Search Results for: regulating internet

It isn’t easy being a regulator.

Just look at the way people talk about the CRTC, Canada’s radio, television and telecommunications regulator. Complaining about the CRTC is part of our national birthright. Regardless of whether an issue actually falls under its purview, Canadians rush to blame the CRTC. Next to the post office, there may not be another government institution that engenders such opprobrium in our hearts and minds. I have observed before that “most Canadians feel they have a right, if not a duty, to criticize” the CRTC.

Some complaints legitimately fall firmly within the CRTC’s jurisdiction; some complaints are shared responsibilities with other branches of government; but, many other complaints (like Canadians being upset that off-shore streaming services block access to certain shows) simply aren’t issues that can be resolved by the CRTC. That doesn’t keep people from blaming the Commission.

Recently, some social media have taken aim at the regulator for moving at “sloth speed”, claiming “The speed at which the CRTC is operating is failing both the Canadian Telecommunications industry and Canadians as a whole.” An OpEd in the Toronto Star prods the CRTC to accelerate its wholesale internet pricing decision, claiming “The fact that Toronto is even considering building its own network to ensure affordable pricing for an essential utility is a shameful indictment of the regulatory delay in putting these options in place at the federal level.” In a bizarre approach to government relations, a wholesale-based internet service provider launched a campaign to flood the CRTC with emails, months after the close of a proceeding. It is unclear to me how this could have accomplished anything but add a further delay to the regulatory process.

One might say that such forms of complaining may succeed at inciting, without providing any clear insights to advance the regulatory processes or policy framework.

On the point of wholesale services, let’s be very clear. Even if the CRTC upholds its wholesale rates at the August 2019 level, these will not result in the $10 per month price plans being sought for low income households. As I have written before, “in recent weeks, we have seen the term ‘affordable broadband’ hijacked and applied to alternate agendas”. Such is the case with these recent, very public attacks on the regulator and the policy makers on both sides of the river in the National Capital Region.

This past weekend, I spotted a relevant 11-part Twitter stream related to the challenges of utilities regulation. Although it was written largely in response to power regulators in the wake of widespread blackouts in the south central United States, many of the comments resonated with me.

Professor Gus Hurwitz is the The Menard Director of the Nebraska Governance and Technology Center and the Co-Director of the Space, Cyber, and Telecommunications Law Program at the University of Nebraska. I encourage you to follow him on Twitter. Here is the essence of his 11-part weekend rant:

I spent much of last week watching recordings of meetings of local utilities regulators from around the country. They were terrible. Simply terrible. This isn’t a criticism of the regulators, however.

They are under-resourced, frequently staffed by well-intended but non-expert individuals — sometimes staffed by ideological nut jobs (from the left or right) hell-bent on using the regulator to impose their own policies.

There is frequent illegality. Either citizens demanding they do illegal things, investigation of malfeasance of prior commissions, or commissioner fighting over how to do things that the law says they cannot. But again, this isn’t a criticism of the regulators. They perform an important function, and are often trying to thread impossible needles.

This is especially true when they are trying to navigate changing technologies being used in new ways by a changing society with different needs, using static laws developed for older, generally simpler, technologies, the anticipated multi-decade CapEx and cost recovery.

And “federalize regulation” isn’t all that great a solution, either. Putting aside the legal issues, the local regulators often are responding to legitimately localized concerns. And federal regulators often face similar resource and expertise constraints!

I keep saying this: I’m not blaming the regulators. So who am I blaming?

Well, I’m blaming you, and me, and everyone who takes for granted their work or expects both regulators and industry to magically deliver perfect, low cost, zero risk, reliable results, while consistently voting to under-fund the regulators, passing punitive laws that harm industry, and electing lying politicians based on their promises to cut red tape and hold industry accountable. And while refusing to actually get involved with the process ourselves.

All the great stuff that makes our modern lives so wonderful … it takes public and private collaboration and a society that’s both willing to fund it and understanding of its limitations.

Today, we have overt public and private antagonism and a society that expects everything to work perfectly at no cost. Given that, expect things to get worse before they get better; expect things to get worse unless those who are able to help are willing to get involved.

It’s easy to complain about the performance of a regulator, or indeed about many regulated industry participants. And it is certainly within our rights to complain. I suspect that prospective staff members at the CRTC are warned (or should be warned) that if they have a thin skin, they may want to look at another line of work. I’ve attracted my fair share (or more than my fair share) of critiques for the crime of providing an alternate point of view.

While it is easy to complain, it is a lot tougher to get involved and help make things better. It takes much deeper thought to improve regulatory processes, maintaining balance to improve outcomes for consumers (especially vulnerable consumers).

