Canadian net neutrality: Geist critique

In the course of his submission to government on an open approach to the digital economy, Michael Geist offers his expert view on the omissions in the CRTC approach to net neutrality enforcement: 
The Canadian Radio-television and Telecommunications Commission issued its much-anticipated Internet traffic management ruling in 2009, better known as the net neutrality decision. The case attracted national interest as the CRTC established several key requirements for Canada’s Internet providers. These included new transparency obligations that forced ISPs to disclose their network management practices, such as why the practices were introduced, who will be affected, when it will occur, and how it will impact users’ Internet experiences (down to the specific impact on speeds). The CRTC also opened the door to complaints about network management practices by establishing a test that any harm to users be as little as reasonably possible.
Eight months later, there have been complaints about the carriers’ failure to comply with the disclosure requirements and concerns that some traffic management practices may not be consistent with CRTC requirements. For example, Rogers and Cogeco continuously throttle all upstream P2P traffic. Both providers admit that the limits on their service occur on a 24 hour, 7-day basis, regardless of whether the network is actually experiencing any congestion. Cogeco claims “it is [our] experience that congestion created by P2P can occur at any time within a 24-hour period.”  This may be true, but the failure to limit throttling activities to instances of actual congestion is surely grounds for a CRTC complaint. While Bell limits its throttling practices to specified periods, its defined period is so broad that it too may be the target of a complaint. Bell discloses that its throttling practices, which target upload and download traffic, runs from 4:30 pm to 2:00 am.  By covering nearly half the day, the company could face questions about whether the policy limits harm as much as reasonably possible.
The CRTC’s net neutrality guidelines garnered well-deserved plaudits, yet the true test will be whether the guidelines will be enforced effectively.  The government can advance the issue in several meaningful ways without necessarily tabling net neutrality legislation.  
Critics of the CRTC approach rightly note that the onus falls to consumers to compile evidence of traffic management practices that run afoul of the commission's test and file complaints.  When asked about the issue in the House of Commons, Industry Minister Clement stated that he is "watching those providers very closely and I do not want to see a situation where consumers are put at risk in terms of their access to the Internet." He can go several steps further by asking the CRTC to conduct regular compliance audits of ISP traffic management practices and by providing financial support to consumer groups who wish to conduct their own investigations.
The federal government also can play a significant role in establishing neutrality for wireless Internet access.  The CRTC acknowledged that many of the same issues arise in the wireless context and that it expects wireless carriers to follow the same guidelines.  Within the next two years, the federal government will conduct another spectrum auction as part of the digital television transition.  The government could incorporate net neutrality requirements directly into the bidding process, effectively mandating neutrality into new wireless services."