For the London Free Press – October 19, 2009

Read this on Canoe

INTERNET CONTENT: There’s considerable debate in Canada and the United States about how much control Internet service providers should have over content

Net neutrality is a controversial topic that causes concern for Internet activists.

Net (or network) neutrality essentially means that those who control the Internet (Internet service providers, or ISPs) shouldn’t favour one person’s content over another. Think of it as a code of ethics for fair operation of the Internet.

Sounds simple enough, but it’s a complex and controversial area.

Supporters of net neutrality are far-reaching and include prominent and influential members of the Internet community.

For some — particularly ISPs — it is an issue they would prefer would just go away. ISPs often take the position that a certain amount of control over delivery of Internet traffic is necessary for efficient operation of the ‘Net.

Net neutrality focuses on the concern that ISPs filter or degrade certain content in favour of other content. Proponents feel discrimination of Internet content should be prohibited.

The issue really shouldn’t be about traffic discrimination as a concept, but over when it is or is not acceptable, and how it is done.

The CRTC held hearings on Internet traffic management practices last summer. It has yet to render an opinion on the matter.

The net neutrality controversy in the United States became prominent in August 2008 when the Federal Communications Commission (FCC) ordered Comcast to stop blocking peer-to-peer applications.

Comcast went to court, arguing that the FCC could not order the company to treat Internet traffic in a specific way. That matter has yet to be heard.

FCC chairman Julius Genachowski recently proposed wide-ranging rules for regulating how ISPs and wireless carriers can handle the subscribers’ traffic.

In the past, the FCC has provided guidelines on the prohibition of blocking certain traffic and pushing for net neutrality, but this was the first time actual rules were to be enacted.

The proposal was passed, but it will be months before final rules are be created.

U.S. President Barack Obama believes “well-crafted” regulations of the Internet would encourage investment and innovation.

Net neutrality proponents agree and want to protect the equal treatment of all types of data available to users on the Internet.

The proposed formal rules would ensure that Internet carriers cannot discriminate against certain Internet traffic by blocking service. Wireless carriers will also be subject to the rules.

But Republican senators disagreed. Such critics of net neutrality maintain the negative actions of one such carrier should not lead to such far-reaching consequences for the entire marketplace.

The Republican criticism is based on the fear of stifling investment incentives as the business of ISPs becomes hampered by government directives.

Critics also argue that the FCC decision prematurely draws conclusions about the effects of net neutrality and state that the “facts do not clearly demonstrate that a problem needs to be remedied.”

Similarly, the top executive at AT&T has said that in the absence of any “compelling evidence of problems or abuse,” the company would be disappointed if Washington enacted such rules.

Michael has a post summarizing his thoughts on the hearings.

I follow this subject from a distance out of interest – but it strikes me that one of the reasons we get such varied views and suspicions is that the facts are not always clear.  Of course, there will always be differences of opinion between those espousing the  fundamental theoretical philosophies of the internet, and the commercial interests of those that actually make the investments and provide connectivity.  But having an open, factual dialogue goes a long way to reach common ground.  Hopefully the hearings gave the CRTC what they need to do that.

The network management hearings continue.  And Michael’s coverage continues.  One of the interesting fundamental issues that has emerged is whether network management is about congestion or competition.  It seems that proponents talk about the need to deal with congestion, while opponents talk about the unfairness of using network management to provide a competitive advantage. 

Distinctions are also being made about management at the wholesale vs retail levels.   And whether the issue is that it happens at all, or whether its OK if it happens so long as the practices are disclosed.  Which leads to the arguement that disclosing means nothing if all the suppliers do the same thing.

It sounds like the quality of the submissions is high – so hopefully that will lead to a well thought out decision in the end.

The CRTC’s network managemement hearings began yesterday.  A CBC article summarizes the scope of the hearing as:

“The CRTC is trying to develop guidelines for internet service providers on acceptable ways of managing internet traffic and congestion, taking into account both the freedom individuals to use the internet as they wish and the interests of ISPs to manage their networks.

The commission is focusing mainly on the questions:

• What internet traffic management practices are acceptable and should any be considered as completely unacceptable?
• Should ISPs disclose their practices and, if so, in what form?
• Does the use of internet technologies for the purpose of internet traffic management raise privacy concerns?
• Is the application of certain internet traffic management practices to wholesale services appropriate?
• Is there a need for the commission to specify what practices are acceptable in relation to wireless service providers?
• What analytical framework should the CRTC adopt in relation to internet traffic management practices and section 36 of the Telecommunications Act?

It will avoid dealing with its November decision to allow Bell to continue to continue throttling the customers of smaller ISPs that buy network access from it, as the decision is under appeal.”

