Canadian Journal of Law and Technology


ISP discrimination, Network neutrality


This paper proposes a bright line test to guide the Canadian Radio-television and Telecommunications Commission (‘‘CRTC’’) in regulating ‘‘network neutrality’’. When Internet service providers seek to discriminate between uses and users in administering their networks, the CRTC should ask whether the proposed discrimination is a reasonable effort to make the price paid by each user commensurate to the demands which his or her use places on the network. Discrimination which meets this description should be tolerated if not actively encouraged, because it encourages the economically efficient allocation of scarce bandwidth. All other forms of ISP discrimination — including discrimination based on aesthetic judgments and profit-seeking discrimination in favour of owned or affiliated content — should be restrained by the CRTC, relying on subsection 27(2) of the Telecommunications Act. Strong moral and economic arguments support the imposition of this limited neutrality regime, and only a few minor reforms would be required to put it into place.