The controversy surrounding Bell Canada throttling not only its customers, but also wholesalers as well has taken a new turn recently.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
Bell has long argued that they are congested with traffic, but a recent revelation by non other than Bell may have just undermined their argument.
The revelation was followed up by a recent submission (PDF) by Primus to the Canadian Radio-television and
Telecommunications Commission (CRTC) which supported the Canadian Association of Internet Providers (CAIP) Primus demands that Bell Canada immediately cease and desist the throttling of wholesalers. Here’s a few samples of the Primus submission:
2. On 8 April 2008, Commission staff issued a letter splitting CAIP’s application into two separate processes, establishing 15 April 2008 as the deadline for submissions on CAIP’s request for interim relief. Pursuant to section 60.(1) of the CRTC Telecommunications Rules of Procedure, Primus hereby submits its intervention on that portion of CAIP’s application. Primus intends to submit a further intervention supporting and dealing with the substance of CAIP’s application and why it agrees that Bell Canada is in violation of its GAS tariff, once the deadlines in that further process are established by the Commission.
6. At the outset, however, Primus rejects any assertion by Bell Canada that traffic volumes associated with its wholesale GAS customers have necessitated this measure. Based on the capacity of the connections between Primus’ network and the GAS network at the Aggregated High Speed Service Provider Interface (AHSSPI), and based on certain assumptions about the capacity of other ISPs’ connections, Primus does not believe that such traffic management measures are required. Bell Canada’s actions have dramatically changed GAS service levels and subsequently the levels of service Primus is able to offer its retail customers. For this reason, and the set out in the balance of this intervention, Primus submits that the Commission should grant CAIP’s request for interim relief.
7. CAIP’s application raises significant issues for Commission deliberation. It raises questions of whether Bell Canada is in compliance with its tariffs (section 25 of the Telecommunications Act) and questions of undue and unreasonable preference and disadvantage (section 27 of the Act). Both of these allegations relate to a service which the Commission has just recently re-affirmed as a service upon which competitors rely on a
significant scale to provide competitive alternatives in the high-speed Internet access market. In Revised Regulatory Framework for wholesale services and definition of essential service, Telecom Decision CRTC 2008-17, 3 March 2008 (“Decision 08-17) the Commission categorized GAS as a “conditional mandated non-essential” service.
11. Primus also submits that the requested interim order would be in keeping with the government’s Policy Direction to the CRTC. The Direction states that the Commission is to implement the Act’s Policy Objectives by “[relying] on market forces to the maximum extent feasible as the means of achieving the telecommunications policy objectives” and “when relying on regulation, use measures that are efficient and proportionate to their purpose and that interfere with the operation of competitive market forces to the minimum extent necessary to meet the policy objectives.”
Bell submitted a response to the allegations in a package (Zip – PDF, Doc) which contains the following:
1. […] in its Application at paragraph 1, CAIP states that its application is made on behalf of “those of CAIP’s members that provide retail internet access services”. However, the Company notes that some of its GAS customers have told the Company that they support its Internet traffic management solution and further, some of them have noted that they have adopted similar traffic management practices.
8. Regarding its specific request for interim relief under the first prong of the RJR MacDonald test, CAIP has not demonstrated that there is a serious issue to be tried. First, the Company is not operating off-tariff. To the contrary, the Company’s traffic management measures are performed in a manner consistent with its tariffs and contractual obligations. Second, the Company is not unjustly discriminating against its wholesale ISP customers nor is it granting unto itself an unjust preference as it is applying its Internet traffic management solution to retail and wholesale customers using the same network in the same manner and to the same extent. Third, the Company is not affecting end-user’s privacy nor is it controlling the content of influencing the meaning or purpose of telecommunications. The Company’s use of Deep Packet Inspection (DPI) as part of its Internet traffic management solution is such that it treats all P2P traffic the same, it only looks at the application header of the content but not the content itself, and it does not block access to any content or applications.
11. There appears to be a large amount of confusion and miscomprehension about how the Internet works, what Bell Canada is actually doing to manage its network and the impact that it is having on Internet users. Customers generally, including the Applicants, are using unsubstantiated allegations as facts to then jump to certain conclusions. The Commission’s assessment must be based on facts, not unsubstantiated allegations.
Though most significantly is this:
20. Last fall, before the Company began deployment of its Internet traffic management solution to ease network congestion during peak usage periods, 5% of users were generating 60% of total traffic on the network and 60% of that traffic was P2P traffic, including BitTorrent. During peak periods, that same 5% of users were utilizing 33% of available bandwidth. In other words, 95% of Bell subscribers were being negatively impacted by a very small minority of Internet users primarily using P2P file sharing applications.
It is that admittance that has left people like Michael Geist wondering if Bell even has a bandwidth problem.
“That is a disproportionate use to be sure,” Geist comments, “yet it struck me as far lower than might have been expected.”
he continues, “This becomes relevant for at least two reasons. First, Bell has been fighting its public relations battle on the premise that P2P is a problem that necessitates throttling practices that inconvenience 100 percent of its users, yet its own data suggests that the problem may not be as severe as first thought. Second, while the Telecom Policy Review Panel recommended a net neutrality provision that accounts for “reasonable technical constraints,” Bell’s current traffic experience may make it more difficult to argue that constraints that affect 100 percent of users are reasonable in light of better alternatives (Bell acknowledges in its submission that Comcast is moving away from this approach) and network usage patterns that do not seem particularly out-of-sorts.”
It seems as though this may be a crucial slip-up on Bell’s part. It’ll be interesting to see how the CRTC responds to all of this.