Conclusion

Innovators creating the next key piece of the web, or businesses trying to better integrate ICT systems into their frameworks, shouldn’t have to convince a regulator that a discriminatory system is damaging their business. Just as we expect these groups to be innovative in the marketplace, so businesses should expect that our regulators will ensure that all players are competing in an open market. It is possible to build on existing regulatory frameworks to level the playing field — thereby enabling innovators to innovate and businesses to invest in R&D and ICT without fearing the imposition of data discrimination.

Forthcoming policy decisions must guarantee the neutrality of the Internet as a platform for innovation, as well as enable leading users and innovators to create and compete in an open market free from throttling and/or usage fees. Neither of these punitive measures will help Canadians succeed in the globalized digital economy, nor will they encourage the local adoption of novel ICT systems. No developer or content provider should enjoy preferential treatment. The vertically integrated, Internet-delivered services of ISPs should abide by the same rules as their non-vertically integrated competitors that are also using Internet technologies to communicate and engage with prospective customers. ISPs should adopt application-agnostic approaches and only apply throttling to those specific users who were disproportionately contributing to that congestion, and only for as long as necessary.

At present, the Canadian system requires ISPs to use network investment as their first response to problems of network congestion and, thereafter, to justify whatever economic and technical Internet management practices they use. The problem with the current situation is that the CRTC does not appear to have adhered to its stated priorities: to make network investment paramount, and to put the onus on ISPs to demonstrate that their methods are necessary and will not harm innovation or business. At the very least, these priorities should be followed in practice, and the onus placed on those ISPs that do discriminate to demonstrate that their solutions are highly targeted to particular points of congestion. Both Bell Canada and Rogers Communications, two of Canada’s largest ISPs, acknowledge that they sometimes inadvertently discriminate against non-problematic traffic.350 Because, however, it is up to end-users and businesses to detect problems, contact the appropriate regulatory officials, and subsequently defend their allegations, the result is a drawn-out and bureaucratic process, demanding a high level of legislative and technical knowledge.

While some positive work has begun on making Internet discrimination more public, more must be done.351 Canada must create greater transparency in the Internet service market; ISPs must be forced to explain how and why the infrastructure is designed in a discriminatory fashion and justify discriminatory practices to the public using independently verifiable data, and independent auditors must ensure that ISPs are not exceeding the boundaries authorized by Canadian regulatory bodies. More generally, the government must recognize the ways in which the Internet has democratized innovation, and work hard to keep the costs of entry low, the platform reliable, and the ISPs honest.

Canada has the potential to be a leader in the global digital economy — its citizens are highly educated, enjoy relatively high basic broadband penetration rates, and are avid users of the Internet. If we leverage our existing advantages, the underinvestment in ICT in Canada could be reversed; this in turn could help us enter an era of thriving innovation and robust economic growth.

Endnotes

350. See “Are there other applications that could be impacted by Rogers’/Bell’s traffic management measures?” here http://www.rogers.com/web/content/network_management See also http://service.sympatico.ca/index.cfm?method=content.view&content_id=12119

351. Specifically, Telecom Regulatory Policy 2009-657 requires ISPs to make public their uses of technical and economic traffic management practices – practices that are presently used to discriminate against and delay certain kinds of Internet traffic

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