Day four of the CRTC's network management hearings featured three of the world's leading experts on networks along with a trio of ISP perspectives. The panelists included the Canadian Association of Internet Providers, CIPPIC on behalf of the Campaign for Democratic Media (CDM) (who brought experts Dr. David Reed, Dr. Andrew Odlyzko, and Bill St. Arnaud), Execulink Telecom, and Primus Telecommunications.
An important theme during the day was debate on whether there really is a network congestion crisis. CAIP argued that it is competition, not congestion that is at issue. Odlyzko surprised the Commissioners by noting that traffic growth is actually declining and that a steady rate of capital expenditures should be sufficient to meet demand (this was later confirmed by Execulink). Moreover, St. Arnaud and Reed emphasized the diminishing importance of P2P as a video delivery channel, urging the CRTC not to fight yesterday's war.
The second important development was the clear divide that has emerged on traffic management at the wholesale vs. retail level. The wholesale issue was at the heart of the CAIP vs. Bell case and that case is effectively being re-argued during these hearings. Many ISPs have argued against any form of traffic management of wholesale traffic, noting that it prevents the potential for competition between providers. Moreover, in repeated questions about the impact on carrier networks (such as Bell) it is becoming apparent that the problem may lie with Bell, not with the ISPs. Independent ISPs note that Bell promises certain speeds and bandwidth at the wholesale level, but seemingly has difficulty meeting those promises. Some providers (ie. MTS Allstream) have network architectures that ensure that this is not a problem. The sense is that Bell does not and so resorts to traffic management practices. It is noteworthy that CAIP focused very heavily on the wholesale issue and basically abandoned any pretext of protection against traffic management for consumers.
The retail side of the issue has many ISPs arguing that anything should be permitted with appropriate disclosure. Fighting for some limitations are consumer groups, creator group, Saveournet.ca, and the Open Internet Coalition. They have proposed a test to determine whether the traffic management practice is permissible under Canadian law. The Commission will ultimately have to decide both (1) the wholesale issue, which may involve an acknowledgement that it got the CAIP decision wrong; and (2) the retail question including disclosure practices and tests (if any) to determine appropriate conduct.
Today's summary was again compiled by Yael Wexler, a law student at the University of Ottawa. Other coverage available from the National Post liveblog, CBC.ca and twitter feeds from CIPPIC and me.
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Day three of the CRTC's network management hearings brought in the views of several additional stakeholders along with the first large telco of the week. Witnesses included the Independent Film and Television Alliance, the Canadian Film and Television Production Association, Council for Canadians with Disabilities, the ARCH Disability Law Centre ACTRA, and MTS Allstream.
While all the creator and producer groups expressed support for net neutrality, it was their position on BitTorrent that was particularly noteworthy. Perhaps heralding an end to the demonization of file sharing, ACTRA emphasized that it wants to compete with illegal downloading and that the best way to do that is to ensure that its members can use applications like BitTorrent to distribute their content. In other words, copyright alone won't address their concerns (they added the need for copyright reform) as network management practices that create a level playing field are essential. Meanwhile, the independent producers emphasized the economic potential of BitTorrent-based distribution. Moreover, ACTRA argued that it was not the role of ISPs to determine the legality of content on their networks. That position is a far cry from what groups like CRIA would like to see happen.
The other big story of the day was MTS Allstream arguing that dominant carriers should never be permitted throttle wholesale services (ie. they argue that any throttling should only occur at the retail level). This led to repeated discussion about the nature of wholesale services (referred to as GAS or Gateway Access Service) with MTS explaining that wholesale service is not like buying Internet access as a retail customer (it was described as akin to a private virtual network). For that reason, there is no valid claim that congestion concerns are the basis for throttling wholesale services (left unsaid is why a company like Bell would throttle – competition from the very ISPs to whom it supplies wholesale access). The discussion was stunning since it left the distinct impression that the Commission did not fully understand what was at issue in the CAIP throttling case.
There was two other exchanges involving Commissioner Len Katz worthy of note. The first was a question in which he suggested that Bell and Rogers do not have a dominant position in Ontario, something that will be news to the overwhelming majority of broadband subscribers in the province. The second was the recognition that prioritization of content is effectively the same thing as throttling of content since the effect in both instances is to place some content on a fast lane and other content on a slow one.
