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Net Neutrality Enforcement Put to the Test

Net Neutrality Enforcement Put to the Test
The enforcement of Canada’s net neutrality rules, which govern how Internet providers manage their networks, was in the spotlight earlier this year when documents obtained under the Access to Information Act revealed virtually all major Canadian ISPs have been the target of complaints, but there have been few, if any, consequences arising from the complaints process. The documents painted a discouraging picture, with multiple complaints against Rogers Communications due to the throttling of online games going seemingly nowhere, while a complaint against satellite Internet provider Xplorenet languished for months until the Commission threatened to launch a public proceeding. In the aftermath of document disclosures, my weekly technology column (Toronto Star version, homepage version) notes there has been slow but steady change. 

In September, the Canadian Radio-television and Telecommunications Commission, the agency that established and enforces the net neutrality rules (known as Internet traffic management guidelines) issued a new advisory on responding to complaints and enforcing the rules.

net neutrality enforcement
Content Country: 
Canada
Wednesday October 19, 2011
Do Bell's Throttling Practices Violate CRTC Net Neutrality Rules?: It Says P2P Congestion Declining
Earlier this week, Bell wrote to its wholesale ISP customers to let them know that it is shifting away from throttling practices that have been in place for several years. The letter states: Effective November 2011, new links implemented by Bell to augment our DSL network may not be subject to Technical Internet Traffic Management Practices (ITMP).  ITMPs were introduced in March, 2008 to address congestion on the network due to the increased use of Peer-to-Peer file sharing applications during peak periods. While congestion still exists, the impact of Peer-to-Peer file sharing applications on congestion has reduced. Furthermore, as we continue to groom and build out our network, customers may be migrated to network facilities where Technical Internet Traffic Management Practices (ITMPs) will not be applied. Bell's letter raises several interesting issues. First, it is an acknowledgment of what groups like CIPPIC, PIAC and others were saying as far back as 2009 in the net neutrality hearing. Peer-to-peer traffic is declining as an overall percentage of network traffic and the stresses on the system are far more likely to come from online video services such as Netflix. Second, this acknowledgement raises the prospect that Bell's current throttling practices may now violate the CRTC's Internet traffic management guidelines. While Bell says its congestion has been reduced, its retail throttling practices have remained unchanged, throttling P2P applications from 4:30 pm to 2:00 am.  Given the decline in congestion, a CRTC complaint might ask whether the current throttling policy "results in discrimination or preference as little as reasonably possible" and ask for explanation why its data cap policies "would not reasonably address the need and effectively achieve the same purpose as the ITMP."  In fact, the same can now be said for many other ISPs who deploy broad based throttling practices (Rogers, Cogeco), which may not be reasonable under the CRTC policy.
bell on congestion
Content Country: 
Canada

Earlier this week, Bell wrote to its wholesale ISP customers to let them know that it is shifting away from throttling practices that have been in place for several years. The letter states:

Effective November 2011, new links implemented by Bell to augment our DSL network may not be subject to Technical Internet Traffic Management Practices (ITMP).  ITMPs were introduced in March, 2008 to address congestion on the network due to the increased use of Peer-to-Peer file sharing applications during peak periods. While congestion still exists, the impact of Peer-to-Peer file sharing applications on congestion has reduced. Furthermore, as we continue to groom and build out our network, customers may be migrated to network facilities where Technical Internet Traffic Management Practices (ITMPs) will not be applied.

Bell's letter raises several interesting issues. First, it is an acknowledgment of what groups like CIPPIC, PIAC and others were saying as far back as 2009 in the net neutrality hearing. Peer-to-peer traffic is declining as an overall percentage of network traffic and the stresses on the system are far more likely to come from online video services such as Netflix.

Second, this acknowledgement raises the prospect that Bell's current throttling practices may now violate the CRTC's Internet traffic management guidelines. While Bell says its congestion has been reduced, its retail throttling practices have remained unchanged, throttling P2P applications from 4:30 pm to 2:00 am.  Given the decline in congestion, a CRTC complaint might ask whether the current throttling policy "results in discrimination or preference as little as reasonably possible" and ask for explanation why its data cap policies "would not reasonably address the need and effectively achieve the same purpose as the ITMP."  In fact, the same can now be said for many other ISPs who deploy broad based throttling practices (Rogers, Cogeco), which may not be reasonable under the CRTC policy.

