p2pnet - rss feed: Stop throttling users, ISPs tell Bell: CRTC doc
p2pnet news | Freedom:- Back in the good old days before the Net gave P2P —- people to people —- real meaning and strength, the corporations could get away with anything, including murder.
But that’s changed. Now we’re our own news providers, totally bypassing the traditional print and electronic media.
Thanks to blogs, IM, texting, chats and all the other means of communication available in the 21st digital century, unspun information is reaching everyone, everywhere, keeping us informed minute-by-minute.
The mainstream media are still playing catch-up as they cynically try to figure out how to regain their former power and how to ‘monetise’ the Net to their own advantages.
But until they realise the answer lies in partnership, not control, they’ll continue to flounder.
With that in mind, two events which will eventually echo around the world are currently taking place in Canada and America. And both came to light thanks to blogs and bloggers.
Ma Bell in Canada and Comcast in US have been caught red-handed using traffic shaping (throttling) to make sure Net Neutrality never becomes a reality, and to dictate to users what they can do and what they can’t do with services they’ve paid through the nose for.
In this country, they’re also bent on doing the same thing with their other customers - Canada’s smaller ISPs who still believe the Customer Is Always Right.
So intense is public feeling that in Canada, executives have received death threats.
But that doesn’t help anything.
It’s time for cool, calm and collective thought, not anger.
The Big 3, Ma Bell, Rogers and Videotron, are being told by their customers they’d better pay attention or they’ll be out of business.
“On behalf of the independent ISPs in Canada, I’d like to thank you for bringing our traffic shaping issue and the larger ‘Net Neutrality issue to your loyal followers,” says Tom Copeland, president of Canadian Association of Internet Providers (CAIP) in an email, going on >>>
While it is a complicated issue with a host of misconceptions swirling about, it is most definitely something that Canadian’s need to understand.
Attached is a Part VII Application the Canadian Association of Internet Providers filed yesterday afternoon with the CRTC.
We have presented a variety of arguments, not the least of which is ‘Net Neutrality, and asked that the Commission order Bell Canada to cease and desist from their current traffic shaping practices.
“The CRTC has to date largely avoided the net neutrality issue, however, that is about to change,” blogs Michael Geist on the filing, continuing:
The application, which was filed late yesterday and is not yet posted on the CRTC site, is the most significant legal development in the Canadian net neutrality debate yet since it places the issue squarely before the Commission. The filing provides additional insights into Bell’s action - the throttling has reduced speeds by as much as 90 percent - and marks an important milestone since the outcome will provide a clear answer on whether Canadian law currently protects net neutrality or if legislative reform is needed.” [Our emphasis.]
We’re running the whole thing below. It’s something every Canadian who’s concerned about Net Neutrality and Net access needs to read.
Jon Newton - p2pnet
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Before the Canadian Radio-television and Telecommunications Commission
Part VII Application
The Canadian Association of Internet Providers
Applicant
and
Bell Canada
Respondent
3 April 2008
I. INTRODUCTION
This is an Application made by the Canadian Association of Internet Providers (”CAIP” or the “Applicant”) pursuant to sections 7, 24, 25, 27, 32, 36, and 62 of the Telecommunications Act (the Act) and Part VII of the CRTC Telecommunications Rules of Procedure (the Rules). This Application is made on behalf of those of CAIP’s members that provide retail Internet access services. This group includes both common carriers that own and operate their own interconnected transmission facilities as well as Internet service providers (ISPs) and other telecommunications service providers that are not common carriers within the meaning of the Act. For purposes of this Application, this group of interested persons are hereinafter collectively referred to as “independent ISPs” or “CAIP’s ISP members.”
In this Application, CAIP requests that the Commission issue certain orders in relation to Bell Canada’s wholesale Asynchronous Digital Subscriber Line (ADSL) access services and in particular, the services being offered pursuant to Bell Canada General Tariff Item 5410 (GT Item 5400), also known as Gateway Access Service or “GAS”.
GAS is a wholesale access service that creates a high speed data access path between an end-user customer’s premises and the network of an interconnecting carrier or ISP. These high speed data access paths can be used by independent ISPs to provision a wide variety of telecommunications services, including high speed Internet access service, remote LAN access, streaming audio and video services, dedicated data and Voice over Internet Protocol (VoIP) services.
During the week of March 17, 2008, Bell Canada unilaterally and without any prior notice whatsoever, restricted and reduced the bandwidth at which Internet and other content is permitted to pass through its wholesale ADSL access network. It is CAIP’s understanding that Bell Canada has done this by applying data or “deep packet inspection” (DPI) technology to the GAS traffic of its wholesale customers.
Bell’s use of this technology to “throttle, “choke” or “shape” the traffic of its wholesale ADSL customers (”traffic shaping measures”) is not authorised by GT Item 5410 and no tariffs that would justify such measures have been referenced or invoked by Bell to justify this conduct. On the other hand, the implementation of Bell’s traffic shaping measures coincides, almost to the day, with a Bell decision to overhaul the pricing of its retail Sympatico service offering in order to generate additional revenues from usage-based billing.
Bell’s traffic shaping measures have impaired the speed and performance of the wholesale ADSL access services that it provides to independent ISPs and other competitors, to the point where the quality of the service has been degraded beyond recognition. Data transfer speed is an intrinsic characteristic of a high-speed Internet access service and at the speeds observed by CAIP and its ISP members since Bell’s implementation of traffic shaping measures that are at issue in this Application, GAS no longer serves its intended purpose of providing reliable, 24×7 high speed access to Internet content.
Bell Canada’s unilateral use of DPI in association with the GAS has caused serious degradation of the performance and service speeds of the retail Internet access and other services offered by independent ISPs and threatens to cause serious and irreparable harm to the business interests of these ISPs in the form of disrupted service, business uncertainty, loss of good will and loss of customers and market share. For example, several of CAIP’s members have reported that, since the introduction by Bell of traffic shaping measures to GAS, they have received complaints from end-user customers regarding greatly reduced Internet access speeds, unreliability of their Internet access services and threatened or actual cancellation of their service contracts with these ISP members.
In addition to the foregoing direct losses, Bell’s manipulation of GAS traffic is making it difficult if not impossible for independent ISPs to properly manage the services that they provide to their end-user customers. In addition, due to Bell’s restrictions on the flow of Internet traffic belonging to independent ISPs, the volume of traffic that independent ISPs are able to deliver to Internet backbone providers has been dramatically reduced. Consequently, they are contractually bound to pay for transit capacity that they are not actually able to use. In fact, because these ISPs have requested certain service elements under the GAS tariff that are designed to deliver the speeds promised in GT Item 5410, they now have to pay Bell for these service elements even though Bell is not delivering the volumes necessary to justify the cost or the need for these service components.
