CRTC’s net neutrality rules require stronger enforcement, Geist says

The CRTC’s net neutrality enforcement policy should be reviewed, Michael Geist, Canada’s research chair in Internet and e-commerce law at the University of Ottawa, says. “ are a significant barrier for most ordinary consumers to surmount. I’m of the view that we ought to have some sort of auditing function where there is a more aggressive attempt to ensure that Canada’s ISPs are following the rules,” Geist said in an interview. Geist’s comments come after the U.S. Federal Communications Commission’s (FCC) released a decision of its own on the file on Dec. 21. The American policy bans ISPs from blocking content from consumers and from “unreasonable discrimination” in network trafficking speeds. It also requires ISPs to publicly disclose their network management policies. Carmi Levy, an independent telecom and media analyst, said in an interview the FCC’s new policy mimics Canada’s rules and will likely share its enforcement problems. “The FCC’s decision was designed to maintain, if not absolute parity with the Canadian experience, then at least a certain degree of parallelism,” he said. “Telecom is so interconnected today; you can’t have radically different net neutrality rules in place on either side of the border. It does make sense that the FCC followed Canada’s lead here.” The CRTC’s 2009 ruling on Internet traffic management practices for ISPs encourages transparency and competitive neutrality, and bans practices that are discriminatory or preferential. But Geist said he is not convinced the United States’ policy goes far enough. “Neither side came away thrilled with what they got, but I think it’s a first step … The fact that they’ve explicitly excluded wireless is going to be problematic.” The FCC’s decision applies different sets of rules to wireline and wireless Internet providers, whereas the CRTC ruling applies to both markets. The U.S. policy allows wireless Internet providers to block applications or services unless they directly compete with the provider’s voice or video products. For example, Verizon could not block an application like Skype, but could block Google Maps. Levy added that the FCC’s policy leaves some questions unanswered. “The wording of the ruling leaves a lot of room for interpretation on the part of the carriers,” he said. “‘Unreasonable discrimination’—who decides what is reasonable and what is unreasonable? The FCC did not decide that. It’s up to the carriers to decide just how heavy handed they want to be when it comes to prioritizing services they want to prioritize and limiting those that they don’t.” Levy said leaving the door open for carriers to make these types of judgment calls can have a big influence on the user experience. “ pushes the consumer in a certain direction on what services they get and how much they pay for them,” he said. Levy said ISPs can do this through throttling, traffic shaping, monitoring network traffic, identifying preferential and non-preferential types of traffic and treating them accordingly. Steve Anderson, national coordinator of Openmedia.ca, said in an interview that Canada’s rules prevent the prioritization of content. “Prioritizing content is pretty explicitly against the traffic management rules we have in Canada,” he said. “The danger is more of a slow drift in that direction. We see that in Canada—we have rules in place, but we don’t have good enforcement.” Anderson said one of the major problems with the CRTC’s rules for traffic management practices is that they follow a complaints-based system. Anderson said the system makes it hard for consumers to prove their Internet is unjustly being throttled. “The problem with is that asking a consumer with a lack of technical experience to prove discrimination against a big telecom company every time there’s a complaint isn’t really a fair fight,” he said. “The fact that we got net neutrality rules is kind of amazing and asking consumers to fight that battle and police the Internet, when they don’t have the technical means, isn’t the best enforcement strategy.” Anderson said monitoring ISP throttling is important because it ruins the level playing field that the Internet currently provides. “The rules are moving in the right direction, but there are certain loopholes that could be closed,” he said. Levy said he hasn’t seen a lot of detail around how the CRTC and the FCC will enforce their net neutrality laws. “Right now we see decisions on paper, but we don’t know how they are going to play out operationally,” he said. These policy decisions are not only about rules and frameworks for ISPs, Levy said. They are also about determining what role regulatory agencies like the FCC and the CRTC will play in the future. “What’s interesting is that the FCC and the CRTC really grew up during the broadcast era. They were meant to create regulatory frameworks for broadcast entities in a more conventional era,” Levy said. “The challenge they face as telecommunications transitions away from traditional broadcast infrastructure towards IP-based infrastructure is that they are not structured to live in an IP world. They don’t have the resources and the skill set and the budgets to be able to enforce legislation in an IP-enabled economy.” asmith@thewirereport.ca

CRTC’s net neutrality rules require stronger enforcement, Geist says

News | January 12, 2011

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