CAIP has submitted its response [update – now online] to the Bell throttling submission and it does not pull any punches:
It is also clear from Bell's Answer that it fundamentally misunderstands (or has consciously misrepresented) several key facts and issues that are of direct relevance to the issues under consideration in this proceeding, including, most significantly, the nature of the local access and transport service that Bell provides to its wholesale customers, the extent to which its DPI "traffic shaping" technology interferes with both the content and privacy of end-user communications, and the tremendous impact that its traffic shaping practices have had – and are continuing to have – on competitors, their end-users customers and providers of new media content that make use of P2P applications to deliver content to their on-line users, listeners and viewers.
CAIP continues to focus on the competitive implications (and rationale behind) Bell's throttling, arguing that:
There is also uncontradicted evidence . . . that strongly suggests that the reasons behind Bell's decision to throttle its competitors' GAS traffic have little to do with Bell's unsubstantiated claims of "network congestion" and more to do with a desire to lessen competition in retail telecommunications markets. There are far too many "coincidences" between the timing of the initiation of Bell's throttling practices and the timing of a number of other events in order to conclude otherwise.
The CAIP submission also includes some interesting new allegations. It notes that Bell personnel have only a superficial knowledge of their deep-packet inspection technologies and that the throttling apears to have affected virtual private networks and VoIP services (in addition to P2P). The submission includes a statement from SaskTel in which it confirms that, unlike Bell, it "does not use any form of traffic shaping, rate limiting, or usage caps on a per user or per application basis at this time."
Perhaps most importantly, it focuses on whether throttling violates the common carrier provisions found in Section 36 of the Telecommunications Act. The CAIP argument, reproduced in full, goes to the crux of whether the current Act is able to address this component of the net neutrality issue:
With respect to Bell's argument that it is not controlling the content or influencing the meaning or purpose of telecommunications carried by it because it "does not block access to any content or applications", CAIP submits that blocking access to content is not the appropriate threshold test for determining whether a carrier has violated its duties as a common carrier under section 36 the Act.
Section 36 of the Act states very clearly that a carrier "shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public." Bell's traffic shaping measures clearly influence the meaning and purpose of the telecommunications that it carries for the public. Indeed, as noted by CAIP in its Application, Bell is reducing the throughput or data transfer speeds available to the end-user customers of competitors by as much as 90 per cent. At speeds such as this, 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.
These drastically reduced speeds also make it clear that Bell is exercising control over this content by isolating the data packets that make up this content, classifying those packets as low priority vis à vis other types of content and quarantining the packets until Bell decides that they can be released to end-user recipients at a time and in a manner determined wholly by Bell.
In a similar fashion, 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 the example referenced in CAIP's Application, 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.
It is ludicrous for Bell to suggest that the only way that content can be controlled or its meaning or purpose influenced is if it is blocked outright. Section 36 of the Act clearly contemplates instances where the meaning or purpose of a communication is being controlled or influenced while in transit from the content sender to the content receiver.
Bell's throttling of GAS customer traffic degrades communications between users to the point where the intended meaning and purpose of these communications is fundamentally altered. This conduct, like the privacy concerns discussed above, also gives rise to a serious issue that Bell has violated its duty under section 36 of the Act.
The issue is now in the hands of the CRTC.