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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 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."

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.

Wednesday July 7, 2010
Federal Court of Appeal Rules ISPs Not Broadcasters: May Be End of ISP Levy Proposal
The Federal Court of Appeal issued is decision today [not online yet] on whether Internet providers can be considered broadcasters within the context of the Broadcasting Act.  The case is the result of last year's CRTC New Media decision in which many cultural groups called on the Commission to establish an ISP levy to fund Canadian content.  The ISPs argued that such a levy was illegal since they fell under the Telecommunications Act, not the Broadcasting Act.  The cultural groups argued that ISPs should be considered broadcasters in the case of the transmission of video programs.  The CRTC punted the issue to the Federal Court of Appeal. The Federal Court of Appeal sided with the ISPs, ruling that providing access to broadcasting is not the same as broadcasting.  So long as ISPs maintain a content-neutral approach, they fall outside of the Broadcasting Act and should not be expected to play a role in promoting the policies found in the legislation.  The case is a huge win for the ISPs and - subject to an appeal to the Supreme Court of Canada or a legislative change - puts an end to the ISP levy proposal.  The case is also noteworthy from a net neutrality perspective, since the court emphasized that ISPs fall outside the Broadcasting Act so long as they remain content-neutral.  Should ISPs play a more active role, their ability to rely on the broadcast/transmission distinction would be lost.

The court set out the issue as follows:

the issue to be decided is whether, when providing access to the "transmission of programs ...", ISPs are broadcasting. The answer to this question hinges on a consideration of the findings of the CRTC as to how programs are transmitted on the Internet on the one hand, and the exact purport of the definition of the word "broadcasting", on the other.

The conclusion, which relied heavily on the Supreme Court of Canada Tariff 22 decision between SOCAN and the Canadian Association of Internet Providers:

Relying on the logic adopted by Binnie J. in CAIP in construing the word "communicate" under the Copyright Act, I am of the view that the definition of "broadcasting" is also directed at the person who transmits a program and that a person whose sole involvement is to provide the mode of transmission is not transmitting the program and hence, is not "broadcasting".

As for promoting the Broadcasting Act objectives, the court stated:

Because ISPs' sole involvement is to provide the mode of transmission, they have no control or input over the content made available to Internet users by content producers and as a result, they are unable to take any steps to promote the policy described in the Broadcasting Act or its supporting provisions. Only those who "transmit" the "program" can contribute to the policy objectives.

Finally, the comment that puts net neutrality back on the table:

In providing access to "broadcasting", ISPs do not transmit programs. As such, they are not "broadcasting" and therefore they do not come within the definition of "broadcasting undertaking". In so holding, I wish to reiterate as was done in CAIP that this conclusion is based on the content-neutral role of ISPs and would have to be reassessed if this role should change (CAIP, para. 92).

The court set out the issue as follows:

the issue to be decided is whether, when providing access to the "transmission of programs ...", ISPs are broadcasting. The answer to this question hinges on a consideration of the findings of the CRTC as to how programs are transmitted on the Internet on the one hand, and the exact purport of the definition of the word "broadcasting", on the other.

The conclusion, which relied heavily on the Supreme Court of Canada Tariff 22 decision between SOCAN and the Canadian Association of Internet Providers:

Relying on the logic adopted by Binnie J. in CAIP in construing the word "communicate" under the Copyright Act, I am of the view that the definition of "broadcasting" is also directed at the person who transmits a program and that a person whose sole involvement is to provide the mode of transmission is not transmitting the program and hence, is not "broadcasting".

As for promoting the Broadcasting Act objectives, the court stated:

Because ISPs' sole involvement is to provide the mode of transmission, they have no control or input over the content made available to Internet users by content producers and as a result, they are unable to take any steps to promote the policy described in the Broadcasting Act or its supporting provisions. Only those who "transmit" the "program" can contribute to the policy objectives.

