Canada: ISP traffic shaping should only be "last resort"

The Canadian Radio-television and Telecommunications Commission (CRTC) has issued an order saying traffic shaping is a "last resort" measure to deal with Internet congestion, network investment is the "primary solution," but no "bright line" network neutrality rules will be forthcoming. When ISPs need to control traffic levels, then, they are first encouraged to use "economic measures" as the fairest solution. These can take the form of data caps or discounts for Internet use during off-peak hours, instead of involving the ISP in discriminating among packets. Economic measures would "generally not be considered unjustly discriminatory," says CRTC, "as they link rates for Internet service to end-user consumption... Furthermore, these practices match consumer usage with willingness to pay, thus putting users in control and allowing market forces to work." Instead, the CRTC has set up a "framework" for evaluating these non-economic traffic management measures. There are few advance rules, though there are four general principles looked at in evaluating specific policies:

• Demonstrate that the [measure] is designed to address the need and achieve the purpose and effect in question, and nothing else;
• Establish that the [measure] results in discrimination or preference as little as reasonably possible;
• Demonstrate that any harm to a secondary ISP, end-user, or any other person is as little as reasonably possible; and
• Explain why, in the case of a technical ITMP, network investment or economic approaches alone would not reasonably address the need and effectively achieve the same purpose as the ITMP.

The CRTC does warn, however, that "application-specific [shaping measures] degrade or prefer one application, class of application, or protocol over another and may therefore warrant investigation."

Harold Feld writes: "Canada has now settled its definition of "reasonable network management" and set rules for traffic throttling. Amazingly, the rules the CRTC settled on for "reasonable network management" look a lot like the standard our own FCC settled on in the Comcast/BitTorrent Order, but even stronger on the notice and transparency side."