p2pnet news view Freedom | P2P:- Around August, 2007, Bell Canada started throttling its own Bell Sympatico (users 2pnet – P2P Black List) and we told people how to get out of their contracts.

To counter the p2pnet article, Bell Canada later made a script for its phone reps to use  in an unsuccessful bid to prevent the exodus to the unthrottled wholesalers, whom Bell later also throttled, in the process of opening the doors to a serious competition problem.

The Canadian Competition Bureau (headed by Ms Sheridan Scott) and at-the-time industry minister Jim Prentice wouldn’t touch it, telling people to go sort it out themselves with the CRTC.

In other words, our supposed Canadian watchdog shut out the Canadian people.

Then on November 20 last year,  the CRTC Telecom Decision CRTC 2008-108 opened the door to DPI  and throttling, the story being told in detail in the p2pnet traffic shaping digest.

Now, six months on, there’s a new surprise for us. But this one isn’t from Bell Canada, Rogers, Videotron or Telus.

Instead, it’s a CRTC filing lodged by a coalition of consumer groups and indie telecommunication groups who’ve been adversely hit by the Bell Canada’s DPI and throttling practices.

And they’re standing up for your rights, your privacy, and their right to function in a business environment that hasn’t been competitively crippled and hijacked by vested corporate interests.

The coalition comprises

• The Consumers’ Association of Canada,
• Canada Without Poverty
• Council of PIAC
• Canadian Association of Internet Providers (CAIP),
• Acanac Inc.,
• Accelerated Connections Inc.,
• Cybersurf Corp.,
• eagle.ca,
• Execulink Telecom Inc.,
• Managed Network Systems Inc. (MSNi),
• Skyway West Business Internet Services,
• Start Communications,
• TekSavvy Solutions Inc.
• Vianet Internet Solutions,
• Yak Communications Inc.

Their filing, which highlights many oversights, errors, rights, privacy issues, and competitive disputes not taken into consideration during the CRTC’s ruling, hasn’t yet been posted on the CRTC website, but it can be found here and here, and followed here.

TekSavvy Inc. CEO, Rocky Gaudrault, told p2pnet »»»

We believe that the CRTC misunderstands the technology and made some fundamental errors in their decision in the CAIP/Throttling case.  We also believe that new evidence has come to light since that case was decided which casts doubt on the CRTC’s original findings in the CAIP/Throttling decision.

We think that the CRTC rendered a decision in the CAIP/Throttling proceeding without having a sufficient understanding of the issues. This is evident from the Public Notice on Internet Traffic Management which was issued on the very same day as the CAIP/Throttling decision. In the Public Notice, the CRTC asks interested parties to comment on the very same issues that were raised in the CAIP/Throttling proceeding.

By rendering the decision that it did in the CAIP/Throttling proceeding, the CRTC may very well have pre-judged the outcome of the Internet Traffic Management proceeding.  In fact, most of the big ISPs in that proceeding have taken the position that the CRTC has already given its blessing for them to use invasive traffic shaping equipment, such as Deep Packet Inspection technology.

There is no reason for Bell to throttle the traffic of its competitors. Our customers want choice and if the CRTC is interested in promoting competition in the retail market for Internet access services, it should direct Bell to cease and desist from throttling the wholesale access service that we buy from Bell (i.e., Gateway Access Service) in order to provide high speed Internet access services to our end-customers.

“The CAIP decision was rendered on the very day that CRTC initiated a public notice proceeding to further study the traffic management practices of ISPs,” says CAIP chairman Tom Copeland, continuing »»»

Given the factual, legal and policy errors made by the CRTC and the evidence before them now, the appropriate action to take would be to rescind, review and vary the decision such that Bell is ordered to cease and desist in its throttling of the wholesale service it sells to competitors.

Bell is the only large ILEC in Canada that throttles P2P traffic and the only ISP that we know of that systematically throttles both upstream and downstream P2P traffic, for all users, regardless of volume and regardless of whether congestion is actually occurring. Bell has been interfering with our customers’ online experience in this manner for more than a year now, with no end in sight.

Last year, the CRTC could have sent a strong message that competition in the retail Internet access market is paramount or it could have decided to submit the issues raised by CAIP for further study. Instead, the CRTC gave Bell and other incumbent carriers carte blanche to interfere with the services we provide to our customers. As long as the decision stands, the perception would be that it has essentially prejudged the outcome of the current Public Notice proceeding.

Below is a brief summary »»»

SPECIFIC GROUNDS FOR REVIEW AND VARIANCE
15. Section 62 of the Act states:
62. The Commission may, on application or on its own motion, review and rescind or vary any decision made by it or re-hear a matter before rendering a decision.

16. In Telecom Public Notice CRTC 98‐6, Guidelines for review and vary applications, 20 March 1998 (“PN 98‐6”), the Commission stated that in order for the Commission to exercise its discretion pursuant to section 62 of the Act, an applicant must demonstrate that there is substantial doubt as to the correctness of the original decision. The Commission then went on to state that substantial doubt as to the correctness of the original decision may arise, for example, due to

(i) An error in law or in fact;
(ii) A fundamental change in circumstances or facts since the decision;
(iii) A failure to consider a basic principle which had been raised in the original proceeding; or
(iv) A new principle which has arisen as a result of the decision.

