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The Neutral Throttle? An interview with CRTC Chairman Konrad von Finckenstein
http://www.tvo.org/cfmx/tvoorg/searchengine/index.cfm?page_id=613&action=blog&subaction=viewPost&post_id=11263&blog_id=485
Podcast released 26 October 2009
00:00 [Theme Music]
00:15 Jesse Brown: OK, I’ll admit it. I’m confused. I don’t know what to make of the CRTC’s ruling. I wanted answers. I wanted to know what the rules are going to be. I wanted to know, Can ISPs continue to censor the Web to support their own polictical agendas, like Telus did when they blocked access to labour union blogs during that 2005 strike? Can ISPs continue to throttle the Web, reducing our transfer speeds to as little as one-and-a-half percent of what they advertise and sell to us, like Rogers and Bell do every day? Can ISPs in Canada continue to spy on our Web transfers through Deep Packet Inspection? Can they keep ganging up on any newcomer company who dares to offer consumers something different? Can they keep doing so in the name of supposedly clogged up Interweb pipes? That they refuse to actuallly show us? Can they keep giving us some of the slowest and priciest broadband service in the first world, as study after independent study has proven that they do? Can they keep acting like they own the Internet? Or will we have an open Internet in Canada? Will we have Net Neutrality? Like they’re going to have in America?
01:34 JB: Well, the CRTC’s ruling is out. And I still don’t know. Maybe you know? Maybe you’re one of the thousands of Canadians who took to Web in outrage last week, certain that the CRTC’s ruling was an anti-Net Neutrality ruling. I mean, you’d certainly have some support for that position. You’d have the Globe and Mail who reported that Canada’s big Internet carriers scored a major victory: the right to manage traffic. You’d have agreement from the NDP’s Charlie Angus, who said that the CRTC has left the wolves in charge of the henhouse. You’d even have one of the wolves agreeing with them — Bell Canada’s Mirko Bibic, who said that the CRTC’s ruling proves that, quote, we’re the experts, and we get the flexibility to determine how to manage OUR networks.
02:25 JB: But, you also have people like Michael Geist saying that the CRTC ruling unquestionably advances the ball. You have pro-Net Neutrality companies like Google coming out in support of the ruling, praising it. I spoke to the Canada policy lawyer, Jacob Glick, who you’ve heard on the show before, and he said that by his interpretation the CRTC ruling clearly prohibits the kind of throttling that’s going on today.
02:51 JB: In other words, there’s some pretty credible voices out there who are reading this ruling as a pretty good one, as a step in the direction of Net Neutrality. As something that’s, I guess, the complete opposite of the total ISP capitulation that the newspapers, the Canadian public, and the ISPs seem to think that it is.
03:10 JB: So what’s the deal? Who can clear the CRTC ruling up for me? Well there’s probably nobody better suited to that job than the guy who runs the place. CRTC Chairman Konrad von Finckenstein. Mr. Chairman, hello.
03:22 Konrad von Finckenstein: Hello, Jesse.
03:24 JB: I’ve asked the listeners of this show to submit some questions to you and, uh, I’d like to pose a few of them to you now.
03:30 KvF: Sure, OK, go ahead.
03:32 JB: Very plainly, can Internet Service Providers under this ruling keep throttling peer-to-peer traffic the way that they’ve been doing?
03:41 KvF: Now I mean, I think you… miss the prom, principle view to just go right away to throttling, the whole idea is to try to find the balance between the competing interest, the competing interest of users to use the Internet to the maximum extent, to be as innovative and uh, and experimental as they can, versus the legitimate interest of Internet providers to protect the integrity of their networks and to make sure that all users have an equal opportunity. So what we said, we, we took this very principle to port, we said first of all, the best way to deal with all of that is to build extra infrastructure so that everybody has access, and that you don’t even get into congestion issue. If you do have to, uh, use Internet traffic management process, first of all tell people what you’re doing and publishing so they know in advance, and then use economic ones. IE. Make those people who are Internet hogs pay first of all. And then if that doesn’t work and you can’t then only can you control technical, uh, issues, and one of them is what you call throttling, which is, in effect slowing down somebody’s [indistinct(1)] but if you go that far then you have to justify yourself and here’s the framework of analysis that we will apply and we will look at it and we will, uh, if there is a complaint, or if you come on us and ask for approval beforehand this is how we’re going to test it.
