Anti-discrimination is not Anti-consumer: The CRTC got it Right

It was with interest and growing alarm that I occasioned to read the editorial “The CRTC’s anti-consumer agenda” in the National Post of February 2. The editors dealt with two issues.

The first issue addressed was that of the decision of the CRTC to continue the policy of simultaneous substitution by which the advertisements from simultaneously broadcast programs are deleted from U.S. signals carried over cable in Canada and Canadian ads inserted. I agree with the editorialists that the most eye-catching aspect was the populist decision to exempt future Super Bowl broadcasts from the simultaneous substitution rules. That decision is neither pro-consumer nor pro-industry, but simply internally incoherent – as the editorialists rightly point out.

Unfortunately, the second issue is one on which I have to disagree profoundly with those same editors. The CRTC has ruled on a consumer-based complaint relating to the practice of Bell Canada and Videotron to exempt customers of their mobile TV services from data caps that are applied to consumers of other Internet streaming services delivered to their mobile devices. The practice had the effect of giving to Bell’s TV mobile service a preference over any other mobile Internet streaming services. Indeed, the CRTC found that a member of the public viewing identical programming would pay $5 if they were a Bell mobile TV customer and $40 (a difference of 800%) if they did not subscribe by way of Bell’s mobile TV service. In these circumstances, how could the CRTC find other than that Bell and Videotron, in their roles as signal transmission providers, had discriminated against the customers of other Internet streaming services available in the mobile market?

It is easy where there is vertical integration between programming providers and telecommunications common carriers to forget that common carriage principles are still applicable to the common carriage functions of the integrated carrier. A fundamental principle of common carriage (whether in telecommunication, rail transport, trucking or pipelines) is that of non-discrimination between different traffic of the same type. In exchange for this bargain, common carriers have certain privileges: in the case of telecommunications these privileges include the right to dig up streets, commandeer rights of way and string wires or dig trenches over private land. I think the editorialists should be far more appreciative of the balance needed in approaching the self-dealing potentials that are available to integrated broadcasting/telecommunications undertakings.

Indeed, as we see how Internet neutrality has been eroded in the United States by the discriminatory levying of fees on Internet streaming services and the enactment of state-level protections for cable and telecommunications carriers, we should be grateful that the CRTC has proved astute in its analysis of exactly what was at issue in the mobile TV proceedings and imposing remediation.

Without the bally-hoo of consumer populism that marred its approach to simultaneous substitution, the CRTC has made the right decision in respect of unjust discrimination and protected both consumers and the providers of rival mobile Internet streaming services. In doing so, the CRTC has helped preserve the promise of competition in the provision of Internet based services, and the benefits that competition will bring to Canadian consumers in years to come.

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