“Rogers is not aware of any problems with online games.”
— Rogers’ spokeswoman Carly Suppa, September 2011
“We are not a consumer-protection agency.”
— CRTC spokesman Denis Carmel, July 2011
(A few minor edits and corrections added in this version)
Jason Koblovsky is a gamer, independent journalist and activist. He’s also the co-founder of the Canadian Gaming Organization, which at first glance seems to be little more than a Facebook page with a couple of hundred supporters.
In the last few weeks, however, Jason and his cohorts have been all over the news for their David-and-Goliath battle with Rogers Internet. Their complaint is that Rogers has been disrupting otherwise legitimate online gameplay, ostensibly in the course of managing traffic on its network – by throttling packets that might have any association with a peer-to-peer network.
In doing so Rogers may be in violation of both s.36 of the Telecommunications Act and the ITMP framework lashed together by the CRTC in 2009 (Telecom Regulatory Policy CRTC 2009-657). In case you’d forgotten, s.36 captures the age-old principle of common carrier neutrality: “Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.” Good luck with that provision now that we’ve blurred the content-carriage distinction beyond all recognition. But that’s another story.Trouble in Azeroth
I had occasion to talk to Jason recently. He’s got quite a story to tell. His efforts to get Rogers and the CRTC to do nothing more than acknowledge there’s a problem have dragged on for three years (his initial evidence to the CRTC is here; you can read about the other gory details in his blog). Then Jason’s folks did something unprecedented a few weeks ago when they lodged a formal complaint with the Ontario Ministry of Consumer and Business Services, charging that both Rogers and the CRTC were in violation of provincial law:
“Rogers Communications may have violated the Ontario Consumer Protection Act, by not fully disclosing the use, limitations and affects [sic] of its use of Internet Traffic Management [Practices] on Rogers Internet Services. We also believe that the CRTC’s current regulatory policy in ensuring full disclosure of the use of ITMPs does not conform to the Ontario Consumer Protection Act, nor is the Commission actively ensuring compliance with the act under these policies.”
Rogers seems to have hit an especially sore spot with gamers, as its engineers have screwed up customer attempts to play World of Warcraft, the very popular MMORPG (massively multiplayer online role-playing game). Jason’s fight confirms what we’ve known all along about Rogers and its fellow incumbents: a good customer experience is not their highest priority. But it’s done much more. It has shown us the ugly underbelly of ISP network “management” in Canada. And, most importantly, it has shown what a colossal mess the Commission has made of so-called “network neutrality” rules with the creation of its original ITMP framework.
It seems the WoW troubles have been caused by a misclassification bug, a setting in Rogers’ ITMP apparatus that misclassifies certain packets as originating from a P2P network. So even if the packets belong to a completely unrelated transmission, they will get throttled along with the P2P. As Jason warns, however, there’s more to this than just depriving WoW fans of their fun:
We believe the affects of ITMP are a lot more widespread than with the PC version of World of Warcraft, and extend to other games, gaming systems, and non related gaming applications, and could impact internet services even when P2P applications are not running, due to the ITMP bug actively misclassifying non-P2P applications. The extent to which this bug is currently affecting Rogers’ services is unclear and unknown since Rogers failed to disclose this information to the public or its customers. It is also unclear whether Rogers has implemented wide spread testing on this software to see exactly how their offered services have been affected by this bug, and their use of ITMP.
The air is alive with hemming and hawing
Last Friday the Commission seemed to go on the offence when it sent a letter to Rogers telling them to clean up their mess, or else. My first question is: or else what? Even if the Commission can impose sanctions, it would be a miracle if they amounted to anything more than a tiny part of the cost of doing business. But at least we’ve got this stinker out in the open, and for that we have to thank not only Jason, but also Michael Geist for his summer exposé of the regulator’s inept complaints process – which they managed to make even more dysfunctional by refusing to put some 35 public complaints in the public file (see MG’s July 8 post, Canada’s Net Neutrality Enforcement Failure). This CRTC warning letter has by now received wide circulation but it’s worth highlighting a couple of points from this excerpt (pdf is here):
Commission staff requests that Rogers file a plan for resolving the possibility of misclassification of other interactive game traffic, by 27 September 2011, that includes specific steps and timelines for each step.
