Columns Archive

Canadians Deserve Better ISP Transparency

Appeared in the Toronto Star on October 8, 2007 as Canadians Deserve Better ISP Transparency

Online auction giant eBay Canada last week released the results of a survey it commissioned on Canadians' attitudes toward "net neutrality," a rapidly emerging issue that focuses on need for Internet service providers (ISPs) to treat all content and applications in an equal, non-discriminatory manner. Conducted by Leger Marketing, the survey found that Canadians are generally unaware of net neutrality issues, yet, when informed of the concern, strongly support the principles that provide the foundation for net neutrality legislation.

Most Canadians can hardly be faulted for being unaware of net neutrality since ISPs have done their best to keep the issue off the public's radar screen.  While solving the net neutrality issue will not happen overnight, addressing the lack of transparency associated with Internet services would go a long way toward creating a more informed debate.

For example, Rogers, one of Canada"s largest ISPs, has faced regular criticism over its failure to come clean on "traffic shaping" practices on its network. Traffic shaping limits the amount of bandwidth available for certain applications such as peer-to-peer file sharing.  The company markets its high-end Extreme package as "its fastest residential service for sharing large files, " however, the reality is that consumers are promised service offering specific speeds and a maximum cap on data transfers, yet are secretly unable to make full use of the service for which they have paid.

Rogers maintains that it needs to manage its network with traffic shaping technologies in order to provide a better quality of service for all its customers.   It continues to shroud its practices in secrecy, however, as its website does not include a single mention of traffic shaping or limits on peer-to-peer applications and company spokespeople have provided inconsistent explanations for what is happening behind the scenes.

Last week, a company executive told an industry meeting that Rogers traffic shapes by limiting the percentage of bandwidth available for peer-to-peer file sharing.  From a consumer perspective, that means that upgrading to faster products will only yield limited benefits, since the faster bandwidth is partially offset by traffic shaping.  

Rogers insists that the traffic shaping is essential, yet it is disappointing that the company seemingly refuses to level with its customers.  In contrast, some of Rogers' competitors have opened up on the traffic shaping issue – Bell recently advised customers that it may engage in network management to address excessive bandwidth use.

While Bell's acknowledgement is a welcome development, it still faces criticism for the uncertainty associated with other services.  Last month, Bell unveiled a new "unlimited" data plan for laptop computers using a PC card slot.  Consumers who took the time to read their contract quickly realized that the offer was not quite what it seemed as the fine print prohibited "multi-media streaming, voice over Internet protocol or any other application which uses excessive network capacity."

The contract went further, prohibiting any use that "consumes excessive network capacity in Bell's reasonable opinion, or causes our network, or our ability to provide services to others, to be adversely affected."  In other words, while the company markets its service as unlimited, the reality is that consumers face significant, largely unknown restrictions.

While Canadian leaders such as Industry Minister Jim Prentice, Canadian Radio-television and Telecommunications Chair Konrad von Finckenstein, and Competition Commissioner Sheridan Scott have done little to address the lack of transparency issue, their counterparts in other countries have been far more proactive.  

For example, earlier this year the Australian Competition and Consumer Commission released guidelines for ISPs when advertising their broadband services to "prevent consumers being misled as to the speeds achievable on various technologies."  The ACCC backed the guidelines with the threat of million dollar fines for those ISPs that fail to comply.

Net neutrality proponents and critics unquestionably remain far apart on many issues.  Indeed, a senior Bell executive recently acknowledged that the company would like to retain the right to establish a two-tier Internet where they can levy fees on both consumers and websites for the traffic that runs on their networks.  That proposition that strikes fear into the hearts of net neutrality advocates, such as emerging e-commerce companies and creators, who can ill-afford such additional costs.

While bridging that divide will clearly require much discussion, tackling the lack of transparency provides a good starting point for addressing the new neutrality concerns that the Leger Marketing survey suggests are shared by the majority of Canadians.   

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at or online at


  1. :o)
    Well .. it looks like Rogers is the whipping boy for the neutrality argument … again.

    But I think you’re contridict yourself.

    On one hand you infer that Rogers .. “continues to shroud its practices in secrecy” then explain in the next two paragraphs that they’ve admitted, what is now common knowledge, that Rogers shapes bittorrent traffic.

