Timothy M. Denton

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Telecom Regulatory Policy CRTC 2017-104 Framework for assessing the differential pricing practices of Internet service providers

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There is a moment in the movie Ratatouille, where the food critic, Anton Ego, voiced in Jeremy Irons' upper-class British accent, pens a hymn of praise to the primacy of artistic creators. That scene was the whole point of the movie. The overhead and from-behind perspective of the scene captures the snobbish food critic, writing in a coffin-shaped room, by candlelight, admitting the supremacy of the creator over the critic. The food that had stimulated this appreciation was a humble vegetable stew, the ratatouille. Every artist who has ever suffered a bad review must have rejoiced in the scene.

The irony was that the ratatouille which Anton Ego praises to the skies was made by a team of rats in a kitchen that a food-loving rat had taken over and made his own.

I grant you it is a long stretch,  and I ask for artistic licence and the reader’s indulgence, but I find myself in slightly comparable  situation. A bunch of people at the CRTC have come up with a decision that bears comparison to the delicious ratatouille of the movie. They are not rats; they are able civil servants and commissioners. The ratatouille is a particular decision. And I hope the critic -in this case me -has nothing in previous appreciations of the work of the CRTC to repent. Nevertheless I will make bold to say I am, as much as this cynical old observer of things political can be, in a mild case of awe. These people have done great work.

The essence of this decision is not in its particulars, which are excellent, but in its situating four actors in their rightful places: creators, consumers, the regulator, and carriers. The Commission has got the large things absolutely right, from which the details follow.

Like chefs in a kitchen, creators exist to serve consumers. And consumers are best served when the powers of the creator are least interfered with by the landlord, the tax collectors, and other mediating agencies that get between the creator and the consumer. This is only to say that the relationship of consumer to creator should not be conditioned by a third party who has made parking impossible at one place in order to favour a restaurant in which he has an interest.

Applying another metaphor, the owner of the highway needs to be kept in check by the department of highways. Even on a privatized highway, the owner may not discriminate among makes of cars, types of drivers, or in any of the zillions of conceivable ways, to favour those cars or drivers or passengers who have a pre-existing relationship to the owner of the highway. The owner could charge less, open a special lane for “his” clientele, or do any of a million things to favour his people at the expense of all people, and most important, to favour the makers of certain kinds of cars over others.

I have not to my knowledge read a decision of the CRTC that quite so powerfully expresses this point of view until now. At stake is the creativity of the Internet, which is to say, the free relationship between creators and consumers.  Putting it another way, the desire to create walled gardens is eternal. The temptation that a carrier must experience, in every way and every day, is that because everyone is making a buck on content except him, if he could just use a little of the market power he has, he could make more money, return more to shareholders, and squeeze these puny little competitors out of existence.

“Differential pricing practices”, as it is so politely called, is yet another in the eternal series of attempts to squeeze the tubes for more profit.

The Commission has seen through this ploy, and has taken every reasonable measure to assert the primacy of the consumer and the creator, and the subordinate role of the carrier. This is as it should be. All the rest is in the specifics of the decision, and I invite you to read it.

I will add that part of my admiration for this decision lies in the efficient dismissal of claims that, because a discriminatory practice advances the goals of the Broadcasting Act, it should be allowed. No, no, no, says the Commission. It is not even going to allow this time-honoured gambit that allows the non-discrimination portions to the Telecommunications Act to be avoided.

There is no statute in Canadian law that says “thou shalt do no harm to the principles of the Internet”. Maybe there does not need to be one. But after reading this decision I conclude that such a directive seems to have been engraved in the  minds of the CRTC commissioners and staff, and I can only salute. This is great work. Canadians have every reason to be grateful to the CRTC for getting this one so absolutely right.

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Readers are invited to see Ratatouille again for Anton Ego's wonderful confession, and its many other charms. Creativity can come from the most unlikely sources, even regulators.

 

 

 

 

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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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Guest Wednesday, 23 August 2017
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