Commission staff also requests that Rogers provide a detailed report to the Commission once the problem is resolved, demonstrating that the problem has been fixed. This report should include, at a minimum, the following information:
• an overview of the solution implemented,
• an explanation of how the solution resolves the underlying problem,
• a description of each step taken, and
• a description of the changes made to Rogers’ ITMP disclosures in order to accurately reflect resolution of this problem.
Is this sabre-rattling likely to solve anything? First of all, it’s not even clear that Rogers believes there’s a problem. It says “yes” in one breath, then in the next, their spokespersons pile on the sandbags, as in this gem from the Wired Report’s coverage on Friday (paid sub):
Rogers’ spokeswoman Carly Suppa told The Wire Report in an email Friday that the company was not aware of any problems with online games. “We have a process in place to ensure our internet traffic management works as it should,” Suppa wrote. “We actively monitor for issues our customers are experiencing playing online games. If we become aware of a problem with a specific game, we investigate, test and correct the issue.”
Ms Suppa appears to have missed the memo – as well as the cryptic notice that went up on the Commission site on Friday as well, with a warning about Decisions and Regulatory Policies promised for the week of 19 to 23 September 2011:
Telecom information bulletin:
Internet traffic management practices – Guidelines for responding to complaints and enforcing framework compliance by Internet service providers
This verbless newsflash seems to suggest that, as Jason has been saying all along, Rogers hasn’t actually been “actively monitoring for issues our customers are experiencing” and then correcting them. Nor have Bell, Shaw and the rest of the family. Conglomerates beware!
Physician, heal thyself
We should be grateful that the relentless efforts by Jason and the Gaming Organization have finally stirred the Commission from its stupor. Apparently the plaintiffs decided not to plunge ahead with a formal application for redress, as that may have had a much less positive outcome. As Jason wrote in a circular email on Saturday:
“We had a lot of pressure to move forward on this early. I’m glad we’ve allowed the CRTC the time to respond, I think that was a good move to hold off the wolves for a bit.”
I’m also a firm believer in bashing the evil incumbents till we begin to see a little more balance in the broadband relationship.
But let’s not forget who got us into this mess in the first place – the Deciders of Gatineau. As I’ve argued in numerous posts, the CRTC has interpreted its mandate so as to omit any meaningful protection of consumer welfare, especially in the increasingly important Internet access sector. The mess is a double-whammy: an unworkable traffic management system, made even worse by the post-facto consumer complaints procedure which is supposed to ensure ISP compliance.
Contrary to what I imagine is believed by the vast majority of Canadians, Rogers does not throttle subscriber transmissions in defiance of the regulator. Nor does it impose data caps that interfere with competing services like Netflix just because retail rates are unregulated. Rather it does both these things with the blessing and encouragement of the regulator, whose 2009 decision on ISP traffic management gave us the unholy marriage of technical ITMPs (interference with subscriber transmissions) and economic ITMPs (manipulation of retail prices). The Commission has based its whole Internet framework on two misguided beliefs: that the incumbent ISPs need to take radical measures to deal with traffic congestion on their networks; and that heavy broadband users are “cross-subsidized” by light broadband users (evidence provided to the Bell UBB proceedings showed there are no empirical grounds for either of these notions). This is what passes for network neutrality rules in our fair country.
If I’m less sanguine than Jason about what the Commission will do to redress the gamers’ complaints in the short term, that’s in part thanks to the message the Commission and it political masters have sent out all along about consumer complaints: we don’t really give a shit. In addition to public complaints not being public, the system set up a few years ago was designed to fail.
Regulatory tribunals exist because sometimes firms have to be forced to do things they wouldn’t otherwise do. Firms that participate in a price-unregulated oligopoly, like Canada’s residential broadband market, are even less inclined to worry about consumer harm – because they just don’t have to. (The effect of that kind of market power is reflected in the latest bad news about our international rankings as reported by the ITU in its latest ICT Development Index, in which Canada has fallen from 20th place to 26th. In a post on Friday, Geist points out inter alia that we’re 13th for the percentage of individuals using the Internet; 24th for Internet bandwidth bit/s per Internet user; and 17th for percentage of households with Internet.)