CAIP submits that the relief requested below is consistent with the policy objectives set out in section 7 of the Telecommunications Act (the Act) and with the Governor in Council’s Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives, P.C. 2006-1534, 14 December 2006 (the Policy Direction). In particular, CAIP submits that the relief requested below, as applied to the circumstances outlined in this Application, is consistent with the Canadian telecommunications policy objectives set out in paragraphs 7(a) and 7(i) of the Act and that the measures sought in this Application “are efficient and proportionate to their purpose and… interfere with the operation of competitive market forces to the minimum extent necessary to meet the policy objectives”.1
This Application seeks to have the Commission enforce tariffs that have already been reviewed and approved by the Commission and it seeks to restrain anti-competitive behaviour on the part of Bell. Thus, the relief requested in this Application is intended to “ensure the technological and competitive neutrality” of the interconnection and wholesale services provided by Bell to independent ISPs and to promote competition from new technologies that are enabled by the Internet and ADSL access technology.2
In light of the foregoing and for the reasons set out more fully below, CAIP respectfully requests that the Commission issue the following orders in relation to Bell Canada’s wholesale ADSL access services:
a)An interim order, issued on an urgent and expedited basis, directing Bell Canada to immediately cease and desist from using any technologies to “shape”, “throttle” and/or “choke” its wholesale ADSL services;
b)With respect to the request for interim relief above, an order abridging the timeframes for the Respondent to file its Answer to within four (4) business days of this Application and for the Applicant, CAIP, to file its Reply to within three (3) business days of Bell’s Answer;
c)Should the Commission not grant the interim relief requested by CAIP in subparagraph (a) above within the expedited timeframes set out in subparagraph (b), an order abridging the timeframes for the Respondent Bell to file its Answer to the Application to within seven (7) business days of this Application and for the Applicant, CAIP, to file its Reply to within five (5) business days of Bell’s Answer;
d)A final order directing Bell Canada to cease and desist from using any technologies to “shape”, “throttle” and/or “choke” its wholesale ADSL services;
e)An order that Bell comply with the terms and conditions of its wholesale ADSL tariffs;
f)A declaration that Bell has acted unlawfully and in a manner that is contrary to tariffs approved by the Commission;
g)An order that Bell not deviate from the terms and conditions of its approved wholesale ADSL tariffs without prior Commission approval of any such changes;
h)A declaration that Bell has acted unlawfully and in a manner that is contrary to the requirement that a local exchange carrier that provides service to other local exchange carriers provide advance notice of network changes, pursuant to Telecom Decision CRTC 97-8;
i)A declaration that Bell has granted to itself an undue and unreasonable preference and subjected independent ISPs to an undue and unreasonable disadvantage by shaping, throttling and choking its wholesale ADSL services in the manner described in this Application; and
j)A declaration that Bell has acted unlawfully and contrary to the prohibition on carrier interference with the content of messages carried over its telecommunications network contrary to section 36 of the Act and contrary to the Canadian telecommunications policy objectives set out in paragraphs 7(a) and (i) which, inter alia, seek to protect the privacy of persons.
II. FACTS
The Applicant, CAIP, is one of Canada’s largest Internet industry associations, representing both large and small commercial Internet service providers (ISPs), as well as companies and other organizations that are involved in the business of providing Internet access and other telecommunications services.
Almost all of the members of CAIP that are in the business of providing Internet access services are independent ISPs, which means that they are not affiliated by way of their ownership structure to either the incumbent telephone companies or the incumbent cable companies.
The Respondent, Bell Canada (or Bell), is the incumbent local exchange carrier (ILEC) serving most of the provinces of Ontario and Quebec. As a result of a local telephone service monopoly that Bell has enjoyed in these provinces for more than 100 years, Bell has built a ubiquitous telecommunications network, which it uses to provide a variety of retail telecommunications services, such as local and long distance voice services, data and private line services as well as several high speed packet data services, including frame relay, Ethernet and retail Internet access services.
Because of its dominance and control over the underlying telecommunications facilities and services that are used to provision these services and which are needed by competitors to provision their own services, Bell Canada is also mandated by the Commission to provide a number of telecommunications facilities and services to competitors on a wholesale basis.
One of these wholesale services is Gateway Access Service or “GAS”. GAS is a wholesale service that essentially creates a high speed data access path between an end-user’s premises and the network of an interconnecting ISP or other competitor. These paths can be used to provision a wide variety of high speed services, including Internet access service, remote LAN access, streaming audio and video services, dedicated data and VoIP services. Pursuant to Bell Canada General Tariff Item 5410 (GT Item 5410), which is attached hereto as Exhibit A, Bell must provide GAS to any wholesale customer that requests this service for the purposes of provisioning its own telecommunications services.
Bell Canada’s GAS was first made available on a tariffed basis on January 1, 2005; however, Bell Nexxia, an affiliate of Bell, provided this service on a non-tariffed basis prior to this time. Almost all of CAIP’s members subscribe to either GAS or another wholesale ADSL access service offered by Bell called “High Speed Access” (HSA) service.
Bell Canada, quite obviously, not only provides the wholesale services upon which independent ISPs rely in order to compete in the retail market for high-speed Internet access services, it also competes in that very same downstream retail market. In particular, Bell provides high speed Internet access services on a retail basis under, among other things, the “Sympatico” brand name.
On or about March 13, 2008, Bell issued a notice to its employees, entitled “Important Usage Billing Changes” which is attached hereto as Exhibit B (the “Usage Billing Notice”). This Usage Billing Notice advises Bell’s employees that Bell is eliminating “unlimited internet usage plans” and, as such, Bell employees are to no longer sell these plans to Sympatico customers. This Usage Billing Notice also advises employees that, as of June 30, 2008, monthly billing limits that previously provided a ceiling for Sympatico over-usage charges would also be eliminated. In other words, Sympatico customers will no longer be permitted to pay a flat rate for their Internet usage, and will instead be subject to full usage-based billing.
This notice indicates that, on the retail side of its operations, Bell implemented important changes to the pricing of its retail Internet access service as of about March 13, 2008, presumably with a view to generating additional revenues by capturing additional usage-based Internet access revenues.
It is not necessary to guess at the commercial imperatives and motives that underlie Bell’s decision to move to usage-based billing. The Usage Billing Notice makes these motives clear. Specifically, the Usage Billing Notice states that “Over recent years, Canadian Internet service providers have gradually adapted their pricing models to include a usage-based billing component…Customers are familiar with usage-based pricing given their experience with cell phones & long-distance.”
It is evident from these statements that Bell is attempting to leverage its customers’ familiarity with other usage-based billing schemes such as those used in relation to mobile phone and long-distance service, in order to shift to a billing structure that it believes is more lucrative.
Bell’s recent modifications to the billing structure for Sympatico service follows closely on the heels of similar moves by certain cable companies, such as Rogers Cable, in respect of their cable-based high speed Internet access service offerings.
While some ISPs do, indeed, charge their customers for high speed Internet access on a usage basis, many others employ flat rate or other types of billing/pricing models. For example, several of CAIP’s members market their high speed services to end-users based on unlimited usage and un-throttled transfer speeds, while other members use both flat rate and usage based pricing approaches.
Bell has expressly acknowledged that usage based billing could affect its retail Sympatico business and that flat rate billing provides competing ISPs with a competitive advantage. For example, in its 2007 Annual Report, Bell noted that certain restrictions that it had placed on customer data transfers as well as a switch to usage-based billing could provide independent ISPs who offer unlimited usage plans or unrestricted speeds, a competitive advantage, “result[ing] in an increase in [Bell’s] Internet subscriber churn rate beyond… current expectations”.3
Based on these statements, it should come as no surprise that Bell would want to stem the flow of any losses of its Sympatico customers to competitive alternatives once it moves to a full, usage based billing model. Indeed, Bell’s Annual Report foreshadows the very actions that has taken in the last few weeks in relation to its wholesale ADSL access services and which are now the focus of this Application.
