The CRTC has responded to allegations of Internet “throttling” by Bell Canada, based on an application filed by the Canadian Association of Internet Providers (“CAIP”). CAIP had asked the CRTC to issue an order prohibiting Bell from engaging in certain “traffic shaping” measures, in connection with the provision of one particular wholesale service to CAIP’s members.
Largely on the basis that Bell Canada did not discriminate against CAIP’s members, and in fact applied the same traffic shaping practices to its own retail customers, the CRTC denied that application. However, information provided by CAIP, Bell Canada and others convinced the CRTC to address the broader issue of Internet traffic management by Internet Service Providers (“ISPs”). Comments in response to the CRTC’s public notice are to be filed by February 16, 2009 and a public hearing will be held in July 2009.
Denial of CAIP Application Against Bell
CAIP had complained about Internet throttling of the wholesale Asymmetric Digital Subscriber Line (“ADSL”) service and, in particular, the wholesale ADSL service known as Gateway Access Service (“GAS”), provided to CAIP members by Bell under a CRTC–approved trariff. GAS is used by ISPs that provide retail Internet services to end-users. Although the CRTC has forborne from regulating many ISP services provided by Canadian carriers, it retains jurisdiction with respect to unjust discrimination, among other things.
The CRTC determined that Bell Canada’s use of traffic shaping measures in connection with its GAS service was permitted under the applicable tariff and Bell Canada’s generally applicable terms of service. The Commission determined that those measures, which affected telecommunications traffic generated specifically by P2P file-sharing applications, constituted neither unjust discrimination against CAIP’s members nor an undue preference conferred by Bell upon itself. There had been no contravention of the Telecommunications Act, and in particular, Bell’s use of deep packet inspection technology did not violate the Telecommunications Act’s privacy provisions or those that prevent a Canadian carrier from controlling the content of messages.
The CRTC ruled in CAIP’s favour, however, with respect to the issue of notice. Observing that Bell Canada’s actions had a significant impact on the performance of its GAS service, such that CAIP’s members experienced end-user complaints, the Commission deemed that advance notice was appropriate. It directed Bell Canada to develop and file for its approval proposed notification requirements for traffic shaping measures that impact materially on the performance of its GAS. The CRTC stated that at least 30 days’ notice would be appropriate.
New Proceeding on Traffic Management Practices Generally
In its response to the CAIP complaint, the CRTC emphasized that its decision related solely to the specific traffic-shaping measures implemented by Bell Canada, in connection with its GAS wholesale service. Noting that parties to that proceeding raised numerous concerns with respect to existing and emerging Internet traffic management practices involving both retail and wholesale services, it initiated a new proceeding to consider these broader policy issues.
Participants are requested to respond to a series of questions that relate to:
- recent changes in Internet traffic and the causes of network congestion;
- the technologies that could be employed by ISPs to manage Internet traffic;
- developments that are underway with respect to traffic protocols and/or application changes that could assist in dealing with network congestion;
- the advantages and disadvantages of employing practices such as monthly bandwidth limits, time of day pricing, peak period, end-user based or application-based throttling;
- notice requirements, where ISPs engage in traffic management practices with their wholesale and retail customers;
- whether any particular traffic shaping measures involve the ISP controlling the content of telecommunications; and
- additional issues relating to certain obligations of Canadian carriers under the Telecommunications Act.
Interested parties, such as other Canadian carriers, ISPs and end-users that wish to participate in full must register their intent to participate by December 19, 2008. Submissions are to be filed by February 16, 2009. An oral public hearing will be held in July 2009.
More detailed information is available on the CRTC’s web site:
- a press release: http://www.crtc.gc.ca/eng/NEWS/RELEASES/2008/r081120.htm
- the decision on the CAIP application against Bell Canada: http://www.crtc.gc.ca/archive/ENG/Decisions/2008/dt2008-108.htm
- and the Public Notice initiating the new proceeding on Internet traffic management practices: http://www.crtc.gc.ca/archive/ENG/Notices/2008/pt2008-19.htm