For ongoing analysis, follow Michael Geist, who summarizes the first day’s hearing here.   If you want to follow this as it unfolds, Michael’s article has links to a liveblog and twitter feed.

For earlier information on this subject, search “crtc” and “network neutrality” on my blog.

Michael reports that the CRTC’s just released decision based on their new media hearings that were held in February is that they will continue to not regulate media over the internet. 

The CRTC’s press release says in part:  “While broadcasting in new media is growing in importance, we do not believe that regulatory intervention is necessary at this time,” said Konrad von Finckenstein, Q.C., Chairman of the CRTC. “We found that the Internet and mobile services are acting in a complementary fashion to the traditional broadcasting system. Any intervention on our part would only get in the way of innovation.”

I concur with Michael when he says:  Overall, the decision to avoid new regulations and levy schemes is a good one.  Further, the intervention on undue preferences is both welcome and represents a potential first step in addressing the broader concerns associated with net neutrality.  The CRTC is the first to get criticized when it gets things wrong (or does nothing at all), but deserves praise when it gets things right.

That’s the title of my Slaw post for today.

It reads as follows:

Connie wrote a couple of days ago about the submission deadline for the upcoming CRTC network neutrality / network management / traffic shaping hearings. Since then, some submissions have been made public that illustrate how important this hearing will be, and how it will affect Canadian consumers and content providers.

The federal Privacy Commissioner has filed an well written submission that discusses the privacy aspects. The Commissioner’s blog post on the topic starts with:

What would you think if you wrote a letter and it could be opened up by a postal or a courier service before it reaches its destination? What would you think if that happened to your online communication? It’s not necessarily a hypothetical question.

Michael has a post that talks about the submission of the parent company of the Weather Network, quoting from their submission:

…the Commission should adopt a more expansive definition of net neutrality and traffic management that would encompass the commercial practices of both wire-line and wireless network operators. In our view, the Commission needs to take steps to ensure that, with respect to both wire-line and wireless network operators, traffic management practices are applied equitably and treat like-traffic in the same or comparable manner. Any management practices that treat certain types of content, particularly content produced or provided by the ISP or network operator, in a preferential or advantageous manner should not be permitted.

And they back that up with examples of actual wireless network neutrality violations they have encountered.

The CRTC started its new media hearing yesterday.  It will consider whether the CRTC should regulate the Internet in some way – the thought being that it is just another form of broadcasting.

Its an important issue that will no doubt garner a lot of press.  Michael Geist will provide detailed ongoing coverage.  From his post yesterday:

Throughout the hearings, I’ll be teaming up with Carleton professor Ira Wagman to offer up a full summary of the day’s events as we’ll have students carefully taking notes on all the presentations and discussions.

Michael comments that the real fight in these hearings will come down to 3 issues – the isp levy, the new media regulatory exemption, and net neutrality.  

This will get interesting, as views range from complete hands off except to keep it neutral and open, to highly regulated Canadian content proposals.  It is worth watching as the outcome may affect how Canadians use the internet.

Background detail is here and here.

The big news today is the CRTC decision that denied CAIP’s application complaining about Bell’s internet throttling.  The CRTC has however made it clear that it is not through with teh net neutrality issue.

From the CRTC’s press release:

“CAIP’s application asked us to only consider the specific issue of wholesale traffic shaping within a specific context. The broader issue of Internet traffic management raises a number of questions that affect both end-users and service providers,” added Mr. von Finckenstein. “We have decided to hold a separate proceeding to consider both wholesale and retail issues. Its main purpose will be to address the extent to which Internet service providers can manage the traffic on their networks in accordance with the Telecommunications Act.” 

The Commission has launched a proceeding to examine the current and potential traffic management practices of ISPs operating in Canada. This proceeding will include a public hearing starting on July 6, 2009, in Gatineau, Que. The CRTC has invited comments on a number of specific questions. Some of these questions are related to:

• changes in bandwidth consumption that may lead to network congestion
• Internet traffic management practices based on technical solutions or business models that are currently available or may be developed in the future, and
• the impact of such practices on end-users.

For more detail and commentary, take a look at Michael’s viewpoint, articles from the Globe and Mail, and Slaw, the CRTC press release, and the CRTC decision.

Michael notes that the CRTC has issued a notice detailing its upcoming hearings on broadcasting and new media, and asking for interested parties to participate.

The CRTC has essentially kept its hands off the Internet so far.  These hearings will consider whether that should continue, or whether the CRTC should regulate “broadcasting” over the Internet.  This will prove to be an interesting exercise. Anyone who has strong feelings about this should consider participating.

More background and detail is in the CRTC notice itself, in Michaels post, and in an earlier post of mine.