Independent Internet providers have not given up their fight against Bell Canada’s right to selectively control online traffic, and in doing so are challenging the impartiality of the federal communications regulator.
In its latest move, the Canadian Association of Internet Providers (CAIP) said Thursday it has asked the Canadian Radio-television and Telecommunications Commission (CRTC) to reconsider its six-month old ruling that Bell can continue traffic shaping.
It alleges there were legal and factual errors in the decision. In addition, the fact that the commission ordered public hearings to be held later this year on the broad issue of online traffic manipulation shows it may not have understood all the issues. Unless it goes back on its ruling, CAIP says the public hearings the commission will hold starting July 6 are a waste of time.
“If you compare those two documents [the November, 2008 Bell ruling and the notice of a public hearing] one can’t help but think the outcome of the public proceeding is a done deal,” CAIP president Tom Copeland said in an interview.
“We’re worried that we go through this process and when the commission sees fit to issue its decision we’ll be no further ahead.”
The appeal, a link to which is on CAIP's home page, is supported by Consumers’ Association of Canada and Canada Without Poverty and was filed on the last day on which CAIP could protest the commission’s Bell decision.
A CRTC spokesman said the appeal is now before the commission so it cannot comment.
Many CAIP members buy dial-up and DSL Internet service from Bell, which they resell to subscribers. Last year CAIP complained to the commission about Bell’s traffic-shaping policies, alleging that by manipulating the speed of service it was harming its members, who sell service in part by giving performance assurances.
Bell defended its actions, which began in the spring of 2008, as an attempt to fight a minority of music, video and file-sharing downloaders it says are unfairly taking away bandwidth from others. 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.
However, in its ruling the commission said Bell was not discriminating against any customers, and that as a network operator, the phone company "is responsible for ensuring that its network is operated effectively and efficiently." But because controlling online traffic is a controversial practice, and because the Bell case dealt with a narrow range of issues, the commission decided to hold public hearings this year over the broad issue of Internet traffic management.
Bell uses deep packet inspection technology to ferret out heavy users of peer-to-peer (P2P) applications such as BitTorrent, a strategy that raises privacy concerns for some. Other providers control traffic by limiting the number of megabytes or gigabytes a subscriber can download a month.
Leading up to those hearings, in February a number of groups filed written submissions to the commission. CAIP says some of those submissions include facts that could have altered its ruling last year. In essence, it argues, the commission has re-opened the Bell-CAIP case. The proper thing to do, CAIP argues, is for the CRTC to order Bell to stop throttling traffic while it reviews its decision.
In its 66-page appeal to the commission, the applicants say it was “manifestly unfair” for the commission to launch a public hearing on the same day as it issued the CAIP-Bell decision on the same issues. “The fact that the commission did so leads to troubling questions regarding the commission’s understanding of the factual and legal issues at play in the CAIP proceeding and the adequacy of the record in that proceeding and hence the fairness of the process that led to [the] decision,” the appeal says. The public hearing re-opens all of the central issues of fact and law raised in the CAIP proceeding and purportedly decided in the ruling,” the appeal argues.
“Undertaking a broader proceeding in order to understand the complex issues raised in the CAIP application is a perfectly acceptable and responsible means of developing a thoughtful policy approach and decision on network management,” the appeal says in part. “What is entirely unfair and unacceptable, however, is the fact that the commission rendered [the Bell decision] without the benefit of a comprehensive understanding of the factual, legal and policy issues at play,” it alleges. “In particular, if the Commission did not believe that it had an adequate evidentiary record or did not have a full understanding of the factual and legal issues” raised in its complaint, “then it was procedurally unfair for the commission to have rendered a decision.”
Among other errors, the appeal says the CRTC erred in concluding how much bandwidth P2P transmissions take up, that Bell had no other option but to throttle traffic and that Bell is not controlling the content of the telecommunications that it carries for the public.