05:08 JB: Is that a yes or a no? I mean, uh, we know that Bell and Rogers have been throttling. Do they have to stop doing that? Give people notice, appeal to you? Is this changing the policies that are already in place?
05:19 KvF: Look, is, we only did one ruling so far and that was on the CAIP request and there we said, it is not discriminatory, it is not preferential, and therefore we allowed Bell to do it. Now as you know, there’s a review of vary on it, and that will have to be, we will have to look and we haven’t decided on that yet. So if for to clearly, if, is, if, we, uh, review it we will apply the test that you just heard. I don’t think, uh, and we will see what the outcome will be.
05:53 JB: Well that brings me to another question that somebody submitted to me: Are you going to be watching to see how they behave? Are you actively monitoring the ISPs to see if they’re compliant, or are you going to be waiting? Is the onus on the consumer and the Internet user to complain to you at which point you move towards a ruling?
06:09 KvF: The onus is both on the Inter, Internet Service Providers and the users. The Internet Service Providers now, uh, know what the rules are, and they should structure themselves accordingly, they have to give notice, if they want to use technical or economical means and they have to uh, follow the, the guidelines. The exact same thing users who find they’re being, uh, impaired in their use because of activities by the ISPs now having a basis they can lodge complaints knowing that if there are complaints will be looked at through the analytical frameworks that we set out in our decision.
06:46 JB: The ruling mentions that traffic shaping should only be employed as a last resort. Define “last resort”. What, what does that mean?
06:56 KvF: You are always, uh, you are trying to get, uh, get me to define, principles, it’s, it’s very difficult. Obviously when we say “last resort” it’s saying, you know, part of it doesn’t sound so reasonable, because reasonable is in there too, and so you have to, you know, set, in the ISP who says “I have to resort to this, I appeal”, has to basically make out the case that he cannot to himself and later on to us when comes before us. He didn’t have to cover the ability to, uh, to provide access, uh, extra access to the necessary technological in, innovation, or if he did that there was no chance of getting return on his investment in a reasonable period of time. And it depends on who the ISP is, what the service is, and what the, what the requirement is driving him to the need for Internet traffic management practices.
07:57 JB: You’re right that I am trying to get you to define the principles because I find them a little bit fuzzy. And I guess the ruling explicitly states these are not “rules” but these are guidelines that are set–
08:07 KvF: Precisely. You’re trying to get me to convert the principles to guideline tests and we said there are no guideline tests because the situation is fluid, technology changes all the time, it’s a very dynamic solution. All I can guarantee you we’ll have the principled approach, and we will approach these principles, and here they are.
08:24 JB: Bell and Rogers, they’ve come out saying that they feel that they’re already in compliance with these rulings. This, this ruling changes nothing, that they say they’re fine with it because they’re already doing what you suggest.
08:35 KvF: I hope, hope that’s true. I hope that’s true. We shall see. You know, if, uh, you, for instance, uh, advanced technological user, and we, let’s assume for argument’s sake you’re a client of Rogers find they’re not, then, then first of all you going to go on the Web site and see who’s the in, uh, apply internet management traffic practices, or have they been, perhaps they’ve been described there, and does it say what the effects of those are. If they aren’t, and you find out they applied them anyway what you going to do? You’re going to launch a complaint and we will look into it. On the other hand, if they are exactly doing what they’re saying, then wonderful, and then we have total compliance, which is the whole idea.
09:13 JB: What happens if you find that they have not been following these guidelines? Are there specific penalties?
09:19 KvF: Well, they haven’t first then we will issue orders telling them to, what they have to do to comply. That’s how the whole licensing system works, you know. You are supposed to act in accordance to the, of the dictates of the regulator, so if the regulator says you cannot do that, or you cannot only do that if you provide compensation, or only if you, uh, uh, let’s say for argument’s sake, they uh, they slowed down from, from two to eight all afternoon and we find out that this is not justified, it doesn’t pass our tests, et cetera, we say you really have only shown me that the congestion which is six to eight, and if I buy everything else, fine, you can slow down but only say, you can only do it from six to eight. And they will do that. If they don’t do that, follow our order in court, then they get a court order to get them to do it, so.
