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Telecom Decision CRTC 2008-108
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Ottawa, 20 November 2008 |
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The Canadian Association of Internet Providers' application
regarding Bell Canada's traffic shaping of its wholesale Gateway Access
Service
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Reference: 8622-C51-200805153 |
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In this Decision, the Commission denies
the Part VII application by the Canadian Association of Internet
Providers requesting that the Commission order Bell Canada to cease and
desist from traffic shaping of its wholesale Asymmetric
Digital Subscriber Line services and, in particular, the wholesale
service known as Gateway Access Service (GAS). |
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The Commission's determinations in this
Decision relate solely to Bell Canada's traffic-shaping practices in
relation to its wholesale GAS, and are based on the evidence filed in
this proceeding. |
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The Commission notes that parties to
this proceeding have raised concerns related to existing and emerging
Internet traffic management practices that are beyond the scope of this
proceeding. In light of the importance of these concerns, in a Public
Notice issued today, the Commission initiates a proceeding to review the
current and potential Internet traffic management practices of Internet
service providers with respect to both retail and wholesale services.
The process for this further proceeding, which will include an oral
public hearing, is outlined in Telecom Public Notice 2008-19. |
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Introduction
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1. |
The Commission received an application by
the Canadian Association of Internet Providers (CAIP), dated 3 April
2008, for an order directing Bell Canada to cease and desist from
traffic shaping1 of its wholesale Asymmetric Digital Subscriber Line
(ADSL) services and, in particular, the wholesale service known as
Gateway Access Service (GAS). |
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2. |
GAS is a mandated Bell Canada wholesale
service that Internet service providers (ISPs) use to provide retail
Internet services. GAS carries an ISP's customer's Internet traffic from
the customer's location to a point in the Bell Canada network where the
aggregated traffic generated by the ISP's GAS customers is handed off to
the ISP. GAS is provided pursuant to a tariff that has been approved by
the Commission (the GAS tariff).2 |
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3. |
In Telecom Decision 2008-39, the Commission
disposed of CAIP's request for interim relief on an expedited basis. In
this Decision, the Commission disposes of CAIP's request for relief on a
final basis. |
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4. |
The list of parties that made submissions
to this proceeding is provided in the Appendix. In addition, comments
were received from over 1,300 individuals. |
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5. |
The public record of this proceeding, which
closed on 1 August 2008, is available on the Commission's website at
www.crtc.gc.ca under "Public Proceedings." |
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General positions of parties
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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 applications3
during peak periods, which it defined as between 4:30 p.m. and 2:00
a.m., daily. Bell Canada began shaping the Internet traffic of its own
retail customers in October 2007 and that of its GAS ISPs' customers in
March 2008. |
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7. |
Bell Canada indicated that it uses deep
packet inspection (DPI) technology to implement its traffic shaping on
essentially a network-wide basis. |
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8. |
Bell Canada's position is that its traffic
shaping is the best practical approach to address network congestion
together with capacity investments and implementation of usage-based
pricing, and that it is consistent with the Telecommunications Act
(the Act) and the GAS tariff. |
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9. |
Some parties submitted that Bell Canada's
traffic shaping slows down P2P file transfer rates to as low as 30
kilobytes per second (equivalent to 240 kilobits per second). Some
further submitted that the transfer rates of some other applications are
slowed down in a similar way. |
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10. |
Parties disagreed on whether Bell Canada's
network is congested and whether GAS ISPs' customers are responsible for
any congestion. Therefore, they disagreed on whether, as Bell Canada
submitted, shaping the Internet traffic of GAS ISPs' customers is
necessary to address congestion. They also disagreed on whether blanket
traffic shaping of P2P file-sharing applications during peak periods is
a permissible response to address congestion in the network and whether
Bell Canada's traffic-shaping practices only affect P2P file-sharing
applications. |
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11. |
CAIP's position was that Bell Canada's
traffic shaping of the Internet traffic of the customers of its GAS ISPs
violates sections 244 and 365 and subsections 25(1)6 and 27(2)7 of the Act
and is contrary to the privacy objective in the Act, and that Bell
Canada should have notified its GAS ISPs of its intention to shape
traffic. |
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12. |
The Commission has identified the following
issues to be addressed in its determinations: |
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I. Is Bell Canada's traffic shaping with respect to GAS in
violation of section 24 and subsection 25(1) of the Act?
