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Net Neutrality

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.

SaveOurNet.ca Launches Action Campaign

SaveOurNet.ca has launched a new campaign urging Canadians to write to the CRTC on net neutrality.

Wednesday November 5, 2008
The Obama Effect on Canadian Tech Policy
Last night's remarkable Obama victory promises a fresh start and real change on a host of critically important issues.  Some may speculate about what (if any) effect the change in administration will have for tech policy. CNET examines the question from a U.S. perspective; from a Canadian perspective, I would point to three issues. The tech effect on politics.  As has been well-documented, Obama's campaign used the Internet, social networks, and new technology to galvanize support, generate millions in donations, and ultimately attract millions of new, younger voters.  As the Canadian political parties look at declining voter turnout numbers, the path to a majority/change in government may lie not in grabbing votes from other parties, but rather in targeting the 41 percent of eligible Canadian voters (many of whom are younger) who did not vote at all with policies that speak to their concerns. Copyright.  The change in administration is unlikely to dramatically alter U.S. policy on copyright (the DMCA was passed by President Clinton), which suggests that the U.S. pressure on Canada for reform will continue as will support for the Anti-Counterfeiting Trade Agreement.  What the change in administration may do, however, is buy a bit of time.  The need to appoint a new U.S. ambassador, Commerce Secretary, USTR Secretary, etc. means that intellectual property will not be a front burner issue until the spring 2009 at the earliest. Telecom.   Obama seems likely to accelerate change that is already happening in the United States around issues such as net neutrality, open networks, and broadband access.  The FCC has been shifting in this direction for some time (it approved a white spaces proposal yesterday) and Obama put it at the top of his list of tech policy concerns.  While this will not result in political pressure on Canada, it will point to a Canadian telecom framework that could quickly fall behind the U.S., thereby undermining innovation and competitiveness.  By moving forcefully toward preserving net neutrality in the U.S., Obama may indirectly encourage similar reforms in Canada.
obama tech policy
Last night's remarkable Obama victory promises a fresh start and real change on a host of critically important issues.  Some may speculate about what (if any) effect the change in administration will have for tech policy. CNET examines the question from a U.S. perspective; from a Canadian perspective, I would point to three issues.

The tech effect on politics.  As has been well-documented, Obama's campaign used the Internet, social networks, and new technology to galvanize support, generate millions in donations, and ultimately attract millions of new, younger voters.  As the Canadian political parties look at declining voter turnout numbers, the path to a majority/change in government may lie not in grabbing votes from other parties, but rather in targeting the 41 percent of eligible Canadian voters (many of whom are younger) who did not vote at all with policies that speak to their concerns.

Copyright.  The change in administration is unlikely to dramatically alter U.S. policy on copyright (the DMCA was passed by President Clinton), which suggests that the U.S. pressure on Canada for reform will continue as will support for the Anti-Counterfeiting Trade Agreement.  What the change in administration may do, however, is buy a bit of time.  The need to appoint a new U.S. ambassador, Commerce Secretary, USTR Secretary, etc. means that intellectual property will not be a front burner issue until the spring 2009 at the earliest.

Telecom.   Obama seems likely to accelerate change that is already happening in the United States around issues such as net neutrality, open networks, and broadband access.  The FCC has been shifting in this direction for some time (it approved a white spaces proposal yesterday) and Obama put it at the top of his list of tech policy concerns.  While this will not result in political pressure on Canada, it will point to a Canadian telecom framework that could quickly fall behind the U.S., thereby undermining innovation and competitiveness.  By moving forcefully toward preserving net neutrality in the U.S., Obama may indirectly encourage similar reforms in Canada.

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.

Internet For Everyone

Groups from across the country have launched InternetforEveryone.ca, dedicated to promoting open access to the Internet for all Canadians.

Coalition Calls for Net Neutrality as an Election Issue

SaveourNet.ca has formed a broad coalition of groups calling for telecom policy to form a bigger part of the current election debate.

