Net Neutrality in Canada Still a Work in Progress

The release last week of the Canadian Radio-television and Telecommunications Commission's report on Internet traffic management – known as the net neutrality decision – attracted national attention. Canadians, Internet service providers, and politicians debated whether the regulator had struck the right balance in addressing how ISPs manage Internet traffic. While some headlines seemed to suggest that the CRTC has given Canada's ISPs the green light to do as they please, my weekly technology law column (Toronto Star version, homepage version) argues the reality is that the decision establishes several notable requirements and restrictions, but leaves the door open for further action from the government.  

First, the commission adopted a new test to determine reasonable traffic management practices.  Where a consumer complains, ISPs will be required to describe their practices, demonstrate their necessity, and establish that they discriminate as little as possible.  The CRTC added that targeting specific applications or protocols may warrant investigation and slowing down time-sensitive traffic likely violates current Canadian law.

Second, the commission rejected arguments that the market would ensure ISPs provide adequate disclosure on how they manage their networks.  Instead, it mandated full disclosure of traffic management practices, including information on when they occur, which applications are affected, and their impact on Internet speeds.

Third, the CRTC banned the use of personal information obtained through deep-packet inspection for anything other than traffic management purposes.  By also prohibiting the disclosure of such information, the commission ensured that inspecting user traffic cannot be parlayed into marketing opportunities.

These conditions ensure that traffic management is not a free-for-all. The days of ISPs arguing they can do whatever they please on their networks – as some intimated during the summer hearing – are over.

With the CRTC framework in place, it now falls to Industry Minister Tony Clement to become more engaged on the issue.  Both the Liberals and NDP have expressed support for net neutrality and some groups have renewed their demands for new legislation.

Yet Clement can advance the issue in several meaningful ways without tabling a bill.  Critics of the CRTC approach rightly note that the onus falls to consumers to compile evidence of traffic management practices that run afoul of the commission's test and file complaints.  

When asked about the issue last week in the House of Commons, Clement stated that he is "watching those providers very closely and I do not want to see a situation where consumers are put at risk in terms of their access to the Internet."  He can go several steps further by asking the CRTC to conduct regular compliance audits of ISP traffic management practices and by providing financial support to consumer groups who wish to conduct their own investigations.

The federal government also can play a significant role in establishing neutrality for wireless Internet access.  The CRTC acknowledged that many of the same issues arise in the wireless context and that it expects wireless carriers to follow the same guidelines.  Within the next two years, the federal government will conduct another spectrum auction as part of the digital television transition.  Clement could incorporate net neutrality requirements directly into the bidding process, effectively mandating neutrality into new wireless services.

Finally, Clement should acknowledge that net neutrality concerns are largely a function of an uncompetitive marketplace that allows ISPs to leverage their positions without fear of losing customers.  The best way to address net neutrality is therefore to give priority to increased competition in the Canadian Internet marketplace.  

Multiple studies have concluded that Canadians pay higher prices for slower speeds as compared to many other countries.  If Clement can solve that problem, he'll likely go a long way to addressing net neutrality in the process.


  1. Devil's Advocate says:

    “Critics of the CRTC approach rightly note that the onus falls to consumers to compile evidence of traffic management practices …”

    Just as it always was, and always will be!
    As long as this is the case, the rest of the ruling is useless. They’ve once again simply maintained the Status Quo via careful definition.

    Consumers haven’t got the resources or the support to effectively deal with ISP shafting. The CRTC and our government are perfectly aware of this, as they are the enablers. So, we again gain absolutely nothing.

  2. Glass half-empty?
    There are more than enough people in Canada to raise consumer issues on service levels.

    It’s a start and much more than what we could have expected from the regulator only a short year ago.

  3. Financial Support
    CRTC “providing financial support to consumer groups who wish to conduct their own investigations”

    This is a great idea. A company such as Bell has very deep pockets, and a team of lawyers at their disposal which gives them strong advantages against anyone (customers, or wholesale “partners”) who might try to challenge them. Something like this would certainly help.

  4. Nancy Paterson says:

    Bellheads, Netheads
    (…) the track record of
    Bell heeding the CRTC’s rulings has not been good. Last year Bell was
    ordered to offer matching speeds to their wholesale GAS customers to
    that of their retail offerings, they simply never complied. This ruling
    only applies to time sensitive traffic, most of which Bell does not
    currently throttle. While I think most people would agree that its
    completely wrong to throttle the traffic of a third party wholesale
    customer, the reality is that Bell does this every day and will continue
    to do so regardless of what the CRTC tells them.
    from NANOG listserv Oct 21-09
    Nancy Paterson
    PhD candidate, YorkU, Comm & Culture

  5. Hate to say this, there are a lot of “can”, “could” and “would” type of wishful thinking in the article, but very little actual commitments from Tony Clement.

