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CRTC Denies CAIP Application on Throttling, But Sets Net Neutrality Hearing

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Thursday November 20, 2008

This morning, the CRTC issued its much-anticipated ruling in the CAIP v. Bell case, the first major case to test the legality of Internet throttling.  The Commission denied CAIP's application, ruling that Bell treated all of its customers (retail and wholesale) in the same throttled manner.  This points to the challenge in this case - it was not about discriminatory network practices per se, but rather about wholesale shaping in a specific context. 

Bell comes out a winner in this round. The Commission found that there was network congestion due to P2P usage and that some network management is required to address it.  Moreover, it rejected the competition concerns noting that there was no evidence that Bell's action had lessened competition and it concluded that reducing speeds does not rise to the level of controlling content.

While the CRTC's decision to permit Bell's throttling practices is disappointing in the short term - and seems to place Canada on a different track from the U.S. - the decision is not a total loss for net neutrality supporters as the Commission made a clear commitment to addressing the issue of net neutrality and network management in a formal proceeding in July 2009.  Indeed, it is important not to lose sight of how much has changed in the past year. 

Just over one year, I wrote a column noting the need for greater ISP transparency in the wake of Rogers' admission that it engaged in traffic shaping.  At the time, net neutrality was viewed as a fringe issue in Canada without much political traction.  In the span of 13 months, there has been a major CRTC case, a private member's bill on net neutrality, a rally on Parliament Hill, the emergence of BitTorrent as distribution tool for broadcast content, a more vocal business community supporting net neutrality, and a gradual shift of this issue into the political mainstream.  In the United States, the change has been even more dramatic - an FCC ruling on the throttling activities, proposed legislation, the shift of net neutrality to wireless, and a President-elect who has been outspoken on the need to preserve net neutrality.

In other words, today's CRTC decision is not the final word on net neutrality in Canada, but rather the first word on it.  The Commission itself has opened the door to broader hearings on the issue next year, which may come alongside the new media hearings that also offer the opportunity to raise net neutrality concerns.  Moreover, if the Commission comes to the conclusion that these practices are consistent with current Canadian law, there is the likelihood of growing calls from within Parliament to change the law.

A year ago, the net neutrality debate focused on whether rules were needed. Today, the debate is changing from whether there should rules on network management to what those rules should be.  In fact, the Commission notes that as part of the hearing it "will try to establish the criteria to be used in the event that specific traffic management practices need to be authorized."  There is an emerging consensus on the easy issues -  no content blocking and better transparency of network management practices (the CRTC today required Bell to provide its wholesale customers with advanced notice of its plans).  We are in the early stages of the more difficult questions of what constitutes reasonable network management practices and the opening of a formal proceeding puts those tougher questions squarely on the table.

Update: The NDP's Charlie Angus responds.  Coverage from the CBC, Globe, Toronto Star, and Ars Technica.

Comments (31)add comment

paul williams said:

Boycott Bell + write the CRTC
Boycott Bell + write the CRTC
November 20, 2008

Ben Babcock said:

Will broadband be the new dial-up?
For me, this ruling is disappointing because as long as any ISP is continued to allow engaging in throttling, it reduces the ISP's incentive to put money into improving the network infrastructure in order to increase speeds for //everyone//.

If Canada continues to fall behind other developed nations in terms of broadband penetration and network speed, will we soon see a day where our broadband speeds are to other countries' speeds as dial-up is to broadband today? After all, as long as the big telecos don't have competition, what is their incentive to improve our speeds if everyone across the country has terrible service?

The CRTC's point regarding the equal application of throttling is valid, sure. And I'm glad that they are going to follow up with a more in-depth investigation. But we can have all the investigations the CRTC wants, and it still won't do any good until something actually changes.
November 20, 2008

seth dayal said:

...
Seems Canada's CRTC has become infected with Neocon ideologues in a way the FCC never was even under the Bushies. Enamored with BIG Telcom lobbyists, when do suppose the last time it was that these creatures actually paid for their own lunch. Unless municipal (read Meraki wifi) or provincial (read piggybacked Hydro AMR networks) politicians establish true public telecom utilities , there is no real hope for better than snails pace broadband networks until Harper and his gang are sent packing.
November 20, 2008

Steven G. said:

...
not that this is any surprise, its just sad that canada... of all places has now fallen behind the US on this matter, whats up with that?
November 20, 2008

Bytowner said:

Oligarchy?
It seems to have always been a running battle to defend oligarchies against the public at large here in Canada. And likely always will be.
November 20, 2008

Jean-François Mezei said:

...
The sad thing is that the CRTC decision went out of its way to support Bell on all aspects it considered, even accepted the false claims that Bell only looked at headers in order to dismiss any privacy issues.

