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.