Timothy M. Denton

Success Through Understanding Technology

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Commentary and insights on policy issues in telecommunications and the Internet.

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Timothy Denton

Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.

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    June 13, 2017

    Making Sense of Jean-Pierre Blais

     

    My learned colleague Michael Geist has published an appreciation of the departing chairman of the CRTC, Jean Pierre Blais. I am glad he has done so because he reminded me of several aspects of Blais’ term that were highly positive innovations. The most important of them was to make the Internet the foremost consideration of policy, and on this I would like to dwell.

    There is no statute called the Internet Act. The concept and the technology are unknown to the law. Legislation deals with telecommunications carriers and broadcasters. One concept is based in common carriage, which is hundreds of years old. The other is an artefact of early 20th century ideas of signal propagation by radio. Yet within the last thirty years the combination of computers and a set of communications protocols which constitutes the basis of the Internet has upended monopolies, shattered protected markets, and dramatically increased human possibilities, as we all know.

    The denizens of the Canadian protected broadcasting markets have said, in essence, that there is no internet, that it has no importance for policy.  “What Internet?”, they ask. The Internet does not exist in law, they point out. If it is video it is ‘programming’, and if ‘programming’ it is ‘broadcasting’ and if broadcasting it is to be regulated in all the mind-boggling detail that eighty years of licensing has engendered. They have insisted that the largest communications revolution of the last century – and I include television and radio in that estimate – be squeezed into a previous conception of law, the better to be controlled for the purposes of rent-seeking.

    The carriers have done the opposite. In a more subtle way, they have tried to deny the difference between themselves and the Internet by assimilating themselves to it. They have said “we carriers are part of the Internet” and have sought to associate themselves with its emanations of novelty, risk, entrepreneurship, and innovation. As a result, they have asked the regulator to allow them to act as gatekeepers to Internet content. The notion ignores market power. There are roughly 53,000 Autonomous Systems known to the Internet, 53,000 networks of routers under common management. These autonomous systems constitute the Internet. The carriers are still large physical engineering concerns that exercise market power in your neighbourhood, because they have massive amounts of physical plant, built up over decades out of previous telephone and cable television monopolies, and you must go through them to reach the Internet. Carriers may have autonomous system numbers, but there are two, maybe three of them in any given location, through which they exercise market power.

    There may yet be market power issues with content delivery networks (Google, Netflix, Amazon and so forth). Content delivery networks are not addressed by telecom or broadcasting legislation. The issue, if one exists, is for a different agency and another time.

     

    If the carriers are not the Internet, and the Internet is not broadcasting, how was it that Blais succeeded in putting the Internet at the centre of his concerns? I would attribute three factors. First, timing: the Internet had become the elephant in the room, so large and so pervasive that it could no longer be ignored. A less determined person than Blais might have tried to do so. Second, he inherited a set of decisions that had already stopped the misapplication of the Broadcasting Act to the Internet and laid the groundwork of network neutrality, under the chairmanship of his predecessor, Konrad von Finckenstein. Third, Jean-Pierre Blais himself.

    Blais has acted consistently across broadcasting and telecom decisions to address two problems. In broadcasting, it was to prepare the regulated world for the inevitable transition to one where the economic function called “broadcaster” is superfluous and obsolete. There are and will be program producers, and content delivery networks. There will not be broadcasters. Above all it meant not digging into a losing position. In this he was consistent, and his position clear-headed. In bureaucratic terms this might even be called bold. He was the Renaissance cardinal who would have looked through Galileo’s telescope and drawn the right conclusions.

    On the telecom side Blais’ essential contribution was to turn down the carriers’ notion that they were the Internet, and that, just as everyone was making money out of content, they should be allowed to do so too, by squeezing the pipes, by directing people and their traffic to businesses with whom they had existing relationships, in short, by violating network neutrality.

    Where the CRTC failed, or disappointed, it was for want of courage to go all the way. I cite the example of not allowing resale of cellular networks. We are still officially beholden to the notion that competition in telecommunications should be facilities-based. Why? It is rather as if car rental agencies should not exist because they do not make cars. Not every shibboleth was overturned in the reign of Blais.

    Nevertheless, Mr. Blais got one enormous thing very right: he regulated with a view to the existence, functioning, and attributes of the Internet and needs of people seeking to reach it. The attention he caused to be paid to emergency response – next generation 9-1-1 – is welcome and commendable.  He showed leadership in the essentials.

    As to his management of his colleagues, he left some smouldering ruins where collegial relations once prevailed. Mr. Blais showed an inability to conceive of the equality of commissioners or to tolerate the expression of differing views, or perhaps even views that were consistent with his but spoken by someone else. Full commission meetings used to last a day and half; they shortened to a couple of hours. Commissioners thought better of speaking their minds, if everything was already decided, and the penalties of speaking aloud were severe. In such an environment, only sycophants are rewarded.

    Accordingly, I am unable to overcome my ambivalence towards the man, though not towards his decisions. He got the policy issues very largely right, and to his enormous credit. Mr. Geist has more fully described the merits of his procedural innovations. His successor will need to repair a damaged Commission, while maintaining the conviction that the Internet is what matters, and that other concerns – no matter how previously important - will have to adapt to it.

    So pin a medal on the general’s chest and let his division get some rest and refit, and new leadership.

     

     

     

     

     

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    The previous government kept repeating the same mistake, and it was in good company. 1. Distribute wireless licences. 2. Fail to enforce interconnection (roaming) rights sufficiently. 3. Watch the new entrants go broke and be bought out by incumbents. 4. Repeat. I think there have been two complete cycles of this, under Liberal and Conservative governments. Now, finally, someone woke up and changed policy. A lusty cheer from this ragged survivor of losing many arguments about the need for "facilities-based" competition.

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    The CRTC has seized the issue of next generation 9-1-1 services, made it its own where it could, and has firmly laid out guidance for other actors where it has no jurisdiction. What I asked for in my report of 2013 has very largely come to pass. More remains to be done, however.

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    Every idea is born into a world not of its own making. The multi-stakeholder idea of working out problems is not alone, then. It vies for relevance amidst a world of existing statutes, jurisdictions, procedures and precedents.

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