Review of the Internet Traffic Management Practice of Internet Service Providers

Telecom Public Notice CRTC 2008-19

Final Reply

Council of Canadians with Disabilities
and
ARCH Disability Law Centre
 

July 28, 2009

 Phyllis Gordon
Counsel
(416) 469-5478
p_gordon@rogers.com

 
The Guidelines

1. A stated goal of this proceeding is to create guidelines that “will take into account both the freedom of individuals to use the Internet as they wish and the legitimate interests of Internet service providers to manage their networks.”¹ CCD/ARCH submit that people with disabilities are entitled to the freedom to use the Internet as they wish, equally with others.

2. Unless accessibility is included in the Guidelines there is a serious risk of widespread and significant exclusion of many people with disabilities from participation in most aspects of Canadian life that are now, and will be increasingly ,reliant upon the public Internet. Professor Hogendorn refers to the Internet as a ‘general purpose technology’ akin to electricity.² This term indicates how vital and ubiquitous a resource the Internet is now and will be, and how inequitable doing without full access would be for any portion of our population, including people with disabilities.

3. The purpose of Guidelines is to provide guidance and direction for future action. As the writing of Guidelines is a forward-looking endeavour so must be the articulation of anticipated problems, precisely to avoid the potential problems becoming realities that then prove difficult or impossible to fix. It follows therefore that many of the concerns raised by participants are based not only on past and current experience, but also rely heavily on their assessment of the potential impact of the unchecked implementation of ITMPs on their activities and interests.

4. The forward-looking predictive analyses in our submissions are similar to those of other parties. The issues raised by those seeking as open an Internet as possible are for the most part focused on the future, both near and long-term. Creators, producers and innovators fear a repeat of their past experience based in vertical integration and corporate conglomerates. Their concerns relate to their future capacity to reach markets if gate-keeping, application throttling, white-listing and various ‘private gardens’ are not regulated.

5. Others raise legitimate concerns about potential privacy violations. As privacy is so important a value, it appears likely, and wise, that the Guidelines will address privacy issues. This is prudent even though there is no evidence of current contravention of privacy laws and the ISPs have publicly expressed their intent to not violate the privacy of Canadians.

6. ARCH/CCD submit that the Guidelines must likewise acknowledge that ITMPs have the potential to discriminate against people with disabilities, by explicitly referring to accessibility for people with disabilities. The Commission has before it the unchallenged and uncontroverted evidence of Dr. Vanderheiden and Jutta Treviranus about what is required to shape an accessible Internet. We submit there is no rationale that would justify guidelines that do not address accessibility.

7. Further, as the Commission has noted in its recently released Broadcasting and Telecom Regulatory Policy CRTC 2009-430, “persons with disabilities generally are not able to influence the market sufficiently to obtain accessible telecommunications products and services”. ³ Given this lack of market power, coupled with the ISPs’ universal silence regarding accessibility in this proceeding, it is essential that the Guidelines provide for an accessible Internet.

8. CCD/ARCH also submit that subsection 47(a) of the Telecommunications Act requires that if the Commission issues Guidelines, this must not only be done with a view to implementing the Canadian telecommunications policy objectives but also to ensuring that Canadian carriers provide Internet telecommunications services and charge rates in accordance with section 27. It is respectfully submitted that when making general and forward-looking guidelines, potential discrimination against people with disabilities cannot be ignored.⁴ The proposed Guidelines are parallel to standards referred to in the cited jurisprudence and are required to be non-discriminatory. “Standards, in other words must be as inclusive as possible”.⁵ We submit that the Guidelines to be issued by the Commission are governed by this approach set out by the Supreme Court of Canada.

9. Finally, while there has been no opposition to a non-discriminatory Internet in this proceeding, there has been virtually no discussion of the issue other than that of the Canadian Association of the Deaf and CCD/ARCH. More significantly, the participants have not endorsed the premise that Internet accessibility is essential, even though people with disabilities are a significant and growing percentage of the population, thus making the Commission’s role critical. This message is powerfully conveyed by the proposed Guidelines for Implementing Internet Traffic Management Practices submitted by Bell Canada, the largest telecom company in the country. Bell’s silence with respect to accessible Internet services in its proposal is not only telling but highly regrettable.