Specifically, beginning on March 14, 2008, the day after Bell distributed the “Usage Billing Change Instructions” to its employees, many ISPs who had contracted with Bell for GAS began to receive a flood of complaints from their end-user customers regarding prohibitively slow data transfer speeds. Upon further investigation, CAIP’s members were able to confirm that the problem did not reside on the equipment or transmission facilities owned or controlled by them. CAIP’s members gradually came to realize that they were all similarly affected and that the problem resided in Bell’s network and, in particular, in the services that they lease on a wholesale basis from Bell.
Chatham-based TekSavvy Solutions Inc. (TekSavvy) was one of the first independent ISP members of CAIP to approach Bell in order to identify the issue and to attempt to resolve the matter bilaterally. TekSavvy is one of Ontario’s largest independent ISPs providing Internet services to end-users and re-sellers. TekSavvy provides broadband services in Ontario, Quebec, Alberta and British Columbia.
Having received numerous complaints from its end-user customers regarding serious degradations in their Internet access services, TekSavvy, approached Bell in order to determine the cause of the service performance issues experienced by their end-users. At that time, TekSavvy was advised verbally by representatives of Bell that Bell had expanded its practice of using “data” or “deep packet inspection” (DPI) on its Sympatico customer traffic to now include the traffic of its wholesale customers, including customers of Bell Canada’s GAS.
On March 28, 2008, a full two weeks after Bell had implemented wholesale traffic shaping measures, Bell issued a belated explanation of its conduct in the form of a letter addressed to “Bell’s ISP Customers” which is attached hereto as Exhibit C (the “Bell Letter”). CAIP notes that not all of its members that are customers of Bell’s wholesale ADSL access services received a copy of this letter.
The Bell Letter admits that some time in the middle of March, Bell had unilaterally undertaken modifications to the wholesale services provided by Bell to its ISP customers, that it did so without advance notice to such customers and that the modifications were clearly related, at least in Bell’s mind, to certain measures that Bell had previously undertaken in 2007 in relation to its retail residential Sympatico offerings. Bell’s explanation of the traffic shaping measures that it implemented, while in many respects unclear, was as follows:
Bell’s congestion and bandwidth management solutions apply to our entire DSL PPPoE (Point to Point Protocol over Ethernet) network, including both retail and wholesale services. To ensure optimal use of Internet network resource for all of our customers Bell has implemented Data Packet Inspection (DPI) on P2P file sharing and bit torrent applications. DPI identifies the packet mapping, but does not monitor, track or access the data of your customers who are using P2P applications. Your customers can continue to use P2P services but they will not work as fast during peak periods. All other application functionality is not affected.
Bell’s actions directly contradict the assurances that it gave to the CRTC in 2003 when it stated that it would only engage in limiting bandwidth for wholesale services “in cases of troubleshooting or to protect the network infrastructure from congestion resulting from malfunctioning or mis-configured equipment or malicious hacking.”4 Bell’s actions also directly contradict assurances that its representatives gave to independent ISPs at a meeting on 23 November 20075 that it would not use DPI in conjunction with the wholesale services that it provides to ISPs.
Notwithstanding these assurances, it would appear that Bell is using DPI to sequester or “hijack” certain data packets as they pass through the network, and hold these packets hostage until certain pre-conditions are met (these pre-conditions are typically established via a series of software algorithms).
Data packet inspection technologies can operate in “shallow” mode by sequestering all of the data travelling across the network, or they can operate in “deep” mode by first examining the data packets that are traveling through the network and then separating out specific types of packets to be sequestered.
It is CAIP’s understanding that Bell is using deep packet inspection technology on GAS and possibly HSA traffic. Specifically, as data passes through the portion of the network that is controlled by Bell, Bell uses DPI to first examine the data packets and then to classify the packets according to the data’s characteristics. By examining the packet data and packet header information, Bell can identify, inter alia, the type of data being transferred, the ISP upon whose network the data is being transferred, and even the end-user who is sending/receiving the data.
Once the data is examined and classified using DPI, any packets meeting certain conditions as pre-determined by Bell are sequestered and then delivered only in accordance with the conditions established by Bell. This activity, which is sometimes referred to as “traffic shaping” or “bandwidth throttling”, provides Bell with absolute discretion to determine what types of data it will pass along to its GAS customers, when the data will be allowed to pass, and to/from which end-user the data will pass.
Regardless of how DPI is being used by Bell, the motives underlying the deployment of this traffic shaping technology are undeniable. In particular, since Bell has decided to move to a usage based billing model, Bell is motivated to stem the losses that it will likely face in the retail market if its wholesale ADSL customers continue to offer unlimited usage or flat-rate billing plans. It is clear that Bell has decided that what is good for the goose is also good for the gander. It is more than evident that Bell’s actions are intended to make its move to full usage based billing more palatable to its retail customers by ensuring that its competitors are prevented from offering true unlimited/flat rate billing plans.
Equally clear is the widespread, indiscriminately detrimental effect that the implementation of traffic shaping measures is having on independent ISPs and their end-user customers.
First, although Bell claims that it is monitoring end-user data in order to restrict only specific types of data, independent ISPs have experienced general reductions in transfer speeds since Bell began its traffic shaping practice. Drastically lowered data transfer speeds have also been observed in relation to the end-user business customers of CAIP’s ISP members.
Specifically, Bell’s restrictions on network throughput have resulted in dramatic reductions in the level of service that independent ISPs are able to provide to their end-user customers. Testing by CAIP’s members confirms that Bell’s traffic shaping measures have degraded data transfer rates to as low as 30 Kbps downstream and 60 Kbps upstream for residential and business GAS Lite and Basic respectively. By contrast, the speeds that are actually tariffed for GAS are as follows :
At such speeds, the end-user customers of independent ISPs would experience significant degradation of Internet access service, such that certain Internet applications would no longer be accessible to these end-user customers. To use a case in point, on March 23, 2008, the CBC made a final episode of the reality TV program “Canada’s Next Great Prime Minister” available for download on the Internet via BitTorrent, a file-sharing service. The release of this program on the Internet was an experiment for the public broadcaster in offering its content in a fresh and new way to its viewers. Although thousands of viewers attempted to download the program, the experience was degraded as many end-users experienced significant delays when Bell impeded BitTorrent network traffic through traffic shaping. Users received notices that it could take between 2½ and 11 hours to download the program.6
Since Bell began implementing traffic shaping measures, end-users have also complained of slow data transfer rates when they access streaming radio or video content services such as YouTube7. These end-users have noted that their transfer speeds have been impeded by Bell to such an extent that their data is transferring at rates that are as low as 1/10th the rate it did before Bell’s use of DPI.
Finally, end-users have experienced similar service degradation when using competitive VoIP services and, in some instances, a loss of critical functionality.
All of these uses of high speed access services are well within the legal rights of end-user customers; however, Bell has unilaterally and without notice decided to restrict the ability of these customers from gaining access to and making use of these types of services and content, notwithstanding the fact that these end-users are not Bell’s customers, but rather the customers of independent ISPs.