Friday September 23, 2011
CRTC Updates Internet Traffic Management Practices Guidelines
Earlier this year, I launched an access-to-information request with the CRTC requesting all records related to net neutrality complaints filed under the Commission's 2009 Internet traffic management practices decision. The result was a post titled Canada's Net Neutrality Enforcement Failure, which listed dozens of complaints and a discouraging lack of CRTC investigation into them. The post concluded: After more than 30 investigations in nearly two years, it is clear improvements are needed. At a minimum, the CRTC should be publishing all public complaints and resolutions so that the issues obtain a public airing. Moreover, the system needs penalties for violations as well as pro-active audits to ensure Internet providers are compliant with their obligations. Without change, the CRTC’s net neutrality rules offer little protection for Canadian Internet users. Yesterday the CRTC took a first step in this direction by releasing new guidelines for responding to complaints and enforcing the rules. The best aspect of the ruling is a commitment to publish quarterly reports featuring a summary of the number and types of complaints it has received, including the number of active and resolved complaints. Moreover, any findings of non-compliance will be published on the Commission’s website and will include the ISP’s name and the nature of the complaint. The move toward greater transparency is welcome and an important step in pressuring ISPs to comply with the guidelines. The new guidelines also establish a strict timeline for responses by complainants and ISPs, which should help avoid Xplorenet-type situations that dragged on for months before the ISP addressed complaints over its traffic management practices.
net neutrality
Content Country: 
Canada

Earlier this year, I launched an access-to-information request with the CRTC requesting all records related to net neutrality complaints filed under the Commission's 2009 Internet traffic management practices decision. The result was a post titled Canada's Net Neutrality Enforcement Failure, which listed dozens of complaints and a discouraging lack of CRTC investigation into them. The post concluded:

After more than 30 investigations in nearly two years, it is clear improvements are needed. At a minimum, the CRTC should be publishing all public complaints and resolutions so that the issues obtain a public airing. Moreover, the system needs penalties for violations as well as pro-active audits to ensure Internet providers are compliant with their obligations. Without change, the CRTC’s net neutrality rules offer little protection for Canadian Internet users.

Yesterday the CRTC took a first step in this direction by releasing new guidelines for responding to complaints and enforcing the rules. The best aspect of the ruling is a commitment to publish quarterly reports featuring a summary of the number and types of complaints it has received, including the number of active and resolved complaints. Moreover, any findings of non-compliance will be published on the Commission’s website and will include the ISP’s name and the nature of the complaint. The move toward greater transparency is welcome and an important step in pressuring ISPs to comply with the guidelines. The new guidelines also establish a strict timeline for responses by complainants and ISPs, which should help avoid Xplorenet-type situations that dragged on for months before the ISP addressed complaints over its traffic management practices.

Thursday July 14, 2011
The Xplornet's Release: Digging into the Documents
Earlier this week, Xplornet Communications Inc. (formerly Barrett Xplore Inc.) issued the following press release in response to my post on the CRTC's net neutrality enforcement: Xplornet Communications Inc., (formerly Barrett Xplore Inc.) is aware that allegations made online by Michael Geist on Friday July 8th, 2011 have been reprinted by various media. The statements made in Mr. Geist's original article omit material information and draw incorrect conclusions regarding Barrett Xplore Inc.'s actions.  Reprinting this blog entry, or Geist's allegations regarding Barrett Xplore Inc. (or Xplornet Communications Inc), represent the publication of materially misleading statements regarding our company. To say I was surprised by the release would be an understatement. Xplornet never contacted me to discuss the post or express concern about its content. The original post did not directly target Xplornet, but rather focused on the CRTC enforcement record. It pointed to complaints against several different providers and listed all complaints I obtained as part of an Access to Information request. With respect to Xplornet, I stated the following:
xplornet comment
Content Country: 
Canada

Earlier this week, Xplornet Communications Inc. (formerly Barrett Xplore Inc.) issued the following press release in response to my post on the CRTC's net neutrality enforcement:

Xplornet Communications Inc., (formerly Barrett Xplore Inc.) is aware that allegations made online by Michael Geist on Friday July 8th, 2011 have been reprinted by various media. The statements made in Mr. Geist's original article omit material information and draw incorrect conclusions regarding Barrett Xplore Inc.'s actions.  Reprinting this blog entry, or Geist's allegations regarding Barrett Xplore Inc. (or Xplornet Communications Inc), represent the publication of materially misleading statements regarding our company.

