ISPs lose traffic-shaping case

Subscribers to broadband Internet services provided by Bell Canada will have to put up with having their download speeds manipulated by the telco, at least for the time being.

The Canadian Radio-Television and Telecommunications Commission, which regulates Bell, ruled Thursday the phone company can continue traffic-shaping it began in the spring in an attempt to fight a minority of music, video and file-sharing downloaders it says are unfairly taking away bandwidth from others.

By slowing traffic through deep packet inspection technology of users of peer-to-peer applications such as BitTorrent, Bell is trying to more evenly spread the load among those online.

The CRTC’s decision, though, was narrowly based on the complaint by the Canadian Association of Internet Providers (CAIP), some of whose members resell Internet service from Bell and are therefore affected by its practices. Those ISPs complained that traffic-shaping ended up denying subscribers the highest download speeds they believe they are paying for. The association also argued Bell is trying to discriminate against the ISPs in favour of its own Sympatico Internet service, putting them at a competitive disadvantage in violation of the principle some call ‘Net neutrality.

For its part, Bell denied it is discriminating against other ISPs.

The commission sided with Bell.

“Based on the evidence before us, we found that the measures employed by Bell Canada to manage its network were not discriminatory. Bell Canada applied the same traffic-shaping practices to wholesale customers as it did to its own retail customers,” said commission chair Konrad von Finckenstein in a news release.

However, the commission did note that Bell’s traffic-shaping has had some effect on ISPs’ service which they weren’t ready for. As a result, it ordered Bell to prepare by Jan. 9 a plan for notifying its wholesale customers – the ISPs – at least 30 days in advance of making changes that will impact on the performance of its service.

This isn’t necessarily the end of the ‘Net neutrality debate. Other Internet carriers, including Rogers, also manage their Internet traffic, and, stemming in part from the CAIP complain the CRTC has decided to hold hearings in July on whether that should be allowed.

“CAIP’s application asked us to only consider the specific issue of wholesale traffic shaping within a specific context” of the Bell-CAIP application, von Finckenstein said in his release. “The broader issue of Internet traffic management raises a number of questions that affect both end-users and service providers. We have decided to hold a separate proceeding to consider both wholesale and retail issues. Its main purpose will be to address the extent to which Internet service providers can manage the traffic on their networks in accordance with the Telecommunications Act.”

Specifically, the commission will be looking at what is leading to Internet congestion, Internet traffic management practices based on technical solutions or business models and how these practices impact subscribers. Anyone can send in a written submission to the commission by Feb. 16.

A grass-roots group called immediately issued a press release denouncing the decision and called on the government to protect ‘Net neutrality.

CAIP chairman Tom Copeland, who owns Coburg, Ont., provider, called the decision a huge disappointment to whole Internet providers and Internet subscribers. “This means that Bell will continue to continue to interfere with the growth and the enjoyment of the Internet.” As for the CRTC hearings, “any proceeding that they’re about the launch relative to traffic-shaping is going to be a long time working its way through the system.”

“I’m happy they’re undertaking to do so, but I think they’re months behind the process. This should have been done ago – they should have initiated that proceeding in the spring when we make our application. The two would not have interfered with each other.”

“It strikes me as very odd that when our largest trading partner in terms of data and goods [the United States] has come out in favor of network neutrality, and the incoming president has also out in favor of network neutrality, but we’re still dragging our heels.”

But Mirko Bibic, Bell’s senior vice-president for regulatory and government affairs said in a press release that the ruling is ” is good news for Internet users across Canada who benefit from better managed networks.”

“With this decision, the Commission has rightly confirmed that network operators are in the best position to determine how to operate their networks effectively and efficiently, to allow fair and proportionate use of the Internet by all users.”

Iain Grant, managing director of SeaBoard Group, a telecommunications consultancy which believes government shouldn’t regulate the Internet, believes the CRTC “did the right thing.”

The CAIP complaint was about lack of balance to ISPs who buy connectivity from Bell, he noted, but Bell is traffic-shaping its own Sympatico service. Meanwhile, he said, the commission still wants to hold hearings in July on the question of whether all companies that provide Internet service ought to be able to manage their networks.

“The timing is interesting,” Grant added, “because the commission will be looking at [whether it should regulate] new media in Februrary. I think they were somewhat fearful the question of ‘Net neutrality might very well overwhelm the broader questions of the new media, so commission was quite wise and prudent to separate the two.”

In Grant’s view, service providers have a valid argument that in the face of increasing traffic volumes some sort of Internet management is demanded by the companies who are paying millions of dollars for the infrastructure. As he puts it, providers are asking “do we keep building more lanes or put in some stop lights, or at least some yield signs?”

From the providers’ point of view, the enemy is peer-to-peer software such as BitTorrent which is used by people who want to share high bandwidth files such as music and video from their PCs. Ken Engelhart, Rogers Communications senior vice-president of regulatory affairs, said these users sometimes “overwhelm” his network. “And if you build more capacity, they’ll take that. So we have no choice on the upstream but to traffic-shape.”

But he insisted that Rogers subscribers aren’t complaining. “This isn’t like we’re slowing anyone down unduly,” he said. “All of customers get a very fast experience in both the upload and the download.”

Instead, the reason why the CRTC will hold hearings is because “activist and public interest groups” are complaining about the practices of providers.

Traffic-shaping isn’t the only weapon in the service providers’ arsenal. Many also restrict the amount of data subscribers can download a month. Bell, for example, has a 20Bb a month download cap on its $27.95 Internet Essentials Plus service, and 100Gb a month on its faster Max 10 plan. In Ontario, Rogers has a 60Gb cap on its $34.95 Express service and a 95Gb monthly download limit on its faster $99.95 Extreme Plus plan. Both charge extra if the caps are exceeded.

Rogers started imposing caps and fees in the summer partly to combat network congestion, said Engelhart, who added that it appears to be having an effect on bandwidth demand.

As for Thur

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