III. ARGUMENT
a) Bell Canada’s Actions are Contrary to Sections 24 and 25 of the Telecommunications Act
As indicated above, GAS is a wholesale access service that provides ISPs and other telecommunications service providers with a “transparent pipe” over which they can deliver to their own end-user customers a variety of customized services, including high speed Internet access service, remote LAN access, dedicated data and VoIP services.
The tariff for GAS (GT Item 5410) does not include any provisions that would permit Bell to implement DPI or other traffic shaping technologies, let alone to do so unilaterally and without prior notice of any kind. Bell advertises its GAS as a highly reliable service with “[n]o limit on data transfer”. The following is an extract from the description of GAS contained on Bell’s web-site:
Gateway Access Service is provided through a world class, fault tolerant, 24×7 monitored network.
No limit on data transfer so that your customers can surf and download 24×7
128 bit encryption on the connection to BCE Nexxia’s network will ensure a reliable solution to your customers
Being a DSL technology, your customers will be able to talk and surf at the same time a compelling value proposition for dial up customers! [Emphasis added]
GT Item 5410 specifically references the speeds at which the service is to be offered and specifies the different monthly rates that are associated with these speeds.
It is a well known fact that ISPs are heavily dependent upon Bell Canada’s ADSL access services and that they expect these services to be provisioned by Bell in accordance with the speeds referenced in its tariffs. In this latter regard, it is clear from past Commission proceedings dealing with GT Item 5410 that the speed of the service is an intrinsic feature that has been the subject of numerous discussions and negotiations between Bell and independent ISPs as well as express determinations by the Commission. For example, in Gateway Access Service, Telecom Order CRTC 2006-258, the Commission noted that competitor business plans are highly sensitive to speed availability and that if Bell does not publish the speeds at which GAS is available, competitors would have no recourse under Bell’s tariffs to complain if Bell Canada does not deliver the speeds at which it proposes to offer its service. As noted by the Commission:
The Commission notes that the existing GAS tariff specifies the maximum downstream and upstream transmission speeds available under GAS. The Commission considers that such information regarding the transmission speeds available for GAS is important to competitors, who rely upon the availability of the advertised speeds to ensure that the GAS meets their requirements. The Commission also considers that, given the sensitivity of competitors’ business plans to speed availability, the tariff publication of such data with respect to competitor services is more critical than it is with respect to retail services such as KeyPak.
The Commission further considers that approval of the tariff as proposed by Bell Canada will offer no recourse pursuant to the company’s tariffs, should service complaints arise if Bell Canada does not deliver the proposed speeds.
In light of the above, the Commission considers that Bell Canada should be required to publish in its tariff the maximum transmission speeds available for each GAS available as part of its GAS tariff.8 [Emphasis added]
Bell has also recognized the importance of delivering GAS at the speeds referenced in its tariff and has even engineered the service so that the speeds referenced in the tariff can be achieved. For example, when Bell first sought to introduce GAS in Tariff Notices 6767 A/B/C and D, it limited the number of VLANs per AHSSPI to 2569 in order to ensure that the service could deliver the speeds promised in the tariff.
It is also important to note that Bell has been continuously upgrading its GAS over the years to handle the additional capacity and speeds of its wholesale customers and, in fact, implemented tunnel switching technology to augment the capacity of the service. CAIP notes in this regard, that its members regularly receive e-mail notices from Bell announcing these upgrades with the last such notice arriving only a few months ago on 1 December 2007.10
While there is a reference in GT Item 5410 to certain operational constraints on GAS that are due to the characteristics of the underlying loop facility that is used to serve the end-user customer,11 these constraints are clearly unrelated to the intentional use of traffic shaping technology to pre-emptively degrade the speeds and performance of the service described in GT Item 5410.
In this regard, Bell’s implementation of traffic shaping measures directly contradicts the assurances that it gave to the CRTC during the proceeding that led to the approval of GT Item 5410. Back then, Bell stated that it would only engage in limiting bandwidth for wholesale services “in cases of troubleshooting or to protect the network infrastructure from congestion resulting from malfunctioning or mis-configured equipment or malicious hacking.”12 There is no evidence whatsoever that Bell’s network is suffering from congestion, that this is the reason behind the implementation of DPI or that, in any event, Bell is applying traffic shaping measures with a view to alleviating only that congestion which could be said to be resulting from “malfunctioning or mis-configured equipment or malicious hacking.”
In the view of CAIP, Bell’s decision to unilaterally apply traffic shaping measures to GAS is contrary to sections 24 and 25(1) of the Act. These sections of the Act provide as follows:
24. The offering and provision of any telecommunications service by a Canadian carrier are subject to any conditions imposed by the Commission or included in a tariff approved by the Commission.
25.(1) No Canadian carrier shall provide a telecommunications service except in accordance with a tariff filed with and approved by the Commission that specifies the rate or the maximum or minimum rate, or both, to be charged for the service.
By applying traffic shaping measures to its GAS, Bell Canada has unilaterally, and without prior Commission approval, altered the tariffed terms upon which GAS is being offered to wholesale customers, which is contrary to section 24 and subsection 25(1) of the Act. Specifically, Bell is attempting to introduce terms and conditions of service which impede the speed and performance of GAS and which were never approved by the Commission.
Given that both the Commission and Bell have recognized that speed and service performance is of critical importance to the wholesale customers that subscribe to GAS, the members of CAIP do not believe that Bell’s attempts to unilaterally alter the terms of GAS are innocent. Indeed, having received a Commission decision that determined that ISP business plans are highly sensitive to service speed and having itself referenced the unlimited usage plans of its ISP competitors in its 2007 Annual Report, Bell clearly knew that its actions would have a material adverse impact on the wholesale customers that make use of GAS.
b) Failure to Provide Notice of Network Changes
As Bell is aware, there are many types of telecommunications service providers that subscribe to GAS, including competitive local exchange carriers (CLECs), long distance carriers, and several other types of carriers that are subject to the Commission’s jurisdiction under the Act.
In Local Competition, Telecom Decision CRTC 97-8 (Decision 97-8), the Commission concluded that “[f]ailure to provide notification of proposed network changes could lead to disruptions in the networks, which would affect network users.”13 The Commission further concluded that “the public interest requires that, in an environment of multiple interconnected networks, a very tight discipline be imposed on all carriers to ensure that no change is made without all interconnecting carriers having the opportunity to examine the proposed change, conduct tests and take action as required before the change comes into effect.”14
For these reasons, the Commission determined in Decision 97-8 that all local exchange carriers (LECs), including ILECs such as Bell, must “provide advance notification of any network modification that may affect the operation of the networks of other carriers to which they are interconnected, pursuant to the rules and procedures contained in Letter Decision 94-11.”15
The Commission also determined in the same decision that “any LEC proposing changes must be prepared to conduct technical tests of the proposed changes with all of the carriers to which it is interconnected.”16
CAIP has several carrier members that interconnect with Bell Canada for the purposes of receiving GAS. These carrier members use GAS to provision a variety of telecommunications services, including VoIP service as well as remote LAN access and other high speed Internet access services.
None of CAIP’s carrier members have received any notices from Bell Canada regarding its intention to use DPI technology in relation to its wholesale ADSL access services, notwithstanding the fact that DPI is a technology which can, very clearly, “lead to disruptions in the networks” of other carriers and “which would affect network users”.