17. The Applicants submit that there is substantial doubt as to the original correctness of Decision 2008‐108 as a result of the following specific errors of fact and law. The
Commission

(a) Erred in fact in deciding that P2P transmissions take up as much bandwidth as possible and are unique, among all other types of transmissions, in doing so;(b) Erred in fact in stating that in order to identify the application or protocol of telecommunications, Bell need only examine the “header information of the packet;”9
(c) In relation to Bell’s GAS tariff and sections 24 and 25 of the Act, erred in fact and in law
(i) in allowing Bell to apply a different standard relating to fair and proportionate use of its network by the end‐customers of ISPs than the standard that it has applied historically to both ILECs and to the cable companies;
(ii) in considering that Bell’s use of DPI to inspect and treat packets in P2P transmissions differently does not violate the GAS tariff, which defines GAS as a PPPoE or Layer 2 service; and
(iii) in concluding that at the time of the Decision, Bell had no other “practical option that is technologically and economically suitable” but to throttle GAS;
(d) In relation to CAIP’s subsection 27(2) grounds for relief,
(i) Erred in law by narrowing the scope of the proceeding without notice to the parties, such that CAIP’s section 27 arguments were only considered in relation to Bell’s treatment of its own retail Internet access customers;
(ii) Erred in law in failing to consider whether Bell was subjecting GAS to different treatment as compared to all other high‐bandwidth services that Bell offers to itself or to others using the same “shared” network referred to by Bell and the Commission;
(iii) Applied the wrong legal test in determining that subsection 27(2) comports an element of subjective intention or bad faith;
(iv) Erred in law and in fact in considering that the breaches of section 27(2) were justified given that
A. there is no evidence that P2P applications represent a threat to the integrity of wireline ILEC networks;
B. Bell’s throttling measure is at once under inclusive in that it only affects P2P applications and not other bandwidth intensive applications and overinclusive in that it affects both heavy and “non‐heavy” users equally; and
C. Bell’s throttling measure is not proportional and minimally intrusive since there were many other options for Bell to achieve its objective, whether it be the objective of relieving congestion or of controlling the usage of heavy users;
(e) In relation to section 36 of the Act, erred in law and in fact by concluding that:
(i) Bell’s traffic shaping measures “does not involve blocking any telecommunications”;
(ii) file‐sharing applications only involve transmissions of downloadable “files” which require “time for the file to be transmitted before an enduser can access it.”;
(iii) Bell is not controlling the content of the telecommunications that it carries for the public;
(iv) Bell is not influencing the meaning of the telecommunications that it carries for the public; and that
(v) Bell is not influencing the purpose of the telecommunications that it carries for the public;
(f) Did not comply with the requirements of the Policy Direction to state which policy objectives were advanced by its decision and did not give sufficient justification for its decision thereunder;
(g) Erred in law in failing to give due consideration to
(i) The freedom of expression of content providers, Canadian Internet users, and independent ISPs;
(ii) The Canadian telecommunications policy objective of protecting the privacy of telecommunications set out at paragraph 7(i) of the Act;10 and
(iii) The Canadian telecommunications policy objective of promoting maximum reliance on market forces and ensuring efficient and effective regulation as set out at paragraph 7(f) of the Act.

18. In addition to the foregoing errors, there is at least one changed circumstance relating to the options available to Bell to relieve congestion in its network that calls into doubt both the original and continuing correctness of Decision 2008‐108. In particular, as described in Section IV below, it would appear that Bell has standardised Ethernet Layer 2 switches throughout its network in order to relieve congestion in certain areas of its network. This development calls into question the continuing necessity of Bell’s network‐wide throttling of P2P applications as well as raising the issue (if only in the alternative) of whether Bell’s throttling of P2P applications should be time‐limited or subject to any other restrictions.

The filing goes into great detail on each of these points.

I haven’t had the time to really get into it yet, but I will — and I noticed all sorts of facts the CRTC didn’t address, as did users on DSLreports.

For example, mlerner (http://www.dslreports.com/profile/248514) spotted this gem »»»

44. However, the fact that Bell looks at Layer 7 information in order to determine the application software running on the CPE misses a more fundamental point that relates to GAS specifically. GAS is a PPPoE or Layer 2 (Data Layer) service according to Bell GT Item 5410. As such, anything above Layer 2 (Layers 3‐7) constitutes the PPPoE “payload” under GAS. While Bell must possess PPPoE header information in order to provide GAS, there is no need for Bell to examine even the source and destination IP address information of GAS traffic in order to deliver the tariffed service.

This raises a privacy issue when Bell is looking at point of origin and destination, as well as packet payload on customers that aren’t even theirs.

Makes me wonder if the Privacy Commissioner will be dragged into this, as I believe she should be.

The throttle and DPI fight is not over.

Definitely stay tuned…

Ottawa Gal - p2pnet
[Ottawa Gal is a long-time p2pnet reader and comment poster who’d rather be anonymous. She says she works in the University, likes her cat, reality TV, and Doctor McDreamy. Her favourite web sites are the Michael Geist blog and p2pnet.net. 'Privacy on the net is also important to me,' she says. 'I need a tinfoil hat ]

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May, 2009

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This entry was posted on Thursday, May 21st, 2009 at 1:22 pm and is filed under Freedom, P2P. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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