Mark Goldberg


www.mhgoldberg.com





Fox Group Dispatch

Do we offer a sip of water to the thirsty?

Ever since the CRTC released Telecom Regulatory Policy CRTC 2018-377, Development of the Commission’s Broadband Fund, certain critics have campaigned against it, charging (incorrectly) that the Commission has cut its own internet speed targets in half.

It didn’t.

As I wrote a couple weeks ago,

In December 2016, the CRTC set out objectives. As related to broadband service, those objectives were:

  • Canadian residential and business fixed broadband Internet access service subscribers should be able to access speeds of at least 50 Mbps download and 10 Mbps upload, and to be able to choose to subscribe to a service offering with an unlimited data allowance; and
  • the latest generally deployed mobile wireless technology should be available not only in Canadian homes and businesses, but on as many major transportation roads as possible in Canada.

… The 2016 policy set targets for the objective to be met in 90% of Canadian households by the end of 2021, and for 100% of Canadian households, 10 to 15 years following the December 21, 2016 issuance of Telecom Regulatory Policy 2016-496.

A subsequent CRTC decision added additional metrics: “In Telecom Decision 2018-241, the Commission determined that fixed broadband Internet access service is of high quality if it meets a round-trip latency threshold of 50 milliseconds and a packet loss threshold of 0.25%, both measured during peak times.”

The CRTC sought comments on how to distribute its $750M Broadband Fund. Other branches of government, at all levels, have been funding broadband development projects for decades now and still, 1 in 6 Canadian homes lacks access to a service that meets the CRTC’s targets. Some households lack affordable access to any form of broadband internet service.

In its September 2018 funding Policy, the CRTC observed that “A speed eligibility criterion of 25 Mbps download and 5 Mbps upload would likely result in projects covering underserved areas that would deliver a broadband Internet access service that the majority of Canadians use today. Accordingly, the Commission considers that a minimum speed eligibility criterion of 25 Mbps download and 5 Mbps upload would be meaningful and a significant first step towards meeting the universal service objective.”

As a result, it said “that to be eligible for funding, proposed projects that would build or upgrade access infrastructure must be capable of providing a minimum download speed of 25 Mbps and a minimum upload speed of 5 Mbps” but it also added an important condition: “the Commission expects that proposed projects that do not meet the universal service objective-level speeds of 50 Mbps download and 10 Mbps upload will be scalable, meaning that speeds of 50/10 Mbps will be provided to the target community at a future date through capacity upgrades in the access or transport infrastructure.”

The 2016 policy acknowledged that “In some underserved areas, achieving the objective will likely need to be accomplished in incremental steps due to many factors, such as geography, the cost of transport capacity, the distance to points of presence, and the technology used.” [Paragraph 140]

Critics who say the CRTC has lowered the standard set in 2016 are just plain wrong. There has been no change in CRTC policy. The 2016 policy from the CRTC quite clearly did not call for all subsidized internet projects to meet the target speeds overnight, which is why it spoke of “incremental steps” and set a 10-15 year window for the target objective to be met.

Today, some Canadians lack access to affordable broadband at any speed.

They are thirsty for access to the same kinds of services that most Canadians use every day. Some so-called “consumer advocates” believe Canadians should reject anything less than the speeds equivalent to those available in urban centres. That isn’t realistic.

Should we offer a drink of water to those who are thirsty or make them wait until a full bar service is available?

Toward achieving the service objective

Among the most widely mis-reported decisions to come out of the CRTC was the characterization of Telecom Regulatory Policy CRTC 2016-496, Modern telecommunications services – The path forward for Canada’s digital economy, issued in late December 2016.

Some headlines said “In Historic Decision, Canada Declares Internet Access a Fundamental Right for All,” going on to mislead their readers with “National telecom agency promises to connect all Canadians, from Quebec to Yukon, to high-speed broadband.”

That isn’t what the CRTC said in December 2016, so as a result, some were disappointed with CRTC’s policy issued today to begin to establish a fund to increase the availability of broadband in under served areas. Telecom Regulatory Policy CRTC 2018-377, Development of the Commission’s Broadband Fund, states very clearly what the 2016 Policy actually set in motion:

In Telecom Regulatory Policy 2016-496, the Commission established the following universal service objective: Canadians, in urban areas as well as in rural and remote areas, have access to voice services and broadband Internet access services, on both fixed and mobile wireless networks. To help provide Canadians with access to these services, the Commission established the Broadband Fund, which will provide $750 million over five years.

In this decision, the Commission addresses matters related to the Broadband Fund, including its governance, operating, and accountability frameworks, as well as eligibility and assessment criteria for proposed projects.

Let’s be clear. In December 2016, the CRTC set out objectives. As related to broadband service, those objectives were:

  • Canadian residential and business fixed broadband Internet access service subscribers should be able to access speeds of at least 50 Mbps download and 10 Mbps upload, and to be able to choose to subscribe to a service offering with an unlimited data allowance; and
  • the latest generally deployed mobile wireless technology should be available not only in Canadian homes and businesses, but on as many major transportation roads as possible in Canada.

As of the end of 2016, the CRTC’s 2017 Monitoring Report shows that objective is achieved for 84% of Canadian households. The 2016 policy set targets for the objective to be met in 90% of Canadian households by the end of 2021, and for 100% of Canadian households, 10 to 15 years following the December 21, 2016 issuance of Telecom Regulatory Policy 2016-496.

Much will be written on today’s regulatory policy release; it might help to start with a clear understanding of what objectives were actually set out in 2016.

Responding to the new environment

Delayed for a day by storm clean-up, the Broadcasting and Telecommunications Panel launched its consultations earlier today, releasing “Responding to the New Environment: A Call for Comments“.

