The CRTC has to date largely avoided the net neutrality issue, however, that is about to change. The Canadian Association of Internet Providers, Canada's largest ISP association, has filed a Part VII application with the CRTC asking it to direct Bell Canada to cease and desist from throttling its wholesale Internet service. The application, which was filed late yesterday and is not yet posted on the CRTC site, is the most significant legal development in the Canadian net neutrality debate yet since it places the issue squarely before the Commission. The filing provides additional insights into Bell's action – the throttling has reduced speeds by as much as 90 percent – and marks an important milestone since the outcome will provide a clear answer on whether Canadian law currently protects net neutrality or if legislative reform is needed.
The application notes that "Bell's traffic shaping measures have impaired the speed and performance of the wholesale ADSL access services that it provides to independent ISPs and other competitors, to the point where the quality of the service has been degraded beyond recognition." CAIP adds that the throttling is making it impossible for the independent ISPs to manage their networks and forcing them to pay for bandwidth they cannot use. In light of these effects, CAIP says "it seeks to restrain anti-competitive behaviour on the part of Bell. Thus, the relief requested. . . is intended to 'ensure the technological and competitive neutrality' of the interconnection and and wholesale services provided by Bell to independent ISPs and to promote competition from new technologies that are enabled by the Internet and ADSL access technology." CAIP is therefore asking for an order, issued on an urgent and expedited basis, "directing Bell Canada to immediately cease and desist from using any technologies to "shape", "throttle" and/or "choke" its wholesale ADSL services."
CAIP is also raising privacy concerns with the throttling, seeking an order that "Bell has acted unlawfully and contrary to the prohibition on carrier interference with the content of messages carried over its telecommunications network contrary to section 36 of the Act and contrary to the Canadian telecommunications policy objectives set out in paragraphs 7(a) and (i) which, inter alia, seek to protect the privacy of persons." The privacy argument is based on Bell's deep-packet inspection of Internet traffic. In particular:
"In order to throttle the Internet traffic originating from/or destined for end-user customers of independent ISPs, Bell is using measures to first, open each data packet, examine the packet data and header information, and then apply certain rules to the content in question. This aspect of Bell’s wholesale throttling activities give rise to concerns that Bell’s actions violate the privacy of the communications of its wholesale customers (as well as
that of their own end-user customers). It also gives rise to concerns that Bell has violated its duty under section 36 of the Act not to control the content or influence the meaning or purpose of telecommunications carried by it for the public."
CAIP rightly notes that since there is no contractual relationship between Bell and the independent ISPs customers:
"by examining the packet data and packet header information of GAS customer traffic, Bell can identify, inter alia, the type of data being transferred, the ISP upon whose network the data is being transferred, an end-user’s intention to acquire certain types of Internet content and the IP address and, hence, the identity of the end-user customer who is sending/receiving the data. The collection and use of such information by Bell, which in this case would have clearly been done without the prior consent of the end-user customers so affected, violates the privacy of such individuals."
Finally, CAIP also brings the broader net neutrality issue into the picture, noting that "Bell’s traffic shaping measures raise squarely the issue of 'Network Neutrality' which some have described as the right of individuals to gain unfettered and uninterrupted access to Internet content and applications of their choice." I provide the full argument on net neutrality since it is critical to the current public debate:
"In its March 2006 Final Report, the Telecommunications Policy Review Panel (the Panel) dealt with the subject of network neutrality and stated that it 'believes that blocking access to [Internet] content and applications should not be permitted unless legally required.' The Panel defined Internet "blocking" to mean 'both absolute
blocking and degradation that is serious enough to affect the desirability of an application or content' and it recommended that the Act should be amended 'to confirm the right of Canadian consumers to access publicly available Internet applications and content of their choice by means of all public telecommunications
networks providing access to the Internet."
