISPs do not need to censor the voice conversation to have an effect on the content of the communication. If an ISP were to degrade an Internet telephony service, it would clearly raise competitive concerns (favouring its own VoIP or landline service) and would have an effect on the quality of the communication itself, thereby making it difficult to communicate the content. The impact is clear even if the ISP does not block or censor the actual conversation. The same is increasingly true for broadcast-style content, where the content itself may not be strictly censored or blocked, but the degrading of the communication of the content may still have an undesirable impact.
This issue provides one reason why net neutrality legislation is needed in Canada. The CRTC looked at it in the Bell throttling decision, ruling that throttling does not have an impact on content in violation of the Telecommunications Act. If the CRTC stands by the decision that such actions are consistent with current law, the solution may well be to change the law.
Moreover, this merging of content and application is why the issue cannot be easily dismissed in the new media hearing. When the CBC or a Canadian film maker uses BitTorrent to distribute their content, the ability for Canadians to access that content on an equal footing with other distribution models depends upon a net neutral Internet and should be seen as a key policy tool to ensure that Canadian creators enjoy equality of access. It goes without saying that it is also why Rogers cannot claim to have a dumb pipe in February and smart one in July.