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Monday November 24, 2008
CRTC Decision Not the Final Word On Net Neutrality
My weekly technology law column (Toronto Star version, homepage version) discusses last week's CRTC decision in the CAIP v. Bell case.  Echoing my remarks immediately after the decision, I argue in the column that the decision is not the final word on net neutrality in Canada, but rather the first word on it.
crtc net neutrality decision

My weekly technology law column (Toronto Star version, homepage version) discusses last week's CRTC decision in the CAIP v. Bell case.  Echoing my remarks immediately after the decision, I argue in the column that the decision is not the final word on net neutrality in Canada, but rather the first word on it.

Friday November 21, 2008
The Meaning of the CRTC Decision
Mirko Bibic, Chief Regulatory Officer, Bell: "With this decision, the Commission has rightly confirmed that network operators are in the best position to determine how to operate their networks effectively and efficiently, to allow fair and proportionate use of the Internet by all users." Len Katz, Vice-Chair, CRTC: "Someone told me Bell put out a press release that said the commission upheld its position that network management practices are a fundamental right of theirs. That's not what we said at all."
bell v. crtc on decision
Mirko Bibic, Chief Regulatory Officer, Bell:

"With this decision, the Commission has rightly confirmed that network operators are in the best position to determine how to operate their networks effectively and efficiently, to allow fair and proportionate use of the Internet by all users."

Len Katz, Vice-Chair, CRTC:

"Someone told me Bell put out a press release that said the commission upheld its position that network management practices are a fundamental right of theirs. That's not what we said at all."
Thursday November 20, 2008
CRTC Denies CAIP Application on Throttling, But Sets Net Neutrality Hearing
This morning, the CRTC issued its much-anticipated ruling in the CAIP v. Bell case, the first major case to test the legality of Internet throttling.  The Commission denied CAIP's application, ruling that Bell treated all of its customers (retail and wholesale) in the same throttled manner.  This points to the challenge in this case - it was not about discriminatory network practices per se, but rather about wholesale shaping in a specific context.  Bell comes out a winner in this round. The Commission found that there was network congestion due to P2P usage and that some network management is required to address it.  Moreover, it rejected the competition concerns noting that there was no evidence that Bell's action had lessened competition and it concluded that reducing speeds does not rise to the level of controlling content. While the CRTC's decision to permit Bell's throttling practices is disappointing in the short term - and seems to place Canada on a different track from the U.S. - the decision is not a total loss for net neutrality supporters as the Commission made a clear commitment to addressing the issue of net neutrality and network management in a formal proceeding in July 2009.  Indeed, it is important not to lose sight of how much has changed in the past year.  Just over one year, I wrote a column noting the need for greater ISP transparency in the wake of Rogers' admission that it engaged in traffic shaping.  At the time, net neutrality was viewed as a fringe issue in Canada without much political traction.  In the span of 13 months, there has been a major CRTC case, a private member's bill on net neutrality, a rally on Parliament Hill, the emergence of BitTorrent as distribution tool for broadcast content, a more vocal business community supporting net neutrality, and a gradual shift of this issue into the political mainstream.  In the United States, the change has been even more dramatic - an FCC ruling on the throttling activities, proposed legislation, the shift of net neutrality to wireless, and a President-elect who has been outspoken on the need to preserve net neutrality. In other words, today's CRTC decision is not the final word on net neutrality in Canada, but rather the first word on it.  The Commission itself has opened the door to broader hearings on the issue next year, which may come alongside the new media hearings that also offer the opportunity to raise net neutrality concerns.  Moreover, if the Commission comes to the conclusion that these practices are consistent with current Canadian law, there is the likelihood of growing calls from within Parliament to change the law. A year ago, the net neutrality debate focused on whether rules were needed. Today, the debate is changing from whether there should rules on network management to what those rules should be.  In fact, the Commission notes that as part of the hearing it "will try to establish the criteria to be used in the event that specific traffic management practices need to be authorized."  There is an emerging consensus on the easy issues -  no content blocking and better transparency of network management practices (the CRTC today required Bell to provide its wholesale customers with advanced notice of its plans).  We are in the early stages of the more difficult questions of what constitutes reasonable network management practices and the opening of a formal proceeding puts those tougher questions squarely on the table. Update: The NDP's Charlie Angus responds.  Coverage from the CBC, Globe, Toronto Star, and Ars Technica.
net neutrality decision

This morning, the CRTC issued its much-anticipated ruling in the CAIP v. Bell case, the first major case to test the legality of Internet throttling.  The Commission denied CAIP's application, ruling that Bell treated all of its customers (retail and wholesale) in the same throttled manner.  This points to the challenge in this case - it was not about discriminatory network practices per se, but rather about wholesale shaping in a specific context. 

Bell comes out a winner in this round. The Commission found that there was network congestion due to P2P usage and that some network management is required to address it.  Moreover, it rejected the competition concerns noting that there was no evidence that Bell's action had lessened competition and it concluded that reducing speeds does not rise to the level of controlling content.

