Columns

Canada’s Net Neutrality Enforcement Failure

Two years ago, the Canadian Radio-television and Telecommunications Commission conducted a much-publicized hearing on net neutrality, which examined whether new rules were needed to govern how Internet providers managed their networks. While many Internet users remain unaware of the issue, behind the scenes Internet providers employ a variety of mechanisms to control the flow of traffic on their networks, with some restricting or throttling the speeds for some applications.

The Commission unveiled its Internet traffic management practices in October 2009, establishing enforceable guidelines touted as the world’s first net neutrality regulations. Where a consumer complains, Internet providers are required to describe their practices, demonstrate their necessity, and establish that they discriminate as little as possible. Targeting specific applications or protocols may warrant investigation and slowing down time-sensitive traffic likely violates current Canadian law.

While there was a lot to like about the CRTC approach, the immediate concern was absence of an enforcement mechanism. Much of the responsibility for gathering evidence and launching complaints was left to individual Canadians who typically lack the expertise to do so. Nearly two years later, my weekly technology law column (Toronto Star version, homepage version) posts an investigation into the system that reveals those concerns were well-founded.

Although the CRTC has not publicly disclosed details on net neutrality complaints and the resulting investigations, I recently filed an Access to Information request to learn more about what has been taking place behind the scenes. A review of hundreds of pages of documents discloses that virtually all major Canadian ISPs have been the target of complaints, but there have been few, if any, consequences arising from the complaints process. In fact, the CRTC has frequently dismissed complaints as being outside of the scope of the policy, lacking in evidence, or sided with Internet provider practices.

July 8, 2011 — 29 comments — Columns

Why Competition Holds the Key to a Broken Broadcast System

As the Canadian Radio-television and Telecommunications Commission concludes its hearing on the consolidation of the Canadian communications market into a handful of corporate giants (so-called vertical integration) and embarks on a “fact-finding exercise” on the impact of online video services (today is the submission deadline), my weekly technology law column (Toronto Star version, homepage version) notes the only obvious conclusion from the hundreds of submissions and hours of debate is that Canada’s broadcast law framework is broken.

The Commission’s struggle to make sense of the changing corporate and technological landscape – alongside lobbying for new industry codes of practice and Internet regulations – is rooted in a regulatory framework premised on scarcity rather than abundance. When the law was crafted, broadcasters occupied a privileged position, since the creation of video was expensive and the spectrum needed to distribute it scarce. As a result, the government established a licensing system complete with content requirements and cultural contributions designed to further a myriad of policy goals.

Yet among the more than 40 policy goals found in the current Broadcasting Act, the word “competition” does not appear once. The absence of competition may have made sense when there was little of it, but in today’s world of abundance featuring a seemingly unlimited array of content and distribution possibilities, fostering competition among broadcasters and broadcast distributors such as cable and satellite companies might hold the key to reforming the system.

What might a competition-focused broadcast policy look like?

July 5, 2011 — 13 comments — Columns

CRTC Faces Charges of Bias in Online Video Consultation

Earlier this month Konrad von Finckenstein, the chair of the Canadian Radio-television and Telecommunications Commission, was asked at an industry conference about the role of consumer groups in telecom regulation. He responded that consumer groups generally do not have a problem ensuring their views are heard, but that their effectiveness depended upon getting organized and developing the necessary knowledge and expertise to fully participate in regulatory proceedings.

Yet just as von Finckenstein was providing assurances to the consumer community, my weekly technology column (Toronto Star version, homepage version) notes the CRTC was erecting barriers to their participation in a consultation on online video services such as Netflix and AppleTV. In fact, the consultation (labeled a “fact-finding exercise”) has been marred by charges of CRTC bias that has led at least one consumer group to pull out altogether.

June 29, 2011 — 11 comments — Columns

Is Internet Access A Human Right?: The Implications for the Rules of Access

Given the critical role it plays in communication, culture, and commerce, most people now recognize the importance of Internet access. My weekly technology law column (Toronto Star version, homepage version) notes a new report for the United Nations Human Rights Council takes Internet access a step further, however, characterizing it as a human right.

The report, written by Frank La Rue, the U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (an internationally regarded human rights expert who was once nominated for the Nobel Peace Prize), took the political world by storm when it was released several weeks ago.

The report explored the need to ensure that citizens have Internet connectivity and also the rules associated with that access. As a result, it was highly critical of policies that block access to content, threaten to cut off Internet access due to allegations of copyright infringement, and fail to safeguard online privacy.

June 21, 2011 — 136 comments — Columns