The dangerous precedent is that the CRTC allows Bell to change the configs of its ellacoya boxes WITHOUT warning if the changes do not concern performance. So it can start to accumulate usage data or which web sites are being visited by custoemrs of its cojmpetitors without warning.

And the CRTC has essentially accepted that 30KB/s is "high speed internet" even though in other CRTC documents about the internet, the accepted standard is 5mbps.
November 20, 2008

Andrew Fernandes said:

Bell Must Address VPN, VoIP, and Encryption
An interesting side-note is that the Commissioner stated that Bell must adequately address throttling of encrpted connections, such as VPN, SSL, or SSH, by Jan 09, 2009. The ruling appears very targeted to P2P applications.

Therefore it behoves us, the public, to collect as much data as we can on how Bell's practices fail to meet this deadline.

Good news that 'net neutrality has come front-and-center stage!
November 20, 2008

Andrew Fernandes said:

Burden of Proof
Also, it was interesting (as noted by MG) that the CRTC had an interesting spin on "burden of proof". Rather than assuming that Bell must show congestion due to excessive P2P, the Commission stated that "CAIP failed to show that Bell's conclusions were incorrect".

Given the very limited access CAIP had to Bell's internal data, it is very unlikely such a proof could be given.

Also interesting was the lack of requirements for transparency. Bell does not have to state *how* they manage their data, only they must provide a reasonable-notice to their wholesale customers that they *are* doing it. There is no way to turn it off, or purchase "better" bandwidth for those that need it.

Write your MP - 'net neutrality is needed.
November 20, 2008

Marcus Coles said:

...
It appears to me that despite the extended time taken on this matter, the CRTC did not perform their task with due diligence and merely took Bell's submission at face value, in fact it almost reads as if Bell wrote the decision.

Obviously the CRTC did not give this important matter enough weight and perhaps even misunderstood the core issues and the technology involved.

I'm tempted to blame the decision on corruption and conflicting interests within the CRTC, but in all fairness this is probably just rooted in incompetence.

Waiting around for another two years as the world goes rushing by for a decision on Net Neutrality that will probably be just as screwed up.
We have come a long way haven't we?


Marcus

November 20, 2008

JasonN said:

CRTC phone number. I've already placed my call, have YOU?
To everyone reading this comment:
The CRTC's phone number is 1-877-249-CRTC(2782)
Call and voice your opinion on this disgusting ruling. The receptionist is a very nice woman and is expecting your calls. She may take your name and number and someone will call you back and then you can tell them what you think!
www.netneutrality.ca
www.saveournet.ca
November 20, 2008

seth dayal said:

Co-op
The independent ISP's should get together, form a Co-op and run their own fibre from each central office into the main transit exchange. They would then only be beholden to Big Telecom for the tariff rate on the customers cable pair.

By eliminating Telco interconnect charges, the Co-op fibre links would likely be paid for within the year.
November 20, 2008

Craig said:

Re: Proof
I actually had an excellent conversation with a CRTC employee today who called me after I emailed my complaint to them in regards to this decision. He was quite upfront and seemed to realize the publics frustration. He said he had been reading the comments on this site, Saveournet.ca and many other sites.

In regards to the lack of proof, I told him that Bell should have to prove they need this done before they are allowed to do it, instead of allowing them to do it and making the burden of proof on others. That is not a representation of people.

The burden should be on these big telecoms to prove that they need to do this, and not on the public or smaller providers. This is what will hopefully happen during the hearings between now and June, but they should force Bell and others to stop until then.