If it were doing its job, the Commission would have put measures in place two years ago that a) did not assume the incumbents would be eager to comply with the ITMP framework, including keeping their customers up to date with their usual crystal-clear explanations of why everything is the way it is; and b) did not put the entire onus for calling out non-compliance entirely at the doorstep of consumers. As Jason explained in his blog, a consumer-based post facto complaints system is no way to run this market:
The CRTC in 2009 has allowed this practise [deep packet inspection or DPI], but with minimal disclosure to Canadian Consumers on what is or is not affected by ITMP, along with an extremely high and technical evidentiary threshold placed on the consumer by the CRTC in order to launch regulatory complaint procedures on what is or is not affected by ITMP, and whether or not the ISPs are following through with regulatory policy. This situation has effectively turned the consumer into technical testers for ITMP bugs, and may be creating an environment where many problems with this technology are not being resolved, due to an expert level of technical expertise needed to report such problems to the CRTC and Rogers.
Adding insult to injury
I have some further evidence from my students about how “disclosure” of technical and even financial matters is a dead letter under CRTC rules – and how infuriatingly hard it is for a regular citizen to wrangle any kind of information out of the CRTC.
1. FAQ off. I run a regular test with incoming students to gauge how well mainstream Internet subscribers might fare in trying to figure out how and why a charge for over-usage might appear on their Rogers bill. Here’s the brain-teaser, drafted specially for the Little Old Lady in Moosejaw – the one who didn’t go to engineering school:
How can I calculate my additional usage and charges?
The usage tool tracks your usage in megabytes. To convert your usage into gigabytes and calculate your additional charges, follow these steps:
1. Over-usage = (“Total Usage” MINUS “Service Includes”) DIVIDED BY 1,024
2. Round down to the nearest gigabyte
3. Over-usage charge = Over-usage in GB (from Step #1) MULTIPLIED BY $1.25
For example: Total Usage = 128,522 MB – Service Includes = 90,000 MB
Once again, after letting over 30 students take 8 minutes or so to come up with the monetary amount, none was able to do so. The answer:
1. Over usage in GB = (128,522 – 90,000) / 1,024 = 37.62 GB
2. Round down to the nearest gigabyte = 37 GB
3. Over-usage charge = 37 X $1.25 = $46.25
For those of you who did go to engineering school, you’ll notice that Rogers departs from the sanctioned use of the decimal base for measuring quantities of digital data – i.e. base-10 – and opts instead for the binary version, thus giving us amounts, as above, in units of 1024 rather than 1000. This is a point lost on most people, which Rogers would be perfectly well aware of. But at least they have a sense of humor about exploiting customer ignorance. The FAQ URL is www.keepingpace.ca.
2. Leave a message and we won’t get back to you. In the summer session of our course, we ran a test of the CRTC’s responsiveness to citizen inquiries – not as part of either a proceeding or a complaints process, just to get feedback on general information as a measure of the Commission’s responsiveness. The CRTC failed miserably. The test began as a real-life inquiry as to whether staff ever take their site offline for scheduled maintenance, because one weekend in July it was apparently down for several hours. A public body should always have a system in place for notifying visitors as to whether a site is up and if not, why not. In our case, every attempt to get an answer about up-time was rebuffed. This is more than a trivial issue for a 4th-year class in which we devote a lot of time to regulatory affairs and several CRTC proceedings. Apparently the Commission is as interested in undergraduates learning about regulation as it is in defending consumer welfare.
One student called repeatedly and emailed as well. She said she was a York University student interested in one of the proceedings for school. When she tried to access the proceeding, the whole site was down, and thus she was wondering how often they do maintenance on their site, how long the site is usually down for, and why don’t they post that they will be doing maintenance. Every time she called she got the automated system which took her directly to voicemail, saying they were either busy or she was calling past business hours – even when she wasn’t. As I recall, another student did get through to someone, but that person had no idea what this student was talking about and thus had no answers for them. (Btw, the homepage link for asking a question is part of the same link for making a complaint. They promise to respond to “most questions within 10 working days.”)
The communicators who can’t communicate
The student experience I’ve just outlined is all of a piece with the CRTC’s failure to create a website that functions as a useful tool for anyone other than members of the communications bar. And, given the onus put on complaints in our system, the frustrations of communicating with the CRTC are also reflected in the hopelessly inadequate CCTS structure created by the Tory government. Like the mess made of the ITMP framework and the UBB rules, the promise to clean up the complaints process should never have been needed – or at least should have taken place a long time ago.
