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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.

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July 8, 2011 29 comments Columns

The CRTC’s Over-the-Top Video Consult: Calls for Competition, Regulation, & De-Regulation

The final batch of submissions in the CRTC’s over-the-top video fact finding exercise were posted yesterday. I focused on the lack of evidence and the fear of competition for foreign content in my first post on the submissions. The latest group of submissions includes many of the biggest names – the telcos, Internet companies, and creator groups. The participants in this consultation fall into three main groups: those seeking competition, those who want more regulation, and those who want de-regulation.

What remains is the next step for the CRTC. It seems certain that there will be a full scale hearing, but the question is whether the Commission will cave to pressure from some groups for something immediately, or wait until the next new media hearing round in 2014.  Given the lack of actual evidence – this has been a fear-finding exercise rather than a fact-finding one – the CRTC should surely label this a watching brief and wait until 2014.

A glance at each of the submission groups:

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July 7, 2011 16 comments News

EU To Target Data Roaming Fees

The European Union has announced plans to tackle data roaming fees by establishing a cap of the costs per MB charged to consumers. An OECD study recently found that Canadians face some of the highest roaming fees in the developed world.

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July 7, 2011 1 comment News

The Netflix Fear: Competition (But Not the Competition You Might Think)

The CRTC’s deadline for submissions to the over-the-top video “fact finding” exercise passed yesterday. While many notable submissions will likely appear on the CRTC site today, there are enough there already to get a good feel for where this is headed. I wrote last week about the perceived bias against consumer interests in this consultation, but the reality is that the industry arguments are thus far so devoid of actual evidence that the Commission should be well positioned to leave the issue alone at least until the next new media hearing in 2014.

The submissions include the usual fear mongering about services like Netflix. The winner so far comes from the Stingray Digital Group, which warns:

Just as Napster wreaked havoc on the record label industry in the early 2000’s and played a major role in the collapse of the music retail industry, so too will the new breed of OTT music services materially disrupt licensed Canadian music services and the Canadian broadcasting system if the status quo is left unchecked.

Other submissions contains lots of rhetoric about the dangers of an unregulated over-the-top services market, but no actual evidence of real harm.

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July 6, 2011 13 comments News

NY Times on Internet Access as a Human Right

The NY Times has published a supportive editorial on the recent UN report linking Internet access to basic human rights. The editorial references graduated response rules, calling the French and UK laws “draconian.”

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July 6, 2011 9 comments News