The throttling or choking of wholesale ADSL access services that has been engaged in by Bell involves the running of complex algorithms on the GAS and HSA traffic of independent ISPs. In so doing, Bell is reducing the throughput available to the end-user customers of these ISPs by as much as 90 per cent. At such speeds, mainstream content available on the Internet, such as audio or video content (e.g., the CBC’s 'Next Great Prime Minister' program), would be slowed beyond recognition or meaning. In fact, Bell degrades the service to the point of, in some cases, rendering the content inaccessible or at least, highly undesirable. Bell is, therefore, clearly interfering with and, indeed, exercising control over this content by isolating it from other content, classifying it as low priority vis à vis other types of content and quarantining the content until Bell decides that it can be released to the end-user recipient in a manner determined wholly by Bell.
Similarly, Bell is influencing the 'meaning' and the intended 'purpose' of this content by preventing it from being delivered in the manner and within the time frames intended by the content sender and the content recipient. To use a case in point, if a musical selection that is lawfully downloaded from the Internet is constantly interrupted by Bell’s traffic shaping measures such that it can only be heard in fragments or only with the repeated clicking sounds that come from delays and re-buffering, then the meaning of the musical selection has been influenced by measures deliberately adopted by Bell.
As indicated above, Bell Canada’s traffic shaping measures discriminate between different types of content and the users of that content (contrary to subsection 27(2) of the Act). It is also evident, however, that these measures violate Bell’s obligation under section 36 of the Act not to control the content or influence the meaning or purpose of telecommunications carried by it for the public. Bell has a duty to uphold this obligation which is completely independent of its duties and obligations under subsection 27(2) of the Act, and no exercise of the Commission’s forbearance powers under section 34 of the Act, either in the retail Internet services market or in the wholesale market for underlying access services, relieves Bell of its section 36 duty to act in a transparent and
passive manner in relation to the content that is carried over its networks.
In light of the foregoing, CAIP respectfully requests that the Commission issue an order pursuant to paragraphs 7(a) and (j) and section 36 of the Act that Bell immediately cease and desist from interfering with the private communications and content of Internet services that is delivered over telecommunications equipment and transmission facilities controlled by Bell."
This brings together many of the net neutrality arguments that have been raised in recent months. The ball is now in the CRTC's court.
Open and shut case?
Michael, any idea how long it takes for the CRTC to consider a request like this? Is this something that will take days, weeks? Thanks for the info, I was aware that CAIP\’s lawyer was involved and I\’m glad to see there was traction on this issue so quickly.
more questions
Can individuals files a complaint with the privacey commissioner for what Bell is doing?
Opening private information packets destined to/from a private user and interfering with it based on what it sees within it and by examining the packet?
Would this be a valid complaint to the commissioner?
I may be wrong, but I thought that the CRTC has already ruled on net neutrality wrt VoIP. If Bell can’t throttle VoIP packets because they would be crippling their competitors, then why should they be able to throttle torrents when they are also in the media publishing business.
This is a fantastic development. I’m really pleased that Bell has taken the actions it has, if only to finally get the issue on the table and in the public dialogue.
Great progress on the issue and keep up the good work Michael.
Movement Forward
Finally this appears to be coming to a head in Canada. I recently left Rogers due to their throttling, poor customer service, and recently the addition of low bandwidth caps for an independent ISP, Teksavvy, which is the complete opposite of Rogers. (Before Rogers I left Bell for similar reasons). Now that Bell is traffic shaping the wholesale lines, it completely removes the original reason why this was regulated in the first place: to create competition. Bell is obviously trying the prevent the loss of customers to the independent ISPs who often offer better customer service, higher caps, and little to no throttling. Instead of competing on price, service etc., they are simply using traffic shaping to degrade the service of their direct competitors. Now that this is being brought into the light, hopefully we will see some movement on net neutrality in this country to protect consumers, independent ISPs, and technological innovators from the large corporation that have little else in mind other than increasing profits at the expense of the consumer.
I hoped they used online TV using P2P (Joost) as an example. This service does not operate at 30kBps at all. Therefore they are blocking the content of P2P TV services like Joost.
Fantastic, I hope justice is done for all the indy ISPs, Bell’s practices over the years have truly been disgusting, I’m glad I am no longer a customer of theirs, I’m also glad I’ve been able to influence all friends, family, and colleagues to leave them as well. I truly hope this hurts it where it counts, their bottom line.