To say I was surprised by the release would be an understatement. Xplornet never contacted me to discuss the post or express concern about its content. The original post did not directly target Xplornet, but rather focused on the CRTC enforcement record. It pointed to complaints against several different providers and listed all complaints I obtained as part of an Access to Information request. With respect to Xplornet, I stated the following:

Friday July 8, 2011
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.
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.
Friday January 14, 2011
CRTC Says Rogers Not Complying With Net Neutrality Disclosure Requirements
CRTC concerns with Rogers and its response to net neutrality complaints escalated this week when the Commission sent a letter to the company advising that it has received a growing number of complaints and that its public disclosures have not been compliant with CRTC Internet traffic management policy requirements.  The case began last fall when the CRTC received a complaint over changes to Rogers' practices that affected downstream P2P traffic. Rogers ultimately admitted the practice and promised to update its disclosure policies.  Despite those promises, the CRTC found that the disclosures still only focus on the impact of its practices on uploading.  The Commission told Rogers yesterday that: Staff consider that in order to comply with TRP 2009-657, the discussion in the page titled Legal Disclaimer and the detailed discussion available on the network management policy web page should indicate that there are circumstances whereby the Rogers ITMP will also affect download speeds available to subscribers. Further, the detailed discussion on the network management policy page should clearly indicate which download applications might be affected in these circumstances and to what degree (i.e., the impact on download speeds should be indicated). The letter added that it has received additional complaints about the practices and wants a response from Rogers by February 14, 2011 on "whether and how Rogers intends to modify its ITMP disclosures in compliance with TRP 2009-657."
rogers net neutrality

CRTC concerns with Rogers and its response to net neutrality complaints escalated this week when the Commission sent a letter to the company advising that it has received a growing number of complaints and that its public disclosures have not been compliant with CRTC Internet traffic management policy requirements.  The case began last fall when the CRTC received a complaint over changes to Rogers' practices that affected downstream P2P traffic.

Rogers ultimately admitted the practice and promised to update its disclosure policies.  Despite those promises, the CRTC found that the disclosures still only focus on the impact of its practices on uploading.  The Commission told Rogers yesterday that:

Staff consider that in order to comply with TRP 2009-657, the discussion in the page titled Legal Disclaimer and the detailed discussion available on the network management policy web page should indicate that there are circumstances whereby the Rogers ITMP will also affect download speeds available to subscribers. Further, the detailed discussion on the network management policy page should clearly indicate which download applications might be affected in these circumstances and to what degree (i.e., the impact on download speeds should be indicated).

The letter added that it has received additional complaints about the practices and wants a response from Rogers by February 14, 2011 on "whether and how Rogers intends to modify its ITMP disclosures in compliance with TRP 2009-657."

Rogers Admits New Net Throttling, Slow to Disclose to the Public

Rogers has been hit with a complaint about its throttling practices but has been very slow amend its public disclosure documents as required by the CRTC.  Complaints began appearing online earlier this fall, with users noting that Rogers was degrading P2P uploads and downloads.  Torrent Freak details what happened next - a complaint to the CRTC, an attempt to downplay the issue, and finally an acknowledgement that the traffic management requires a change in publicly disclosed policy.

Liberals, NDP Support Net Neutrality Audits

The SaveOurNet Coalition has released a new report on the three main political parties positions on net neutrality.  It finds that both the Liberals and NDP support mandatory net neutrality audits by the CRTC to ensure that ISPs are compliant with the Commission's traffic management guidelines.

NDP Criticizes Google - Verizon Net Neutrality Deal

The NDP has published a release criticizing the Google - Verizon net neutrality deal, expressing concern about the side deal.  The deal treats wired and wireless services in a different manner, something the CRTC has rejected as part of its traffic management guidelines.

Directors Guild of Canada Calls for Net Neutrality Monitoring

The Directors Guild of Canada digital economy strategy submission calls on the government to require the CRTC to monitor ISP compliance with its traffic management guidelines.

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