While the CRTC's decision to permit Bell's throttling practices is disappointing in the short term - and seems to place Canada on a different track from the U.S. - the decision is not a total loss for net neutrality supporters as the Commission made a clear commitment to addressing the issue of net neutrality and network management in a formal proceeding in July 2009.  Indeed, it is important not to lose sight of how much has changed in the past year. 

Just over one year, I wrote a column noting the need for greater ISP transparency in the wake of Rogers' admission that it engaged in traffic shaping.  At the time, net neutrality was viewed as a fringe issue in Canada without much political traction.  In the span of 13 months, there has been a major CRTC case, a private member's bill on net neutrality, a rally on Parliament Hill, the emergence of BitTorrent as distribution tool for broadcast content, a more vocal business community supporting net neutrality, and a gradual shift of this issue into the political mainstream.  In the United States, the change has been even more dramatic - an FCC ruling on the throttling activities, proposed legislation, the shift of net neutrality to wireless, and a President-elect who has been outspoken on the need to preserve net neutrality.

In other words, today's CRTC decision is not the final word on net neutrality in Canada, but rather the first word on it.  The Commission itself has opened the door to broader hearings on the issue next year, which may come alongside the new media hearings that also offer the opportunity to raise net neutrality concerns.  Moreover, if the Commission comes to the conclusion that these practices are consistent with current Canadian law, there is the likelihood of growing calls from within Parliament to change the law.

A year ago, the net neutrality debate focused on whether rules were needed. Today, the debate is changing from whether there should rules on network management to what those rules should be.  In fact, the Commission notes that as part of the hearing it "will try to establish the criteria to be used in the event that specific traffic management practices need to be authorized."  There is an emerging consensus on the easy issues -  no content blocking and better transparency of network management practices (the CRTC today required Bell to provide its wholesale customers with advanced notice of its plans).  We are in the early stages of the more difficult questions of what constitutes reasonable network management practices and the opening of a formal proceeding puts those tougher questions squarely on the table.

Update: The NDP's Charlie Angus responds.  Coverage from the CBC, Globe, Toronto Star, and Ars Technica.

CRTC Bell - CAIP Throttling Decision Tomorrow

The CBC reports that the CRTC will release its much anticipated decision on Bell's throttling practices on Thursday morning.

CRTC Delays CAIP v. Bell Decision

The CBC reports that the CRTC has announced that its decision in the Bell v. CAIP decision has been delayed until November.

Wednesday September 24, 2008
Bell Planning to Interfere With GPS?
Several readers have pointed to a blog posting at Wellington Financial that reports that Bell is planning to interfere with the GPS signal of late-model Blackberry units.  Users will reportedly experience long delays in establishing a GPS connection when using free mapping applications like Google Maps.  Bell offers a competing GPS mapping service that comes with a monthly fee.
bell gps interference
Several readers have pointed to a blog posting at Wellington Financial that reports that Bell is planning to interfere with the GPS signal of late-model Blackberry units.  Users will reportedly experience long delays in establishing a GPS connection when using free mapping applications like Google Maps.  Bell offers a competing GPS mapping service that comes with a monthly fee.

CRTC To Rule on CAIP v. Bell Case By October 31st

The CBC reports that the CRTC has advised CAIP and Bell that it will issue its decision in the throttling case by October 31st.

CAIP Responds to Bell in Throttling Case

The CBC reports on the CAIP's final response to Bell in the throttling case.

Tuesday July 15, 2008
Canadian ISP Alliance Forms For New Media Fight
Canada's leading telecommunications and cable companies have formed the Canadian ISP Alliance as they gear up for the forthcoming fight at the CRTC over a potential new levy on ISP services. The ISP Alliance, which includes all the major Canadian players (Quebecor, Rogers, Cogeco, Telus, MTS Allstream, Shaw, Sasktel, Eastlink, Bell, and Bell Aliant) argues that the CRTC plans to revisit the 1999 new media exemption order is unnecessary. While the ISP Alliance is not alone in making that argument (the Canadian Chamber of Commerce; and ITAC reach the same conclusion), their submission is noteworthy because it includes a legal opinion that argues that the CRTC does not have the legal authority under the Broadcasting Act to impose a new levy on ISPs (the levy is being promoted by several groups including ACTRA). The legal opinion from Fasken Martineau DuMoulin first tries to make an analogy to satellite services, which similarly transmit video and audio content, yet have not been regulated as broadcast undertakings. The opinion also notes the functional separation between telecommunications and broadcast regulation, arguing that it was the clear intent of Parliament to regulate broadcasters in the Broadcasting Act and telecom companies in the Telecommunications Act. While the legal opinion makes no reference to net neutrality, the issue could ultimately play a pivotal role.

The core of the opinion is that ISPs are not "distribution undertakings" under the law since they play a passive role. It argues:

Unlike broadcast undertakings, ISPs play a passive role: they are engaged solely in carriage. ISPs do not select or originate programming, aggregate programming services, or otherwise influence the nature of the programming or content that is transmitted or accessed over the Internet.