Section 36 Framework

10. CCD/ARCH submit that the Commission should only approve an ITMP that falls within section 36 if it has first satisfied itself that the ITMP is not in contravention of the law. This is so regardless of whether the approval granted is based on a balancing of the telecommunication policy objectives, employs a reasonableness standard or employs a minimal impairment standard. As a general principle, it is submitted that to do otherwise would involve the Commission in a balancing exercise that could lead to a result contrary to law, including human rights law and the Telecommunications Act.

11. Not only is discrimination on account of disability of a different order than the network management interests of ISPs, it also receives unique treatment in law that differs from the treatment of other kinds of discrimination that occur in the telecom arena under section 27. This is demonstrated both in human rights jurisprudence as well as the Commission’s consideration of discriminatory telecommunications with respect to accessibility.⁶ The key distinction is that if the ITMP results in inaccessibility, the duty to accommodate requires that alternative approaches that do not discriminate be adopted up to the point of undue hardship. “The point of undue hardship is reached when reasonable means of accommodation are exhausted and only unreasonable or impracticable options for accommodation remain.”⁷

Broadcasting and Telecom Regulatory Policy CRTC 2009-430

12. On July 21, 2009 the Commission issued its Policy with respect to the Accessibility of telecommunications and broadcasting services. The Commission determined that the key issue to be addressed was how the Commission could improve, where appropriate, its established determinations on the accessibility of relay services; emergency telecommunications services; mobile wireless services; customer information, service and support; closed captioning (the audio component of a television program in textual form); and described video and audio description (an audio narrative of a television program's key visual elements). ⁸

13. The Policy orders, directs and makes recommendations to TCPs regarding accessibility improvements with respect to established determinations of the Commission within specified time frames. The Policy addresses accessibility gaps in both broadcasting and telecom and refers to these directions in the following way:

In considering whether or not the proposed accommodations are reasonable, the Commission has also utilized leading Canadian human rights principles that recognize that equality is a fundamental value and central component of the public interest.⁹

14. As this proceeding is considering the Internet in a systemic and forward-looking fashion, accessibility must also be addressed systemically. The Commission is deciding how to move forward with respect to Internet regulation, in keeping with stated values. Thus, the human rights cases that govern are those that consider the obligations to address standards and solutions on a systemic basis.¹⁰ Rather than developing after-the-fact disability accommodations, the Guidelines themselves should be inclusive. This proceeding can and is required to address the right of people with disabilities to receive Internet services without discrimination at the same time as the interests of others are considered.

15. CCD/ARCH further submit that some of the orders made in Regulatory Policy 430 will only be successfully achieved if accessibility is adopted as a guideline and a goal in the present proceeding. For example, IP Relay and Video Relay Services (VRS) require high QoS and no latency. Even though the Policy does not require the TCPs to provide VRS forthwith, it does acknowledge that VRS could be implemented now on a non-mandatory basis. In addition, Deaf Canadians currently make use of American VRS services and video conferencing to some extent. It is essential that ITMPs not render these present services inaccessible or diminish their value for the Deaf community. Further, ITMPs should not be permitted if they will negatively impact the successful implementation of VRS in Canada in the future.

16. The Regulatory Policy addressed closed captioning, described video and audio description in the context of television. These and related matters of media streaming must also be addressed in the Internet context. Just as the Commission needs to consider how ITMPs may affect the use of the Internet for entertainment and news purposes of Canadians generally, it must also consider how they will affect Internet entertainment and news use by persons with disabilities. And, we submit, this should occur now and not in a future catch-up proceeding, which will necessarily be required if the Commission ignores accessibility at this time.

Real-time Requirements for People with Disabilities

17. Throughout the proceeding a distinction has been made between the provision of real-time Internet services and those where some latency is permissible. For example, the necessity to ensure quality real-time services for Skype and gaming has been acknowledged by both ISPs and open Internet advocates, and the ISPs report that they do not throttle such real-time applications.

18. CCD/ARCH urge the Commission to add real-time communications for people with disabilities to this list, most importantly for real-time communications involving video. People who hear can cope with slow- downs and pauses because the visual component is not that significant for them: for the Deaf, the visual component is the only thing that matters.

19. Server-based user interfaces, used by individuals with severely limited mobility or dexterity, also require real-time, unimpeded bi-directional communication with no latency. Like real-time video communication, upstream communication is as important as downstream.

Media Streaming

20. Similar and related issues arise with the provision of news, movies and other entertainment on the Internet. Media alternatives or supplements should not be limited or throttled and require the same QoS as the media it supplements. To allow standard communication or media to flow freely but not the media types needed for accessible communication or media types from alternate sources to flow as freely would be discriminatory, even when the captions, audio descriptions, or sign-language alternatives are provided from another source than the movie.