Bell and Rogers’ ISP’s need to be broken off into separate companies and regulated. Both companies are in an inherent conflict of interest in that they are both service and content providers. They want to throttle your internet access so that you have to buy more TV/Satellite/phone service from them, instead of using emerging new (and cheaper) distribution methods using the internet, VOIP, new movie/music downloads, etc.
They have been getting away with these actions for years, with nary a finger lifted to control them. Look at the US, and the FCC reaction to Comcast doing this same kind of thing.
It has taken Bell’s arrogance in enforcing this throttling on their competition to make this issue finally seen and heard. I hope that this issue evolves into a general neutrality issue, and is not just restricted to stopping the throttling on 3rd party ISP’s, but Bell and Rogers are forced to end their crippling of the ‘services’ they sell for ever increasing prices, and ever decreasing quality.
Open and Shut
Legally this looks open and shut.. the great thing about this is that it is actually a large group of Canadian business that are making the complaint (i.e. someone that may actually have a voice on such an politically esoteric issue for the average Canadian). If the CRTC rules in their favor this is really really good news.
clueless I.M.
Our clueless Industry Minister is probably still wondering what it all means and if it affects his MS-Dos :/
Keep hounding your MPs
The full filing that was submitted to the CRTC by the Canadian Association of INternet Providers (CAIP) can be seen in its entirety here:
[ link ]
Its huge!
Raul
Hi Michael,
It was great to meet you at St. John’s College (the Canadian Journalism Federation lecture). I hope I captured your thoughts correctly. The liveblog link is here. All the best, Raul
PS – Rebecca added some links on the cross-post. You can check her blog here. Hope you enjoyed your stay in Vancouver.
Network Admin
I’m not sure why they are just going after Bell. Rogers is like the father of throttling in Canada.
Sweet!
If the CRTC forces Bell to stop throttling, it will set a precedent that could very well be applied to Rogers.
I filed a complaint with the CRTC on this issue, everyone else should do so ASAP.
So much for the competition bureau
I filed individual complaints with both the CRTC and Competition Bureau on this issue. No response from the CRTC, but the competition bureau is sitting this one out:
“At this point, Bell’s network management practices appear to be non-discriminatory, in that they are being applied at a network-wide level to both Bell’s own retail service and the service of all its wholesale customers, as opposed to the targeting of specific competitors. In this regard, it does not appear to the Bureau that Bell is currently engaging in a practice of anti-competitive acts in order to harm a competitor contrary to the Act. The extent that such network management practices may violate any contractual terms between Bell and its ISP customers is a private contractual issue between those parties. In addition, wholesale ADSL access services remain regulated by the Canadian Radio-television and Telecommunications Commission (“CRTC”) subject to Telecom Decision CRTC 2008-17, Revised regulatory framework for wholesale services and definition of essential service, 3 March 2008.”
I hope the CRTC has the balls to take them on.
Permission needed
“…with the repeated clicking sounds that come from delays and re-buffering, then the meaning of the musical selection has been influenced by measures deliberately adopted by Bell.”
Changing a piece by adding (or causing to be added) their own parts would make Bell a content provider would it not? I guess there is no problem if they contact the rights holders and get permission to alter their works. They are doing that, aren’t they?
The competition bureau doesnt get it
@gordon the competition bureau seems to be referring to complains from isp resellers like teksavvy to bell. This may be less anti-competitive than the overall issue.
Vuze, Joost Bittorrent Inc, the CBC, or anyone else who makes use of p2p software in a competitive business model to bell however are totally different claims that should be subject to the competition act. Bell\’s network management may or may not be non-discriminatory to its direct customers, however it is certainly discriminatory to these other companies.
It is the relationship between Bell, their VoD/broadcast services and blocking P2P that deserves real scrutiny from the competition bureau.
I mailed the Competition Bureau pointing out all of the ways the practice of Throttling is Anti-Competitive to many other business’s which in turn affects the consumer directly. I really don’t understand how they can say its not?
to ‘Ole Jule: the rights holders are likely the people whose work is being illegally transmitted in the first place on p2p, so I doubt they will complain about what Bell is doing. My guess is that Bell is among other things trying to figure out how to manage illegally or potentially illegal downloads and this is one way to test the water.