Charity begins at home and, for the CRTC, its problems in the online world begin with its own website. The comment about not being a consumer protection agency, cited at the very top of this post, came from an interview with CRTC spokesman Denis Carmel, published in the Wire Report. Therein Mr Carmel had another confession to make. He said the CRTC website has been a “long-term struggle” for the Commission, apparently because of the large amount of archived information generated over the years, which now represents about 130,000 pages of content.
While Carmel is certainly right about the struggle – for all of us who’ve ever tried to use their site – he’s quite wrong about the underlying cause. The Commission’s problem isn’t with quantity of content. It’s with the purpose of all that content. The first question a Web developer/designer will always ask is: Who’s the audience and what are we trying to do for that audience? At least part of the CRTC’s target should be the general public, who deserve reasonable answers to reasonable questions – and that should of course include student inquiries as well.
Since the fiasco we’re interested in here concerns the handling of complaints, it’s instructive to see how opaque the CRTC has made the process on its website – and I mean simply figuring out how to make a complaint in the first place. Just to demonstrate that clarity, ease of use and good navigation aren’t rocket science, check out the FCC’s approach. Washington has very sensibly made complaints part of the institution that many people would recognize as being the regulator – the FCC. From the FCC homepage, moreover, you’re one click away from a list of complaint types. You go to <http://www.fcc.gov/>… find File a Consumer Complaint in the right-hand nav bar… and bingo, you’re at <http://www.fcc.gov/complaints>. This is good Web design: choose and continue.
The CCTS: working hard at staying obscure
Compare this visitor-friendly system with the acid trip they’ve got waiting for you in Gatineau.
To begin with, there’s a great muddle concerning which services fall under the CRTC’s jurisdiction and which fall under the Commissioner for Complaints for Telecommunications Services. The CCTS was established in 2007 as part of a deregulation bargain initiated by then Industry Minister Maxime Bernier. It was then and is now a truly bad idea. The average consumer with a complaint, who’s first had to deal with the assholes at Rogers or Bell before even getting to the CRTC, needs a system that is simple, uncomplicated and intuitive. Every additional mouse-click, every additional piece of information, every change of venue, constitutes a barrier to the would-be complainant. In other words, we have a systemic problem here – not just a problem with Rogers or online gaming.
In my last two classes, not a single student had ever heard of the Commissioner for Complaints for Telecommunications Services, the CCTS. On the other hand, most students have at least heard of the CRTC. So let’s also say our Average Citizen hasn’t heard of the CCTS either. We’ll assume it’s time to visit the CRTC’s website.
Once you get to the CRTC’s English homepage, you’re presented with two options. Under Consumer Information, you can click on Ask a question or make a complaint, or you can use the search engine. The first option takes you to a page where you can find out more about how the Commission handles complaints. Selecting “internet” takes us to what looks like the right landing page. Notice, however, that if you choose the search engine and enter “complaint,” you’ll be taken to a page with a “Recommended” box, which lists three complaints items, none of them Internet-related. Right below that, however, we see an orphan paragraph entitled “Internet,” which has a revelation:
Internet service in Canada is not regulated by the CRTC. Address rates, service quality, and business practices with your Internet service provider or by contacting the Commissioner for Complaints for Telecommunications Services
We’ve got two very confusing pieces of advice here – I mean apart from the strange revelation that the CRTC doesn’t even regulate Internet service. You can talk to your service provider, which is not likely to be very helpful if Jason’s situation is anything to go by. Or you can contact the CCTS, for which this page does not even provide a pointer. So in addition to handing off your problem to a 3rd party, the Commission is making you go find the right link.
Back on the other page, if you’ve clicked on “Internet,” you’ll notice an unusual opening paragraph (Access to the Internet – here) that’s completely unrelated to making a complaint:
“The CRTC works to ensure that all Canadians have access to the Internet through their basic telephone service. By the end of 2009, 95% of Canadian households had access to Internet service with download speeds of at least 1.5 Mbps.”
So they don’t regulate Internet service, but they are working to make us happy in other ways? Who gives a shit what other households have? Those regulators of ours just can’t resist an opening to brag about the great job they’re doing for the nation.
