LibertyVoice

The CRTC has launched a new consultation on the reporting requirements for new media broadcast undertakings.

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.

CRTC Chair Konrad von Finckenstein tells the Globe that the commission has no plans to try to extend its regulatory reach.

SaveOurNet.ca points to a letter written by NDP MP Charlie Angus to Industry Minister Tony Clement late last year on net neutrality.  The money paragraph focuses on the enforcement side of the CRTC's Internet traffic management guidelines:

I urge you to do what is in your power to curtail ISP's discriminatory traffic-shaping practices. In order to make Net Neutrality a reality in Canada, I would ask that you direct the CRTC to adopt it as part of Canada's internet policy, and enforce it through regular compliance checks of ISP traffic.

As the traffic management guidelines take effect, Canadians should begin to see more detailed disclosure of ISP traffic management practices and the possibility of complaints or investigations.

Predictions about future technology law and policy developments are always fraught with uncertainty, yet identifying the key players is a somewhat easier chore.  Although Parliament is not scheduled to resume until March, my weekly technology law column (Toronto Star version, homepage version) tracks ten who are likely to lead the way in Canada in the coming year.

Tony Clement, federal Industry Minister.  From anti-spam legislation to the national copyright consultation, Clement demonstrated a keen interest in technology issues during his first year as industry minister.  2010 should be no different, with privacy reform legislation, a new copyright bill, and rules for another wireless spectrum auction all on the agenda.  To top it off, Clement has sent strong signals that he wants to forge ahead with a long-overdue national digital strategy.


James Moore, federal Canadian Heritage Minister.  Young, bilingual, and tech-savvy, Moore broke the mould for a minister of Canadian heritage. This year will present Moore with at least two highly contentious issues likely to leave many unhappy: copyright reform and fee-for-carriage for television broadcast signals.

Stockwell Day, federal International Trade Minister.  The link between international trade and tech policy is not immediately obvious, yet two trade initiatives mean that Day may ultimately dictate policy to his cabinet counterparts Clement and Moore.  The Anti-Counterfeiting Trade Agreement and the Canada - European Union Trade Agreement both fall under his mandate and feature detailed intellectual property provisions.

Peter Van Loan, federal Public Safety Minister.  Van Loan is responsible for Bills C-46 and C-47, the controversial lawful access legislation that died last week with the decision to prorogue Parliament.  Part security, part privacy, and part Internet, the legislation likely will be reintroduced and face stiff opposition when it comes before a House of Commons committee in 2010.

Charlie Angus, NDP digital affairs critic.  The only opposition member to make the list, Angus is frequently the sole voice on digital policy issues on Parliament Hill.  With the Liberal Party seemingly unable to muster a coherent digital policy, Angus has filled the void by introducing net neutrality legislation, injecting himself into the copyright debate, and providing a consistent voice for artists’ concerns.

Konrad von Finckenstein, chair of the Canadian Radio-television and Telecommunications Commission.  Coming off a busy year, von Finckenstein will remain in the spotlight in 2010.  The CRTC’s fee-for-carriage decision will become an immediate lightning rod for praise or criticism (likely both), while the commission’s enforcement efforts on the do-not-call registry and net neutrality guidelines will face intense scrutiny.

Jennifer Stoddart, Privacy Commissioner of Canada. Stoddart enters the final year of her seven-year term with an opportunity to leave her mark on privacy in Canada.  Her Facebook decision garnered international attention in 2009, leaving Stoddart with considerable capital to play an influential role on lawful access, privacy reform, and anti-spam legislation.

Ron Kirk, U.S. Trade Representative.  Kirk is the leading figure on U.S. trade policy.  U.S. trade officials will undoubtedly claim that Canadian laws are inadequate and Kirk will therefore maintain maximum pressure on Canada on behalf of U.S. lobby interests.

David Jacobson, U.S. Ambassador to Canada.  Jacobson had scarcely unpacked after being confirmed to the post this fall before he was criticizing Canadian intellectual property laws.  Working together with Kirk, Jacobson will provide ample evidence that a change in administration does not mean a change in attitude on digital policy.

Thousands of online Canadians.  Last year demonstrated that Canadians are keenly aware of digital issues and willing to actively voice their views.  Record numbers participated in the copyright consultation, thousands submitted comments to the CRTC on net neutrality, and more than 100,000 emailed their views on the fee-for-carriage debate.  Combining passion with Internet technologies, the power of the individual has thrust digital policies to the forefront, enabling individual Canadians to ensure their concerns are factored into the decision-making process.

The NY Times reports on the fee-for-carriage fight brewing in the U.S. (where carriage is optional and fees are negotiating).  Denis McGrath highlights some of the key differences between the U.S. and Canada on this issue.

The past twelve months in law and technology were exceptionally active, with new legislation, Canadian Radio-television and Telecommunications Commission hearings, national consultations, and very public battles over digital issues. My weekly technology law column (Toronto Star version, homepage version) takes a look back at 2009 from A to Z:

A is for the Anti-Counterfeiting Trade Agreement, the secret copyright treaty that generated opposition at home and abroad as details on proposed language leaked out.