In its call for comments, the Panel identified four broad themes intended to help guide its work. Each of these themes is accompanied by a number of paragraphs that provide some context for the discussion papers and submissions, as I have attempted to summarize below.

  1. Reducing barriers to access by all Canadians to advanced telecommunications networks;

    Much is packed into this heading, including access to, and adoption of, advanced telecommunications “to connect, communicate, innovate, consume, study, work, and participate in Canadian society and in an increasingly global digital economy.” The consultation mentions both network facilities and digital literacy under this heading.

    In addition, the consultation speaks of facilities based carriers, and incentives and opportunities for investment, while mentioning the contribution of “a number of new entrants… to the rollout of new services and facilities, enhancing both the availability and affordability of services.”

    The section looks at access to spectrum, access to poles and support structures and security. “While openness and ‘net neutrality’—a concept related to the long-standing principle of ‘common carriage’—will continue as key elements of Canada’s legislative and regulatory frameworks, there may be other principles that should be applied in order to balance the need for an open internet with security in the digital context.”

  2. Supporting creation, production and discoverability of Canadian content;

    The panel has apparently already concluded “For Canadian content programming to succeed both domestically and in the international marketplace, there must be clear policies that support quality creation, production and discoverability.”

    Importantly, the call for comments asks “how the legislative and regulatory framework may be modified to ensure that all players, including online players that garner revenue in Canada [empasis added], play a role in the creation, production, and distribution of Canadian content.”

    Further, the role of CBC/Radio-Canada has been added as part of the Panel’s review to consider how its contribution as a local and Canadian source of news and information should be adapted to a global, digital environment.

  3. Improving the rights of the digital consumer;

    Under this heading, the Panel anticipates consideration of affordable access to services, assessing terms of service, “exercising meaningful control” over consumers’ personal information and examining the exploitation of personal information in exchange for services.

    I am still trying to unpack the meaning of a line in this section: “It is challenging to balance the neutrality and openness of the Internet with the protection of privacy and personal security for digital consumers.”

    Another paragraph in this section is certain to attract a lot of commentary, dealing with “the proliferation of false or misleading information presents new challenges. In this context, independent, trusted, accurate, diverse, as well as local and Canadian sources of news and information are essential for an informed citizenry, civic participation, and democratic process.”

  4. Renewing the institutional framework for the communications sector.

    A review of the institutional framework should include the allocation of regulatory responsibilities between the government and the regulator – among other items, this will likely include examining the unimplemented recommendation from the 2006 Telecom Policy Review Panel to move spectrum management to the CRTC.

    The panel will also consider whether new or different legal powers or regulatory tools are needed “to improve the effectiveness and efficiency of the system and the governance of the communications sector in the digital environment.”

I encourage you to refer to the Call for Comments for the full description of each of these themes.

The Panel is chaired by Janet Yale, and it includes Peter Grant, Hank Intven, Marina Pavlović, Monique Simard, Monica Song and Pierre Trudel.

The first round of submissions are due November 30, 2018.

Never getting to say goodbye

The most memorable line in the 1970 hit movie, Love Story, was when Ali McGraw said to Ryan O’Neal “Love means never having to say you’re sorry.”

Sometimes, a dropped call leads my wife and I to twist that phrase into “Using a mobile phone means never getting to say goodbye.”

I remember when carriers promoted “crystal clear, pin-drop connections.” We have gone through a period of sacrificing quality for mobility, and perhaps taking advantage of the flakiness of some areas with bad mobile coverage as an excuse for dropping a call [“no dear, I would never hang up on you!”].

I sometimes miss the battle to differentiate on quality.

Yes, there are certainly areas of Canada that need increased coverage, but generally, our urban and suburban communities have consistently good signals. That is not the case everywhere. With family in various parts of the world, we have found there is sometimes a price to be paid for lower cost service. It is quite common for people to need to rely on residential WiFi to effectively pay for extending their mobile carrier’s coverage inside the home.

Last week, a report from Speedtest showed that in the first half of 2018, Canada’s mobile networks tested at an average download speed of nearly 47Mbps, with upload speeds of 11.85Mbps, nearly 75% faster than their US counterparts.

I frequently have trouble getting calls to connect at all to mobile devices inside suburban homes in some major American cities. Sometimes, using a mobile phone can mean never even getting a chance to say hello.

Do as I say, not as I do

Once again, politicians have decided not to hold themselves to the same standards that are imposed on the rest of us.

The Toronto Star reports that the government has decided to reject an all-party recommendation that Canada’s privacy laws be extended to apply to political activities.

Parliament’s Standing Committee on Access to Information, Privacy and Ethics (“ETHI”) had released a report (“Addressing Digital Privacy Vulnerabilites and Potential Threats to Canada’s Democratic Electoral Process”) [pdf, 7.3MB] in mid-June with 8 recommendations, including: “That the Government of Canada take measures to ensure that privacy legislation applies to political activities in Canada either by amending existing legislation or by enacting new legislation.”

The report noted comments made to the Committee by Canada’s Privacy Commissioner, who observed:

So while I am currently investigating commercial organizations such as Facebook and Aggregate IQ, I am unable to investigate how political parties use the personal information they may receive from corporate actors.

In my view, this is a significant gap.

This is hardly the first time that politicians chose to exempt themselves from legislation that applies to the rest of us. Four years ago, I noted that Parliamentarians created an explicit carve out from rules applying to electronic communications.

As the ETHI report noted, “Canadians would have greater confidence if they knew that their political parties were not exempt from privacy legislation and that they have legal responsibilities similar to those imposed on public and private organizations under the Privacy Act and PIPEDA.”

If the rules are too onerous for politicians to apply to themselves, how are we to believe they are appropriate for the rest of us? Conversely, if the regulations are necessary, then why don’t they apply to all?