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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Day five of the CRTC's network management hearings featured at trio of ISPs, each offering a different perspective on network management issues: Telus (DSL), Cogeco (cable), and Barrett Xplore (satellite). While the three presentations provided a valuable reminder about the differences in network architecture, each had its own important moment.
The key Telus moment came during questioning from Commissioner Len Katz about the impact of the managed IP network (ie. Telus IPTv) on the public Internet. Katz expected to hear that there was no impact, yet Telus admitted that there was an effect. In other words, this is one big pipe and the managed traffic can have an impact on the IP traffic. This is a crucial admission since it highlights how Internet-based activities compete on the same pipe as managed IP ones. In other words, a video on the public Internet effectively competes with a video offered on a video-on-demand service and throttling of the Internet-based video necessarily raises competition concerns.
The Cogeco presentation served to emphasize that without rules, carriers will be free to throttle or limit bandwidth, regardless of any concerns about congestion. This came through when Cogeco was twice asked why it continually traffic shapes on a 24 hour, 7 day per week basis, rather than when there is actual congestion. The response was essentially that it is their network and they are entitled to do as they see fit (assuming that the throttling is legal). The Commissioners should take note that the Cogeco policy and response demonstrates that this is not – as von Finckenstein suggested earlier in the week – a hearing about dealing with network congestion since policies like that employed by Cogeco bear no direct relationship to network congestion.
The Barrett Xplore presentation was highlighted by an attempt to play the P2P blame game. The company began by explaining how it needed to manage traffic to deal with bandwidth hogging applications like BitTorrent. Yet when asked why its disclosure policy did not reference shaping of P2P traffic, the company admitted that its traffic management policies were not P2P specific. Rather, anyone using too much bandwidth (based on the company's assessment) would find their connection throttled. In other words, Barrett Xplore has a bandwidth problem, not a P2P problem, yet P2P provides a convenient excuse.
Today's summary was compiled by Sean Murtha, a law student at the University of Ottawa. Other coverage available from the National Post liveblog and twitter feeds (CIPPIC, me). [update: National Post and CBC.ca articles]
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