Volume 42, Number 1: January/February 2008

The Fight for the Open Internet

Since its inception the Internet has promised an extraordinary opportunity for a huge array of communicative activity. People have new ways of communicating directly with one another and independent media producers can distribute their content cheaply. More information seems to be more available to more people every day. The open Internet is also an organizing tool for many civil-society groups, and here it is an especially exciting space for innovation and experimentation. However, we would be naive to take this medium for granted at a time when we are on the cusp of losing the open Internet. Major Internet service providers (ISPs) are hoping they can increase their current high level of profitability by becoming Internet gatekeepers.

According to Michael Geist, the Canada Research Chair in Internet and E-commerce Law, these ISPs already have a recent “history of blocking access to contentious content (Telus), limiting bandwidth for alternative content delivery channels (Rogers), and raising the prospect of levying fees for priority content delivery.”

During the Telus strike in 2005, the corporation blocked access to a website run by striking Telus employees called “Voices for Change” (and at least 766 other websites). Those familiar with network-control issues in Canada also accuse Rogers and Bell of limiting peer-to-peer (P2P) applications, which people use to share audio, video and other digital data with one another. So, here we have ISPs blocking or at least limiting the use of what is likely the most innovative, creative and participatory use of the Internet. In response to customer concerns, Bell recently admitted that they “are now using Internet Traffic Management to restrict accounts that are using a large portion of bandwidth during peak hours. Some of the applications that are included are the following: BitTorrent, Gnutella, LimeWire, Kazaa….”

Toward Net Neutrality

Shaping and controlling Internet traffic in this way defies the core principle that preserves the free and open Internet, a principle known as “net neutrality.” Net neutrality requires that Internet service providers not discriminate – including speeding up or slowing down Web content – based on its source, ownership, or destination. Net neutrality protects our ability to direct our own on-line activities. With net neutrality in place, a network’s job is to move data in a non-discriminatory manner, based on what people want.

One problem is that Canada does not have enforceable net-neutrality legislation, so there is very little structure in place to prevent the big ISPs from turning the Internet into a network resembling a tolled highway with a slow lane and fast lane. Therefore, if your website, content, application, or service wants to use the fast lane, you’ll have to pay the toll to get access. The ISPs can make a lot of money with this scheme, but we’re at risk of losing the Internet as we’ve known it. Independent and small-scale media producers certainly won’t be able to pay the extra toll and so will not be able to compete with big media conglomerates, who can afford the fees to usurp media competition.

New media companies will have almost no chance of being successful unless they get huge investors behind them. Innovative projects and organizations from Wikipedia to Canada’s own Bryght would not exist if they had to come up with huge investment dollars to satisfy telecom greed. If we allow the ISPs to become gatekeepers, we’ll not only tax existing technology innovators, we’ll also be taxing future innovators, as well.

Who loses in this scenario? Labour groups, public-interest groups, NGOs, small business, new-media businesses and everyday citizens. Sadly, citizens may be extorted in several ways: as Internet users, we will have much less choice in on-line media; as communicators, we will have less ability to communicate freely with one another; and as taxpayers, we’ll either need to deal with slow government websites or deal with more of our tax dollars going toward fast-lane tolls. We could end up with a largely prescribed menu of “choices,” many of which will be brought to us by these very same ISPs.

Bell recently stated, “Our position on network diversity/neutrality is that it should be determined by market forces, not regulation.” Somehow, they expect “market forces” to be at work even when they are blocking the services their customers choose to use. When two companies dominate a market, as they do in most Canadian markets, these big telecom corporations regulate the service to favour their own financial interests.

Big telecom companies have a clear financial incentive to prioritize their own applications and services, and those of their partners. This is an obvious case of these huge telecom corporations fighting for big-business regulation of the Internet, rather than citizen regulation of the Internet through the Canadian Radio-Television and Telecommunications Commission (CRTC) and their own sovereign choices.