    You further question Rogers actions with your comment “Rogers insists that the traffic shaping is essential” — are you suggesting otherwise?


    “it is disappointing that the company seemingly refuses to level with its customers..” — it’s in the contract and pretty darn similar to the reference to Bell’s contract mentioned in the next paragraph.

    Here’s my beef… we offer no remedy to the problem.

    Could someone please explain what we expect ISP’s to do when another emerging traffic pattern comes along and threatens to choke all other services on a network?

  2. Arthur Dent says:

    Ah…Mr. Rogers, there is a very simple underlaying principle of capitalism that you seem to have forgotten: Price rises with demand. If the BitTorrent/Limewire/etc users want more bandwith, SELL IT TO THEM!!!!!

    And remember, if you are not meeting a demand of your customers, the *will* go elsewhere. And they are…a number of my friends have left Rogers and moved to other ISPs in just in the past few months. *I* moved off Rogers because although I was able to bypass your traffic shaping, your signal strength of the cable in our area sucked…where we were supposed to have +10 db, we were at -3db, and thus the Internet would drop out for up to 5 minutes at a time. I know of at least a dozen other apartment/townhouse complexes that have the same problem. If you don’t upgrade your infrastructure, all the traffic shaping ain’t going to save your ass. You will be the next Record Company…already dead, but the signal hasn’t hit your brain yet…it’s at -3db, and can’t reach your brain!

  3. The terms and conditions of the contracts, written in fine print, are far too vague and provide too much room for this ‘traffic shaping’. If ISPs are engaging in this practice, they should be obligated to be more forthcoming and provide a more transparent breakdown on network performance based on various technologies. ISPs and content providers who promote restrictive practices will encourage the creation of a new internet, an ‘FTA’ style or 2.0 internet without the clumsy beauracry of what we pay $60/month for today.

  4. Consumer Protection? What Consumer Prot
    The idea of ISPs double dipping is abhorant based on the concepts of the internet. The Information provider pays to get data TO the backbone and the consumer pays to get it FROM the backbone … that\’s how it was designed and how it should be. Why the IP has to pay for you to get the data FROM the backbone is beyond me.

    The problem with most ISP\’s terms of service and \”Contracts\” is that they are all one sided. Rogers, Bell and so on. Now granted a lot of these terms are unlikely to stand up in a court of law, but who has the money to take them there, and how do you assign a value on what you\’ve lost by the ISPs behaviour that has brought you to that point. Then there\’s that little issue that follows \”We don\’t want you as a customer, after all, you\’ve taken us to court\” … So, if you lose, you lose. If you win, you still lose.

    It\’s terms like \”causing an undue load on our network in our sole determination\”. That is so vague and the customer has NO grounds to argue back. It\’s terms like \”your sole remedy shall be to cease using the service\” (in the event of changes to the service which they give themselves sole right to do even if you agree to a timed contract) even if to cease using the service means that you have to pay a cancellation penalty!

    Consumer rights are absolutely trampled over when it comes to ISPs.

    Industry Canada, through the CRTC has determined that there is plenty of competition even though in most areas the incumbent telco and cable operator hold greater than 90% of the customers! Therefore they say that ISPs do not need to be regulated in any way. It\’s not as if they\’re even willing to use existing laws to protect consumers.

    A common problem now is the dissolution of \”Unlimited bandwidth\” … makes some sense, except the ISPs haven\’t told their customers what they want \”unlimited\” to mean other than \”less than you\’re currently using\” Rogers went through this same game a couple years ago. Bandwidth caps are being implemented but significantly less than what heavy family users are consuming today.

    Then in an attempt to stem the flow of bandwidth, P2P transfers are throttled and for every ISP who has implemented it, both here in Canada and in the US, it\’s like pulling teeth to get the ISP to admit to their practices. It takes being presented with statements from their throttling equipment providers to come clean. First Shaw, then Rogers, now Sympatico … they\’ve all followed that same route.

    It\’s time the consumer got some say and some clout and some protection in the services. Rogers went so far as to indicate that you have to take them to arbitration and cannot take them to court. It seems likely that with the mood of the courts such a clause would be struck down, but that means a separate action to get the court\’s permission to sue the ISP … and then for what value.

    The ISPs have consumers over a barrel and it\’s time it ended.