Telecom Regulatory Policy CRTC 2017-104: Paras 126-129 on #zerorating

Telecom Regulatory Policy CRTC 2017-104 | CRTC: "Evaluation criteria

 In the context of evaluating whether a differential pricing practice is compliant with subsection 27(2) of the Act, the Commission has established evaluation criteria that will provide all stakeholders, particularly ISPs, with a degree of predictability. The Commission will consider the following evaluation criteria in any future analysis of whether a differential pricing practice involves an undue or unreasonable preference or disadvantage:

The agnostic treatment of data. The Commission will consider the extent to which data traffic is priced or rated equally or agnostically by an ISP with regard to its customers’ retail Internet access services, while having regard to the amount of data involved. Offerings that rate or price data non-agnostically, such as by zero-rating data traffic from certain content providers (including affiliated entities), are likely to raise concerns under subsection 27(2). Differential pricing practices that treat data traffic agnostically (e.g. time-of-day offerings) are not likely to raise the same level of concern.

The exclusiveness of the offering. The Commission will consider the extent to which a differential pricing practice is exclusive to a particular class or group of subscribers, or to a particular content provider or class or group of content providers, while also having regard to the number of subscribers or content providers affected. For example, differential pricing practices that are exclusive to subscribers to a particular data plan are likely to raise concerns under subsection 27(2).

The impact on Internet openness and innovation. The Commission will consider the extent to which a differential pricing practice inhibits or compromises the openness of the Internet for Canadians and the choices available to Canadians. In particular, this analysis will consider (a) whether a differential pricing practice affects the ability of content providers or innovators to enter the market by creating barriers to entry, and (b) the extent to which a differential pricing practice affects innovation. For example, differential pricing practices that require content providers to conform to administrative and technical requirements that are burdensome, costly, or time-consuming to meet are likely to raise concerns under subsection 27(2). Differential pricing practices that favour large, established content providers over smaller ones and new entrants are also likely to raise concerns.

Whether there is financial compensation involved. The Commission will consider whether a differential pricing practice results in financial compensation or other financial benefits between a content provider and an ISP or third-party sponsor (including affiliated entities), having regard to the amount of compensation involved and the extent of the financial interest with any affiliated entity. For example, sponsored data arrangements, where an ISP receives payment from a content provider in exchange for zero-rating the data traffic to and from that provider, are likely to raise concerns under subsection 27(2).

In applying these criteria, the Commission will give primary consideration to the agnostic treatment of data, since differential pricing practices that favour certain content at the expense of other content have the greatest potential for harm. The Commission will look to the other three criteria as additional considerations in any evaluation of a differential pricing practice.

None of the four evaluation criteria will necessarily be determinative on its own, as each assessment of a differential pricing practice will be fact-specific. The weight given to each criterion may also vary from case to case, depending on the circumstances.

Finally, the Commission will consider whether there are exceptional circumstances that demonstrate clear benefits to the public interest and/or minimal harm associated with a differential pricing practice. For example, the Commission may consider whether there are privacy-related, technological, administrative, or other factors that would impact its analysis under subsection 27(2) such that the benefits of allowing a specific differential pricing practice would clearly outweigh any harms." 'via Blog this'