Regulating competitive markets isn’t easy in the best of times. During COVID-19 induced lockdowns, it must be much more complicated for staff to collaborate on complex economic calculations and determinations and prepare carefully nuanced decisions.

The Telecom Act explicitly acknowledges that the regulator won’t always get it right when issuing an Order or Decision. That is why a number of channels of appeal exist, channels that have been used by major carriers and smaller service providers alike. Filing an appeal isn’t an abuse of process. Indeed, it is precisely a proper use of the processes established in the Act, as part of the checks and balances that exist for the regulator and the Courts.

Let the regulator do its job. When it issues its determination, if you don’t like it, file an appeal.

The internet has long been hailed as a means for democratizing the expression of opinions. Everyone has the ability to express themselves on Twitter, on Facebook, on blogs, or in countless chat rooms.

No longer constrained by the availability of a Speaker’s Corner in a public square, on the internet, marginalized voices aren’t subjected to the discretion of a publisher seeking to conserve valuable column inches of newsprint, or limited minutes of airtime. On the internet, you are limited only by the ability to attract eyeballs interested in your perspectives.

And that creates a problem.

In order to attract an audience, people game various systems to improve positioning on search engines, or pay to ‘promote’ their posts on a variety of social media platforms. Because promoter capabilities are seen to be a software feature by the platforms (and not a bug), bad actors have been able to use these tools to spread misinformation. Many subscribers have been unable to differentiate between trusted sources of information and some commentators have charged that this influenced the results of the 2016 elections in the United States.

As a result, democracies around the world are turning their minds to the issue of regulating the kinds of communications being expressed on the internet. Earlier this week, the UK government issued its Online Harms White Paper.

In the wrong hands the internet can be used to spread terrorist and other illegal or harmful content, undermine civil discourse, and abuse or bully other people. Online harms are widespread and can have serious consequences.
…
This White Paper therefore puts forward ambitious plans for a new system of accountability and oversight for tech companies, moving far beyond self-regulation. A new regulatory framework for online safety will make clear companies’ responsibilities to keep UK users, particularly children, safer online with the most robust action to counter illegal content and activity.

The UK plan envisions an independent regulator to set safety standards and reporting requirements and armed with enforcement powers.

The UK White Paper has a section on The Duty of Care:

7.4 As indication of their compliance with their overarching duty of care to keep users safe, we envisage that, where relevant, companies in scope will:

• Ensure their relevant terms and conditions meet standards set by the regulator and reflect the codes of practice as appropriate.
• Enforce their own relevant terms and conditions effectively and consistently.
• Prevent known terrorist or CSEA content being made available to users.
• Take prompt, transparent and effective action following user reporting.
• Support law enforcement investigations to bring criminals who break the law online to justice.
• Direct users who have suffered harm to support.
• Regularly review their efforts in tackling harm and adapt their internal processes to drive continuous improvement.

7.5 To help achieve these outcomes, we expect the regulator to develop codes of practice that set out:

• Steps to ensure products and services are safe by design.
• Guidance about how to ensure terms of use are adequate and are understood by users when they sign up to use the service.
• Measures to ensure that reporting processes and processes for moderating content and activity are transparent and effective.
• Steps to ensure harmful content or activity is dealt with rapidly.
• Processes that allow users to appeal the removal of content or other responses, in order to protect users’ rights online.
• Steps to ensure that users who have experienced harm are directed to, and receive, adequate support.
• Steps to monitor, evaluate and improve the effectiveness of their processes.

It is clear that not all illegal content on the internet can be policed using conventional methods. For example, how can we deal with content that hosted in another country that violates our laws?

In its White Paper, the UK is consulting on the need to have some extraordinary tools to deal with the global nature of communications and the “particularly serious nature of some of the harms”.