In fact, Bell was directly asked by independent ISPs at a meeting in November 2007 whether it intended to use DPI on its wholesale ADSL access services and the Bell representative at this meeting responded by stating that Bell only intended to use this technology in conjunction with its retail Sympatico high speed Internet service.17
Given that none of CAIP’s carrier members have received any notices from Bell regarding its intention to use DPI, it obviously follows that none of CAIP’s members have received any invitations or requests from Bell to conduct technical tests of GAS using DPI technology.
In the view of CAIP, by failing to provide notice of network changes that could affect the performance of the networks operated by CAIP’s members, Bell Canada has acted in direct violation of a Commission order to provide such notice as required by Decision 97-8.
c) Bell’s Actions Constitute an Undue and Unreasonable Preference Granted to Itself and a Disadvantage Applied to Independent ISPs
In addition to its breach of the obligation to provide notice of network changes and to comply with sections 24 and subsection 25(1) of the Act, Bell’s implementation of traffic shaping measures are apparently and primarily motivated by a desire to shore up its competitive position in the retail Internet services marketplace as a result of its decision to institute increased usage-based billing for its Sympatico customers.
In CAIP’s view, Bell’s traffic shaping measures as applied to independent ISPs is contrary to section 27 and in particular, subsections 27(2), (3) and (4) of the Act, which provide as follows:
27(2) No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.
Questions of fact
(3) The Commission may determine in any case, as a question of fact, whether a Canadian carrier has complied with section 25, this section or section 29, or with any decision made under section 24, 25, 29, 34 or 40.
Burden of proof
(4) The burden of establishing before the Commission that any discrimination is not unjust or that any preference or disadvantage is not undue or unreasonable is on the Canadian carrier that discriminates, gives the preference or subjects the person to the disadvantage.
The prohibition in subsection 27(2) applies not only to instances where a Canadian carrier unjustly discriminates against another person but also when it grants an undue or unreasonable preference to any person, including itself, or subjects another person, including a customer, to a disadvantage. Thus, this provision has been interpreted by both the Commission as well as the courts18 as applying to actions taken by Canadian carriers against customers and competitors but also to any action in which a Canadian carrier grants to itself an undue or unreasonable preference. Most recently, the Commission stated in Regulatory framework for voice communication services using Internet Protocol, Telecom Decision CRTC 2005-28 that it would continue to deal with service degradation or impairment issues, such as where a carrier intentionally degrades a competitor’s IP traffic or prefers its own, on a case-by-case basis, pursuant to section 27(2) of the Act.19
Bell has subjected its independent ISP customers to an obvious disadvantage, discriminated against certain types of IP traffic based on the volume of such traffic, as well as granted to itself a preference by throttling the throughput of Internet traffic originating from/or destined for the end-user subscribers of its GAS customers.
The disadvantage that Bell’s traffic shaping measures represents is obvious, since throttling dramatically reduces the speed of the Internet access services provided by independent ISPs to their end-user customers. By deliberately reducing the speed of the end-user service, performance is degraded to an extent where certain Internet and other content becomes inaccessible to end-user customers.
Bell is also apparently discriminating as between so-called peer-to-peer or file sharing service traffic and BitTorrent traffic versus other traffic. Bell has apparently done so on the basis of its assumptions regarding the volume of P2P and BitTorrent traffic which, incidentally, do not represent the majority of traffic on the Internet. Bell’s traffic shaping measures are inherently arbitrary and should give rise to a concern that in the future, Bell may well make similarly arbitrary determinations without regard to the impact of these determinations or measures on different types of users. For example, by indentifying and throttling all P2P traffic, Bell is degrading the service of not only the subscriber who downloads content-rich entertainment programming, but also the periodic or occasional P2P user who downloads Linux open-source ISO-approved software in order to install this on a corporate network server or even a home computer.
The preference that Bell is granting to itself through the implementation of the traffic shaping measures, while somewhat more difficult to discern, is clearly made out on the facts set out in this Application. Within its traditional operating territory in Ontario and Quebec, Bell is the incumbent LEC that controls a ubiquitous local access and transport network. As a true, vertically integrated carrier, Bell uses this ubiquitous network in order to derive wholesale revenues from independent ISPs while at the same time competing against these ISPs in the largely forborne downstream retail market for Internet access services. By degrading the quality of the GAS and HSA services that Bell provides to its wholesale customers who compete with Bell in the retail market for Internet access services, Bell is granting to itself a preference in the retail market for these services. Moreover, to the extent that GAS and HSA service are used by Bell’s wholesale customers to provision other retail telecommunications services, such as VoIP, Bell is granting itself a preference in these other retail markets to the extent that its traffic shaping measures affect the provision of these other retail services by independent ISPs and other service providers.
Although the burden of proving to the Commission that the preference thus granted is not undue falls squarely on Bell, CAIP notes that the preference in question is undue for the following reasons:
(i)The preference is being provided by Bell to itself in violation of tariffs approved by the Commission. While Bell may unilaterally introduce pricing and billing changes with respect to its unregulated retail Internet access services, the same cannot be said of its tariffed wholesale services;
(ii)The preference is being provided by Bell to itself without lawful justification of any kind;
(iii)The preference is being provided by Bell to itself for purely commercial reasons that relate directly to its decision to modify its retail Internet access pricing structure such that retail subscribers will increasingly be charged on the basis of usage and Bell’s resulting commercial interest in preventing a mass migration of customers to the retail Internet services of competitors as it transitions to this new retail pricing model.
As set out above, Bell’s traffic shaping measures coincided with the implementation of the “Usage Billing Change Instructions” that Bell appears to have implemented on March 13, 2008. As described in the Usage Billing Change Instructions, on or about March 12, 2008, Bell put into motion a decision that it had made for purely commercial reasons to derive additional revenues from its retail Internet access customers. In order to do so, Bell ordered its customer service and sales staff to discontinue the sale of its “Unlimited Usage Plan” as well as its monthly maximum usage charges, effective March 12, 2008.
This move on Bell’s part in the retail market for Internet access services appears to be a direct, “me too” response to recent changes implemented by Rogers Cable to move towards increased usage-based billing and pricing of cable-based Internet access services. Having decided on the retail side of its operations that it will seek to increase its retail Internet access revenues by charging its retail subscribers for bandwidth or Internet usage, Bell has decided to restrict the ability of independent ISPs from vigorously competing against this change in billing practices through the use of unlimited usage service plans or, at the very least, differently priced Internet access services.
As discussed above in relation to Order 2006-258, the downstream and upstream transmission speeds available as part of the GAS are intrinsic to the services. By unilaterally throttling the speed of its wholesale Internet access services, Bell has not only breached its tariffs and sections 24 and 25 of the Act, it has subjected its independent ISP customers to an undue or unreasonable disadvantage and also granted to itself an undue preference with respect to its own competitive position in the retail market for Internet access services.
Bell’s traffic shaping measures constitute a purely commercial, anti-competitive move that is directly related to the usage billing changes that it has implemented for its retail Internet access service. As a result of these changes, Bell has acted to prevent competitors in the retail market from effectively competing on price or usage plans. Moreover, the surreptitious manner in which Bell implemented the traffic shaping measures, without advance notice of any kind is exacerbated by Bell’s disingenuous attempts to cloak its actions as “network management” moves.