    CRTC has been on their “light touch” approach since a decision by fromer industry minister Maxime Bernier in 2006. i.e. they don’t want/need to lift their fingers. They haven’t done a thing to protect the Canadian citizens from the providers even though it is _supposed_ in their mandate.
    >In telecommunications, the CRTC ensures that Canadians receive reliable telephone and other telecommunications services, at affordable prices.

    Where is the affordable price that thy seeks? Where is the reliable service when there is throttling because of the alleged “congestion” in the network? How can they claim to serve Canadians when they simply ignored the 6390 comments from individuals that commented against UBB?

    There is a strong need for the government to change the priorities in the “Telecom Act” to put the average Canadian first and to ensure that the prices are affordable. None of these would matter until CRTC stop passing the buck.

  6. Charles Baker says:

    Community College Teacher, Computer Security
    These provisions ensure nothing whatsoever except continuing deterioration of broadband service. The large ISP’s will of course use their power to discriminate against independents until there are none left — there is nothing to stop them but words. They will do what they want with personal information because there is nothing to stop them again but words. They will continue to discriminate against traffic that adversely affects their business model because there is nothing to stop them but words.

    Laws and regulations without oversight and sanctions are just words. This will be about as effective as the do-not-call list has been — which is to say, not the least bit.

  7. Guidelines not rules
    If you think about it the CRTC just gave the big ISPs a framework on how to violate net neutrality. As long as they make up some bullsh*t excuse on what they did and make sure no one can verify it without giving away “trade secretes” they can justify almost anything. Even if they fine them for something they can just keep paying the fines and hold out until the competition is dead by their actions.

  8. @Nancy Paterson
    Ar you referring to Telecom Decision 2008-117, and CyberLink’s complaint which resulted in 2009-111? As I understand it, the jist of CyberLink’s follow-on complaint had to do with reduced speeds on the fibre to the node. The CRTC indicated that Bell had too narrow a view on the scope of 2008-117, in that they considered it to be confined to the last mile copper (which is what ADSL is). This probably came from para 22:

    “the Commission notes that this proceeding is limited to addressing the issue of matching service speeds of the ILECs’ aggregated ADSL access services, which are provided over copper facilities. The Commission considers that the incentive to invest in alternative facilities and broadband services would not be materially impacted by a requirement applicable to the copper-based aggregated ADSL services. Further, the Commission considers that the ILECs’ investment incentives will be principally impacted by their need to compete with facilities-based competitors in retail broadband markets. In addition, as noted above, ILECs will be able to recover their causal costs associated with the provision of these wholesale copper-based services, including their investments in the associated facilities.”

    While Bell may in fact have been in compliance with the letter of 2008-117, they were not in compliance with the spirit of the order.

  9. MattBouchard says:

    Humanities Computist, Net Neutrality/CopyLeft Evangelist
    I normally agree with you wholeheartedly, Michael. However, I strongly disagree with this statement:

    “The best way to address net neutrality is therefore to give priority to increased competition in the Canadian Internet marketplace.”

    I think the neutral network problem is not one that can be easily fixed with the capitalism band-aid. If I purchase a hammer and it does not perform as expected, I can return it and try a different brand. I know how a hammer should work, I know that the nails and wood are not to blame, and I know that my technique is not the problem. The Interwebs are not the same. Most of the people I talk to have no idea how the internets work. How can they make an informed consumer decision when they don’t know if the problem lies with their computer, the site/content they are accessing, their router or home network setup, their neighbourhood, or their ISP? This problem lies with all magic technology. I have a bum wireless card in my MacBook Pro, and every time I call Apple, the first thing they say is “Must be your router.” In situations that are too complicated (read: too many other parties involved to soak up blame) for the average user, we need better solutions than the magic market.

    Your blog is important. Thanks for writing it.

  10. Dissolve the CRTC!
    Time for a change.

  11. I infer from this discussion that many feel that the CRTC’s Motto should be:

    The CRTC: We pretend to regulate and big telecom pretends to heed us.

  12. Peter Meldrum says:

    How many of you were around years ago when the CRTC had a big investigation into the price of Long Distance service from the then monopoly Bell? They finally get the VP responsible on the stand and he says bluntly they charge what they like and we can damn well pay it. Does it look like Bell has changed? They have just got their “competitors” to go along with the same scam.

