Month: January 2018

I spend a lot of time thinking about unintended consequences that emerge from telecommunications regulations.

A year ago, I wrote a piece asking “Will regulation inhibit innovation?”

That article was looking at technology solutions to deal with unsolicited calls from telemarketers. In response to a CRTC notice of consultation asking “what regulatory measures, if any, should be established,” at the time I observed, “Each time a regulatory measure is introduced, there are limits imposed on the degrees of freedom for innovation.”

Twenty years ago, permission-less innovation, sometimes in the form of spoofed calling identifiers, helped bring down the cost of delivering international long distance calls using line side connections. If caller ID had been verified, many low cost calling arrangements may not have emerged.

I continue to be troubled by the CRTC’s decision on differential pricing practices (Telecom Regulatory Policy CRTC 2017-104) issued last April. The language in the decision seems to ignore the potential for interference in service innovation. For example, the CRTC provided a specific direction, explicitly favouring certain types of innovation over others: “Rather than implementing marketing practices such as zero-rating, ISPs in the retail Internet access services market should focus on innovating by enhancing, for example, the speed, coverage, capacity, security, and reliability of their existing networks, for the benefit of Canadians.”

Early in the decision, the CRTC quoted a witness who asserted “that differential pricing practices would end the era when entrepreneurs are free to innovate without permission, which is a core net neutrality principle that has fostered innovation up until now.”

While the decision claimed to establish an ex-post complaints based regulatory regime for evaluating differential pricing innovations, it simultaneously established a regime for service providers to have the regulator pre-authorize innovations:

If an ISP is unsure as to whether a differential pricing practice would be consistent with the framework, it may file an application seeking a Commission determination prior to implementing the practice in question.
…
to encourage ISPs to seek a determination in advance of offering a differential pricing practice as appropriate, the Commission, in dealing with a complaint about a differential pricing practice and in accordance with its powers under section 72.003 of the Act, may consider imposing an administrative monetary penalty.

I sense an imbalance in permission-less innovation. In the early days of smart phones, differential data plans were the norm, with offers of low priced, flat rate access to popular applications intended to get people to try out mobile internet. None of these plans needed to be reviewed in advance by the regulator. We might want to consider whether any would have survived a review under the current Canadian regulatory framework. Yet, did the practice of favouring certain social media and messaging applications reduce incentives or opportunities for entrepreneurs to innovate without permission?

Hardly. These pricing practices encouraged more people to get online.

Can we do better anticipating the risks and opportunities that arise from intervention in the marketplace in order to avoid unintended consequences? Can regulators avoid the temptation to intervene and allow the marketplace to decide which business models will succeed?

How can policy makers ensure Canadians have the opportunity to derive the full benefits from innovation and disruption in an increasingly digital economy?

The theme for The 2018 Canadian Telecom Summit [June 4-6, Toronto] is “Innovation and Disruption in ICT: reinventing and securing our business and personal lives.” Save more than $200 by registering before the end of February. Why not register today?

Earlier this week, The Globe and Mail carried an article in which Conservative leader Andrew Scheer said his party supported “the concept of net neutrality” and the newspaper portrayed this as being in contrast to his Innovation critic, Maxime Bernier.

Mr. Scheer added that his party supports the concept of net neutrality, the rules that require all internet traffic be treated equally. This comes in contrast to his innovation critic and former leadership rival, Conservative MP Maxime Bernier, who publicly advocated against it in favour of less government control and more free competition.

Are these positions really in conflict with each other?

Every so often, I like to refer back to the report of the Telecom Policy Review panel [pdf, 1.6MB]. While that panel reported back to parliament more than 11 years ago, most of its work still holds up today. Recall, the panel defined net neutrality in terms of “the right of Canadian consumers to access publicly available Internet applications and content of their choice by means of public telecommunications networks that provide access to the Internet.”

The panel said:

Given the complexity of this area, the rapid evolution of technologies and the market dynamics, the Panel believes the regulator here should have more discretion than in other areas of regulation. However, the Panel also believes this discretion should be exercised with a view to encouraging reliance on market forces and customer choice as much as possible. For example, there may be situations in which a customer wants an ISP to block access to particular applications or content. In addition, some customers may be willing to accept a reduced degree of access in exchange for a lower price. Such consumer choices should be respected.

In the Panel’s view, the purpose of a customer access rule should be consumer protection, and there should be a strong emphasis on ensuring that customers have the information required to make informed choices. In this way, the rule would promote the efficient operation of market forces.

Recall, this was a panel originally created by a Liberal government, that ultimately delivered its report to Maxime Bernier, the Conservative party Industry Minister at the time.

It is possible to support the principles of net neutrality, “the concept”, and still support the implementation of rules that encourage “reliance on market forces and customer choice as much as possible.”

We should not presume that supporting the concept of net neutrality is inconsistent with a light touch regulatory approach to its implementation.