Other voices are finding problems with the data at the core of the FCC’s broadband study, produced by Harvard’s Berkman Center for Internet & Society.

On Monday, George Ou of the Digital Society think tank systematically trashed the Harvard Berkman Study, concluding:

The underlying data cited by Berkman study is simply too flawed to be of any use. And because the study bases its conclusions on flawed data, the conclusions drawn in the Berkman broadband study are equally unreliable.

Bret Swanson (former executive editor of The Gilder Technology Report) writes:

the real purpose of the report is to make a single point: foreign “open access” broadband regulation, good; American broadband competition, bad.
…
The gaping, jaw-dropping irony of the report was its failure even to mention the chief outcome of America’s previous open-access regime: the telecom/tech crash of 2000-02. We tried this before. And it didn’t work!

There will be more criticism leveled at this report. Bottom line?

As we stated on page 24 of our report [ pdf, 944KB], in undertaking any international comparison, one must be cautious not to fix on any one measure regardless of whether it provides good or bad news. Much more can be learned by considering a range of indicators and most importantly, understanding and taking into account the underlying factors that influence the results.

Ignoring this understanding, too many are seduced by capturing easy headlines and fail to do their own scholarly analysis of the data.

Xchange is reporting that the FCC is surveying citizens to find out why people with access to broadband still aren’t signing up.

Sound familiar?

At a session at Supercomm, the FCC spoke about low adoption rates as a key hurdle, rather than access.

The FCC is developing a national broadband plan that aims to expand broadband reach to all U.S. residents but policymakers still have to figure out why some people resist subscribing to broadband.

As we wrote last week, in our recent report, we made the same observation and two of our recommendations dealt with this issue.

• Shift more attention to adoption issues (including adoption of next-generation services) and encourage socio-economic research focused on better understanding the obstacles to, and inhibitors of, broadband adoption
• Consider programmes to improve digital literacy and the use of incentives (tax-based or otherwise) to target and overcome any barriers to broadband adoption

Which side of the border will act first on demand-side programmes to overcome barriers to broadband adoption?

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.

As CRTC chair Konrad von Finckenstein was quoted in the Commission’s press release:

Canada is the first country to develop and implement a comprehensive approach to internet traffic management practices

In a regulatory policy decision issued this morning, the CRTC has affirmed that it already has sufficient legislative authority within the Telecom Act to police discriminatory practices by ISPs. Similar clauses do not exist in US legislation.

Contrary to rhetoric from people who really know better, Canada doesn’t lag the US in net neutrality legislation. As we have written before, the generalized nature of anti-discrimination provisions in Canada’s Telecom Act have continued to provide sufficient tools for the CRTC to protect consumer interests on the internet.

Further, the CRTC has stated (at paragraph 116 of today’s decision) that it expects mobile wireless internet services to abide by the principles set out in this decision – likely the first regulator in the world to apply such provisions in a mobile context. Even though it lacks the ability to enforce these provisions, the message is clear to the mobile industry.

Let me say it again – no other country in the world has a set of rules in place to deal with net neutrality. No other place has regulatory certainty, enforcement processes and a clear framework for defining and dealing with violations of principles that balance the interests of users and service providers.

The FCC and its chair may have made policy statements, but it has not completed a Notice of Proposed Rule Making (NPRM). Tomorrow, the FCC will perhaps start a long consultation process for its new proposal.

Providing clarity for consumers and the industry alike, Canadian regulators are leading rather than following the FCC.

Interesting article in the National Post today by Howard Levitt on the legal implications of having employees who are distracted while driving.

He writes that the various provincial bans on calling and texting while driving will likely increase the risk of liability for employers, by making it that much easier for a court to link careless driving to illegal use of a cellphone.

Employers can be sued for accidents caused by employees driving while taking a call or texting a customer or the office. This is a risk whether or not bans are legislated.

His article has suggestions on how to manage the risk through such measures as:

• introduction of formal policies
• training
• remove expectation of dealing with calls and emails while on the road.