Every P2P Protocol is Legal. Much content is delivered this way. I mean look at BitTorrent Inc’s site, [ link ] If Traffic remains shaped, this affects this companies business thus directly affecting its community and many consumers.
There are many more legal services that offer content in this manner from large companies to individuals creating content.
Privacy. that’s the key word.
If my comprehension of the methodology is correct, the telco is opening your data packets and examining them for content, then deciding how to process them. Worse still, your network habits are likely being profiled for the purpose of ????? For who??? You guess!
What if the post office started opening every letter sent to/by you to check for content and decide how or when to deliver it.???
Think about it. It’s the same thing, folks.
Michael et al, two more recent things you may wish to look into that are somewhat related:
– Bell possibly appealing Decision 2008-17 [The recent Decision on what are \’essential services\’ i.e. elements available to competitors like ISP\’s]:
[ link ]
[ link ]
– Bell possibly laying off 40-50 people in their Carrier Services Group [The group that ISP\’s and CLEC\’s deal with to purchase & provision said services]
The filing by CAIP:
[ link ]
Along with writing your MP,
[ link ]
[No postage required, dispatch by letter still more persuasive than E-Mail/Phone/Fax] you may also wish to let your views be known to the CRTC:
[ link ]
People may be surprised to know just how little public comment the Commission normally gets on most issues before it.
One other tangentially related issue to all this Net Neutrality stuff that most Canadians are probably not aware of; that although the Incumbent Carriers have considerable quantities and sizes of I.P. connections at the country\’s large \’carrier hotels\’, [where entities such as The Toronto Internet Exchange are located [ link ] ] they have an almost singular unwillingness to interconnect their networks to other Canadian ISP\’s in a \’co-carrier\’ arrangement such as the one they are mandated to for traditional voice competitors.
Along with increasing costs to smaller Independent Canadian ISP\’s (and to Bell itself), this also may reduce speed for all customers involved. Not to mention that since much of this traffic [that may literally be between next-door neighbours] can transit through the U.S. – the data of Canadians can end up being looked at by American Law Enforcement under such statutes as the CALEA, PATRIOT & Protect America Acts.
I\’m somewhat surprised that the Internet peering issue doesn\’t get more press.
Sovereignty Avoidance?
Okay…this is something else to look at. Definitely.
I too filed a complaint with the Competition Bureau and sent a letter to Prentice.
It seems that the only reason that the Competition Bureau would “avoid” this issue is because they are trying to punt it into the CRTC’s hands.
It’s true that the CRTC does not regulate the Internet – as they made clear years ago in decisions – however, this is a COMPETITION issue. Bell is obligated by law to sell wholesale Internet access to small ISPs. Thus, the issue isn’t speed or bad service, but that Bell is screwing small ISPs, and in turn us customers.
I think what Bell is “secretly” trying to do is stop the bleeding off of their own dissatisfied customers. That way, if someone calls Bell to complain or leave, Bell can just tell them “there’s no point leaving us, all the small ISPs are throttled too.”
It’s like the jilted lover saying “If I can’t have you, no one can!”
Now Bell wants to stop selling DSL to IS
[ link ]
The CRTC forces Bell to allow companies to resell their DSL services because the Canadian government paid lots of money to Bell to help them build it. Now: “Bell said such regulation is no longer necessary now that there is enough competition in phone and internet markets. ”
Right- they claim that cable competition means that we don’t need small ISPs. Cable is as bad as they are! Rogers throttles p2p AND all encrypted content so you can’t use your VPN. Videotron in Quebec is as bad, and that’s the only competition I know about.
How is this “enough competition”?? They all do the same anti-competitive things to their clients and paying money to switch from one to another will only mean that one of the other 3 providers will be abusing you.
CRTC, defend us! This is getting out of hand!
Reply from the Competition Bureau
Thank you for the information you have provided concerning Bell Canada (“Bell”). The Competition Bureau (the “Bureau”) has received your complaint that Bell has engaged in the control or “shaping” of traffic of independent Internet Service Providers (“ISPs”) that provide service through wholesale access to Bell’s network. In your complaint, you have alleged that this is an anti-competitive practice on the part of Bell.
The Bureau is a law enforcement agency responsible for the administration and application of the Competition Act (the “Act”). It contributes to the prosperity of Canadians by protecting and promoting competitive markets and enabling informed consumer choice.
