In a big step toward the principle of net neutrality, the CRTC today established policies about differential pricing of Internet data (both wireless and wired) and ruled that a Videotron promotion that offers free streaming of music from selected music streaming services is against the rules.
The Videotron promotion in question is called Unlimited Music, which it debuted in August 2015. And the way it worked was it reached agreements with several music providers like Spotify and Google Play and Apple Music and exempted that data from its data caps for premium data plans. People with those higher-end plans could stream as much music as they wanted and never worry about busting their data caps.
But even though just about anyone was invited to join the program, it wasn’t automatic. And radio stations were not invited to join in.
It took minutes for net neutrality advocates to say this was wrong. I literally came out of the press conference announcing it and was on the phone with the head of the Public Interest Advocacy Centre who immediately said it was against the rules. But it took a year and a half for the CRTC process to unfold to declare it so.
Videotron said at the time it believed that because it wasn’t giving undue preference to its own music service, that the program was legal. It was mistaken.
The CRTC’s decision not only makes Unlimited Music illegal, but any plan from any provider that treats data differently depending on where it’s going or what kind of data it is. So a plan that offered no data but free access to Facebook, or a plan that didn’t count email downloads toward the data cap, those are now illegal.
There are some exceptions. One is for administrative functions. If you’re checking with your provider how much data you’ve used up on your plan, that could be exempted from data charges. Another is for “content-agnostic” stuff, like charging different rates depending on different times of day. So long as everything on the Internet gets treated the same, it’s OK.
The commission also leaves the door open to other exceptions opening up, and providers applying for pre-approval of new ideas. CRTC staff tell me such applications would go through the usual application process.
Otherwise, the commission will use guidelines established in its policy to evaluate (after the fact, following complaints) whether a service or program is compliant. These include whether the pricing is offered only on certain data plans, whether any money exchanges hands with third parties, how exclusive the offer is for certain services or subscribers, and “impact on Internet openness and innovation.”
Under the CRTC’s analysis, Unlimited Music did not meet the criteria of agnostic treatment of data, lack of exclusivity, and lack of negative impact on Internet openness and innovation. And there were no exceptional circumstances to warrant an exception to the rules.
So Videotron has until July 19 to bring Unlimited Music into compliance with the rules. But there’s likely no way to do so, so expect it to be withdrawn.
To be clear, this decision relates to data pricing only. Promotions like Rogers offering free Spotify subscriptions to certain users are still legal. But Rogers must treat the data from Spotify like any other Internet data. It can’t exempt that data from its data caps. (And it doesn’t.)
UPDATE: Videotron says it’s disappointed in the decision, and will analyze it in the coming days to figure out how to respond. In the meantime, the Unlimited Music offer remains in effect until further notice, and it promises to keep subscribers up to date.