We all must rally to be heard as it is now apparent that we can not rely on the CRTC or other commissions to protect our rights. I fear if this is not done soon, within 5-10 years, the Bell's and Roger's et all of the world will be padding their wallets, while the country slips to 3rd world status due to our lack of technology infrastructure.
November 20, 2008

Mekki MacAulay said:

Web Submission of Complaint
You can also submit your complaint online here:

http://www.crtc.gc.ca/RapidsCCM/Register.asp?lang=E
November 20, 2008

Chris said:

Frustration, dissapointment... not surprised.
Curse Bell, Curse the CRTC. This is complete and utter BS.

This ruling stifles innovation of technologies within Canada and relegates us to an third world internet backwater. Rather than embrace new technologies through infrastructure investment Bell and the CRTC have decided to take the RIAA/MPAA route and throw roadblocks and litigation in the path of anyone or anything that is counter to their out-dated business. Not to mention it is a conflict of interest.

Will Bell throttle their own VOIP? Their own Video On Demand? NOPE.

Curse you Bell and Curse you even more CRTC for stepping all over the public interest

WHO PAID FOR THE PHONE LINES THAT DSL RUNS OVER? CORRECT ME IF I AM WRONG BUT WAS IT NOT PAID FOR VIA PUBLIC SUBSIDIES? BELL has only been granted ‘guardianship’ over those networks. And now they blatantly abuse that guardianship while screwing those who trusted them with this responsibility. They are doing this with the approval/blessing of the CRTC who have shown they are either corrupt or inept in their capacity to act in the public interest. Curse THIS.
November 20, 2008

Shawn said:

CRTC needs to be revamped
Just goes to show that the WHOLE CRTC needs a revamping. From replacement of key decision makers, new hiring practices, and updated rules to SERVE Canadians NOT monopolies.

perhaps someone should start a downwiththeCRTC.ca and start documenting ALL their misguided judgements.
November 20, 2008

march said:

dangerous
it's a very dangerous decision net neutrality must be done once again here the CRTC didn't listen to canadians (wich seems to be their habit now)
November 20, 2008

J Fraser said:

Just noticing now?
The CRTC's claims that the matter of traffic shaping (suddenly, it seems) now merits a separate inquiry is a little horses have left the barn, given today's decision. Its idea to announce proceedings on this issue NOW is a clear indicator of its dismal failure to be a proactive regulator, or to provide leadership on the public policy questions surrounding net neutrality.

What this all comes down to is this: the CRTC (under the Conservatives) is not going to do anything to undermine the ability of corporations, and notably large corporations, to squeeze Canadian consumers. This decision appears to be a licence for Bell to continue to dilute the speed and effectiveness of network services it is selling, and has already sold, to consumers and downstreamers at the expense of choice, competition and value for consumers. Bell sees validation of its practices in today's decision ("Katz: ...someone told me Bell put out a press release that said the commission upheld its position that network management practices are a fundamental right of theirs. That's not what we said at all." -- http://www.cbc.ca/technology/s...tcqna.html).

If only it were WORTH complaining... but I can assure you it is futile. It is an administrative body and its decision is made. As futile as it may be, we'd all be better off focusing our energies on making submissions on this new consultation process, all the while realizing that we will be out-spent and out-lobbied by big telcom. Today's decision gives one the strong sense that consumers, and organizations that represent their interests, will never get heard by the CRTC like the telcoms will.
November 20, 2008

S. Dunphy said:

Useless
I'm not sure which party I'm more upset with; Bell, who have proven to me time and time again how truly inept they are at servicing their customers, or the CRTC, who have proven today that they are incapable of following their mandate to regulate. I've already filled out 3 complaint forms so far, and will continue to do so, at the very least, simply to annoy them. A truly sad day.

November 20, 2008

T.Rutherfurd said:

UNBELIEVABLE
This is unbelievable first there crappy decision for broadcasters who need there fee for carriage in this economic downturn then this. Bell has someone in there back pocket over there. It's not just me who thinks this is a ruling that should have been open and shut and instead awarded against the people. Everyone is who knows about net neutrality is throwing there arms up and scratching there heads. I am so angry I can't even type................
November 20, 2008

Chris said:

Why CRTC?
The CRTC themselves state that they are not i the realm of enforcing Internet usage.

Fro their own site:
http://tinyurl.com/crtc-lies

"You may not be aware that the Commission does not regulate the rates, quality of service or business practices for Internet Service Providers and cannot pursue complaints on these matters on your behalf. For information on where to lodge a complaint, read our Fact Sheet about Internet."

So why are they ruling on this?

By their own admission they have no bearing in this case whatsoever.

Absolute BS
November 20, 2008

Eric Landry said:

Something's missing
Network congestion due to P2P traffic is like saying 'all that world wide web traffic chewing up all my gopher bandwidth'. People have to realize that the net is a framework that enables application communication. The ISPs should not be in the business of content analysis, but should be simply concerned about making the pipes run smoothly and charging a pipe usage fee (price being proportional to pipe size and pipe flow, not pipe content).

jeeeze.
November 20, 2008

Palonek said:

Palonek
White it might not be a total loss of Canada, it is a loss for the information sharing applications. In addition this does raise the question about information sharing in general (web, ftp, ssh, and other means)? Does this also mean that Bell Canada can interfere with the web packets from specific websites or a group of websites? The future of freedom of speech is in question, or is it? http://palonek.blog.ca
Thank you, palonek.blog.ca
November 20, 2008

Anunnaki said:

You PPL still don't get it ...
You can complain all you want, submit all the forms and letters you want, scream all you want and nothing will change. As a matter of fact it will get worse for everyone. They [the elite] are waging a War on the populace by many means: throttling, invasion of privacy, control, regulation, spam, threats and much more. I've even had a cop come over on their behalf and threaten me till I did the following.

The only way to make changes is hit them where it counts => their MONEY.

Bill them and Charge them for losses, inconvenience, hydro, time, deterioration of equipment, lack of enjoyment, stress, illegal actions and anything else you can. Take them to Common Courts till they submit, if they don't pay. Clog up the courts till they freak and you get what you want.

Here is the proper process:
- Bill them and wait 30 days for them to pay.
- If they don't charge them with Notice of Understanding and intent with your Remedy included.
- if they don't answer within 3 working days they are in dishonor of the court and any common court will make them pay.
3 working days explained: add 4 days by mail and 4 days back by mail = 11 days total.
- they also must pay for your time and court costs ;)

Now go and do this if you want to keep your internet and even improve it.
November 20, 2008

Lyric said:

Dereg Blues
With more government cutbacks expected due to the economic downturn, what did you expect from an understaffed CRTC? This is how the whole problem with deregulation started in the first place. The CRTC has no teeth right now. They've opened up a public process, at least, so that's a good place to start. It's best to take a few weeks to write a constructive response to the technical questions asked in their public notice linked above, rather than give them a destructive, knee-jerk reaction right away. The deadline for letters is December 19th.
November 20, 2008

Jean-François Mezei said:

...
What good is a public consultation is the CRTC has already decided that the outcome will be to side with Bell anyways ?

Does anyone really think that the CRTC would/could reverse the carte-blanche that it has just handed Bell to do whatever it wants with its Ellacoya boxes and not even need to tell anyone if it adds data capture functions that don't affect performance ?

We must participate in the public process, but only so that we can then point fingers at how flawed the CRTC is once it becomes clear that the CRTC will ignore our comments and find a way to side with the telcos.
November 20, 2008

Jan Pachul said:

Just another example of CRTC corruption
I have had about ten years of experience in dealing with the CRTC. The CRTC will come up with all these "studies" to delay any action as long as possible and then side with the corporations doing hiring of CRTC employees to manage "regulatory affairs" for them. The phenomenon is well documented at http://tochat.tv/viewforum.php?f=5

The little guy is always the loser at the CRTC. Public interest means nothing to the CRTC, the public is not hiring CRTC employees for high paying jobs.

The solution: disband the CRTC! Repeal the Broadcasting Act and Telecom Act.

If you are going to have a regulatory body replacing the CRTC, have commissioners elected by the public. Ban CRTC employees for life from working for any company that is regulated by the CRTC.
November 21, 2008

Paul V said:

public comments
Can anyone find where the CRTC posted all the individual comments and complaints? I've seen it before but never been able to find it again.
November 22, 2008

Msquared said:

Expecting too much?
While everyone is disappointed with the CRTC ruling, let us remember, this ruling was very narrowly focused on whether Bell was being anti-competitive and not abiding by the terms and conditions of the contracts with the smaller ISPs. I'm pretty sure that with the army of lawyers it has, Bell would have made sure that contract language was written so that they could get away with what they did.

