Net neutrality is VERY important dammit. For the internet legal types (hello!) it’s always one of the most important topics of discussion around the ol’ water cooler. So when a communications behemoth like Bell decides to appeal a big neutrality decision, it should be a huge story. Like earlier this week, when it was widely reported that Bell Mobility filed some appeal documents in the Federal Court of Canada. But there are some real misconceptions about all this that yours truly is here to clear up in my usual irascible way.
Let’s start with a little background. On January 29, 2015, the CRTC released Broadcasting and Telecom Decision CRTC 2015-26. Catchy title! It was big news at the time, and I should have written about it then, but I was, uh, busy? Drunk? Let’s go with drunk. I’ll get into the details in a moment, but for now you should know that the CRTC ruled against Bell and Videotron. Bell and Videotron had mobile apps that showed assorted content (TV shows), and these apps had some form of preferential pricing for their own existing customers. This was hailed as a big victory for net neutrality, in headlines like this:
Then that led to the much more sensationalistic headlines earlier this week, about the possible appeal:
The impression you get is that the CRTC issued some giant net neutrality ruling that proclaimed a neutral and open internet for all time, and that a giant multimediatelecommunicabroadcasting conglomerate was appealing in order to crush it to death with fire.
This is not true.
First, a technical legal point. Bell is not appealing the CRTC decision, Bell has asked the Federal Court for permission to appeal the decision. It’s what we in the lawyer biz call “filing a motion for leave to appeal”, which you can see in the Federal Court Record. So the decision may not even be appealed. Second, another technical legal point. It is not “Bell Canada” asking for leave to appeal like the headline says, it’s Bell Mobility. If you can understand this crazy PDF BCE org chart, well, you are better at reading org charts than me. Bell Mobility is a subsidiary of Bell Canada, which is a subsidiary of Bell Canada Enterprises (BCE). Doesn’t really make much difference practically, but get your facts straight Huffington Post.
So now, the case. The subtitle of the CRTC decision is the following:
Complaint against Bell Mobility Inc. and Quebecor Media Inc., Videotron Ltd. and Videotron G.P. alleging undue and unreasonable preference and disadvantage in regard to the billing practices for their mobile TV services Bell Mobile TV and illico.tv
That actually explains the case pretty well! A Mr. Klass complained to the CRTC that (a) Bell Mobility customers using the Bell Mobile TV app (which they pay $5/ month for) were exempted from normal data usage rates for the time / data spent watching Bell Mobile TV on their mobile device; and (b) Videotron did something bad too in a similar vein with its illico app for Videotron customers. That sounds bad!
Anyway, the CRTC had to decide a couple of things. First, are the companies acting as “broadcasters” with these apps and subject to the Broadcasting Act or, are are they “Canadian carriers providing a telecommunications service”, and subject to the Telecommunications Act. This is important, because the Telecommunications Act has the following provision:
27.(2) 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.
The Broadcasting Act contains no such provision. Anyway, after some legal mumbo jumbo, the CRTC concludes:
…that Bell Mobility and Videotron are providing telecommunications services, as defined in section 2 of the Telecommunications Act, and are operating as Canadian carriers, when they provide the data connectivity and transport necessary to deliver Bell Mobile TV and illico.tv, respectively, to their subscribers’ mobile devices. In this regard, they are subject to the Telecommunications Act
OK step one. Next the CRTC examined whether Bell and Videotron were violating the CRTC rules regarding Internet Traffic Management Practices, or what are known as ITMPs. The CRTC ruled they were not. That’s important. We’ll get to that.
So back to the 27(2) section, the CRTC ruled that in fact Bell and Videotron were violating that. They told the companies to cut it out. Videotron said sure, our illico app sucked so we were planning on discontinuing it anyway. Bell was less happy, and now wants to appeal.
Super Happy Funtime Analysis Hour
So is this a “net neutrality” decision? Well kind of. But it is not the net neutrality decision. Not by a long shot. Some statements from the CRTC are certainly neutral-like, such as:
Bell Mobility and Videotron have given a preference in favour of subscribers of their respective mobile TV services, as well as in favour of their own services, and have subjected consumers of other audiovisual content services, and other services, to a corresponding disadvantage
That sure seems like net neutrality to me. But remember that section 27? The CRTC explains:
Preference or disadvantage in and of itself is not contrary to the Telecommunications Act; the preference or disadvantage must be undue or unreasonable
My emphasis as usual. The CRTC is referring to s. 27, because their entire decision is based on that provision. This is a narrow decision based on that section. True net neutrality would say that any preference or disadvantage is bad. Neutrality dammit, that’s what it means! There would be no “undue or unreasonable” qualifier. Reasonable preferences to one’s customers would be a violation of net neutrality. Not in this case.
Now, remember those ITMPs? Those have actually been referred to by people (including me) as the “net neutrality rules”. But in this case the CRTC said they don’t apply! If they did, maybe we’d have something.
Look, I agree with this decision. What Bell and Videotron did was sucky, and the CRTC was right in finding a way to tell them to stop. But to say that this decision is some grand statement about net neutrality is just wrong. It’s a narrow decision based on one provision of one Act of Parliament. It has elements of net neutrality and leanings in that direction, but it is a long way from the true net neutrality decision most of us want.
Bonus parting thought