B is for Chet Baker, the former jazz great and current lead plaintiff in a $6 billion copyright class action lawsuit filed against the Canadian recording industry for its failure to pay artists for the use of their work.

C is for the Conference Board of Canada, which withdrew three intellectual property reports after acknowledging they contained plagiarized material.

D is for drugs for Africa legislation, which unexpectedly passed second reading in the House of Commons and will be considered by a committee next year.
 
E is for eBay power sellers, who faced an aggressive campaign by the Canada Revenue Agency to collect unpaid GST.  The campaign followed a successful legal effort to force eBay to disclose the sellers' identities.
 
F is for Facebook, which agreed to make significant privacy changes following a well-publicized investigation by the Privacy Commissioner of Canada.

G is for Google Street View, which launched in Canada this fall, but not before a House of Commons committee probed the likely impact of the new mapping feature.

H is for Louis Rene Hache, who was convicted on charges under the Criminal Code for the illegal reproduction of the film "Dan in Real Life" at a Montreal movie theatre.

I is for i4i, the tiny Toronto firm that scored a big patent victory over software giant Microsoft.

J is for Canadian Heritage Minister James Moore and Industry Minister Tony Clement, who presided over Canada's first national copyright consultation since 2001.

K is for CRTC chair Konrad von Finckenstein, who was in the spotlight with hearings on regulation of new media, Internet traffic management, and broadcast fees.  

L is for Lawful access legislation introduced by Public Safety Minister Peter Van Loan in June.  Bills C-46 and C-47 languished, however, and have yet to be discussed at committee.

M is for marketing claims on network speed and reliability, the subject of multiple lawsuits that forced Bell and Rogers to drop claims from their advertising campaigns.
 
N is for net neutrality, which made regulatory and political progress with the release of new CRTC guidelines as well as garnering political support from both the federal Liberal and NDP parties.  

O is for one-click, the controversial Amazon.com business method patent that was denied validity by the Canadian Patent Appeal Board.
 
P is for Psion, the Toronto-owned firm that threatened Dell over the use of the term “netbook.”

Q is for the Queen v. Vasic, a criminal case in which an Ontario court ruled that combining Internet provider customer name and address information with IP address data could render the information sensitive.

R is for Heather Robertson, the freelance writer whose longstanding copyright class action lawsuit neared a conclusive settlement.

S is for spam legislation that was introduced by Tony Clement in April. Bill C-27 is currently before the Senate.

T is for the TV Tax and Local TV Matters marketing campaigns that irritated Canadians from coast to coast.

U is for unwanted telemarketing calls that kept coming despite the existence of a national do-not-call list.

V is for Joanne Veit, an Alberta judge who ruled that Alberta Information and Privacy Commissioner Frank Work was wrong when he concluded the City of Edmonton can't force pawnshops to upload personal client details to an outside company's database.

W is for WindMobile, the operating name of Globalive, a new wireless carrier that was told by the CRTC that it did not comply with foreign control restrictions, only to have the federal Cabinet overrule the regulator weeks later.

X is for the future “X” on electronic voting technologies, which Elections Canada reported it is considering.

Y is for YouTube, which received a video takedown demand from Canada Post.  The crown corporation objected to a union-inspired video about the mail carrier's CEO.

Z is for Zoocasa, the real estate search site that was sued by Century 21 Canada for scraping listings from its website.

The Communications Energy and Paperworkers’ Union, Canada's largest telecom union, says its plans to challenge the Globalive decision in federal court, arguing the "decision is illegal."

Industry Minister Tony Clement announced this morning that the Government has overturned the CRTC decision on Globalive, giving the go-ahead for the fourth national wireless carrier to enter the marketplace.  Clement stated "Globalive is a Canadian company, and meets Canadian ownership and control requirements under the Telecommunications Act."  While Clement was careful to say that the decision applies solely to these facts, the Order-in-Council seems to suggest that the door is open to greater foreign involvement in the Canadian wireless marketplace. 

The key paragraphs focus on the need to interpret the Canadian control requirements with enhanced competition in mind and on the absence of foreign investment restrictions under the law:

Whereas the Governor in Council considers that, when possible, the Canadian ownership and control requirements should be applied in support of the Canadian telecommunications policy objectives set out in the Act, including enhancing competition in the telecommunications market;

Whereas the Canadian ownership and control requirements of the Act restrict the ownership of voting shares by non-Canadians, but the Act does not impose limits on foreign investment in telecommunication common carriers and should be interpreted in a way that ensures that access to foreign capital, technology and experience is encouraged in a manner that supports all of the Canadian telecommunication policy objectives;

These paragraphs signal the prioritization of enhanced competition in the marketplace.  With support for foreign investment, the removal of foreign control limits may not be far behind.

The Public Interest Advocacy Centre has released a major new report on net neutrality. Staying Neutral: Canadian Consumers and the Fight for Net Neutrality, canvasses recent decisions and makes recommendations for future actions.  It arises from six focus groups conducted in Vancouver, Toronto, and Montreal.