The Canadian Radio-television and Telecommunications Commission ("CRTC") released new guidelines on September 22, 2011 for how it will handle consumer complaints about the Internet traffic management practices (“ITMPs”) of Internet service providers (“ISPs”). These rules are worded solely in terms of ISP practices, but last year the CRTC applied the general framework also to wireless data services accessing the Internet.
In 2009, the CRTC adopted a framework for determining whether ITMPs are acceptable, and it extended that framework to mobile wireless data services in June 2010 (by Telecom Decision CRTC 2010-445). Rather than “creat[ing] bright-line rules as to which types of ITMPs are acceptable,” the CRTC adopted a framework that requires ISPs to demonstrate that a particular ITMP is reasonable even though it results in discrimination or preferencing. Specifically, the ISP must demonstrate that an ITMP:
- is narrowly tailored to address only the need in question;
- minimizes discrimination or preferencing to the extent reasonably possible;
- minimizes harm to users to the extent reasonably possible; and
- in the case of technical ITMPs (e.g., slowing a user’s traffic, prioritizing traffic, and limiting heavy users’ bandwith), could not be replaced simply through network investment or economic approaches (e.g., monthly bandwidth limits).
Under the new procedures, if an individual submits an ITMP complaint to an ISP and the ISP does not resolve the complaint, the individual may submit the complaint to the CRTC's Telecommunications Branch. If the Telecommunications Branch determines that the complaint raises compliance issues with the ITMP framework, the ISP must formally respond.
If the Telecommunications Branch determines that the traffic management practice appears inconsistent with the ITMP framework, it has a range of possible tools: it can request more information from the ISP; request a compliance meeting with the ISP; advise the ISP of corrective measures it should take; inspect the ISP onsite; initiate an independent third-party audit; or, with CRTC authorization initiate a hearing. If the Telecommunications Branch pursues a hearing, the ISP must show cause as to why the CRTC should not require the ISP to reimburse the customer.
The CRTC stated that it will publish a summary of the types of complaints it receives and any findings of non-compliance. These findings will include the ISP’s name and the nature of the complaint.
The new guidelines were posted in Telecom Information Bulletin CRTC 2011-609. A special thank you to Alton Burton Jr. for his assistance in preparing this update.