Let’s Learn from Recent History – and Hope the CRTC Does, Too

In the early twentieth century, telegraph companies were network service providers somewhat like our ISPs. Due to a lack of industry regulation and oversight, news services were dependent upon the two telegraph companies. As the telegraph companies were themselves involved in the provision of news, they charged punitively high rates to rivals and sometimes refused them service. The leading telegraph corporation at the time argued that rates charged for its services were not within legitimate regulator territory.

The regulator at the time, the Board of Railway Commissions (BRC), rejected these claims and asserted that under the Railway Act the telegraph companies had to ensure that rates were “just and reasonable,” and that, unless this took place, “telegraph companies could put out of business every news gathering agency that dared enter the field of competition with them.” Telegraph companies were now compelled to treat all news services equally. Later the BRC prohibited Bell from denying interconnection to third parties (not unlike requiring open access to P2P). During this period of strong public-interest regulation, the number of telco providers went from about 600 to 1,695.

Another high point in Canadian telecom regulation came in one of the CRTC’s first statements after assuming authority for telecoms in 1976: “The principle of “just and reasonable” rates is neither narrow nor a static concept … the commission views this principle in the widest possible terms, and considers itself obliged to continually review the level and structure of carrier rates to ensure that telecommunications services are fully responsive to the public interest.”

Current CRTC commissioners would do well to read this foundational statement. Bell, of course, tried to dodge CRTC oversight by arguing that these areas were not within the purview of the CRTC. The CRTC forcefully disagreed. In a conflict between mobile communication equipment manufactures and Bell, the CRTC was wary of “system integrity” arguments used by Bell, concluding that refusing network connectivity related to Bell’s disinterest in real competition, and thus was “unjust and discriminatory.”

Fast-forward to the 1990s, when independent ISPs were defending themselves against big telecom companies who wanted into the Internet Service market. The independent ISPs argued that big telco companies should not be allowed to take over the ISP market because they controlled access to the local networks, among other advantages, and they could exploit their monopoly position. To our detriment, the CRTC disregarded these accounts and let Bell and other large phone companies take over the ISP market.

In 1995 Bell and Telus withdrew their basic network service upon which the independent ISPs relied, and introduced another service that was 300 per cent more expensive. Prior to consolidation, the ISP sector was very competitive, with many small, independent providers. Large cities like Vancouver supported fifteen to twenty ISPs; midsized cities might support a dozen. This was a period of rapid growth, about ten per cent a month.

One of the main reasons we now often have only two, huge telecom conglomerates to chose from for Internet service is because the CRTC failed to block these conglomerates’ abuse of their monopoly position in the 1990s. Will they do it again with on-line content and services?

Net-neutrality regulation is not a panacea for concentrated telecom power. We need to create real competition in ISP markets, which means creating a plurality of ISP ownership types, including municipal and community/non-profit ISPs. We need to encourage Industry Canada and politicians to freely allot spectrum for community and municipal ISPs. After all, these are our public airwaves, and we have the right to allot them to public-benefit organizations and institutions, rather then the big ISPs, which have betrayed our trust.

The Time Is Now!

Despite the actions of Big Telecom, we have clear public-policy statements we can use against them – especially Section 27(2) of the Tele-communications Act, which states, “No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.”

Big Telecom seems determined to pretend this clear, public-interest policy does not exist. A recent poll found that 76 per cent of Canadians believe the federal government should pass a law to confirm the right of Internet consumers to access content of their choice. We have a long history of holding big communications corporations accountable when they abuse the public trust, and now is the time again to uphold that tradition.

In 1972, as the burgeoning of computer networks began, Graham Spry, a Canadian who was instrumental in the creation of the Canadian Broadcasting Corporation during the onset of another medium (radio), made this timeless statement:

“What the situation now commands is an urgent and renewed sense of the prime and essential purposes, a fresh and wise use of imagination, and above all will, will, will, the determination to achieve these purposes.”

At this critical juncture, those of us who have the will can get involved with the Campaign for Democratic Media.

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