CAIP therefore requests that the Commission declare that Bell has unlawfully granted to itself an undue or unreasonable preference and subjected its independent ISP customers to an undue or unreasonable disadvantage by unilaterally throttling its wholesale GAS. CAIP requests that the Commission issue orders pursuant to subsection 27(2) of the Act that direct Bell to immediately cease and desist from such unlawful acts.
e) Customer Privacy and the Inviolability of the Content of Customer Communications
In order to throttle the Internet traffic originating from/or destined for end-user customers of independent ISPs, Bell is using measures to first, open each data packet, examine the packet data and header information, and then apply certain rules to the content in question.
This aspect of Bell’s wholesale throttling activities give rise to concerns that Bell’s actions violate the privacy of the communications of its wholesale customers (as well as that of their own end-user customers). It also gives rise to concerns that Bell has violated its duty under section 36 of the Act not to control the content or influence the meaning or purpose of telecommunications carried by it for the public.
An important part of the policy objectives to be implemented by the Commission in the exercise of its powers and duties under the Act is to ensure that its policies safeguard the important legal and social interest in the privacy of individuals and their communications. It is a fundamental tenet of this policy objective that Canadian end-user customers of telecommunications services are entitled to gain access to lawful content of their choice and, therefore, not to have their use of such content opened, examined, or interfered with in any way by their supplying ISPs, or any other carriers that control a portion of the telecommunications network over which Internet data is carried.
There are two important aspects to this right to privacy: the first is the right of individuals to privacy itself and second is the duty of others and, in particular, telecommunications carriers such as Bell, to act in a manner which preserves and protects the right to privacy by limiting their role to the passive carriage of telecommunications traffic which they carry for the public.
With respect to the first of these two matters, CAIP notes that paragraph 7(i) of the Act provides as follows:
7. It is hereby affirmed that telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty and that the Canadian telecommunications policy has as its objectives…
(i) to contribute to the protection of the privacy of persons.
Paragraph 7(i) of the Act is consistent with provisions in other laws of general application in Canada, which establish the principle that private communications may not be tampered, interfered with or intercepted without lawful justification.20
As the Commission knows, carriers or other persons who monitor or eavesdrop on telecommunications or have access to communications databases are in a position to ascertain the location, identity, interests and predilections of individual end-user subscribers. By examining the packet data and packet header information of GAS customer traffic, Bell can identify, inter alia, the type of data being transferred, the ISP upon whose network the data is being transferred, an end-user’s intention to acquire certain types of Internet content and the IP address and, hence, the identity of the end-user customer who is sending/receiving the data. The collection and use of such information by Bell, which in this case would have clearly been done without the prior consent of the end-user customers so affected, violates the privacy of such individuals21. While there may be legitimate uses or overriding considerations of public safety and security that would justify an invasion of the privacy of these telecommunications, none would seemingly apply to Bell’s traffic shaping measures.
Individual Canadians and the Commission should be concerned, frankly, that without clear and unqualified action on the part of the Commission to sanction breaches of the privacy of telecommunications, carriers such as Bell may see this as a license to engage in even more invasive activities in the name of “network management” such as diminishing the ability of end users to access the content of third parties so that these users can be “steered” to the carrier’s own Internet or new media content. Clearly this would constitute an undue preference under subsection 27(2) of the Act and it is quite evident that Bell’s traffic shaping measures could easily facilitate such a preference in the case of its own content – if they do not do so already.
A corollary to the requirement under Canadian law that the communications of individuals remain private and should not be intercepted or otherwise interfered with absent lawful justification is the principle that carriers should not be held liable for the content of the messages that they carry over their telecommunications equipment and transmission facilities. This principle has found its reflection in numerous pieces of Canadian legislation which grant to telecommunications common carriers immunity over the content being transmitted over their facilities, provided that the carrier not have any knowledge or complicity in the creation, transmission or storage of any illegal content.
However, concomitant with the traditional immunity granted to common carriers in relation to the communications being transported over their networks is the accompanying restriction on the carrier’s ability to in any way control or influence the content. This principle finds its direct expression in section 36 of the Act, which provides as follows:
36. Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.
It has been said that this “section reflects the concern that carriers might use their position as providers of telecommunications services in a manner that would give them an unfair advantage over firms engaged in the provision of content.”22
Although most of the Commission’s decisions interpreting section 36 (and section 8 of the Bell Canada Act, S.C. 1987, c. 19, which was subsequently repealed) dealt with the ILECs’ attempts to start their own electronic publishing, directory and database services and the Commission’s subsequent approval of content provision by ILECs, this provision can be applied to modern situations, including to Bell’s wholesale throttling and shaping of GAS traffic.
In fact, Bell’s traffic shaping measures raise squarely the issue of “Network Neutrality” which some have described as the right of individuals to gain unfettered and uninterrupted access to Internet content and applications of their choice.
In its March 2006 Final Report, the Telecommunications Policy Review Panel (the Panel) dealt with the subject of network neutrality and stated that it “believes that blocking access to [Internet] content and applications should not be permitted unless legally required.”23 The Panel defined Internet “blocking” to mean “both absolute blocking and degradation that is serious enough to affect the desirability of an application or content”24 and it recommended that the Act should be amended “to confirm the right of Canadian consumers to access publicly available Internet applications and content of their choice by means of all public telecommunications networks providing access to the Internet.”25
The throttling or choking of wholesale ADSL access services that has been engaged in by Bell involves the running of complex algorithms on the GAS and HSA traffic of independent ISPs. In so doing, Bell is reducing the throughput available to the end-user customers of these ISPs by as much as 90 per cent. At such speeds, mainstream content available on the Internet, such as audio or video content (e.g., the CBC’s “Next Great Prime Minister” program), would be slowed beyond recognition or meaning. In fact, Bell degrades the service to the point of, in some cases, rendering the content inaccessible or at least, highly undesirable. Bell is, therefore, clearly interfering with and, indeed, exercising control over this content by isolating it from other content, classifying it as low priority vis à vis other types of content and quarantining the content until Bell decides that it can be released to the end-user recipient in a manner determined wholly by Bell.
Similarly, Bell is influencing the “meaning” and the intended “purpose” of this content by preventing it from being delivered in the manner and within the time frames intended by the content sender and the content recipient. To use a case in point, if a musical selection that is lawfully downloaded from the Internet is constantly interrupted by Bell’s traffic shaping measures such that it can only be heard in fragments or only with the repeated clicking sounds that come from delays and re-buffering, then the meaning of the musical selection has been influenced by measures deliberately adopted by Bell.
As indicated above, Bell Canada’s traffic shaping measures discriminate between different types of content and the users of that content (contrary to subsection 27(2) of the Act). It is also evident, however, that these measures violate Bell’s obligation under section 36 of the Act not to control the content or influence the meaning or purpose of telecommunications carried by it for the public. Bell has a duty to uphold this obligation which is completely independent of its duties and obligations under subsection 27(2) of the Act, and no exercise of the Commission’s forbearance powers under section 34 of the Act, either in the retail Internet services market or in the wholesale market for underlying access services, relieves Bell of its section 36 duty to act in a transparent and passive manner in relation to the content that is carried over its networks.
In light of the foregoing, CAIP respectfully requests that the Commission issue an order pursuant to paragraphs 7(a) and (j) and section 36 of the Act that Bell immediately cease and desist from interfering with the private communications and content of Internet services that is delivered over telecommunications equipment and transmission facilities controlled by Bell.