• Disruption of business activities. In the event of extremely serious breaches, such as a company failing to take action to stop terrorist use of their services, it may be appropriate to force third party companies to withdraw any service they provide that directly or indirectly facilitates access to the services of the first company, such as search results, app stores, or links on social media posts. These measures would need to be compatible with the European Convention on Human Rights.
• ISP blocking. Internet Service Provider (ISP) blocking of non-compliant websites or apps – essentially blocking companies’ platforms from being accessible in the UK – could be an enforcement option of last resort. This option would only be considered where a company has committed serious, repeated and egregious violations of the outcome requirements for illegal harms, failing to maintain basic standards after repeated warnings and notices of improvement. Deploying such an option would be a decision for the independent regulator alone. While we recognise that this would have technical limitations, it could have sufficient impact to act as a powerful deterrent. The British Board of Film Classification (BBFC) will have this power to address non-compliance when the requirements for age verification on online pornography sites come into force. We are exploring a range of options in this space, from a requirement on ISPs to block websites or apps following notification by the regulator, through to the regulator issuing a list of companies that have committed serious, repeated and egregious violations, which ISPs could choose to block on a voluntary basis.
• Senior management liability. We are exploring possible options to create new liability for individual senior managers. This would mean certain individuals would be held personally accountable in the event of a major breach of the statutory duty of care. This could involve personal liability for civil fines, or could even extend to criminal liability. In financial services, the introduction of the Senior Managers & Certification Regime has driven a culture change in risk management in the sector. Another recent example of government action is establishing corporate offences of failure to prevent the criminal facilitation of tax evasion. Recent changes to the Privacy and Electronic Communications Regulations (PECR) provide powers to assign liability to a specific person or position within an organisation. However, this is as yet largely untested. There are a range of options for how this could be applied to companies in scope of the online harms framework, and a number of challenges, such as identifying which roles should be prescribed and whether this can be proportionate for small companies.

The UK White Paper is roughly 100 pages setting out a “vision for online safety, including a new regulatory framework to tackle a broad range of harms”. It appears to be applying serious thought to a serious issue.

There are significant policy issues to be explored. It is difficult to imagine how Canada could conduct a consultation and have a regime in place prior to the next federal election.

Canada’s Minister of Democratic Institutions has been socializing plans for “Safeguarding our Elections” and earlier this week warned “The world’s major social media companies are not doing enough to help Canada combat potential foreign meddling in this October’s elections and the government might have to regulate them”.

Shortly afterwards, Facebook banned a number of Canadian accounts, including one belonging to a former candidate for mayor of Toronto.

If the content of these pages cross the line that defines illegal content, then it is understandable why the pages should be banned.

But what if the content is merely offensive, without being illegal? How do we ensure that actions to block content are consistent with Canada’s Charter of Rights and Freedoms, which guarantees everyone’s “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”?

This commentary appears on CARTT.ca

It is almost a defining characteristic for Canadians to distinguish ourselves from our neighbors to the south. The untrained ear may think we speak English somewhat similarly, but Canadians emphatically define ourselves as “not American” while we roll-up-the-rim-to-win.

That doesn’t keep us from wishing we had American prices for gasoline, milk, eggs, airfares, clothing and alcohol. It is springtime, and it is natural for us to look wistfully at greener grass growing on the other side of the border. We can add the USA’s unlimited mobile data plans to the list, prompted by one of the first acts by Federal Communications Commission (FCC) Chair Ajit Pai of dropping an investigation into zero rating practices by US carriers. The removal of that regulation resulted in every major carrier launching an offering of unlimited data plans.

Now, Chairman Pai has teed up the restoration of the free and open internet as he recently announced his plan to restore the light touch regulatory approach that helped make the Internet great.  Not a moment too soon. New research indicates that the misguided Title II regulation in the United States and the general pro-regulatory black cloud that has hung over the FCC in recent years, has deterred some $30-40 billion of internet investment annually in the US.

Canada’s current regulatory environment is reminiscent of the Obama administration’s FCC in which the Orwellian euphemisms of “openness” and “choice” characterized greater government control. Currently, there is an official telecom policy direction requiring the Canadian Radio-television and Telecommunications Commission (CRTC) to “rely on market forces to the maximum extent feasible” and “when relying on regulation, use measures that are efficient and proportionate to their purpose and that interfere with the operation of competitive market forces to the minimum extent necessary.”  Still, a growing number of CRTC regulations (including price controls on internet access and regulating the internet) have served to reduce differentiation between service providers, such as with mobile video services, such as NFL Mobile and Bell Mobility.

The CRTC claims that its increasingly heavy hand “relies on market forces to the maximum extent feasible, seeks to remove barriers to entry, and is a measure that is efficient and proportionate to its purpose.” But it is unclear that the CRTC’s policy would survive an independent audit of compliance to certify whether its direction is consistent with market-based policy. I have written before about the cost of regulation in Canada [here and here] and have often asked, how will we measure success? We don’t know. The CRTC offers no measurement.

As one long-time observer of the Canadian regulatory scene recently asked, should we expect capital to migrate to Canada because of our improved rules? If we look at the rate of startups in Canada versus the rate in the US, should we expect that rate improve in Canada relative to US? I think not. Investment is pouring into the US as a result of a return to its pro-competition and pro-consumer approach. In spite of the net neutrality policies meant to improve innovation in Canada, Canadian entrepreneurs continue to flock the US.

