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.
Footnotes
1. The proceedings are publicly available at www.crtc.gc.ca, under "Public
Proceedings", "Telecommunications: Part VII",
"Competitor Complaints (8622)", "2008"
(Reference: 8622-C51-200805153).
2. Digital Subscriber Line Access Multiplexers
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