IV. REQUEST FOR INTERIM RELIEF AND EXPEDITED PROCEDURES
In addition to the final orders requested in this Application, CAIP requests an interim order issued on an urgent and expedited basis, directing Bell to immediately cease and desist from using any technologies to “shape”, “throttle” and/or “choke” its wholesale ADSL access services. In conjunction with this request, CAIP has also requested expedited timeframes on which the Commission should determine CAIP’s request for interim relief. Should the Commission not grant CAIP’s request for interim relief on the expedited timeframe requested, CAIP respectfully requests that the issues raised by the final orders requested by CAIP be determined by the Commission on an abbreviated timeframe.
As noted above, Bell has unilaterally and without prior notice instituted a program of traffic shaping and throttling of its wholesale customers’ traffic. Given the various violations of Bell’s tariffs and the Act that are at issue and the serious and irreparable harm that is being caused to CAIP’s members, their customers and to the public interest by Bell Canada’s conduct, CAIP submits that the balance of convenience favours the granting of CAIP’s request for immediate interim relief on the expedited timeframes requested in this Application.
CAIP’s request for interim relief satisfies the well-accepted tripartite test for such relief as established by the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd.26, modified by the Supreme Court in RJR-MacDonald Inc. v. Canada (Attorney General)27 (the RJR-MacDonald criteria) and applied by the Commission.28 The criteria that form a part of this test may be summarized as follows:
(iv)there is a serious issue to be determined;
(v)the applicant would suffer irreparable harm if the interim relief is not immediately granted; and
(vi)the balance of convenience, taking into account the public interest and any other special factors, favours granting an interim order.
With regard to the first of the three RJR-MacDonald criteria, namely the requirement that the Application raises a serious issue to be determined, it is well-established that the evidentiary threshold required to meet this test is a low one.29
This Application raises serious issues concerning the lawfulness of Bell’s traffic shaping measures. These issues relate to the unauthorized and unilateral modifications to tariffed services that Bell has imposed on its wholesale customers and violations of the Act in relation to, inter alia, the policy objectives of the Act and Bell’s manipulation of the content of telecommunications. Accordingly, Bell’s admitted actions and the issues identified in this Application are sufficient to satisfy the first limb of the RJR-MacDonald criteria.
The second of the three RJR-MacDonald test criteria requires a consideration of whether the Commission’s refusal to grant relief could “so adversely affect the applicant’s own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the results of the interlocutory application.” As confirmed by the Supreme Court in RJR-MacDonald, “irreparable” refers to the nature of the harm suffered rather than its magnitude. “Irreparable harm” has been held by the courts to be that which either cannot be quantified in monetary terms, or which cannot be cured.
Bell continues to shape wholesale ADSL traffic on a recurring, daily basis. With each passing day, CAIP’s ISP members continue to pay for the services that Bell has been providing with speed upgrades (as opposed to the unilateral speed downgrades that are currently being experienced by independent ISPs as a result of Bell’s traffic shaping measures) along the way.
Although independent ISPs continue to pay for these wholesale ADSL access services, Bell’s traffic shaping measures do not deliver the volumes of traffic and speeds that ISPs have paid for under the GAS tariff and they render it impossible for independent ISPs to provide consistent service at predictable speeds to their own end-user customers. As discussed above, CAIP has observed the following detrimental effects of Bell’s traffic shaping measures on the services that are provided by independent ISPs to their customers:
- Drastic reductions in transfer speeds for both residential and business customers of CAIP’s ISP members for up to ten hours of each day;
- In practical terms, the drastic reduction in transfer speeds has denatured the ADSL access service to such an extent that the service can no longer be used by end-customers for the purposes for which those customers may have subscribed to the service;
- To CAIP’s knowledge, the applications that have been affected include practically all forms of file-sharing services and audio or video streaming services, such as Internet radio and YouTube. Other services may have been or may in the future also be affected. Loss of critical, time-sensitive functionality associated with the delivery of such services have degraded these services beyond their practical utility or desirability to end-user customers.
In turn, the degradation of the speed and performance of the services that independent ISPs provide has caused marked difficulty or rendered it impossible for independent ISPs to properly manage the services that they provide to their end-user customers;
- Dramatically reduced the volume of traffic that independent ISPs are able to deliver to Internet backbone providers. Consequently, they are paying for transit capacity that they are not actually able to use.
- Forced ISPs to pay for GAS service components even though Bell is not delivering traffic at the volumes necessary to justify the cost or the need for these service components.
- Caused harm to independent ISPs in the form of threatened and actual cancellation of service contracts.
The terms and conditions of the contracts between ISPs and their end-user customers for Internet services are already in place. The degradation of Internet access services that are provided using Bell’s wholesale ADSL services threatens these contracts and customer relationships and places independent ISPs in an untenable and uncertain position with respect to unhappy end-user customers.
Furthermore, the recurring, daily degradation of the speed and performance of wholesale Internet access services has caused harm to independent ISPs in the form of loss of good will and permanent loss market share, over and above lost revenues. If interim relief is not granted, the market will not wait. The effect of Bell’s traffic shaping measures, as discussed above, directly curtails the ability of independent ISPs to compete in the retail Internet access market.
The harm to independent ISPs will be irreparable for several reasons. First, in regulatory proceedings before the Commission, there is no prospect of any compensation in damages. Second, independent ISPs have no way of quantifying or recovering the goodwill and market share loss that is threatened and has already begun to materialize for independent ISPs if the interim relief is denied. Third, even if losses such as the value of unusable GAS capacity and unusable backbone/transit capacity could be quantified and then made the subject of a civil suit for such losses, it is likely that any damages claimed would be barred as remote. Moreover, independent ISPs have no way to mitigate these losses in the absence of interim relief. Finally, the damage to the public interest in the orderly provision and development of telecommunications and the privacy and inviolability of telecommunications carried by Bell, which would result from a denial of relief, cannot be compensated in damages following completion of this proceeding.
For all of the foregoing reasons, CAIP’s request for interim relief satisfies the second of the RJR?MacDonald criteria.
The final branch of the RJR-MacDonald criteria requires that the Applicant satisfy the Commission that the balance of convenience, taking into account the public interest and any other special factors, favours issuing the interim relief.
CAIP submits that the balance of convenience clearly favours granting the interim relief sought by CAIP. By all appearances, the only interest that is favoured by condoning Bell’s unilateral and surprise implementation of traffic shaping measures is one that is unique to Bell and, as demonstrated above, purely commercial and anti-competitive in its intent. On the other hand, the granting of interim relief would safeguard and preserve important public interests above and beyond the immediate interests of CAIP and its ISP members.
If at the end of the proceeding initiated by this Application, the Commission grants to CAIP the final orders sought by CAIP, a denial of interim relief will have condoned Bell’s violation of wholesale tariffs approved by the Commission, Bell’s granting of an undue preference to itself and subjection of independent ISPs to an undue disadvantage. Bell’s traffic shaping measures undermine competition in the retail Internet access market and are intended to serve Bell’s purely commercial interests over the privacy of end-user customers’ telecommunications as well as the long-standing principle that carriers should not control or influence, or engineer their networks to control or influence, the meaning or purpose of telecommunications carried over their networks. On the other hand, granting the interim relief requested by CAIP will not harm or endanger competition, end-user customers or any overriding public interest of any kind.