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.
Monday September 8, 2008
Digital Issues Deserve a Spot in Election Campaign
With a federal election now set for October 14th, the coming weeks will be dominated by political debate as each party seeks to make their case to voters across the country. My weekly technology law column (Toronto Star version, homepage version) notes that the election mode marks an important role reversal - after months of Canadians working to gain the attention of their elected officials, those same politicians will be knocking on doors, making phone calls, and participating in all-candidates meetings in an effort to seek them out. The 2008 election therefore presents an exceptional opportunity to raise the profile of digital issues.  Not only do these policies touch on so-called core concerns such as the economy, the environment, education, and health care, but they also resonate with younger Canadians, who could help swing the balance of power in many ridings. In the United States election, both Barack Obama and John McCain have unveiled detailed digital policy positions.  Canadian leaders have yet to promote their policies, but there are at least five worth watching and asking about.

1.    Spectrum surplus - The recent wireless spectrum auction generated over $4 billion for the federal government, nearly triple initial estimates.  The Conservatives committed in the 2008 budget to allocate the funds to debt reduction. The Liberals, meanwhile, focused on the opportunity to use the surplus revenues to kick-start long delayed plans to provide high-speed Internet access to all Canadians.  Where do the parties stand on the use of the spectrum proceeds and on universal broadband access from coast to coast to coast?

2.    Wireless competition - The sorry state of the Canadian wireless marketplace has been well documented in recent months with high profile incidents involving text message charges and high data pricing.  New competitors are slated to debut in late 2009, yet Canadians continue to face high prices and limited choice.  Are the political parties content with the status quo?  If not, would they consider additional measures such as the removal of foreign ownership restrictions or new openness requirements in the next spectrum auction?

3.    Net neutrality - Network neutrality emerged as a major issue this year with a political rally on Parliament Hill, the introduction of a Private Member's bill, and a heated regulatory battle between Bell and independent Internet service providers at the CRTC.  The same is true in the U.S., where the Federal Communications Commission (the CRTC's counterpart) ordered cable giant Comcast to abide by net neutrality principles.  Where do Canada's political parties stand on net neutrality?  If the CRTC concludes that it does not possess the regulatory power to address the issue, would they be prepared to introduce legislative reforms?

4.    Copyright - Few issues generated as much attention this summer as copyright with some Members of Parliament acknowledging that the controversial Bill C-61 was one of the most discussed constituent concerns.  With the bill now dead, each party should be asked to articulate its plan for the future.  Would the Conservatives reintroduce the bill unchanged?  Would the Liberals scrap the bill and hold public consultations as several of their MPs have suggested?  Would the NDP continue its strong opposition to the C-61 approach?

5.    Privacy reform - Over the past year, the Standing Committee on Access to Information, Privacy, and Ethics held hearings on potential reforms to both PIPEDA (the private sector privacy law) and the Privacy Act (the public sector privacy law).  These reform initiatives - including a recommendation to implement long-awaited mandatory security breach disclosure legislation - have now stalled with the election call.  None of the political parties have staked out a clear position on privacy legislation. This election campaign provides an opportunity to put the issue, along with other digital concerns, squarely on the policy agenda.

digital issues column

With a federal election now set for October 14th, the coming weeks will be dominated by political debate as each party seeks to make their case to voters across the country. My weekly technology law column (Toronto Star version, homepage version) notes that the election mode marks an important role reversal - after months of Canadians working to gain the attention of their elected officials, those same politicians will be knocking on doors, making phone calls, and participating in all-candidates meetings in an effort to seek them out.

The 2008 election therefore presents an exceptional opportunity to raise the profile of digital issues.  Not only do these policies touch on so-called core concerns such as the economy, the environment, education, and health care, but they also resonate with younger Canadians, who could help swing the balance of power in many ridings. In the United States election, both Barack Obama and John McCain have unveiled detailed digital policy positions.  Canadian leaders have yet to promote their policies, but there are at least five worth watching and asking about.

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