    Michael this ruling is totally useless as have most of the recent rulings been. Don’t be misled by the fancy language. This is just a rubber stamp to the big boys to “Carry On” !!

  13. Alan Strangis says:

    Question re: Star Post title…
    The Star version of this article is titled… “Internet providers ease back on throttle” but on the personal site it’s changed. Is there any evidence that speed has gone up, even if it’s word of mouth?

  14. Optimistic post, but strongly disagree with you. The CRTC should have done a lot more with respect to this issue based on it’s public mandate. Sure providing funding to the CIPPIC to help fight this would be a great accomplishment on your part, but consumer groups shouldn’t have to get involved here at all.

    The CRTC is supposed to protect consumers from interference on telecommunication lines by these companies. The CRTC chair is so behind on where Canada is with respect to bandwidth ranking, do he even know what bandwidth is?

    Geist common, you shouldn’t settle for this. I’ve been a supporter for Fair Copyright for Canada for 2 years now. Don’t ruin this by throwing in your own agenda’s through the CIPPIC, or else you’ll be throwing away a lot of support here starting with me.

  15. If government gets involved here and forces laws in, than it’s quite representing that the CRTC can not fulfill it’s public mandate either through the current leadership or through public confidence. What’s the point then on having a regulator, if we leave complaints to consumer groups who have to fight this in court. We already have a teleco complaints commission set up for similar issues.

  16. theironwolf RT @jessebrown:#CRTC Chairman Konrad von Finckenstein “hasn’t seen any studies” that Canada is falling behind on broadband.

    From tweets on the right: Full interview in mp3 is here:

  17. Laurel L. Russwurm says:

    What Congestion?
    The first time Bell Canada mentioned congestion was when they were caught throttling other company’s customers. Congestion has never been proven.

    The fact that the CRTC finds discriminating against particular customers acceptable behavior indicates they are not doing their job.

    The fact that the CRTC would allow Bell Canada to dictate prices and caps to the Independent ISPs indicates they are not doing their job.

    The fact that the CRTC has left it up to internet customers to determine whether Bell Canada is treating them badly indicates they are not doing their job.

    Why do we need the CRTC again?

  18. I don’t think we need to dissolve the CRTC, but we need to give it a new mandate. If the CRTC wants complaints than everyone who is still being “throttled” since this decision came down should start to complain. Let’s give them their mandate, with mass complaints.

  19. Alan Strangis says:

    Question re: Star Post title…
    The Star version of this article is titled… “Internet providers ease back on throttle” but on the personal site it’s changed. Is there any evidence that speed has gone up, even if it’s word of mouth?

  20. Re: Alan
    No reports on forums of any change in speed. Nor any changes on this end either. Still being throttled.

  21. Bell’s definition of Network Management.
    Well I just checked bell’s website and they do mention network management… However they did not include VoIP in their real-time section I wonder why (PS: for those who dont know, VoIP is true real-time, who cares about not reciving emails at the second it’s sent… it’s never the case anyhow).

  22. @Anonyme
    Of course they don’t consider VOIP in their “Real-time applications” section (quotes as per Bell’s website). VOIP competes directly with their long distance service. They definitely have a strange definition of “real-time applications”…

  23. deep-packet inspection? That sounds ridiculous!
    If traffic management is the only purpose, all the ISP needs to care about is the source, destination, and size of the packets, NOT the content of the packets.

    As a consumer, I paid a certain monthly fee for a certain amount of bandwidth. What I use the bandwidth on should be my decision. Why is Bell given the authority to judge what I can or cannot read?

    In case someone is wondering, I am a Linux user. I download and BT linux distro’s quite often. These are huge files that fit on either a CD or DVD disk. I don’t enjoy my connection being slowed down, or even disconnected on a few occasions.

  24. If ever there was a name that suited someone’s character, it would be Finkenstein. This guy is a complete and utter Telco sellout and loser to the largest degree. He needs to take a shameful look in the mirror to see how poor a human being he really is.
    Finkenstein and the rest of the CRTC board should be fired and replaced with people who have integrity and serve the best interests of Canadians instead of Telcos and ISPs.

  25. Rubbish Removal says:

    Rubbish Removal
    In Canada If you are fed up with the useless items that are piling up at your home, then this is the right time when you can hire the service of the trash removal organization.

  26. Junk Removal says:

    Junk Removal
    The term rubbish can be applied broadly to everything from tree branches to old paint, creating a problem for one-size-fits-all disposal methods. To know more detail visit: