CRTC turns down ISPs’ call for temporary injunction against Bell

An association of Internet providers has lost its bid to get a temporary injunction stopping Bell Canada from throttling Internet traffic from peer-to-peer applications, but the group will continue with its demand for a hearing on a permanent halt to the practice.

“We fouled out,” Tom Copeland, chairman of the Canadian Association of Internet Providers, said of Wednesday’s decision by the Canadian Radio-television and Telecommunications Commission (CRTC). “We’ll get to bat again.”

The association argues members who resell Bell DSL connectivity aren’t getting the full download speeds promised to subscribers after the telco began managing traffic in March. Bell has been trying to manage traffic during peak hours because people using bandwidth-hogging P2P applications are slowing downloads for everyone. Through deep packet inspection of traffic, it’s slowing downloads of people using applications such as BitTorrent to download music and videos.

In its application CAIP said many ISP subscribers have complained their download speeds have slowed. However, the commission said Wednesday it does not believe the association presented sufficient evidence of irreparable harm to its members from Bell’s actions to justify an interim injunction before a full hearing.

Today CRTC gave Bell and CAIP until May 29 to file written arguements so it can deal with CAIP’s permanent injunction plea. Outside parties can file papers by June 12. Bell then has until June 19 to file a rebuttal, while CAIP can file its rebuttal by June 26.

The commission also asked Bell and CAIP as part of their submissions to explain in greater detail some of the claims and counter-claims they made in their original arguments.

From Bell, it wants more evidence of claims that that 95 per cent of Internet subscribers were being impacted by a small number of P2P users putting a drag on its network, and how it measured network performance and bandwidth being affected. It also wants to know how Bell’s deep packet inspection technology, which measures packet headers so it can identify P2P applications, doesn’t affect other network traffic such as streaming and VoIP applications.

From CAIP the commission wants proof of its allegation that Bell’s actions are slowing not just P2P applications but everything its subscribers do, whether the claimed drop in throughput is happening at all hours of the day and whether any CAIP members do traffic-shaping of their own.

Bell immediately issued a press release Wednesday praising the regulator’s decision on the interim injunction, which allows it to for the time being continue managing Internet traffic. “The CRTC made the right decision on the CAIP request for interim relief,” Mirko Bibic, Bell Canada’s chief of regulatory affairs said in the statement.

“We look forward to the opportunity to participate fully in the regulatory process announced by the commission regarding the disposition of CAIP’s application on a final basis and to present all the salient facts surrounding the wholesale Internet traffic management issue for examination by the CRTC.

“Bell is confident that when the Commission undertakes the final review, it will again determine that regulatory intervention is not necessary and that market forces, together with existing wholesale regulation, provide sufficient oversight,” Bibic added.

For his part, Copeland, who heads the Coburg, Ont.,-based provider called said he was outraged by the decision. In its written brief to the commission, CAIP has alleged Bell’s move has impaired the speed and performance of some of his association’s members “to the point where the quality of the service has been degraded beyond recognition.”

To back that up there were over 1,100 complaints filed with the application, he said, the “overwhelming majority” agreeing with the association.

“I’m not aware of any telephone regulatory issue in the modern era that has had this level of public outcry,” said Copeland. Still, the commission didn’t feel that the test of an interim injunction had been met.

“It just boggles my mind,” Copeland said in an inteview, although he acknowledged that he couldn’t point to an ISP that has been put into financial trouble by Bell’s action.

In its decision, the commission noted CAIP complained that by slowing some traffic, Bell is violating tariff agreements with ISPs under which it promised certain traffic volumes. But, the commission ruled, the association failed to prove its members will suffer irreparable harm without an interim injunction.

“Similarly,” the ruling said, “the commission considers that CAIP did not provide sufficient evidence in support of its claim that Bell Canada’s throttling practices will make it difficult or impossible for CAIP’s members to properly manage the services that they provide to their end-customers and that these practices will result in permanent loss of market share or goodwill.

“Finally, with respect to CAIP’s claim regarding loss of revenue due to customers terminating service, the commission considers that CAIP failed to demonstrate that its members will suffer irreparable harm as a result of Bell Canada’s throttling practices. In conclusion, the Commission finds that CAIP has not demonstrated that its members will suffer irreparable harm if the interim relief was not granted.”

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