10:13 JB: Let me ask you about that congestion question because this has been very controversial. The Internet Service Providers entire argument against Net Neutrality is based on this idea that they are facing congestion on the networks, and yet they have never proven to the public that this is in fact the case. Now I understand that some of the information that was presented to the CRTC, as you were looking at this problem, was kept confidential. Can I infer from this ruling that you agree with the ISPs? That they have proven to you that in fact congestion does occur to the extent that they say it occurs? Or, or at all for that matter?
10:44 [silence]
10:48 KvF: You say it has never been proven by those, I don’t know where, uh, on what basis you make that assumption. And, and, and obviously, the only way you can prove it is when, if there’s been actually breakdown of communications or, people, uh, people have been slowed down, et cetera. But there is no interest in, or capacity on the internet I think that is self-evident. Do you really have to wait ’til there is a major congestion and a major there, impairment of people’s use before you say “Hey, that’s a problem, something has to be done about it”?
11:21 JB: No, no, quite to the contrary. I’m not waiting for there to be an instance of congestion for the Internet to experience some huge cataclysmic brownout which has been predicted but has never happened.
11:30 KvF: Right.
11:31 JB: Instead, uh, the ISPs have consistently held that their information about their networks is proprietary information, even though there’s a, an intense amount of public, uh, monies that have gone into the building of those networks and they’re built over private and public land, through the right-of-way laws. We don’t know, just the data they have over how much capacity is being used, how much dark fibre is left. Some people have suggested that they’re not using a fraction of it. And yet they point to congestion as the cause of practices which might just be practices that are in their best business interests. So–
12:30 KvF: Well, well just a second. You know, you have, uh, If somebody comes forward and says this, uh, Internet Service Provider is it in, applying Internet Traffic Management, and he is, uh, this, that, unfairly, uh, discriminating against me or, uh, it may impairs my use, and the first, then the onus, as we set out in our, uh, the, our decision, is on the ISP to come forward and say either “No I’m doing it” or “Yes I’m doing it and I’m driven to it by this and this” and you go though the analytical framework. So you’re positing right away that actually that, that is happening. I don’t, you have to, that’s exactly what you are trying to do, trying to be preventive and, uh, prompt. If and when congestion arises, if it doesn’t arise then of course there’s no issue. If it does arise, then, as I said before, that’s, they may build extra infrastructure, if not they put in economic measures to, to have people pay for the use and thereby modu, modulate the use. If that doesn’t work then only you go to technical ones. Then, uh, uh, you want me to prove a disaster before it has happened. How can I do that?
13:17 JB: Is this really such a great mystery? Uh, the congestion they claim has already occurred and the throttling has already occurred. The complaints from the public have been loud and clear. All of this has been brought forward to you. Is this really a wait-and-see kind of a situation?
13:28 KvF: No but its, throttling has occurred to CAIP. So, throttling has occurred because Bell said they were running out of capacity during those hours, those hours so they came in close to the limits of their capacity. And in that decision when we heard it, you know, on the basis of the evidence we said “yeah, yeah, there’s a reasonable apprehension and therefore you’re, you’re entitled to take the measures that you were, were taking”. That’s how it always have, you know, hopefuly we won’t have cases where there has been a brownout and then people complain that says the question always is, are they close enough to brownout that they have to resort to these extreme measures.
14:05 JB: Transparency is one of the issues that this ruling speaks about.
14:08 KvF: Yeah.
14:08 JB: And is there, is there any onus on the ISPs to be more transparent about their networks to the public?
14:12 KvF: Very much so. We, we heard from some ISPs. We, through the tests have termed that they’ve, there’s really nothing on the Internet about this. And we felt, you know, if you’re already a customer you should know. You should know what it is, ’cause say for arguments sake, you’re a customer of ISP X. If ISP X employs, uh, a TM piece it has to say on it, that web site, this is what we’re doing, ta ra ta. And by the way, this is how, how it’s going to affect you, Mister User.” So that you then have these choice of saying “Well there, I am sorry, that’s unacceptable, I go to somebody else.” Or else you say “Well that seems, that seems sense, perfectly sensible, that makes sense, uh, and, and I accept it.” But you should have is the ability to choice, of choice as a consumer, and you won’t have that unless you are informed. And that’s why we’re saying transparency is absolutely vital. You have to put it on your Web site, you have to explain that you do it and what the effect is. And you also have to people, take people, give people reasonable notice so they can make an informed choice and not locked in.
