The debate over traffic-shaping measures undertaken by
Internet service providers in the United States such as Comcast
- and whether such measures constitute reasonable network
management to control congestion or unreasonable interference
with Internet content and discrimination against competing
Internet Service Providers (ISPs) - has come to Canada.
In October, 2007, Bell Canada implemented measures for its
retail Sympatico customers to delay the delivery of some
so-called Peer-to-Peer (P2P) data during peak Internet usage
periods. The extension of these measures to its wholesale
Digital Subscriber Line (DSL) customers led to the filing of a
complaint by the Canadian Association of Internet Providers
(CAIP) with the Canadian Radio-television and
Telecommunications Commission (CRTC) on April 3,
20081. The complaint requests, among other
things, interim and final injunctions prohibiting Bell Canada
from using the traffic management measures in respect of its
wholesale ADSL services, as well as declarations pursuant to
sections 27(2) and 36 of the Telecommunications Act that Bell
Canada has granted itself an undue and unreasonable preference
and subjected independent ISPs to undue and unreasonable
disadvantage, and that Bell Canada has violated the prohibition
against carrier interference with the content of messages
carried over its telecommunications network. The CAIP complaint
states that there is no proof of a network congestion problem,
and that Bell Canada's measures, introduced at a time
when Bell and some other incumbent ISPs are phasing out
unlimited Internet service plans at retail, are intended to
"stem the losses that [Bell Canada] will likely face in
the retail market if its wholesale ADSL customers continue to
offer unlimited usage or flat-rate billing plans" and, as
such, are anti-competitive.
In its Answer, filed with the CRTC on April 15, 2008, Bell
Canada states that it is simply applying the same network
management tools to its wholesale customers - that is, to those
who share the same undedicated bandwidth as its retail
customers - as it applies to its own retail Internet
customers. It says the deep-packet inspection (DPI)
technology it has employed delays only P2P applications during
peak periods (and not VoIP, audio and video streaming, and
other applications as alleged by CAIP), and that the traffic
management measures have resulted in a "50% reduction in
total P2P traffic during peak periods and a decrease in the
number of congested links" during such times.
According to Bell Canada, other types of traffic such as web
browsing, and audio or video streaming, "previously
impacted by congestion at peak periods, has quickly filled the
bandwidth made available through the use of Internet traffic
management, therefore improving the customer online experience
for such interactive and real-time activities." To
prohibit use of measures to prevent a few users from clogging
the Internet's arteries, so to speak, would in the view
of Bell Canada itself discriminate against the majority of Bell
Canada's Internet customers.
The proceedings raise many issues. Among them, as is
evident also from CAIP's reply filed on April 24, 2008,
are the following: whether independent ISPs who use Bell
Canada's wholesale Gateway Access Service (GAS) (as
opposed to those who use its more expensive dedicated High
Speed Access (HSA) service or who lease unbundled loops and
provide their own co-location facilities and
DSLAMs2) should be provided with unlimited bandwidth
on Bell's network; whether there in fact is a network
congestion problem necessitating the use of network management
tools; whether Bell Canada's solution is adversely
affecting more than just P2P traffic; whether it is violating
its tariff for GAS services; whether the measures implemented
provide Bell Canada with an undue preference or unreasonably
discriminate against certain of its customers; and whether the
tools used by Bell Canada constitute interference with content
and thus require the prior approval of the CRTC.
The CRTC issued Telecom Decision CRTC 2008-39 on May 14,
2008, rejecting CAIP's request for an interim
injunction on the basis that it had not demonstrated that its
members would suffer irreparable harm if the interim relief is
not granted. That said, it also found that the issues
raised were not "frivolous or vexatious," and set out
in a letter to Bell Canada and to CAIP a timetable that would
see all submissions and evidence filed by June 26, with a
decision to be issued within ninety days thereafter.
1. The proceedings are publicly available at www.crtc.gc.ca, under "Public
Proceedings", "Telecommunications: Part VII",
"Competitor Complaints (8622)", "2008"
2. Digital Subscriber Line Access Multiplexers
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