In general, the world is siding with the US, not Canada, on this issue. Courts in Netherlands, Sweden, and Slovenia have struck down heavy handed net neutrality regulation and price controls that restrict zero-rating and free data policies. With any luck, the bold and much-needed moves from the FCC in the US will provide the needed example to the CRTC in Canada and help us restore internet freedom again.

Internet Freedom is certain to be among the topics discussed at The 2017 Canadian Telecom Summit on June 5-7 in Toronto.

Join in the discussion.

Have you registered yet?

Open Media is asking candidates to declare themselves as pro-internet. It is part of an initiative that has contributed to a raised awareness of digital issues. When I first heard about Open Media’s “pro-internet” campaign, I had to ask,”Why wouldn’t you sign on?” After all, as a colleague put it, if you aren’t on such a list, you must be a Neanderthal. If you aren’t pro-internet, you’re must be against it, right?

But political candidates should be careful to read the fine print on how “pro-internet” is being defined. The fine print seeks to set Canada apart in the world. Open Media wants candidates to agree to have the government regulate retail internet prices:

By signing up here, you are agreeing to stop the pay meter on our Internet if elected.

What does that mean? If elected, candidates will be expected to stop usage sensitive prices. Sounds good if say it quickly enough, but stop to think about what that means in practice. For the majority of customers, it means that prices will increase. But let’s ignore that for a moment, because there are many who believe that the cost should be borne by shareholders or the government (and if profits decline, then the government will be bearing some of that cost).

More importantly, eliminating “the meter” means restricting choice for consumers. It means that at whatever speed, service providers would be forbidden from offering an “entry level” service. As I wrote a month ago, it means that seniors who may not need unlimited throughput wouldn’t have a choice of a lower price plan at the same speed. For half of Canadian households in the lowest income quintile (who don’t even own a computer, let alone have internet access), Open Media wants politicians to commit to restricting the flexibility of service providers to develop creative price plans to get them connected.

I wrote an OpEd a few weeks ago about why we should resist calls to regulate retail internet pricing: Don’t regulate my internet.

Stopping the meter isn’t pro-internet. It is a populist way of demanding retail internet price regulation. The rest of the Open Media candidate commitment, committing “to increase broadband access, competition, transparency, and choice”? I’m all in favour. Who isn’t?

Regulating retail prices won’t increase broadband access and it reduces competition by restricting choice. The pro-internet pledge, as currently phrased with government price regulation, just isn’t pro-internet.

The evolution of communications regulation has been at issue recently – for telecom, broadcasting and new media. There is a camp that continues to believe that government should preserve its historical role of managing the marketplace, regardless of the availability of diverse choices in the delivery of services.

When asked about net neutrality by Charlie Angus of the NDP in the House of Commons, Industry Minister Jim Prentice replied that the government does not regulate the internet. The supplemental question asked:

Mr. Speaker, the minister’s hands-off approach to hands-on interference is bad news for the development of a Canadian innovation agenda. Net neutrality is the cornerstone of an innovative economy, because it is the consumer and the innovator who need to be in the driver’s seat, not Ma Bell, not Rogers, not Vidéotron. They have no business deciding what information is in the fast lane or what information is in the slow lane.

Will the minister come out of the Gestetner age and take action on the issue of net throttling?

To which the Minister replied:

Mr. Speaker, I think virtually all members of the House could agree that if anyone inhabits the Gestetner age, it is the New Democratic Party. Members of that party would carry our country into the economic backwater that they propose.

We have a well advanced Internet system in this country. It is not publicly regulated. At this point in time we will continue to leave the matter between consumers on the one hand and Internet service providers on the other.

It appears to be clear that that the government’s policy for telecommunications regulation is to continue with its preference to rely on market forces to regulate. Can this be applied to broadcasting?

In a CRTC decision yesterday denying John Bitove’s proposal for a new national HDTV network, there was a dissenting opinion appended from the Commission’s Vice-Chair of Telecom, Len Katz. The dissent appears to call for the broadcast side of the Commission to prepare for the kinds of regulatory reform that are being experienced on the telecom side:

I question the role of the Commission in assessing the likelihood of success of a new entrant. I believe the Commission’s mandate does not include the responsibility of managing markets. New entrants bring with them different business models. Who is to say which model will be more successful? I would prefer to leave it to the marketplace. We must not confuse the Broadcasting Act’s objectives of protecting Canadian culture and identity with protecting Canadian markets… particularly where it relates to Canadian companies, built by Canadians for Canadians.

Will HDTV Networks appeal to a Cabinet that favours a reliance on market forces in place of government regulation?