Thursday, October 22, 2009

 

Competitive ISP market affirmed

Later today, there will be an announcement from the FCC that will be much heralded by many who confuse political rhetoric for action. It will be a long process before the US has any kind of net neutrality regulation, let alone the proposed framework that will be articulated today by the FCC.

Keep in mind that there is big difference between an operational approved framework that was put in place by the CRTC yesterday and a notice of proposed rulemaking just going out for comment today south of the border. Even after a year-long consultation, the FCC action will attract litigation that could drag out implementation for years.

Let me say it again - no country in the world other than Canada has an internet traffic policy framework and rules in place to protect consumers and deal with discriminatory behaviours by all ISPs - incumbents and new entrants alike.

At paragraph 46 of yesterday's network management policy framework, the CRTC continued to recognize the competitive alternatives available to consumers on a retail level:
Consistent with the current regulatory approach, under which the Commission has granted forbearance for retail Internet services, primary ISPs may continue to apply ITMPs to retail Internet services as they consider appropriate, with no requirement for prior Commission approval. This approach remains valid due in part to the large number of existing ISPs. A change in the approach would amount to interference with market forces and would result in inefficient regulation, which is contrary to the Policy Direction.
The CRTC, the competitive industry and Canadian consumers benefit from having generalized nondiscrimination rules enshrined in Section 27(2) the Telecom Act and a prohibition against interfering with content in Section 36.

However, there is a bit of a legal challenge for the CRTC in applying Section 27(2) of the Telecom Act directly to some service providers.

"Secondary ISPs" (defined as companies that don't own the facilities) aren't regulated. As a result, the CRTC needs to regulate indirectly, imposing a condition on "primary ISPs" to contractually obligate their wholesale clients ("secondary ISPs") to agree to abide by 27(2).

There may need to be some clean-up by the CRTC in the language used to define these new primary and secondary terms. The current language of the rules has loopholes that could enable some secondary ISPs to escape regulation under the framework.

For example, while primary ISPs are defined to be carriers, the converse is not true: not all carriers are necessarily primary ISPs. It is unclear why paragraph 50 was a direction to "primary ISPs" and not to all "carriers". A company operating as a wholesale carrier enabler may enable co-located DSLAMs for one or more ISPs, without the carrier ever becoming an ISP.

In addition, it is possible for secondary ISPs to purchase all of their underlying services from another secondary ISP (acting as an aggregator). As a result, the CRTC will need to try to ensure that contractual obligations to abide by 27(2) cascades appropriately.

Procedurally, it is already difficult to enforce indirect regulation through carrier contracts. It is not clear that there is a meaningful mechanism to enforce obligations on supplementary tiers.

Watch for amendments.

Comments:
Personally, I'm looking forward to reading the literary backflips that Bell, Rogers, and the other "Primary ISPs" will demonstrate to try to justify their existing technical ITPMs. If the framework is followed, they will have to be severely modified, but I'm sure they won't change them willingly.

Now that all affected parties have the right to file complaints regarding an ISP's technical ITPMs, do you think the CRTC will establish a new complaints mechanism? Will they try to use the CCTS?
 
I think that complaints would be typically be filed under Part VII of the Telecommunications Rules of Procedure. Anyone else?

I note the language of paragraph 47 opens the door for the Commission to review ITMPs "of its own motion". This could be a process following identification of a possible problem through other means.
 
Right ... this gives consumers about as much protection as taking the sheathing off a roof. The framework's there, but it doesn't do anything except stop the roof being blown off in a windstorm.

The CRTC as a judicial system is not impartial. It is made up of industry players who have worked for our major telecoms companies.

The CRTC was not designed as a judicial system. It was intended to prevent the problems we see today, not mediate them.

The problem we face is that the telecoms companies can pull the trigger and maim the consumer. Then the CRTC says come to us and we might say "You did wrong" to the telcos ... Remember the consumer has already been maimed ... damage has been done.

It takes months for the CRTC to do things now. Imagine the time it's going to take to make decisions on the thousands of complaints they are going to get. Are they trying to get job security or something?

There is as much competition in this market as there was in communist Russia. Mr. Goldberg, I don't understand how you can make the comments you do.
 
Post a Comment

Links to this post:

Create a Link



<< Home

This page is powered by Blogger. Isn't yours?