While the proceeding was ongoing I wrote a series of articles (parts 1, 2 and 3) regarding my take on what might be going on under the hood, both on the technology argument and on the business drivers. More recently I wrote about failing VoIP providers which have similar challenges. In particular, ISPs that exploit Bell Canada DSL are "utterly dependent on their fiercest competitor[s]." Without GAS there is no 3rd party DSL business; Bell Canada was mandated by the CRTC to submit the tariff and they don't like it one bit.
Now before I provide a detailed review let's understand GAS. It's a tariff, which is a sort of contract between the government regulator (CRTC) and the carrier (Bell Canada). Neither end users nor ISPs are parties to the tariff. The ISPs have service contracts with Bell Canada which include the GAS tariffed service. The ISPs then bundle GAS-enabled services as part of their retail services. Despite its role as an enabler, the tariff is distinct from the contracts. The tariff and the law provide mechanisms whereby customers of the tariffed service can appeal for redress where they feel the carrier is not performing as mandated. The CRTC may also act on its own if it chooses.
The upshot of this gobbledygook is that the tariff can change without violating the contract and, most importantly, if the carrier interprets the tariff in a manner that is to the disadvantage of its customers it is up to the regulator to intervene, if they choose to, and rule according to the law and (more loosely) policy. This isn't much different from ordinary phone service, including mobile, where the underlying tariffs are associated with but are not determined by service contracts with individual subscribers. Now on to the decision.
As expected the decision is clearly written and structured, focusing on the key points of law under which they needed to make their decision. Nothing wrong with that so I'll only talk about what I feel are key points in the decision. I will mostly pass over the large part of the document that summarizes the evidence they received from the parties and focus primarily on the commentary and decision text.
6. Bell Canada submitted that it is engaged in traffic shaping on its network, which consists of slowing down the transfer rates of all peer-to-peer (P2P) file-sharing applications during peak periods, which it defined as between 4:30 p.m. and 2:00 a.m., daily.
I am surprised the CRTC didn't question this in their decision. Is 1:00 a.m. a peak period? Not a chance. Right here I am beginning to smell which way the signs are pointing.
15. ...Bell Canada submitted that its GAS tariff specifies maximum upstream and downstream speeds, which are offered on a best-effort basis and are not guaranteed at all times.
Ah, this is very like the Llap Goch defence in which a footnote to the wild benefits promised for this secret Welsh art of self-defense said something to the effect of "where it is understood that 'up to any number' includes the number nought." This is sting of the 'best-effort' phrase that is tied to pretty much all broadband services. The GAS tariff is no different since the DSL portion of the service is identical to retail DSL.
23. ...Cisco Systems, Inc., in support of Bell Canada, stated that even if more bandwidth were added to the network, P2P file-sharing applications are designed to use up that bandwidth.
This is wrong. No user can utilize more bandwidth than that available on the DSL link. Adding more capacity in the network behind the DSL access portion does not increase any user's available bandwidth. The error is either on Cisco's part or in CRTC's summary of Cisco's position. In paragraph 25 they note that CAIP made this very point.
29. In the Commission's view, CAIP has not demonstrated that Bell Canada's methodology for determining congestion in the network is inappropriate. The Commission notes that Bell Canada, as a network operator, is responsible for ensuring that its network is operated effectively and efficiently, and considers that Bell Canada should be able to take measures in this regard. Furthermore, the Commission is satisfied that Bell Canada has established that there is congestion in its network during peak periods.
There are good reasons why details of a carrier's network operations and economics are not available to 3rd parties, including complainants. The primary reason is that it would publicly expose trade secrets that competitors could exploit. Whether that is true in this case we'll likely never know. Enforcing privacy of this Bell Canada data will no doubt aggravate those involved in this proceeding. That they must trust CRTC to have made a correct assessment of the privileged disclosure doesn't sit well, yet CRTC has most likely made the right choice.
However, the CRTC does not provide this assurance in their very next paragraph.
30. ...The Commission considers that intensive use of such applications could, during periods of high Internet traffic, result in network congestion and degrade the performance of Internet services for other end-users.32. The Commission considers that, in the circumstances of this proceeding, Bell Canada has established that the use of P2P file-sharing applications by the end-users of GAS customers during peak periods would contribute to the network congestion that exists in Bell Canada's network...
So now, in paragraph 30 they say "could" when they ought to have been able to say "did". This gives the impression they accepted Bell's conclusion about congestion without studying the network data itself. This is further supported by their choice of words in paragraph 32 where they say "would contribute to the network congestion that exists." CRTC says there is network congestion but can only offer that P2P is a contributing factor. Sure it is, but so is playing videos from YouTube.