That may well have been true in world where ISPs acted solely as intermediaries, yet the current Bell - CAIP proceeding demonstrates that Canadian ISPs are playing an increasingly active role in managing their networks and thereby influencing the nature of the programming or content that is accessed over the Internet. With several groups emphasizing the need for the CRTC to examine net neutrality in a new media context (Campaign for Democratic Media, Pelmorex, Songwriters Association of Canada), the ISP Alliance may find itself facing some tough questions about just how "passive" its members really are.

canadian isp alliance

Canada's leading telecommunications and cable companies have formed the Canadian ISP Alliance as they gear up for the forthcoming fight at the CRTC over a potential new levy on ISP services. The ISP Alliance, which includes all the major Canadian players (Quebecor, Rogers, Cogeco, Telus, MTS Allstream, Shaw, Sasktel, Eastlink, Bell, and Bell Aliant) argues that the CRTC plans to revisit the 1999 new media exemption order is unnecessary. While the ISP Alliance is not alone in making that argument (the Canadian Chamber of Commerce; and ITAC reach the same conclusion), their submission is noteworthy because it includes a legal opinion that argues that the CRTC does not have the legal authority under the Broadcasting Act to impose a new levy on ISPs (the levy is being promoted by several groups including ACTRA).

The legal opinion from Fasken Martineau DuMoulin first tries to make an analogy to satellite services, which similarly transmit video and audio content, yet have not been regulated as broadcast undertakings. The opinion also notes the functional separation between telecommunications and broadcast regulation, arguing that it was the clear intent of Parliament to regulate broadcasters in the Broadcasting Act and telecom companies in the Telecommunications Act.

While the legal opinion makes no reference to net neutrality, the issue could ultimately play a pivotal role.

Monday July 14, 2008
Business Takes Sides in Net Neutrality Debate
My weekly technology law column (Toronto Star version, homepage version) looks at how the business community has begun to take sides in the net neutrality debate. Google led the charge with a submission to the CRTC in which it left little doubt about how it views the net neutrality issue.  The Internet search giant argued that "providers of broadband internet access services, including Bell, should be prohibited from throttling lawful applications.  The Internet is simply too important to allow them to act as such a gatekeeper; the Internet's myriad benefits can only be fully realized when Canadian carriers allow end users to choose the applications and content they prefer." While Google's entry into the debate captured headlines, they were by no means alone. The Canadian Advanced Technology Alliance, Canada's largest high-tech association, warned that "the measures that Bell Canada is applying to manage the traffic of its Sympatico customers as well as its wholesale ISP customers is interfering with the ability of end-users to telecommute and/or work from their home offices and hindering our members from running their business and providing quick customer services." Bell's actions also attracted the attention of Skype, the popular Internet telephony service.  It cautioned that "for the Internet to remain innovative, and continue to deliver productivity gains for consumers and businesses, the CRTC must act - in this proceeding - to protect the interests of consumers."

These big names were joined by other Canadian businesses equally troubled by recent net neutrality developments.  Kaboose, a Toronto-based company that ranks as one of the top five family-oriented destinations online, stated that "the recent actions of Bell Canada set a dangerous precedent for targeted restriction of innovation." Redwire, an emerging online service for small business owners expressed the view that "to permit Bell Canada to continue these restrictive Internet practices would set a dangerous precedent and send a message to Canadian entrepreneurs that this nation is not prepared to support their innovation potential."

Bell obviously has its defenders.  Two of its leading competitors - Rogers and Telus - expressed support for its position, with Telus arguing that the CRTC should disregard the privacy concerns raised by several consumer groups.  Cisco, a leading seller of the equipment used to manage Internet traffic, warned that "broad net neutrality mandates would frustrate consumer interests," while the Information Technology Association of Canada, which is headed by a former Bell executive, suggested that the net neutrality debate has been "characterized by confused thinking."

The CRTC is unlikely to immediately solve the net neutrality issue nor leave all parties satisfied in the Bell throttling case.  However, the case has had a galvanizing effect on the Canadian business community, with many lining up with consumer groups and independent ISPs by pointing to the link between net neutrality and a robust innovation framework.

net neutrality business sides column

My weekly technology law column (Toronto Star version, homepage version) looks at how the business community has begun to take sides in the net neutrality debate. Google led the charge with a submission to the CRTC in which it left little doubt about how it views the net neutrality issue.  The Internet search giant argued that "providers of broadband internet access services, including Bell, should be prohibited from throttling lawful applications.  The Internet is simply too important to allow them to act as such a gatekeeper; the Internet's myriad benefits can only be fully realized when Canadian carriers allow end users to choose the applications and content they prefer."

While Google's entry into the debate captured headlines, they were by no means alone. The Canadian Advanced Technology Alliance, Canada's largest high-tech association, warned that "the measures that Bell Canada is applying to manage the traffic of its Sympatico customers as well as its wholesale ISP customers is interfering with the ability of end-users to telecommute and/or work from their home offices and hindering our members from running their business and providing quick customer services." Bell's actions also attracted the attention of Skype, the popular Internet telephony service.  It cautioned that "for the Internet to remain innovative, and continue to deliver productivity gains for consumers and businesses, the CRTC must act - in this proceeding - to protect the interests of consumers."

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