On the eve of the FCC's upcoming Network Neutrality rulemaking, Canada has now settled its definition of “reasonable network management” and set rules for traffic throttling. Amazingly, the rules the Canadian Radio-television and Telecommunications Commission (CRTC) settled on for “reasonable network management” look a lot like the standard our own FCC settled on in the Comcast/BitTorrent Order, but even stronger on the notice and transparency side. Hopefully, the FCC is paying attention here as it considers its own rulemaking on the definition of “reasonable network management.”
You can read the CRTC press release here and the detailed order here. The CRTC also says that it will use this new framework “to review practices that raise concerns or generate complaints.” em>i.e., it will treat this as the equivalent of the Internet Policy Statement and entertain complaints like the Comcast/BitTorrent complaint.
Since most folks don't follow the Broadband Beaver above us, readers may not have a clue what started this or why it happened. A brief review is probably in order. Canada requires its broadband providers to open their platforms and sell retail competitors access at wholesale rates (we used to do this in our country until we deregulated in 2005 after the Brand X decision). Back in March 2008, Canadian ISPs discovered that Bell Canada was throttling P2P traffic for it's wholesale customers as well as for its resale customers. Needless to say, Canadian ISPs (though their trade association CAIP)objected, especially as Bell Canada had neglected to tell its wholesale customers what it was doing, so that the independents were getting angry calls from customers and the independent retailers were all going 'we don't know what is going on, no really' and so forth.
Anyhoo, in December 2008, the CRTC denied the CAIP complaint. The CRTC reasoned that as long as Bell Canada did not treat the traffic of its retail rivals any differently from how it treated it's own traffic, there was no problem. Unsurprisingly, defenders of the FCC's Comcast/BitTorrent article such as myself were harshly critical, whereas opponents of the FCC's Comcast/BitTorrent Order were delighted.
But his did not end the matter. CRTC simultaneously opened a rulemaking on “traffic shaping” (the polite word for throttling/blocking). That proceeding has now run its course (in less than a year — not bad by U.S. standards) and the CRTC has issued rules that will govern the Internet Traffic Management Practices (ITMP) of ISPs. Or, as we would say here in the U.S., what constitutes reasonable network management.
I'm hoping the FCC is paying attention as it gets ready for a proposed rule tomorrow because the Canadian rule is not only (IMO) pretty reasonable and reasonably detailed, it also completely validates the definition used by the FCC in the Comcast/BitTorrent Order. you know, the one the Bells and Cablecos have been whining nonstop about as being the fruit of the Evil Wizard Kevin “Voldemort” Martin and being just ooohhhh so unreasonable and impossible and how anyone who really understood this stuff will say was impossible.
Well, the CRTC (which numbers among its Commissioners at least one member with technical knowledge) has decided that the incumbents need to shut their pie-holes, stop whining, and start adhering to some basic standard that do not amount to “trust us and let us keep network management a big black box or the internet will fail and everyone will hate you forever.” Let's hit the key principles announced by CRTC:
1) ITMPs must be transparent. ISPs must provide detailed and specific explanations to subscribers. None of this “don't use too much and we reserve the right to do whatever we want, whenever we want” crap. (It does, however, endorse metered pricing as the best form of traffic management, which I'm not totally sold on.)
2) The best way to address congestion is to build more capacity, and that's what you ought to do. But CRTC recognizes that will not entirely eliminate the need for some ITMP.
3) ITMPs cannot be unjustly discriminatory or unduly preferential.
4) It's so complicated we can't set formal rules, but we're going to develop a framework here and apply it through a complaint-based process.
OK, does this sound familiar yet? Now let's look at the standard announced by CRTC for network management:
The Commission considers that, for an ITMP to be evaluated properly, it must first be described, along with the need for it and its purpose and effect. The description should also identify whether or not the ITMP results in discrimination or preference.
- Where an ITMP does result in discrimination or preference, the Commission considers that establishing that the ITMP is carefully designed and narrowly tailored is important in an evaluation of whether or not the discrimination or preference is unjust or undue. . . .
When an ISP is responding to a complaint regarding an ITMP it has implemented, it will use the ITMP framework. In doing so, the ISP shall:
Describe the ITMP being employed, as well as the need for it and its purpose and effect, and identify whether or not the ITMP results in discrimination or preference.
In the case of an ITMP that results in any degree of discrimination or preference:
demonstrate that the ITMP is designed to address the need and achieve the purpose and effect in question, and nothing else;
establish that the ITMP results in discrimination or preference as little as reasonably possible;
demonstrate that any harm to a secondary ISP, end-user, or any other person is as little as reasonably possible; and
explain why, in the case of a technical ITMP, network investment or economic approaches alone would not reasonably address the need and effectively achieve the same purpose as the ITMP.
Or, in other words, metered billing or usage caps are OK, but anything that targets a specific application or protocol is going to be subject to very strict scrutiny to determine if it is really absolutely necessary. For comparison, here is the language from Comcast/BitTorrent:
Comcast’s practice selectively blocks and impedes the use of particular applications, and we believe that such disparate treatment poses significant risks of anticompetitive abuse. To the extent that a provider argues that such highly questionable conduct constitutes “reasonable network management,” there must be a tight fit between its chosen practices and a significant goal.
The Order then goes on to impose specific and detailed notice of management practices to users of the sort that has ILECs screaming are impossible and cablecos babbling are just roadmaps for trying to avoid congestion management (and I hope the FCC is taking notes for its Truth In Billing Proceeding). Finally, the Order concludes that with regard to ITMP on the wholesale level, the danger of anticompetitive practices are so great that ISPs must get approval from the CRTC before adopting an ITMP that would impact wholesale traffic of other ISPs.
Frankly, I'm happy to have the FCC adopt more solid rules rather than a framework and resolve complaints by adjudication. Still, it is nice to see that another regulatory body has taken a look at the same problem and come to the same conclusion about targeting specific protocols or otherwise discriminating based on content. i.e. Not reasonable and not allowed.