33. The Commission notes Bell Canada's submission that the traffic-shaping approach it has implemented is the only practical option that is technologically and economically suitable, at this time, for addressing congestion in its DSL network. The Commission further notes that while CAIP and others suggested alternative traffic management approaches for Bell Canada, there is no evidence on the record regarding the availability, feasibility, or utility of any such alternative solutions.
I have to agree with this. The CRTC will not and should not order a carrier to develop new technology; at most they would request an economic analysis based on technology that is already available in the form of vendor products. I think it would be useful to compare what Comcast is doing to implement usage caps. The products are coming but are not yet sufficiently mature for the CRTC to order that they be purchased and installed by Bell Canada.
42. Bell Canada submitted that it had not introduced traffic shaping to give itself a preference in the retail market when it launched usage-based billing, IPTV service, its "Max" DSL service, and the Bell Video Store. Bell Canada submitted that it had not commercially launched IPTV service. In response to CIPPIC's questions, Bell Canada submitted that high-speed DSL users were throttled in the same way as other users. Bell Canada submitted that any allegations of an ulterior motive connected with the launch of the Bell Video Store...
The CRTC seems to have avoided the implication of paragraph 42 in their decision. While it is true they throttle P2P for both retail DSL and GAS, they do not throttle IPTV. Therefore if you get your video entertainment via P2P, for which there was evidence submitted that legal content providers do distribute programming via P2P, there is discrimation that will benefit the Bell Video Store when it does go commercial. However this is only the potential for future discrimination, not actual discrimination, and is therefore perhaps not relevant in this decision.
45. ...the Commission considers that there is no evidence on the record to establish that Bell Canada has benefited from the implementation of traffic-shaping measures with respect to GAS in the manner alleged by CAIP.
It's one thing to claim discrimination and another to demonstrate it. The CRTC appears to have made the right choice here. I am not surprised because throttling is done for both retail DSL and GAS, which would weigh strongly in Bell Canada's favour.
58. ...The Commission considers that, in the context of a P2P file-sharing application, the fact that the transmission of a file is delayed does not alter its meaning or its purpose.
Another point that I believe is well argued by the CRTC in the text leading up the quoted passage. Of course the delay is annoying but the material is not edited.
65. The Commission notes CIPPIC's submission to the OPCC regarding Bell Canada's alleged violation of several principles of PIPEDA through its implementation of DPI technology for traffic shaping. The Commission considers that issues regarding compliance with PIPEDA are outside the scope of this proceeding, and they are therefore not addressed in this Decision.
Nice deflection, yet one that appears to be legitimate. Perhaps CAIP should launch a privacy complaint even if the evidence for a violation is weak.
Here we have a clear violation by Bell Canada, and outright impertinence about it. Yet the CRTC lets them off the hook. While they do make a suitable order on future notifications they have forgiven Bell Canada's past transgressions. This is despite their own conclusion that the ISPs were harmed.70. Bell Canada submitted that it would provide one day's advance notice in the future.74. The Commission notes, however, that Bell Canada's actions have had significant impact on the performance of its GAS...The Commission considers that the notification period should be at least 30 days...should provide clear and meaningful information...
78. ...the Commission directs Bell Canada to file a report on the resolution of complaints related to affected non-P2P file-sharing applications by 9 January 2009.
This is weak but not surprising. To demand resolution might require technology that is either not in Bell Canada's possession or that is not even available. Asking for a report is however insufficient when the CRTC recognizes that perfectly ordinary subscriber activity is being impaired. One could argue, as noted earlier, that P2P is also ordinary subscriber activity since it is used for legal content distribution, but the CRTC has carefully drawn a fuzzy line around P2P by accepting the contention that P2P is unique by its ability to cause network congestion.
There is in this point of the decision an unstated but implicit value judgement by the CRTC. They are in effect stating that Bell Canada's claimed network congestion by P2P users is a sufficient justification to impair, even though unintentional, the service of non-P2P users, which includes VPN and other uses of encryption. This does not sit comfortably with me. It would be better I believe for the CRTC to assign a higher value to the damage done to those innocent bystanders, of which there are many, and a lower value to the weakly-demonstrated incidence of congestion. But then that's just my opinion based on my values.
As should be apparent, the CRTC is quite skilled at performing this sort of juggling act.
In closing I draw attention to a CBC interview with CRTC Vice Chairman Leonard Katz. In it he comes across as surprisingly clueless about what CRTC staff has done in this proceeding. If this is representative of the attitude of the Commissioners it does not bode well for any appeals of this decision or of the coming proceeding on network neutrality. His attitude indicates to me that despite the howls from the ISPs and their subscribers this matter is neither interesting nor important to the CRTC. Or perhaps it's only Katz.
If Teksavvy's CEO is any indication this issue will not go away quietly.
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