The real question is what they did anti-competitive. The small ISPs argued that changing the rules mid-stream disadvantaged them. Prior to Bell's move, they had a marketing advantage to sell a product that did not have some of the restrictions of Bell's own offering. I suspect that they claimed is that they levelled the playing field and are treating both their wholesale and retail customers the same. The CRTC seems to have bought this arguement.

I feel the larger issue is that Bell is both a retailer with their Sympatico brand and a wholesaler that sells the use of its infrastructure to smaller ISPs. In my view, that is the real problem. Bell has stated that they do not want to just be a "common carrier", as the real money is in the value added services they call Sympatico. This worries me as they are in a position to put the squeeze on their wholesale customers that are in direct competition with their Sympatico arm.

I think the real challange will be in the net neutrality hearings. An ideal outcome would be a common carrier model that has an incentive to improve the infrastructure to increase bandwidth with a vibrant, competitive retail market that keeps costs down and service levels high. This seems to be happening in other countries, but not in Canada.

One final comment. Let's not bash the CRTC for not ruling the way we had hoped for. They are a quasi-judical body making rulings under a framework set out by the government. Ultimately the laws and associated regulations come from parliament and the ministers, and that is ultimately the group that needs to be influenced. Younger people, who are most likely to be tech savy and use P2P technology also tend not to vote. If the tech savy are not seen as a way to get into power, the politicians are not going to listen and will take their cue from the lobbists.

November 22, 2008

Anonymous said:

U.S. Statistics on "Symmetry Ratio"
This article is US centric and doesn't state where the "symmetry ratio" numbers come from but the ratios are interesting. Here's a snippet

"In a two-way, shared data network, such as those used by cable modems, an important part of traffic management is to keep an eye on a thing called the “symmetry ratio.” It’s a ratio of bits sent to a cable modem, to the bits received at the headend cable modem termination system (CMTS).

"Put another way, the symmetry ratio is the number of bits Customer Jane pulls into her cable modem (to stream a video, or get a Web page), divided by the number of bits she sends out of her cable modem (an outgoing e-mail, her part of a voice-over-IP call.)

"In the early days of high-speed Internet services — before you could go to ABC.com to stream a missed episode of Desperate Housewives, before peer-to-peer (P2P) file sharing, before Napster, back in the days of flat Web pages and e-mail — symmetry ratios hovered around 18:1. Every one bit Jane’s modem sent returned 18 bits.

"Time passed. P2P services emerged. More bits were moving out of cable modems than ever before, which flattened the symmetry ratio.

"As a direct result, symmetry ratios changed — dramatically — to around 2.5:1. Every 1 bit Jane’s modem sent returned 2.5 bits. That’s a big impact, in terms of load balancing.

"Then came click-streaming, for lack of a better term. That thing people do, when they go to a Web site specifically to click on a link and watch a show. (Think Hulu.com.) P2P suddenly wasn’t as necessary, to get to legitimate, copyrighted video content.

"Guess what happened to symmetry ratios? Bingo. They moved again, up to the 5:1 range. Every 1 bit Jane’s modem sent returned 5 bits.

"So, in a dozen years, traffic symmetry went from 18:1, to 2.5:1, to around 5:1. These are trends that matter to the overall scalability of any two-way network."

http://www.multichannel.com/article/CA6616978.html?nid=3405

November 23, 2008

Winlawyer.ca said:

Re: U.S. Statistics on "Symmetry Ratio"
With ratios of 18:1 back in the dial up days, don't forget everyone was bandwidth oriented and every webpage byte did count. Now with broadband this does not really apply anymore, so you can not argue this point effectively. http://winlawyer.ca/
December 02, 2008

kiramatali shah said:

...
3.Everyone has their favorite way of using the internet. Many of us search to find what we want, click in to a specific website, read what’s available and click out. That’s not necessarily a bad thing because it’s efficient. We learn to tune out things we don’t need and go straight for what’s essential.

leatest trend

December 27, 2009

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