Your complaint has been reviewed by the Bureau’s Civil Matters Branch under the abuse of dominance provisions of the Act (section 79). In order for conduct to violate that section of the Act and for the Bureau to obtain an order to stop it, we must prove that:
· one or more persons substantially or completely control, throughout Canada or anywhere thereof, a class or species of business;
· that person or those persons have engaged in or are engaging in a practice of anti-competitive acts; and
· the practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market.
This framework, including its application to the denial or disruption of service in the telecommunications industry, is discussed in detail in the Bureau’s Draft Information Bulletin on the Abuse of Dominance Provisions in the Telecommunications Industry, available on the Bureau’s website at [ link ].
At this point, Bell’s network management practices appear to be non-discriminatory, in that they are being applied at a network-wide level to both Bell’s own retail service and the service of all its wholesale customers. In this regard, it does not appear to the Bureau that Bell is currently engaging in a practice of anti-competitive acts contrary to the Act. The extent that such network management practices may violate any contractual terms between Bell and its ISP customers is a private contractual issue between those parties.
However, the Canadian Radio-television and Telecommunications Commission (“CRTC”) regulates wholesale access by independent ISPs to high-speed Internet access services from both telephone and cable companies, subject to Telecom Decision CRTC 2008-17, Revised regulatory framework for wholesale services and definition of essential service, 3 March 2008. Under the CRTC’s regulatory framework for wholesale services, Bell is required to provide access to their DSL network to independent ISPs at regulated rates and terms of service. If the CRTC finds Bell or any other network operator to be in violation of these terms or otherwise engaging in unjust discrimination or undue preference, the CRTC has the power to address these issues under the Telecommunications Act. Should you believe carriers are engaging in unjust discrimination and undue preference, we suggest that you contact the CRTC, which may be in a position to address your concerns:
Oh I almost missed the footer they stuck in the email.
“Please note that the Canadian Association of Internet Providers (CAIP) has made an application on this basis to the CRTC asking them to resolve this issue.
Thank you again for taking the time to bring this matter to our attention.”
ssh
if all traffic were encrypted, deep packet inspection would not work. I think that ssh will become the standard for all Internet traffic in the near future. Either ssh or some other form of encryption. Every time I turn around, another little piece of pivacy is being taken from me. Case in point, to return bottles here you must provide your phone number. Why?
WHAT ABOUT ROGERS?
What about Rogers – they are the ones who introduced throttling into the Canadian market.
Rogers unfortunately is the only highspeed choice for some areas of Canada – and I think equal attention should be placed on the dispicable practices of Rogers.
It does not seem difficult to prove how ISP’s are losing customers because they cannot guarantee Qos on their web access.
Customer complaints, unacceptable performance levels are all be documented and provided to the commission. There is also a fairly obvious compromise arrangement between the parties that would work for all concerned.
Text extract from response
“Your complaint has been reviewed by the Bureau’s Civil Matters Branch under the abuse of dominance provisions of the Act (section 79). In order for conduct to violate that section of the Act and for the Bureau to obtain an order to stop it, we must prove that:
· one or more persons substantially or completely control, throughout Canada or anywhere thereof, a class or species of business;
· that person or those persons have engaged in or are engaging in a practice of anti-competitive acts; and
· the practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market. ”
It does not help matters much when the Bell side (deliberately) confuse the issue of throttling with digital rights; that is, as watchdogs of the entertainment industry, they would be able to control P2P downloading. There are some on the Gov/Commission side that are affected by this infringement of rights argument. The fact is that censorship of content is not the same issue as not delivering what you as monopoly owner have contracted for; supplier agreements. There are also contractor rights in the supply of services. Whichever side the Commission will rule on, Government will always have the ability to monitor traffic and content and dictate 911 policies. ISPs should be focusing their tactics on this aspect of the battle.
Robber Barons
he robber Barons have returned. Marx may have been right that unfettered capitalism leads to monopolies. The CRTC will merely be their bludgeon to crush competition with a semblance of “fairness”.