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II. Is Bell Canada's traffic shaping with respect to GAS in
violation of subsection 27(2) of the Act?
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III. Is Bell Canada's traffic shaping with respect to GAS without
prior Commission approval in violation of section 36 of the Act?
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IV. Is Bell Canada's traffic shaping with respect to GAS in
violation of any Commission rules related to privacy?
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V. Did Bell Canada act in violation of a Commission order to
provide advance notice of network changes?
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I. Is Bell Canada's traffic shaping with respect to GAS
in violation of section 24 and subsection 25(1) of the Act?
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13. |
CAIP submitted that Bell Canada's GAS
tariff does not include provisions that allow traffic shaping. CAIP
submitted that by unilaterally applying traffic shaping to GAS, Bell
Canada has altered the terms of its GAS tariff by impeding speed and
performance without prior approval of such changes by the Commission, in
violation of section 24 and subsection 25(1) of the Act. |
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14. |
CAIP submitted that speed is intrinsic to
the definition of GAS and, further, that the Commission found in Telecom
Order 2006-258 that information regarding the transmission speeds
available for GAS is important to competitors who rely upon the
availability of the advertised speeds to ensure that GAS meets their
requirements. CAIP further submitted that while the GAS tariff refers to
operational constraints that are due to underlying loop characteristics,
these constraints are unrelated to the use of traffic-shaping technology
to degrade the speed and performance described in the GAS tariff. |
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15. |
Bell Canada submitted that it was not
operating contrary to the GAS tariff and therefore it was not in
violation of section 24 and subsection 25(1) of the Act. 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. |
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16. |
Bell Canada submitted that it was allowed
to use technical options such as traffic shaping to ensure fair and
proportionate use of its network as specified in its Commission-approved
Terms of Service, which apply to all tariffs, and in agreements with
ISPs using GAS. In this regard, Bell Canada submitted that all tariffs
are subject to the terms of article 8.3 of item 10 (Terms of Service) of
its General Tariff, which states: |
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Customers are prohibited from using Bell Canada's services or
permitting them to be used so as to prevent a fair and proportionate
use by others. For this purpose, Bell Canada may limit use of its
services as necessary.
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17. |
Bell Canada submitted that it had found
that a number of links in its network were congested, and that the
number of congested links had increased during peak periods. Bell Canada
submitted that it used a common industry practice based on utilization
levels of network links to measure congestion. Bell Canada developed
specific levels of link utilization for different link transmission
speeds at which latency and packet loss increase significantly,
resulting in negative impacts on end-users such as slowing of traffic or
inability to receive content. |
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18. |
Bell Canada submitted that congestion could
negatively impact the quality of service experienced by end-users even
when the proportion of congested links was relatively small. It noted
that it did not allow widespread congestion in its network, and that it
implemented traffic-shaping measures in order to prevent this from
occurring. |
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19. |
Bell Canada submitted that a small
proportion of its retail end-users was generating a disproportionate
amount of network traffic, and that a significant amount of that traffic
was due to the use of P2P file-sharing applications. In Bell Canada's
view, such usage impacted the Internet experience of other users by
contributing to network congestion. |
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20. |
Bell Canada further submitted that P2P
file-sharing applications were likely to cause congestion in its network
for several reasons: |
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- P2P file-sharing applications are designed to open multiple
sessions in an effort to transfer data as fast as possible, thus
overwhelming other traffic;
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- While a download request is in progress, the end-user receiving
the download will respond to multiple upload requests from new
downloaders, maximizing upstream bandwidth usage;
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- Queuing of file requests can sustain continuous maximum traffic
loads at all times, maximizing downstream bandwidth usage; and
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- Because some P2P file-sharing applications look for the fastest
node available, any increase in capacity to one network node will
attract increased upload requests from other P2P file-sharing
applications on other networks, resulting in the increase of capacity
being consumed by P2P file-sharing applications.