Finally, the comment that puts net neutrality back on the table:

In providing access to "broadcasting", ISPs do not transmit programs. As such, they are not "broadcasting" and therefore they do not come within the definition of "broadcasting undertaking". In so holding, I wish to reiterate as was done in CAIP that this conclusion is based on the content-neutral role of ISPs and would have to be reassessed if this role should change (CAIP, para. 92).

federal court on isp as broadcasters

The Federal Court of Appeal issued is decision today [not online yet] on whether Internet providers can be considered broadcasters within the context of the Broadcasting Act.  The case is the result of last year's CRTC New Media decision in which many cultural groups called on the Commission to establish an ISP levy to fund Canadian content.  The ISPs argued that such a levy was illegal since they fell under the Telecommunications Act, not the Broadcasting Act.  The cultural groups argued that ISPs should be considered broadcasters in the case of the transmission of video programs.  The CRTC punted the issue to the Federal Court of Appeal.

The Federal Court of Appeal sided with the ISPs, ruling that providing access to broadcasting is not the same as broadcasting.  So long as ISPs maintain a content-neutral approach, they fall outside of the Broadcasting Act and should not be expected to play a role in promoting the policies found in the legislation.  The case is a huge win for the ISPs and - subject to an appeal to the Supreme Court of Canada or a legislative change - puts an end to the ISP levy proposal.  The case is also noteworthy from a net neutrality perspective, since the court emphasized that ISPs fall outside the Broadcasting Act so long as they remain content-neutral.  Should ISPs play a more active role, their ability to rely on the broadcast/transmission distinction would be lost.

Tuesday February 16, 2010
Canadian ISPs Fall Short In Meeting Net Neutrality Requirements
Last fall, the Canadian Radio-television and Telecommunications Commission issued its much-anticipated Internet traffic management ruling, better known as the net neutrality decision. The case attracted national interest as the CRTC established several key requirements for Canada’s Internet providers. These included new transparency obligations that forced ISPs to disclose their network management practices, such as why the practices were introduced, who will be affected, when it will occur, and how it will impact users' Internet experiences (down to the specific impact on speeds). The CRTC also opened the door to complaints about network management practices by establishing a test that any harm to users be as little as reasonably possible. Several months later, Canada's ISPs have had ample time to comply with the new requirements, yet my weekly technology law column (Toronto Star version, Ottawa Citizen version, homepage version) reviews the policies from the biggest ISPs - including Bell Canada, Rogers Communications Inc., Shaw Communications Inc., Telus, Cogeco Inc., and Groupe Vidéotron - and reveals a decidedly mixed bag.

Two of the six providers - Telus and Vidéotron - do not have explicit network management practice disclosures since neither currently uses throttling or traffic shaping technologies that limit the speeds of some applications.  Of the remaining four providers, no one makes it easy to find the disclosures and at least two may not be compliant with the CRTC requirements.

Bell features the most detailed disclosure, providing specific information about its policies and their impact.  While critics may object to the positive spin the company uses to describe limitations on its service, it has done precisely what the CRTC asked.  The Rogers policy is not quite as extensive, yet it also covers much the same terrain, including a description of the policy, the frequency of traffic shaping, and the resulting limitations in their service (including the specific impact on speed).

By contrast, neither Shaw nor Cogeco appear to meet the CRTC requirements.  Shaw's policy, which can be found within its terms of use, does not disclose the actual speeds users encounter when it throttles peer-to-peer activity.  Cogeco, which implausibly claims "customer experience is never affected by the application of [its] measures," similarly does not disclose the speeds that result from its throttling practices.

Not only are two providers arguably failing to meet the transparency requirements, but some traffic management practices may be ripe for complaint.

Telus and Vidéotron once again get a pass, since neither uses throttling technologies, opting instead for economic measures that add additional costs for heavy broadband users.  Shaw's policy also appears compliant with the CRTC minimal harm threshold, since it limits its throttling practices to actual instances of congestion on specific segments of its network.  

Meanwhile, Rogers and Cogeco continuously throttle all upstream P2P traffic. Both providers admit that the limits on their service occur on a 24 hour, 7-day basis, regardless of whether the network is actually experiencing any congestion.  For example, Cogeco claims "it is [our] experience that congestion created by P2P can occur at any time within a 24-hour period."  This may be true, but the failure to limit throttling activities to instances of actual congestion is surely grounds for a CRTC complaint.

