Canadian ISPs lose traffic-shaping case

Editor’s Note: This story is excerpted from ITWorld Canada.

Subscribers to DSL Internet services provided by Canada’s biggest phone company will have to put up with having their online speeds manipulated by the telco, the federal communications regulator has ruled.

The Canadian Radio-Television and Telecommunications Commission said Thursday that Bell Canada can continue traffic-shaping during off-peak periods it began in the spring in an attempt to fight a minority of music, video and file-sharing downloaders it says are unfairly taking away bandwidth from others. By slowing traffic Bell is trying to more evenly spread the load among those online.

The CRTC’s decision, though, was narrowly based on the complaint by the Canadian Association of Internet Providers (CAIP), some of whose members resell Internet service from Bell and are therefore affected by its practices. Those ISPs complained that traffic-shaping ended up denying subscribers the highest download speeds they believe they are paying for. The association also argued Bell is trying to discriminate against the ISPs in favour of its own Sympatico Internet service, putting them at a competitive disadvantage in violation of the principle some call ‘Net neutrality.

The commission disagreed.

“Based on the evidence before us, we found that the measures employed by Bell Canada to manage its network were not discriminatory. Bell Canada applied the same traffic-shaping practices to wholesale customers as it did to its own retail customers,” said commission chair Konrad von Finckenstein in a news release.

However, the commission did order Bell to notify its wholesale customers – the ISPs – at least 30 days in advance of making changes that impact on the performance of its service

This isn’t necessarily the end of the ‘Net neutrality debate. Stemming in part from the CAIP complaint, the CRTC will hold hearings in July on whether other Internet providers, including cable companies, should be allowed to interfere with traffic.

“CAIP’s application asked us to only consider the specific issue of wholesale traffic shaping within a specific context” of the Bell-CAIP application, von Finckenstein said in his release. “The broader issue of Internet traffic management raises a number of questions that affect both end-users and service providers. We have decided to hold a separate proceeding to consider both wholesale and retail issues. Its main purpose will be to address the extent to which Internet service providers can manage the traffic on their networks in accordance with the Telecommunications Act.”

Specifically, the commission will be looking at what is leading to Internet congestion, Internet traffic management practices based on technical solutions or business models and how these practices impact subscribers. Anyone can send in a written submission to the commission by Feb. 16.

CAIP chairman Tom Copeland called the decision a huge disappointment to whole Internet providers and Internet subscribers. “This means that Bell will continue to continue to interfere with the growth and the enjoyment of the Internet.” As for the CRTC hearings, “any proceeding that they’re about the launch relative to traffic-shaping is going to be a long time working its way through the system.”

“I’m happy they’re undertaking to do so, but I think they’re months behind the process. This should have been done ago — they should have initiated that proceeding in the spring when we make our application. The two would not have interfered with each other.”

“It strikes me as very odd that when our largest trading partner in terms of data and goods [the United States] has come out in favor of network neutrality, and the incoming president has also out in favor of network neutrality, but we’re still dragging our heels.”

Iain Grant, managing director of SeaBoard Group, a Montreal-based telecommunications consultancy which believes government shouldn’t regulate the Internet, said the CRTC “did the right thing.”

The timing of next summer’s traffic-shaping hearings is interesting, Grant added, because the commission will be looking in February at whether it should regulate new media. The commission’s mandate includes encouraging television and radio outlets to boost their Canadian content. So far it has decided to stay away from extending that content carried by providers over Internet. But Grant suspects the commission fears the controversy over ‘Net neutrality might overwhelm those hearings, so put off the traffic-shaping discussion to the summer.

In Grant’s view, service providers have a valid argument that in the face of increasing traffic volumes some sort of Internet management is demanded by the companies who are paying millions of dollars for the infrastructure. As he puts it, providers are asking “do we keep building more lanes or put in some stop lights, or at least some yield signs?”

Traffic-shaping isn’t the only weapon in the service providers’ arsenal. Many also restrict the amount of data subscribers can download a month. Bell, for example, has a 20Gb a month download cap on its CDN$27.95 Internet Essentials Plus service, and 100Gb a month on its faster Max 10 plan. In Ontario, Rogers has a 60Gb cap on its CDN$34.95 (US$28.31) Express service and a 95Gb monthly download limit on its faster CDN$99.95 Extreme Plus plan.