At least they taught me how to become one:
1. When interest rates are low borrow insane amounts of money and buy up all competing products in your industry.
2. Then when you have a monopoly raise prices/degrade services to increase profits well over what could be done in a competitive market.
3. Chew cigar heartily and drink champagne in the boardroom.
re traffic shaping/net neutrality
What trouble me is that Bell/Rogers….(insert name of mega isp here), are acting in a quasi judicial manner. Until it is proven in court that the content I am downloading is pirated, I am by law presumed innocent of piracy. Never mind that P2P and other sharing protocols can and are used for legitimate purposes. Why is Bell examining the packets at all, I feel violated.
Another question, what happens when Bell/some other quasi monopoly, discard/fake packets and corrupt legal and legitimate network traffic? What happens when they intercept some encrypted file packets of say a speadsheet or database file, and corrupt the contents, causing me/you/someone to lose a contract or possibly even go to jail (tax files?)
Storm the barricades! Destroy the neo-capitalist monopolists!
traffic shaping/net neutrality
Iam actually somewhat surprised at the speed of things.
Normally we would be talking months or longer but now its happening quite rapidly.
I do believe bell and rogers have caused a mess they are going to soon regret very much.
If they had kept to just doing their own it may have gone on for ages but now they are likely not even going to be able to do that.
CRTC action?…not!
Our sureness as to Bell’s anti-competitive, smug, and dishonest actions will mean little, I fear, to the CRTC.
One only has to look back to the Satellite TV fiasco to judge what we may expect from that esteemed department. An opportunity for “new” technology to offer Canadians more choice, more control (such as assembling their own “packages”), and at a better or comparable price than the existing cable monopolies (or oligopolies, if you must) was discarded after the CRTC decided, objectively and in the interests of all parties (insert snort of disbelief or derision here), to restrict the SatTV applicants to offering little better than the existing cable competition.
In fact, aside from one time that I can recall in the mid-eighties when Bell was caught fiddling the Ontario long distance charges to their advantage, the citizenry should be forgiven for believing that the CRTC existed for any other purpose than to rubber-stamp the desires of the cable and telco monopolies.
Bell’s (to you and I) transparent attempt to restrict competitors to the level of service occasioned by their own slimy business practices (ahem…long-ongoing overselling of available capacity and bandwidth without corresponding reinvestment in hardware and infrastructure?) is unlikely to produce any decision favorable to its wholesale customers, and by extension you or I.
The fact that this bandwidth-limiting has been going on since the middle of March (as first reported by The Register…yes, a British news outfit) without action or even comment by any Canadian government department should, sadly, not give any of us much hope.
Here’s hoping anyway. N.
CRTC action?…
Normally i would agree the crtc has been for the most part a joke in the past.
Now though i think its gotten to the point were there is just too much of a spotlight on the problems now.
The one thing they worry about more then pleasing big business is their own collective butts and there is is just too much attention now.
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cash orgies :p
Looks to me like a clear cut case of rape. The Bigger Guy givin it to the Little Guy while the Government (who should be GOVERNING dammit) is cupping his scrotum.
has the CRTC done anything?
So, months later, has the CRTC done anything about this yet? Sympatico is still clearly throttling bandwidth during peak hours. At least from where I sit.
What I’ve noticed is the number of videos not available from US sites. My non-Canadian friends send me links to clips from CBS or the comedy network and I can’t access them saying it’s “not available in my region”.
I’m not even talking about full TV shows but preview or highlight clips. Is it all Bell and Rogers doing this or is there some other licensing going on on top of this throttling?
How long well it take the crtc to decide.
Answer is about two min.
Thats how long it takes them to drop the paper work in the round file drawer.
Now how long it takes them to give people a answer is about six months to a year.
Usage billing well be hear shortly thats already been decided throttling is likely to get worse not just peak hours.
The only thing still not in bell court is the forced selling to other providers.
The crtc has yet to figure out a way to do so without looking totally guilty but thats likely to come to.
The problem is that bell has more money so the court route is next to hopeless..the crtc is totally corrupted and in bell pocket and lastly the government bodies involved have take rather large donations from bell under varies names to hide the bribing.
Tell these three things are delt with the whole mess is totally hopeless and the end result of bell (requests) is a for gone result.