WordsByNowak

The CRTC kicks off a new round of hearings on usage-based internet billing on Monday, yet the smoke from the net neutrality bombshell that went off on Friday is not even close to clearing.

In case you missed it, University of Ottawa professor Michael Geist on Friday published findings from an Access to Information request that show the regulator is failing miserably in enforcing net neutrality. In the year and a half since it enacted rules to protect net neutrality, the CRTC has investigated more than 30 reported violations but has done very little about them.

“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,” wrote Geist. “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.”

Let’s go back in time a bit. Net neutrality became an issue in Canada back in 2008, when it emerged that Bell Canada was slowing down or “throttling” the connections of customers using peer-to-peer file-sharing software. The dispute was initially between Bell and its wholesale internet service provider customers, such as Teksavvy, but eventually grew into a larger CRTC hearing on net neutrality itself.

The term means different things to different people, but it’s probably easiest to think of it as a principle that prevents unfair discrimination of internet applications by service providers. To use one of the CRTC’s favourite analogies, think of the electricity network. It’s a truly neutral network in that they hydro companies that supply people with power don’t care about and have no say over how it is used. A good example of a violation would be if the hydro provider made, say, one manufacturer’s toasters work better than another or, worse yet, if it made its own toasters work better than anyone else’s.

The concern with the internet has always been that ISPs have strong motives to interfere with certain things that run on it. The internet, of course, offers all kinds of video and phone services that compete with the bread and butter of telecom and cable companies. Those same companies, meanwhile, have argued that they need to “manage” certain types of traffic - especially file-sharing - because it causes congestion on their networks.

The CRTC established its “internet traffic management practices” framework in October, 2009, which effectively told ISPs that they could only interfere with traffic as a last resort. “Economic measures,” like usage-based billing, ironically, should be used to control congestion instead, the regulator said.

Of course, throttling has continued unabated since then and, if Friday’s report is anything to go by, net neutrality violations have been proceeding with impunity.

What was the CRTC’s excuse for its ineffectiveness? As Geist reported:

Under the current legislation, the Commission has limited tools to enforce its rules. New tools, such as AMPs (administrative monetary penalties) allow the Commission to be more effective in its enforcement activities, as we have demonstrated in the case of DNCL (the Do Not Call List) and the significant penalties that were recently imposed.

Ah yes, the AMP. Anyone familiar with CRTC chairman Konrad von Finckenstein knows it’s one of his favourite subjects. He’s been complaining about the CRTC having a lack of AMP teeth for at least three years and he sang a similar chorus during his time at the Competition Bureau before that. This raises a few questions.

The first is, if the CRTC doesn’t have enforcement powers, why did von Finckenstein brag about Canada supposedly being a world leader in net neutrality? “Canada is the first country to develop and implement a comprehensive approach to internet traffic management practices,” he said in October, 2009. Given what is now known, it sure looks like the chairman wrote the proverbial cheque that the CRTC was not prepared to cash.

More importantly, given that von Finckenstein has been beating the AMP drum for so long and the fact that the CRTC still doesn’t have this ability, significant doubts arise about the chairman’s personal effectiveness. Either von Finckenstein doesn’t have the clout to convince politicians to enable this power or telecom lobbyists have more clout in convincing them not to. Either way, the chairman has failed in getting the job done.

That’s especially bad when it comes to net neutrality because, of all the issues under the regulator’s purview, it may very well be the most important. Not only does the internet enable great social, educational and cultural communication, it also provides a competitive platform for all sorts of services that no amount of regulation or legislation could ever hope to create. Net neutrality, if properly enacted and enforced, makes a whole host of other regulations unnecessary. As I mentioned the other day, it is the cornerstone of an unregulated, competitive market that can prevent or counter abuses from things like the vertical integration of telecom and broadcast companies.

Von Finckenstein has only six months left on the job and the retrospectives are already being written. Unless there is some unlikely action on this issue by the end of the year, his inability to get AMPs established - and thereby get supposedly world-leading net neutrality rules to be taken seriously by ISPs - will easily go down as his biggest failure at the CRTC.