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'As the United States reckons with a new and destructive FCC, speaking up for our right to communicate freely and use the internet the way we want to is more crucial than ever.' (Photo: Joseph Gruber/flickr/cc)

How Public Participation Saved Canada's Internet (Or: What Happens When Decision-Makers Actually Listen)

Net Neutrality is on everyone’s mind, and for good reason: Last week FCC Chairman Ajit Pai unveiled a plan to hand over the internet to companies like Comcast by eliminating Title II protections.

Cynthia Khoo

 by Free Press

Canada was also all abuzz with Net Neutrality news last week, and for the completely opposite reason: Our communications regulator, the Canadian Radio-television and Telecommunications Commission (CRTC), released a landmark decision that planted a flag for Net Neutrality, bolstering the future of online innovation, competition and affordable choice and allowing residents to meaningfully participate in today’s digital society. I represented the organization OpenMedia in the fight for these protections.

The decision took a stand against what we see as the anti-competitive and harmful practice of zero-rating. Zero-rating is when an internet service provider charges users different rates for the exact same amount of data at the same speed, based on which apps or websites you use. It’s what happens when, for instance, data used to visit Facebook is given special treatment versus data used to visit your favorite blogger or independent media outlet, just because Facebook struck an agreement with your ISP.

This allows ISPs to manipulate low and expensive data caps to drive user behavior and tilt the playing field toward big players with deep pockets. Especially when marketed as “free data,” zero-rating also distracts consumers from asking why data is so expensive to begin with — or from questioning the legitimacy of having data caps at all.

The CRTC made clear in its decision that harmful zero-rating practices would violate Canada’s Net Neutrality rules, and set out four main criteria it would use to assess the legality of future zero-rating programs that ISPs might implement: the level of content discrimination, the level of exclusivity, the impact on internet openness and innovation, and the presence of financial compensation (e.g., a content provider paying an ISP to zero-rate it).

The decision isn’t perfect. The CRTC left room for “exceptional circumstances” — a potentially large loophole. The decision also doesn’t address managed services like IPTV — which is when ISPs offer pay-TV services online using a different technology. And the entire framework is complaints-based: This means that ISPs can still do what they want, and the onus lies on individuals or groups to launch a complaint if a zero-rating program violates the rules.

However, there are two key takeaways from this decision that should give Net Neutrality advocates and internet users in the United States some hope:

First, public input was crucial to this victory. Over 55,000 people made their views known to the Commission in one way or another, and the CRTC took note. OpenMedia intervened in this proceeding and ran a campaign to end data caps, submitting a petition with 50,000 signatures and driving at least 5,500 people to submit individual comments to the CRTC. The CRTC itself sought comment from users on reddit, opening a week-long thread that garnered over 1,200 comments, and placing the entire discussion on the public record of the proceeding.

This level of public engagement was key to demonstrating to the CRTC that Canadians oppose zero-rating and care about Net Neutrality. While two ISPs submitted surveys claiming public support for zero-rating, the CRTC decision outright states that “nearly all the consumers who participated in this proceeding, either as individual parties, through OpenMedia, or through the reddit forum, were opposed to such practices because of their long-term consequences.” It was encouraging to see the CRTC paying attention to so many arguments from the public-interest community; the Commission may not have if there hadn’t been so many individuals forcefully and repeatedly reinforcing each one.

Second, persistence pays off. This fight isn’t a sprint or a marathon. It’s more like an obstacle course where you emerge exhausted and covered in mud — but know the effort was worth it. There’s always another battle to struggle through, but each one still takes you forward, even if it doesn’t seem like it at the time.

Canada won its first major Net Neutrality law in 2009 — eight years ago — and of course no one will forget the 4-million-people uprising that won strong open-internet protections in the United States in 2015. Public participation made those victories happen, and it made possible this latest win for an open and democratic internet in Canada.

As the United States reckons with a new and destructive FCC, speaking up for our right to communicate freely and use the internet the way we want to is more crucial than ever.

This work is licensed under a Creative Commons Attribution-Share Alike 3.0 License.

Cynthia Khoo

Cynthia Khoo is a Toronto-based lawyer working on internet policy and digital rights, including acting as external counsel to OpenMedia.

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