In the circumstances of the present case, there is also a strong public interest associated with certainty and continuity, which a return to the status quo ante would provide. In making this request for interim relief, CAIP is seeking a return to the provision of Bell’s wholesale ADSL access services in accordance with tariffs that have already been approved by the Commission pending final resolution of the issues raised in this Application. Bell’s traffic shaping measures have and will subject the retail Internet access market to upheaval and uncertainty - for independent ISPs and their end-user customers. Given the seriousness of the issues raised by CAIP, the strong public interest underlying these issues and the harm that is being occasioned to CAIP’s members and their end-user customers, CAIP submits that granting the interim relief requested in this Application favours not only the interests of those independent ISPs that are affected by Bell’s traffic shaping measures, but also the public interest.
For all of the foregoing reasons the balance of convenience, and in particular, the public interest, overwhelmingly favour issuing the interim order requested in this Application.
Finally, in light of the urgency of this Application, the serious and on-going harm being occasioned to CAIP, its ISP members, their respective end-user customers and the public interest by Bell’s traffic shaping measures, CAIP respectfully requests that its request for interim relief be dealt with on an expedited basis, as set out in the relief requested below. Again, were the Commission to consider this request for interim relief in accordance with the timeframes provided for at section 59 of the CRTC Telecommunications Rules of Procedure, irreparable harm to the commercial interests of CAIP’s ISP members as well as to the public interests identified above will result in the interim.
In addition, should the Commission not grant the interim relief requested by CAIP, CAIP requests that the Commission determine the issues raised in this Application in accordance with the abbreviated timeframes as set out in the relief requested below.
V. RELIEF REQUESTED
Based on the foregoing and given the irreparable harm that is being caused by the Respondent’s conduct to independent ISPs and their end-user customers, CAIP respectfully requests that the Commission issue the following orders in relation to Bell Canada’s wholesale ADSL access services:
a)An interim order, issued on an urgent and expedited basis, directing Bell Canada to immediately cease and desist from using any technologies to “shape”, “throttle” and/or “choke” its wholesale ADSL services;
b)With respect to the request for interim relief above, an order abridging the timeframes for the Respondent to file its Answer to within four (4) business days of this Application and for the Applicant, CAIP, to file its Reply to within three (3) business days of Bell’s Answer;
c)Should the Commission not grant the interim relief requested by CAIP in subparagraph (a) above within the expedited timeframes set out in subparagraph (b), an order abridging the timeframes for the Respondent Bell to file its Answer to the Application to within seven (7) business days of this Application and for the Applicant, CAIP, to file its Reply to within five (5) business days of Bell’s Answer;
d)A final order directing Bell Canada to cease and desist from using any technologies to “shape”, “throttle” and/or “choke” its wholesale ADSL services;
e)An order that Bell comply with the terms and conditions of its wholesale ADSL tariffs;
f)A declaration that Bell has acted unlawfully and in a manner that is contrary to tariffs approved by the Commission;
g)An order that Bell not deviate from the terms and conditions of its approved wholesale ADSL tariffs without prior Commission approval of any such changes;
h)A declaration that Bell has acted unlawfully and in a manner that is contrary to the requirement that a local exchange carrier that provides service to other local exchange carriers provide advance notice of network changes, pursuant to Telecom Decision CRTC 97-8;
i)A declaration that Bell has granted to itself an undue and unreasonable preference and subjected independent ISPs to an undue and unreasonable disadvantage by shaping, throttling and choking its wholesale ADSL services in the manner described in this Application; and
j)A declaration that Bell has acted unlawfully and contrary to the prohibition on carrier interference with the content of messages carried over its telecommunications network contrary to section 36 of the Act and contrary to the Canadian telecommunications policy objectives set out in paragraphs 7(a) and (i) which, inter alia, seek to protect the privacy of persons.
All of which is respectfully submitted on behalf of the members of the Canadian Association of Internet Providers this 3rd day of April, 2008.
Tom Copeland
Chair, Canadian Association Internet Providers
FOOTNOTES >>>
1 Policy Direction, paragraph 1(a)(ii)
2 See Policy Direction, paragraph 1(b)(iv).
3 Bell Canada Enterprises, 2007 Annual Report, page 42.
4 Letter from Bell Canada, Re: Bell Canada Tariff Usage Billing Notice No. 6767 (TN 6767) - Gateway Access Service (GAS), dated December 1, 2003.
5 This meeting took place at the Marriott Hotel Mississauga on 23 November 2007.
6 CBC News, ISPs limit access to CBC download, users say, March 26, 2008; http://www.cbc.ca/arts/tv/story/2008/03/26/bittorrent-cbc.html?
7 BroadbandReports.com; http://www.dslreports.com/.
8 Gateway Access Service, Telecom Order CRTC 2006-258, paragraphs 12-14.
9 GT Item 5410.3(d).
10 http://www.bcenexxia.ca/wholesale/products/dslgate.htm
11 For example, the service may not be used where the end-user customer is served by a loop that is loaded with taps or coils or that is outside the range of the ADSL equipment: see Item 5410.3(i) of GT 5410.
12 Letter from Bell Canada to the CRTC, re: Bell Canada Tariff Usage Billing Notice No. 6767 (TN6767) – Gateway Access Service (GAS), dated December 1, 2003.
13 Telecom Decision CRTC 97-8, paragraph 44.
14 Ibid, paragraph 44.
15 Ibid, paragraph 45.
16 Ibid.
17 Supra, note 5.
18 See Challenge Communications Ltd. v. Bell Canada (1978), [1979] 1 F.C. 857 (C.A.), paragraphs 18-19, in which a predecessor provision to section 27 (section 321 of the Railway Act, R.S.C. 1970, c. R-2) was being examined.
19 Telecom Decision CRTC 2005-28, Regulatory framework for voice communication services using Internet Protocol, 12 May 2005 at paragraphs 448 to 483 (”Decision 2005-28″).
20 See Criminal Code, R.S.C. 1985, c. C-46, s.184 (willfully intercepting private communications), s.342.1 (fraudulently acquiring the substance, meaning or purport of any function of a computer system), s.431(1.1) (mischief; willfully obstructing, interrupting or interfering with the lawful use of data or rendering data meaningless, useless or ineffective).
21 Office of the Privacy Commissioner, A Guide for Businesses and Organizations - Your Privacy Responsibilities and Your Privacy: Canada’s Personal Information Protection and Electronic Documents Act, p. 3, Online: http://www.privcom.gc.ca/information/guide_e.asp. See also Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, subsection 2(1).
22 Michael H. Ryan, Canadian Telecommunications Law and Regulation, § 730 “Content of Messages” (hereinafter “Ryan”).
23 Telecommunications Policy Review Panel, Final Report, March 2006, p. 6-16.
24 Ibid, p. 6-15.
25 Ibid, p. 6-18 [emphasis added].
26 [1987] 1 S.C.R. 110
27 [1994] 1 S.C.R. 311.
28 See, for example, Telecom Decision CRTC 2005-34, Request by MTS Allstream Inc. for interim relief with respect to access to end-users in a multi-dwelling unit, dated 10 June 2005, paragraph 7.
29 RJR-MacDonald Inc. v. Canada (Attorney General), pages 337 and 338.
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