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21. |
Finally, Bell Canada submitted that its
traffic-shaping practice is the only practical option to deal with
congestion that is technologically and economically suitable for its
digital subscriber line (DSL) network at this time. |
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22. |
Bell Canada submitted that, in light of the
above, traffic shaping of all P2P file-sharing applications during peak
periods is permitted under article 8.3 of its Terms of Service. |
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23. |
Rogers Communications Inc. supported Bell
Canada's position and stated that it, along with other ISPs, was traffic
shaping P2P file-sharing applications. 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. |
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24. |
In response, CAIP, supported by Primus
Telecommunications Canada Inc. (Primus), submitted that Bell Canada's
arguments in relation to its Terms of Service should be dismissed as
Bell Canada had not proven that its network is congested. CAIP disagreed
with Bell Canada's approach to measuring congestion, stating that it was
more appropriate for provisioning rather than determining whether
congestion exists. CAIP and Primus further submitted that Bell Canada
had not established that any of its GAS customers were making
disproportionate use of the network. |
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25. |
CAIP and others submitted that P2P
file-sharing applications did not make excessive use of network
bandwidth. CAIP stated that P2P file-sharing applications did not seek
out more bandwidth than the maximum speed of GAS, and that the download
of a particular file did not make use of more bandwidth than the
download of a file, such as a hypertext markup language (HTML)8 file,
from a single server. |
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26. |
CAIP further submitted that if there were
network abuse, the Terms of Service could not be invoked to authorize
blanket and systematic traffic shaping on a network-wide basis. The
Terms of Service allow Bell Canada to limit or terminate service to
specific end customers that engage in network abuse, but do not permit
Bell Canada to throttle all P2P content destined for competitors'
customers. |
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27. |
A number of parties suggested that there
were alternatives to Bell Canada's traffic-shaping practices that were
more reasonable, including: |
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- increasing the capacity of Bell Canada's network and/or allocating
more bandwidth to Internet usage;
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- shaping the traffic and/or limiting the bandwidth usage of
individual end-users; and
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- applying traffic shaping only during moments of actual congestion.
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Commission's analysis and determinations
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28. |
The Commission notes that Bell Canada's
Terms of Service form part of the company's Commission-approved tariffs.
The Commission also notes that article 8.3 of Bell Canada's Terms of
Service, as submitted by Bell Canada, applies to all of its tariffed
services, including GAS. Accordingly, the Commission considers that even
if the terms and conditions specifically related to GAS do not
contemplate traffic shaping, the use of GAS is subject to the
constraints set out in article 8.3 of Bell Canada's Terms of Service.
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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. |
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30. |
The Commission notes Bell Canada's
submission that P2P file-sharing applications are designed to make the
maximum use of downstream and upstream bandwidth and to use up
additional capacity in the network as it becomes available. 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. |
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31. |
The Commission notes Bell Canada's finding
that a small proportion of end-users of its retail Internet services
generated a large share of Internet traffic, and that a large percentage
of this traffic was due to the use of P2P file-sharing applications. The
Commission considers that it is reasonable to assume that GAS end-users
would generate traffic in a similar fashion. The Commission further
notes that the usage of any link and any associated congestion would be
determined by the aggregate traffic of end-users of both retail and
wholesale services passing through that link, with a proportionate
contribution to any congestion from the traffic of each end-user. |
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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. Accordingly, in the circumstances of
this proceeding, Bell Canada has established that some measures are
required to prevent its customers from using, or permitting to be used,
P2P file-sharing applications so as to prevent fair and proportionate
use by others of its network. |
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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. |
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34. |
In light of the above, the Commission
considers that, based on the record of this proceeding, Bell Canada's
application of its traffic-shaping measures to GAS is permitted under
article 8.3 of its Terms of Service. Accordingly, in the circumstances
of this case, the Commission finds that Bell Canada's application of its
traffic-shaping measures to GAS is not in violation of its GAS tariff
under section 24 and subsection 25(1) of the Act. |
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II. Is Bell Canada's traffic shaping with respect to GAS in
violation of subsection 27(2) of the Act?