15:15 JB: Well, I, I wonder if, uh, if the ISPs might just state that they’re going to do it, and then do it and the consumer options will be as limited as they are now.
15:22 KvF: Don’t forget, there’s a competitive advantage to not doing it, so if one guy does doesn’t mean the other one will do it as well.
15:28 JB: The FCC, uh, has just announced that they are going forward with much more rigid open Internet Net Neutrality guidelines. Do you feel that there is a risk of Canada falling further behind the United States in terms of the open Internet and innovation?
15:42 [silence]
15:44 KvF: Well, first off I don’t accept that we’ve fallen behind, et cetera. You have to look at all these numbers, et cetera. Specially in the context of the population based geography and the democratic distribution. To make an outright comparison between us and the States I think, it is comparing apples and oranges. So if you, if you look at it, and, put in the necessary qualifiers or weights in terms of, as I say, democra, uh, demographic distribution, geography and population base, we’re doing very well. And, uh, yes we can do better, we can always do better. But the rules that we’ve made, we made for the Canadian context. Now they, they’re not for the American context, would have surprised me very much if the US would have used similar rules. But they have a different market, and they have far more players, and they have a far bigger population base.
16:33 JB: Mr. Chairman, I won’t take up too much of your time. I have one final question for you. It’s part of my job, as it is part of yours, to take the temperature of the Canadian public, uh, on these issues.
16:41 KvF: Hmm.
16:41 JB: So I’ve followed the conversations that people are having online and people write to me about it, and I take part in those converations. And I’m sure you do too. I don’t think I’m exaggerating, at all, to say that Canadians feel, with, with certain justification, that they’re getting ripped off. By Internet Service Providers, they, they feel that they pay more than many other parts of the developed world, and that they’re getting less, and there’s studies to back this up. They feel they’re not getting the speeds and the services they’re promised that are advertised. They feel they don’t have as much consumer choice as they should and they’re forced to pay usurous rates to companies that they don’t like. And they’re afraid that our country is falling further and further behind. And that no-one’s really standing up for them. As of today I think, uh, almost 9,000 Canadians have signed a petition to dissolve the CRTC. C-c-can you speak to these Canadians and their concerns, ’cause I think that is the predominiant feeling, not that the CRTC should be dissolved, but that we’re getting ripped off by Internet Service Providers.
17:35 KvF: No, my, uh, uh, Can’t think dissolving the CRTC would have, uh, would help you in terms of Internet access. But to the, to the bigger point that you’re, you’re making. Yes, there may be, there may be a few in that further fear, uh, fear falling behind. I, I don’t, uh, haven’t seen any studies, I have, I have certainly, uh, seen, that a lot of commentators feel about that.
17:56 JB: Oh I can point to, to–
17:56 KvF: And I, uh, I, and I think you know we also do see clearly that governments have woken up and that broadband, more broadband is a necessity. And you see various provincial initiatives, you see some federal initiatives. Are there enough of them? Not really. Uh, clearly this is the very exploding area and the use is, is making demands on the infrastructure which is not being met pres, presently and we should pay attention to it. I mean, this, I think, once you only look at one aspect, the whole aspect is, is, is sort of digital red revolution and the need for digital, national digital strategy, which includes, in effect, a lot of expansion of the Internet, more of infrastructure, et cetera. I think everybody recognizes the need for it. Uh, to what extent, the government should do it, to what extent private individual do it, and what extent you can do it by, uh, by encouraging more players to enter the field, et cetera. Those are the old issues, really, of so macro-economics policies is for the government to decide, not for me as a regulator, CRTC. I can only deal with the existing infrastructure is there, and make sure that our measures are not seen as a break to further development of the broadband.
19:07 JB: Chairman von Finckenstein, thank you very much for your time today.
19:10 KvF: You’re welcome. You’re welcome. Bye-bye.
19:12 [Theme Music]
19:19 JB: Search Engine is produced by me, and a community of Internet hogs. E-mail me story tips and freelance pitches at jesse@jessebrown.ca You can follow me on Twitter @jessebrown Our Facebook group is SearchEngine TVO, and come read the blog at TVO.org/searchengine. The next podcast will be up first thing Tuesday morning.
19:42 [Theme Music]
20:07 [end]
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