Bandwidth Issues, Price Accommodation and Self-identification

21. Related to these concerns is the fact that individuals with disabilities may need greater bandwidth to carry out the same activities as theirs peers who do not have disabilities. This was examined in some detail in the ARCH/CCD filing in this proceeding of July 20, 2009. It is, however, to be noted that the amount of extra bandwidth needed is not large compared to the amount needed for downloading of full-length movies or the transmission of HDTV. “Moreover the amount needed for disability access as a percent of general Internet traffic will steadily decline in comparison to general broadband needs.” ¹¹

22. At the oral hearing Vice-chairman Katz raised with CCD/ARCH the issue of price accommodation for people with disabilities, should a greater service be required on account of the disability.¹² In response, CCD/ARCH referred to the potential of the Internet to provide a level playing field. Ms. Treviranus said the following which well portrays the possibilities the Internet provides for people with disabilities:

One of the amazing things that the Internet provides for people with disabilities is the option in fact not to have to have a special segregated additional cost on top of things that we have. The potential of the Internet is the opportunity to have multiple modes of communication at the same time, without requiring additional special provisions. And so, … if we are able to use the Internet without the practices that cause barriers, then there is the potential to not have to spend the additional cost, the sustainability issues, the administrative costs, the work and time that it takes for someone with a disability to request and identify themselves… we can get rid of [all of] that and we [will] have the opportunity to communicate, to learn to educate, et cetera…without those special provisions.¹³

23. While CCD/ARCH have focused on the potential of an accessible Internet, which for the most part will not necessitate special provisions, we also note that there may be extra bandwidth requirements for the next period of time. CCD/ARCH submit that appropriate pricing accommodations in this regard could well mirror the pricing solutions adopted by the Commission in the past for relay long distance rates. In this regard, CCD/ARCH refer the Commission to Section F of our Initial Comments where we canvassed principles applicable to individualized accommodation. ¹⁴

Similarities of solutions advance by CCD/ARCH and other parties

24. While the submissions of CCD/ARCH are grounded in legal rights, and while the requirements to establish an accessible Internet for people with disabilities cannot be fully predicted at this point in time, it is important to note that there are many overlapping submissions in this proceeding. For example, the issues raised by content creators, producers and innovators in the film industry generally apply equally to innovators of adaptive technology and accessible Internet applications and services. Similar and significant concerns about the potential for ISP gate-keeping exist for both groups of innovators. Likewise, the disability community shares consumer group and user concerns regarding ITMPs such as application-based throttling, as they have the same potential to diminish their effective use of the Internet.

25. CCD/ARCH submit that meeting accessibility requirements is a weighty and substantial factor in this deliberation. As the Commission considers the central issues in this proceeding it is important to recognize that a decision that enhances the public use of the Internet, as advanced by the advocates of net neutrality, will also advance non-discriminatory outcomes. It will also further the fundamental public policy value of equality for people with disabilities, which, we respectfully submit, needs to be explicitly addressed by the Commission. 
 

Footnotes

1. Chairman von Finckenstein, Q.C., Speech, July 6, 2009, Gatineau, Quebec
2. “The class of GPTs includes the electrical grid, telephone network, and railroads.” Open Internet Coalition, Initial Comments, Appendix B, Evidence of C. Hogendorn, at p.1.
3. Regulatory Policy 2009-430 at para. 8
4. British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [hereinafter referred to as Meiorin] at paras. 40, 41, 55 and 68; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [Hereinafter referred to as Grismer] at para. 22.
5. Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] 1 S.C.R. 650. 2007 SCC 15 [hereinafter VIA Rail] at para. 161 Generally, refer to paras. 78-89 of CCD/ARCH Initial Comments.
6. See the Initial Comments of CCD/ARCH at paras. 65-77.
7. Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] 1. S.C.R. 650. 2007 SCC 15 at para. 130.
8. Regulatory Policy 2009-430 at para. 2
9. Ibid at para. 6
10. See note 3 and para. 8 herein.
11. Vanderheiden, “Disability Access and Broadband Needs” July 20 2009 Filing with CRTC in this proceeding, p.1.
12. Transcript of Proceedings before the Canadian Radio-television and Telecommunications Commission, Volume 3, July 8, 2009 at 2417.
13. Ibid, at 2466-2468.
14. CCD/ARCH Initial Comments, at paras. 90-93.