While Bell limits its throttling practices to specified periods, its defined period is so broad that it too may be the target of a complaint. Bell discloses that its throttling practices, which target upload and download traffic, runs from 4:30 pm to 2:00 am.  By covering nearly half the day, the company could face questions about whether the policy limits harm as much as reasonably possible.

The CRTC's net neutrality guidelines garnered well-deserved plaudits last year, yet the true test will be whether the guidelines will be enforced effectively.  Last month, the CRTC sent letters to several ISPs - including Shaw, Rogers, Cogeco, and Bell - seeking action.  The ISPs have yet to respond.

Two of the six providers - Telus and Vidéotron - do not have explicit network management practice disclosures since neither currently uses throttling or traffic shaping technologies that limit the speeds of some applications.  Of the remaining four providers, no one makes it easy to find the disclosures and at least two may not be compliant with the CRTC requirements.

Bell features the most detailed disclosure, providing specific information about its policies and their impact.  While critics may object to the positive spin the company uses to describe limitations on its service, it has done precisely what the CRTC asked.  The Rogers policy is not quite as extensive, yet it also covers much the same terrain, including a description of the policy, the frequency of traffic shaping, and the resulting limitations in their service (including the specific impact on speed).

By contrast, neither Shaw nor Cogeco appear to meet the CRTC requirements.  Shaw's policy, which can be found within its terms of use, does not disclose the actual speeds users encounter when it throttles peer-to-peer activity.  Cogeco, which implausibly claims "customer experience is never affected by the application of [its] measures," similarly does not disclose the speeds that result from its throttling practices.

Not only are two providers arguably failing to meet the transparency requirements, but some traffic management practices may be ripe for complaint.

Telus and Vidéotron once again get a pass, since neither uses throttling technologies, opting instead for economic measures that add additional costs for heavy broadband users.  Shaw's policy also appears compliant with the CRTC minimal harm threshold, since it limits its throttling practices to actual instances of congestion on specific segments of its network.  

Meanwhile, Rogers and Cogeco continuously throttle all upstream P2P traffic. Both providers admit that the limits on their service occur on a 24 hour, 7-day basis, regardless of whether the network is actually experiencing any congestion.  For example, Cogeco claims "it is [our] experience that congestion created by P2P can occur at any time within a 24-hour period."  This may be true, but the failure to limit throttling activities to instances of actual congestion is surely grounds for a CRTC complaint.

While Bell limits its throttling practices to specified periods, its defined period is so broad that it too may be the target of a complaint. Bell discloses that its throttling practices, which target upload and download traffic, runs from 4:30 pm to 2:00 am.  By covering nearly half the day, the company could face questions about whether the policy limits harm as much as reasonably possible.

The CRTC's net neutrality guidelines garnered well-deserved plaudits last year, yet the true test will be whether the guidelines will be enforced effectively.  Last month, the CRTC sent letters to several ISPs - including Shaw, Rogers, Cogeco, and Bell - seeking action.  The ISPs have yet to respond.

net neutrality compliance column

Last fall, the Canadian Radio-television and Telecommunications Commission issued its much-anticipated Internet traffic management ruling, better known as the net neutrality decision. The case attracted national interest as the CRTC established several key requirements for Canada’s Internet providers.

These included new transparency obligations that forced ISPs to disclose their network management practices, such as why the practices were introduced, who will be affected, when it will occur, and how it will impact users' Internet experiences (down to the specific impact on speeds). The CRTC also opened the door to complaints about network management practices by establishing a test that any harm to users be as little as reasonably possible.

Several months later, Canada's ISPs have had ample time to comply with the new requirements, yet my weekly technology law column (Toronto Star version, Ottawa Citizen version, homepage version) reviews the policies from the biggest ISPs - including Bell Canada, Rogers Communications Inc., Shaw Communications Inc., Telus, Cogeco Inc., and Groupe Vidéotron - and reveals a decidedly mixed bag.

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