After this unhelpful start, the visitor then has to work her way through two more paragraphs of deathless prose, these devoted to explaining the difference between a retail Internet customer and a wholesale Internet customer, all in the interests of making it clear to non-wonks that the Commission regulates wholesale but not retail services. So that by the time she’s in the Complaints section, she realizes she’s in the wrong place. Or maybe not.
“If you’re not satisfied with your Internet service provider’s response, check the Commissioner for Complaints for Telecommunications Services (CCTS) website to see if your service provider is a member. If so, contact the CCTS with your complaint.”
Your average visitor is not likely to find the concept of a service provider being a “member” of the CCTS crystal-clear or fair-minded. What could be less fair than being prevented from making a complaint because a provider has decided not to join the complaints bureau? But wait. Didn’t the Commission decide back in January to make membership mandatory – like it says in this press release? If so, why the hell would I want to try to figure out who’s a member and who isn’t? (Well, it’s never that simple: please see the details in the 5,000-word decision rendered January 26, Telecom Regulatory Policy CRTC 2011-46.)
Okay, you probably get the idea now… although after Geist’s ATI request this summer to unlock the 35-odd complaints being held in secret, I’m not sure I understand the jurisdictional split myself.
What needs to be done
There are many, many problems with the CRTC’s non-regulation of Internet service and the ITMP and complaints structures that go with its position. I have no illusions the Commission or a Tory government will do anything as drastic as re-regulate residential broadband rates and service. And that probably isn’t necessary to achieve a reasonable level of consumer protection.
What is necessary, however, is a complete overhaul of the complaints and compliance apparatus.
1 – Consumer protection. Right off the top, the Commission and Minister Moore, to whom it reports, must make an unequivocal public statement to the effect that the Commission is indeed in the business of protecting consumers. If Denis Carmel or his cohorts are allowed to go around denying that, we might as well save ourselves the trouble of reforming anything.
2 – CCTS. As a first step in clearing away the fog that surrounds complaints, Cabinet should officially fold the CCTS into the CRTC’s structure, in name and in fact. The Commission should create a Bureau of Consumer Affairs to take over the CCTS functions, which I’m pretty sure are still a mystery to everyone. The model to emulate could be the FCC structure.
3 – No secrecy. The Commission should no longer be allowed to keep anything it likes in confidential file cabinets, and especially not files having to do with consumer complaints. Confidentiality must pass a public-interest test, with the onus on the Commission or defending ISP to make the case for keeping information away from the public. The CRTC seems to enjoy secrecy, and a cynic might say that’s because it makes life so much less stressful.
4 – Compliance. The CRTC must take the job of ISP compliance away from the amateurs – i.e. us customers – and set up a process for systematic ISP compliance audits. This function could be folded into the Bureau of Consumer Affairs; but the important point is that the Commission treat compliance proactively, even if this means a legal battle with the incumbents about changing the ITMP rules. This change would only be meaningful if the Commission were to investigate non-compliance on its own initiative.
5 – Marketing communications. One trap that must be avoided is keeping policy changes in the priestly tent, without taking action on the breakdown in communication between federal officials and the general public. If once-abstruse instruments like insurance policies can be redrafted in the form of plain-language documents, then we can do as much for broadband service. One of the huge challenges here is finding the leadership and common sense to tackle a cleanup of the Commission website. If it isn’t already, it should be the main platform for reaching Canadians, and if complaints are to mean anything, the current instructions need to be deleted and started over from scratch – preferably without any interference from Treasury Board Secretariat, whose look-and-feel guidelines reduce all federal sites to a lowest common denominator.
6 – Sanctions. Persons real and corporate tend to comply with the rules more readily if they’re punished for non-compliance. It’s not clear to me just how the CRTC might sanction Rogers if, say, the company fails to respond to the September 27 deadline for a fix to its misclassification bug. Certainly substantial monetary penalties need to be part of the regulator’s arsenal. A company such as Rogers is at present free to ignore customers; free to confuse them with its disclosures; free to use DPI to inspect their data packets; and, if only light fines were to be imposed, free to treat fines as a mere cost of doing business. One helpful proxy might be the Competition Tribunal’s $10 million fine levied against Bell Canada for lying to its customers about the prices of their services. Even without any admission of “guilt,” that’s the kind of sanction that will be needed to make the broadband incumbents change even a few of their anti-consumer habits.