Why Canada's net neutrality fight hasn't been as fierce as the one in the U.S.

America's telecom regulator is much more partisan than Canada's own, but there are legal reasons too.

'You get these potential swings in policy depending on who happens to be the president,' law expert says

Demonstrators rally in support of net neutrality outside a Verizon store in New York last week. The U.S. Federal Communications Commission is set to vote today on whether to scrap Obama-era rules around open internet access that prevent phone and cable companies from favouring certain websites and apps. (Mary Altaffer/Associated Press)

On Thursday, the U.S. Federal Communications Commission (FCC) is expected to reverse rules that regulated internet providers like utilities, freeing providers to block or slow access to content and services online.

U.S. policy-makers have spent the past 15 years fighting over the distinction. The most recent dust-up was in 2015, when the Obama government introduced net neutrality rules that are now expected to be overturned.

In Canada, the idea that internet service providers should treat all internet traffic equally hasn't been quite as controversial.

There are legal and political reasons for that. But each of the lawyers, academics and activists who spoke with CBC News this week pointed to one factor in particular: the FCC is a far more partisan organization than its Canadian counterpart, the CRTC.

That has a big impact on how decisions in the U.S. are made.

The party line

"The FCC is actually distinctly political," explained Michael Geist, a law professor at the University of Ottawa. "So in the U.S., you get these potential swings in policy depending on who happens to be the president."

The FCC is made up of five presidentially appointed commissioners, one of whom is the chairman — currently Republican Ajit Pai. Up to three of those commissioners can be members of the same political party, which means the FCC tends to lean either Republican or Democratic depending on the government of the day.

The policies of the FCC can change significantly depending on who's in the White House. (Carlo Allegri/Reuters)

It's not quite the same here in Canada. Although commissioners are still appointed by the government, the CRTC operates as more of an arm's-length judiciary, and makes decisions based on evidence submitted during public consultations, rather than along party lines. 

"It's treated more like a court process than like a political arena," said Laura Tribe, executive director of Open Media, which advocates for a free and open internet. "[That's] not to say there aren't politics involved, but it's not partisan to the same extent as it is in the U.S."

It also helps that Canadian politicians of all stripes have actually supported net neutrality for some time — unified, in part, by the lack of competition in our concentrated telecommunications landscape. There's a shared belief that regulation can help keep these companies in check, say Tribe and Geist.

But differences in Canada's telecommunications legislation play a role, too.

Common carriers

In the U.S., much of the debate has been about how internet providers should be classified under the Telecommunications Act of 1996. Are they Title I information services, which gives the providers control over the information that flows over their networks? Or are they Title II common carriers, which regulates them as utilities, and thus subjects them to FCC oversight?

Two years ago, during the Obama administration, the FCC ruled internet service providers were the latter. 

In Canada, this distinction doesn't really exist. Under our Telecommunications Act, internet service providers are treated like utilities, and there are rules around how they can act. There are two key rules in particular: service providers can't give "undue or unreasonable preference" — say, to one application or online service over another — nor can they influence the content being transmitted over their networks. 

Those rules were put in place in 1993, and they pretty much form the bedrock for net neutrality in Canada today.

"We've held the line, all the way through," said Dwayne Winseck, a professor at Carleton University's School of Journalism and Communication.

Of course, how those rules should be interpreted has been challenged over the years — on a case-by-case basis as service providers have attempted to push the limits of the law with new products and services. But in each of those cases — four so far — the CRTC has essentially developed Canada's net neutrality policy in its interpretation of telecommunications law.

That doesn't mean Canada is completely immune from a bigger fight. With the Telecommunications Act up for review, advocacy organizations like Open Media are concerned that the wording the CRTC's net neutrality interpretation relies on could be weakened. 

"It doesn't actually say the words 'net neutrality' in it," Tribe said of the act. If any changes are going to be made, she'd like to see the protections made more explicit.

About the Author

Matthew Braga

Senior Technology Reporter

Matthew Braga is the senior technology reporter for CBC News. He was previously the Canadian editor of Motherboard, Vice Media's science and technology website, and a business and technology reporter for the Financial Post. Email: matthew.braga@cbc.ca

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