Appeared in the Toronto Star on February 12, 2007 as Bernier's Troubling Stand on Net Neutrality

Since being named Minister of Industry last February, Maxime Bernier has set his sights on reforming Canada's telecommunications laws.  In only twelve months, he has overruled the Canadian Radio-television and Telecommunications Commission on its plans for Internet telephony regulation and introduced a sea change in the CRTC's approach, mandating that the Commission "rely on market forces to the maximum extent feasible and to regulate telecommunications services only when necessary."

Indeed, the emphasis on market forces has been so great, that the Minister from the Beauce might be better characterized as the Minister from Bell.  From dismissing anti-spam regulation to burying attempts to establish a national broadband infrastructure, Bernier believes that consumers are best served by giving the dominant telecommunications companies maximum regulatory freedom.

Bernier's willingness to parrot the corporate line became glaringly apparent last week when internal government documents obtained under the Access to Information Act indicated that he is skeptical about the need for legislative safeguards to ensure that all Canadians enjoy equal and unfettered access to Internet content and applications by avoiding a two-tier Internet.

Those safeguards, widely referred to as net neutrality legislation, were featured in a government-commissioned report on telecom reform released last year.  The report recommended that Canada introduce legal protections to "confirm the right of Canadian consumers to access publicly available Internet applications and content of their choice by means of all public telecommunications networks providing access to the Internet."

The need to prevent a two-tier Internet in Canada has never been greater.  The Canadian competitive landscape is dominated by a handful of companies, with the top five providers controlling 84 percent of Canadian Internet connections.  Indeed, Canadian consumers who have access to broadband networks (many communities are still without access) invariably face steady price increases and service limitations from the indistinguishable choice between cable and DSL.

Leveraging their dominant positions, Canadian telecommunications companies have been embroiled in a growing number of incidents involving content or application discrimination. Over the past two years, Telus blocked access to hundreds of websites during a dispute with its labour union, Shaw attempted to levy surcharges for Internet telephony services, Rogers quietly limited bandwidth for legitimate peer-to-peer software applications, and Videotron mused publicly about establishing a new Internet transmission tariff that would require content creators to pay millions for the privilege of transmitting their content.

The government documents uncovered last week confirm that Bernier is aware of the situation.  One prepared for the House of Commons Question Period notes that "Canadian telecommunications companies, like Bell and Telus, are increasingly determined to play a greater role in how Internet content is delivered.  As the carriers of the content, they believe they should be gatekeepers of the content, with the freedom to impose fees for their role."   

Despite publicly maintaining that he is undecided on the issue, another document leaves little doubt that net neutrality legislation is not in the cards for Canada.  A Question and Answer memorandum dated November 16, 2006, asks about Bernier's position on net neutrality.  Echoing the position of the major telecommunications companies, the response concludes that "market forces have served Canadians well when it comes to the Internet. Public policy must consider a number of aspects of this broad issue, including consumer protection and choice [and] enabling market forces to continue to shape the evolution of the Internet infrastructure, investment and innovation to the greatest extent feasible."  

Bernier's unquestioned faith in the market on the net neutrality issue places him and his government at odds not only with concerns of millions of Canadian Internet users but also with the emerging approach in the United States.  

Although the U.S. has yet to adopt universal net neutrality legislation, it has not stood pat. Last year, the U.S. Congress and state legislatures debated several net neutrality bills. Moreover, both the Federal Communications Commission and the Federal Trade Commission, the two U.S. regulatory agencies responsible for telecommunications and consumer issues, have focused on net neutrality.

The FCC imposed net neutrality conditions on telecom giant AT&T in December 2006 as part of its merger with BellSouth.  In return for regulatory approval, AT&T agreed to maintain a neutral network for two years and committed that it would not "provide or sell to Internet content, application, or service providers. . . any service that privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth's wireline broadband Internet access service based on its source, ownership or destination."

Tomorrow the FTC jumps into the fray as it hosts a two-day workshop on net neutrality that will include panels on content discrimination and blocking as well as consumer protection issues.

After reports of the internal government position on net neutrality leaked out, Bloc MP Paul Crête raised the issue last Wednesday in the House of Commons, asking Bernier to commit to the principle of net neutrality.  Bernier declined to do so, instead citing a recent Ipsos-Reid public opinion poll that he said demonstrated that 75 percent of Quebec residents support his plans for telecom reform.

In addition to mistaking polls for policies, Bernier did not mention that only 14 percent of respondents were even aware of the government's telecom policy changes and that the survey made no mention of Internet access issues.  More tellingly, he also neglected to reveal that it was Bell Canada that commissioned the survey.   

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.