First, I will not argue about whether Bell would be right to do this (there's that morality thing again, and business is amoral), though that seems a popular discussion. Let's suppose they do make the proposal and the CRTC is willing to listen to them, and even rule on it. Keep in mind that the CRTC is not obligated to accept the proposal, and if they do they may modify it into something that would not benefit Bell. Any proposal by Bell is therefore risky. I would expect that such a proposal would contain words to the effect of making it somewhat vague and non-binding on themselves, aiming to simply test CRTC's flexibility to bending in their direction. That's my guess.
Whatever Bell does submit, and however it may be constructed, there are key elements that are likely to be uppermost in the CRTC's as they review the proposal:
- Discrimination - Would the proposal affect non-Bell ISPs similarly or differently than Sympatico and other Bell properties.
- Economics - Do the proposed prices (if they go this far at this stage) reflect costs plus a reasonable profit.
- Technology - Does the proposal narrowly address DSL, or even a particular class of DSL service, or can the billing mechanism be applied to other wholesale broadband services.
If Bell continues applications throttling for Sympatico, but has usage-base billing instead of application throttling for wholesale DSL then it is not at all clear if it is non-discriminatory. Both are presented as being intended to keep network costs in line with revenue, and may in fact yield identical and stable profits for Bell, yet the impact on users is quite different. They may very well propose this, with the reasonable argument that Sympatico is unregulated so the CRTC should avoid interference in this competitive retail service and that, since they can't control how wholesale DSL is marketed, usage-based billing for those customers is a non-discriminatory method of recovering costs. The wholesale DSL ISPs would then have to decide whether to spread the cost of (aggregate) usage billing from Bell by increasing base prices for all their subscribers, which may be disadvantageous in comparison to Sympatico, or implement usage billing for each of their subscribers. They will most likely fight this since it defeats their existing marketing advantage over Sympatico and increases operating costs.
This brings us to the economics argument. The CRTC would likely ask Bell to submit a detailed cost analysis (engineering economics) for their proposal that supports their claims of reasonable cost recovery. You should expect that the analysis will be held in confidence. One thing I do know is that these cost recovery calculations are very slippery and can be skewed, to some extent, to better fit the desired conclusion. The CRTC will look through it all and make an independent assessment of Bell's economics arguments.
Expect that Bell will try to continue to limit wholesale access to their network, non-discriminatory or otherwise, to as narrow a selection of technology as possible. In this case, DSL over copper in its present form, and possibly even to the present speed limitations of the network-side modems. They will not want to so much as hint that any proposal they make for DSL wholesale should apply to any other existing or future broadband technology, including fibre, wireless (in all its forms) or modem electronics. They will likely succeed at this without even trying since (in my opinion) that would suit the CRTC thinking at present.
Now we wait to see if there is a proposal and what it looks like.
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The threat of "metered billing" for both Sympatico and GAS customers is not that recent. It was already uncovered months ago, and would probably have been put in place by now, if it weren't for all the CRTC filings in progress.
Metering GAS customers would mean metering the 3rd party ISPs, who buy their bandwidth already at a flat rate. Why Bell would be allowed to interfere with customers that are not even theirs is totally beyond me.
And, because GAS customers are NOT Bell customers, anything Bell does that affects change to their service or billing should not only be considered a breach of the existing contracts, but should be seen as anti-competitive as well, as it is directly meddling with another company's customer base.
Bell has been using the argument "we treat our own customer base the same" as a twisted way of justifying its throttling, and intends to carry that "logic" into its other plans. Yet, it was Bell that initiated all this in the first place, without consultation with, notification of, or acknowledgment by any of its contracted customers, including the GAS networks - and without proof that any of this is even remotely justified, when everyone else caught up to it.
And, who's to say that, if Bell was ever given everyone's blessing to install metered billing across the board, we would see an end to throttling and/or the use of DPI?!
Where, in the language of anything published so far, do you see that?
If this were purely a contract performance matter, the ISPs could get satisfaction in civil court. It isn't. Keep in mind that I have not seen the contracts so my view here may be off base, however I think you'll find these contracts are more akin to the service contracts you have, say, with your cell phone provider. Underlying the contract is a large body of regulations that governs the actions of the service provider. That's why this is before the regulator, not the courts (yet).
What Bell can get away with, they may very well attempt. To some extent I expect them to push the envelope as far as they can. Will CRTC slap them? Are the current regs sufficient to even allow them to do so? I haven't read that far into the matter. Bell no doubt has and would only choose this route if they felt they have a reasonable possibly of winning. All their talk is just market posturing; the meat is in their arguments per the written regs.
The arbiter is the CRTC. You, I, other DSL subscribers and our ISPs can make substantive arguments based on written regulations and laws or, failing that, attempt influence, political or otherwise.
What, specifically (and as interpreted by lawyers, which I am not) do the contracts and the regulations say? Is it even so concrete that the judge (CRTC) could not create a new policy decision to craft the outcome as they desire? It will come down to that. What does the CRTC want to do? How much love will they show Bell? They are not a disinterested party; they crafted the regulations per their own and the government's objectives.
One thing these regulations do say is that a carrier is not allowed to interfere with the transmission of data, nor make decisions on these transmissions due to their content/source/destination.
There are also Privacy Laws in place that should have automatically made DPI, its use and the technology itself, and the act of compiling personal data for "targeted marketing", and the act of a carrier selling such info, all illegal!
Bell doesn't just think it can get away with all this - it thinks it can flout existing laws and cause them to change at its will.
Wonder where they got that idea?!
Is it because they always have gotten away with whatever they wanted? Is it because the CRTC and the Conservative Government rarely side with either the consumer or the Constitution?! Is it because the CRTC has always been stocked with ex-Bell executives, and similar cronies from the other telecommunications companies!?
Indeed, this is not just a "contract matter", but even Contract Law should have come into play over Bell's frequent, arbitrary and illegal "editing" of TOS. They do not have the freedom to just change the actual quality or features of a service they charge for, no matter what the reason, without PROPER renegotiations with the subscribing consumer. Simply changing a TOS is NOT a legally acceptable way to change a contract.
"Consistently Fast!"
"Never Shared!"
"Unlimited!"
"Download Rich Media (Movies, Music) 24/7!"
They're also guilty of blatant false advertising.
As far as I'm concerned, this company (and perhaps a number of others) needs to be separated so that the part that offers carrier services would be operated under a company not owned and operated by the part that offers its own content services. That seems to be where all the trouble centers.
While I tend to agree with you that Bell is out of line in their arguments in favour of throttling per the tariff, they will still try to win this one.
There are ex-Bell and ex-supplier employees at CRTC. This isn't surprising since they do have the requisite domain expertise. As to how their internal process works, it would typically look something like this. Staff technical and legal experts do the detailed analysis per regs, law and formal policy, and reach conclusions and may make recommendations. More senior CRTC staff and commissioners use that as one basis for their decision. They of course also have some direction from the government of the day.
Regardless, there are limits to how heavy any blow could ever strike Bell or any large Canadian corporation. Governments, whether right or left-leaning, are very reticent to act in a way that is perceived to seriously damage an enterprise that generates a lot of employment and taxation, and (more questionably) a figurehead of Canada's technology industry. You can be sure Bell will spin it that way if they are displeased with the ruling.
How they will resolve this I do not know. What I am fairly certain of is they will not do what you propose in your last paragraph, to structurally separate the utility network (natural monopoly) from the services business. The political and business cost will be too high. I have some specific experience with this in the wake of US telecom reform in the mid-90s.
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