FCC’s net neutrality changes could affect Canada, some experts say

On Wednesday, major internet and tech companies teamed up to rally against a proposal by the Federal Communications Commission (FCC) to overturn net neutrality rules imposed in 2015. While it seems like a U.S.-specific issue, especially given the CRTC’s own net neutrality rules are firmly in place, some say that doesn’t mean changes in the U.S. wouldn’t affect Canadian internet users. The “Battle for the Net” campaign aimed to draw attention to the FCC’s consultation on replacing the existing Open Internet Order, also referred to as Title II. One of the questions it’s asking is whether to keep, change or eliminate so-called Bright Line rules, imposed in 2015, which ban paid prioritization, blocking or throttling of internet traffic. Companies like Netflix Inc., Amazon.com Inc., Spotify AB and others participated in the online protest in hopes of changing FCC chairman Ajit Pai’s plans to replace the existing rules. But if Pai goes ahead, and should practices like paid prioritization or throttling become commonplace, could the consequences extend to Canadians? According to internet advocacy group OpenMedia, slowing down or speeding up traffic in the U.S. could affect the experience of Canadian internet users who are trying to access American websites or business that haven’t paid for prioritization. OpenMedia external counsel Cynthia Khoo said in an email shortly after Pai announced the consultation that Canadians could experience a “slow lane effect” in such cases, where “the company's traffic would go through their U.S. ISP before reaching Canada and the customer's Canadian ISP.” If that traffic was throttled, or that website’s rival’s traffic was subject to paid prioritization, “then that suggests, at least for part of its journey to the Canadian customer, it could be slowed down compared to other businesses who are paying the U.S. ISP.” Of course, even in cases where Canadians aren’t necessarily trying to access a U.S. website, Canadian internet traffic is likely to cross the border. Research by the Packet Clearing House (PCH) has found that roughly 64 per cent of Canadian traffic goes through the U.S. at some point before being repatriated in Canada. The Canadian Internet Registration Authority (CIRA) has spoken about the issue in recent years and argued building Canadian internet exchange points (IXP) could help keep more data in Canada. Yashar Ganjali, an associate professor in the department of computer science at the University of Toronto, said in an email that throttling in the U.S. would affect Canadians. In a scenario where a Canadian streams video from a U.S. provider, their traffic goes through multiple networks. “If one of these networks on the path (even those outside Canada) decides to throttle your traffic, you’ll notice the result. You can’t make up for the lost rate after it happens,” he said. But small ISPs say that even if any throttling or prioritization were to happen, it would be limited to the edge of the network and wouldn’t affect Canada. Matt Stein, chief executive officer of Distributel Communications Ltd. and vice-chairman of the board of the Canadian Network Operators Consortium (CNOC), said that any blocking and throttling that could happen as a result of the FCC lifting its ban on such practices wouldn’t be likely to affect Canadian traffic. “Based on what we know today, I don’t see that as a risk,” he said. “These kinds of prioritizations tend to be applied close to consumer.” That means they’re applied at the edge of the network, “and not at the backbone level, which is where Canadian networks interface to the U.S. networks, where they’re getting the content from.” Bram Abramson, chief regulatory officer at Teksavvy Solutions Inc., agreed in an email that its customers wouldn’t be affected if the U.S. ISPs were to, for example, slow down or speed up Netflix. If U.S. ISPs were to throttle the service, that would affect “the end-users connected to those access segments, but not the core networks, around which Netflix has the ability to route.” But no one can guarantee that such prioritization would be limited to the network edge, Jonathan Obar, assistant professor in the department of communication studies at York University, noted. Obar said that “it is true that the form of network management people are concerned about is how an ISP will affect the type of traffic that their own customers can get access to, but that’s only one part of how the internet works.” The potential exists for traffic to be slowed down at different points, he said, though “we don’t know that for sure because there isn’t a lot of evidence how traffic is slowed down within the network. It’s clearer how they’re doing it in relation to users.” He noted that when a user tries to access a website, “there are arrangements between different ISPs to allow for internet transmissions to function.” In order to connect to a website, a users’ ISP connects to another ISP and so on until the traffic reaches its destination, and the same on the way back. “And those relationships may be affected by network management practices. Because if one of those carriers decides to slow down the traffic for whatever reason, that traffic could potentially be affected,” Obar said. Robert Frieden, a professor and pioneers chair in telecommunication and affiliate law faculty at Pennsylvania State University, noted in a phone interview that when the FCC put its 2015 rules in place, the regulator was worried about downstream, retail and last-mile traffic, “as opposed to the upstream flow.” That means companies can, and do already, pay for faster access at the transport level though agreements like paid peering or content delivery networks (CDNs). That’s also the case in Canada — for example, Rogers Communications Inc. recently advertised peering agreements with game platforms in pitching its service to gamers. Frieden said such agreements aren’t necessarily an issue, but warned that large ISPs could slow down service in order to force services to pay for faster speeds. “I’m not trying to cast any aspersions or disparage any carrier, but if a carrier or ISP, like a … anyone on a dominant position that has a choke point… if there’s no regulatory cop on the beat and they think they can segment traffic or price discriminate, or discriminate on the basis of quality of service, they might call it low-latency service or that sort of thing and they can charge a premium for that or surcharge for that, they’ll do it.” However, the current system places such arrangements under “some scrutiny,” Frieden said. When the Bright Line rules were introduced, the FCC was able to, for the first time, “address issues that may arise in the exchange of traffic between mass-market broadband providers and other networks and services. Under the authority provided by the Order, the Commission can hear complaints and take appropriate enforcement action if it determines the interconnection activities of ISPs are not just and reasonable.” Frieden said any content provider whose traffic travels through the U.S. before going back to Canada, would be “vulnerable to that kind of potential degradation of service unless you pay a premium.” He added that what will happen in the future is “a big question mark.” “It wouldn’t surprise me if rules play out, you’re just going to see a proliferation of all different kinds of tiering and pricing arrangements,” he said. “In part, that’s a maturation of the industry. As broadband matures, you’re going to see different kinds of arrangements. But if there’s no cop of the beat, if there’s no consumer safeguard, particularly because it’s cross-border, then there’s trouble.” CORRECTION: Robert Frieden's name was misspelled on two references in an earlier version of this story. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Charelle Evelyn at cevelyn@thewirereport.ca

FCC’s net neutrality changes could affect Canada, some experts say

News | July 12, 2017

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