These issues may arise again tomorrow when CAIP appears. Today's summary was compiled by Yael Wexler, a law student at the University of Ottawa. Other coverage available from the National Post liveblog, CBC.ca, and the cippic twitter feed (or mine for MTS).
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Day two of the CRTC network management hearing featured some great presentations from the Open Internet Coalition, Zip.ca, CISP, and two knowledgeable individuals – Jean-Francois Mezei and Jason Roks. The presenters had some strong words about the lack of Canadian competition for high-speed Internet service, the debatable claims about the impact of P2P on congestion, and the overstated advertising claims. Unfortunately, it would appear once again that the Commission has accepted the ISP claims regarding congestion and network costs, leaving the panelists with the challenge of overcoming those basic assumptions.
That said, the day featured some startling revelations including Zip.ca's Rob Hall stating that it is currently cheaper to spend hundreds of thousands of dollars on postage to send DVDs via the mail, rather than distributing the same content electronically through the Internet given the bandwidth costs. Moreover, Jason Roks emphasized peering arrangements, where he stated that Bell is the only major Canadian ISP that refuses to peer with anyone else.
Potential solutions to come out of the day included:
1. Establishing a test for acceptable traffic management. The OIC three-part test focused on whether the traffic management furthers a pressing and substantial objective; is narrowly tailored to the objective; and is the least restrictive means of achieving the objective.
2. Truth in advertising. Emphasis on disclosure as well as possible limits on over-subscription.
3. Regulated peering to bring greater efficiences into the Canadian Internet.
4. Strong anti-competitive action to stop any attempts to leverage network management or pricing plans for unfair advantage.
Full report on the day's proceedings are posted below, again thanks to Frances Munn. Additional coverage from the National Post liveblog, CBC.ca, and CIPPIC's twitter feed.
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The first day of the CRTC's network management hearing featured some interesting discussion from deep packet inspection providers Sandvine and Juniper as well as Canadian consumer groups. A summary of the day, thanks to University of Ottawa student Frances Munn, is posted below. There is additional coverage from the National Post liveblog, CBC.ca, and lots of posts on Twitter [update: CRTC transcript].
While the Sandvine comment that an unmanaged network is not a neutral network captured the headline, I thought the more important part of the DPI provider discussion was Juniper's focus on consumer-controlled prioritization. This is not currently available in Canada, but the notion that consumers should choose how to prioritize the bandwidth they pay for would address many concerns.
It was the consumer presentation that did the most to link network management to the law and it also highlighted reason for great concern. I think that the consumer groups rightly focused on who should bear the burden of demonstrating that DPI and other Internet traffic controls are consistent with current Canadian law. The groups argued that these are prima facie violations of Section 36 of the Telecommunications Act and that the onus therefore should fall on the carriers to show that there is a serious problem, the solution minimally impairs users' rights, and is proportional to the harm.
Unfortunately, the questions that followed suggest that the CRTC Commissioners start these hearings having accepted the carriers' claims that congestion is a problem and that inhibiting the use of deep packet inspection could result in increased consumer costs for Internet access. This suggests that there is a steep mountain to climb in these hearings, leading me to believe that the issue will ultimately be a political one with pressure on the Conservatives to join with the Liberals and NDP in supporting net neutrality.
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The Canadian Radio-television and Telecommunications Commission hosts long-awaited network management hearings this week, pitting Canada’s telecom and cable companies against a broad range of consumer, creator, and technology groups in a fight that may help clarify whether Canada has – or should have – net neutrality laws.
The telecom and cable companies will likely maintain that managing their networks, which may include using "deep packet inspection" to identify subscriber activity and limiting available bandwidth for certain applications (a practice known as throttling), is essential to ensure optimal access for all subscribers. Consumer associations, independent Internet service providers (ISPs), broadcasters, creator groups, and technology companies are likely to warn against network management practices that raise competition, privacy, and consumer rights concerns.
My weekly technology law column (Toronto Star version, homepage version) notes that as the Commission weighs the various claims, it would do well to consider the testimony it heard just a few months ago during the February new media hearings. The issue at play at those hearings was whether ISPs should face a levy to fund new media or be required to prioritize Canadian content (the CRTC declined to do both in its decision released last month). Interestingly, the same telecom and cable companies that will now argue that managing their networks is essential, offered a somewhat different take when confronted with the prospect of doing so in the name of supporting Canadian content.
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