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35. |
CAIP, supported by the Public Interest
Advocacy Centre (PIAC), the Canadian Internet Policy and Public Interest
Clinic (CIPPIC), Acanac Inc. (Acanac), and Google Inc., submitted that
Bell Canada's traffic-shaping measures as applied to the ISP customers
of GAS are contrary to subsection 27(2) of the Act. CAIP and others
submitted that Bell Canada's arbitrary shaping of all P2P file-sharing
traffic violated the Act for the following reasons: |
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- P2P users and P2P content and application providers were being
subjected to unjust discrimination and an undue disadvantage;
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- competitors and their end-users were being subjected to an undue
disadvantage; and
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- Bell Canada was conferring on itself an undue preference by
reallocating bandwidth to its ultra-high-speed Internet access and to
other data and value-added services.
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36. |
CAIP and others submitted that Bell
Canada's traffic-shaping practices - which degrade the performance of
P2P file-sharing applications and in some cases, according to CAIP,
impact services such as virtual private network (VPN) services, voice
over Internet Protocol (VoIP) services, and other encrypted
communications - subject the minority of users who use these
applications and services to undue discrimination and an undue
disadvantage, and exclude these users from the alleged benefits of
traffic shaping. In addition, content and application providers and
service providers that rely on P2P file-sharing applications have
suffered degradation of their ability to distribute their content to
end-users. |
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37. |
CAIP and others submitted that Bell
Canada's traffic-shaping practices caused GAS ISPs and their end-users
to be subjected to an undue disadvantage by reducing the speed and
utility of their services to end-users. GAS ISPs were especially
disadvantaged where they marketed services that promise unfettered
access to all forms of data transfer. |
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38. |
CAIP further submitted that Bell Canada was
granting itself a preference in the retail market by degrading the GAS
that it provides to ISPs. CAIP submitted that to the extent that
bandwidth being freed up by Bell Canada was being re-allocated to the
company's other services, such as its upgraded "Max" DSL services, its
online video store, and Internet Protocol Television (IPTV) service,
Bell Canada was conferring upon itself an advantage. CAIP also submitted
that Bell Canada granted itself a preference by implementing traffic
shaping of GAS at essentially the same time as it introduced usage-based
charging for its retail Internet services, thus preventing ISPs from
effectively competing against Bell Canada with respect to this pricing
initiative. |
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39. |
CAIP and others submitted that Bell
Canada's traffic shaping amounted to unjust discrimination or the
conferring of undue or unreasonable preferences and disadvantages
because Bell Canada's actions were not justified (a) by alleged
congestion; (b) by an approved tariff or other legally binding
instrument; or (c) as a proportional and tailored measure. In addition,
Bell Canada's actions were used to enhance its competitive advantage by
reducing competitors' ability to differentiate their services and by
freeing up or reserving bandwidth for its content and enhanced services. |
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40. |
Bell Canada, supported by TELUS
Communications Company, submitted that there was no discrimination or
preference because it applied equivalent traffic-shaping measures to
both GAS and retail customers. Bell Canada submitted that this was
consistent with determinations in Telecom Decision 2006-77 where the
Commission considered it appropriate that cable carriers have the
capability to manage potential negative impacts of high-consuming
bandwidth end-users in a manner that does not degrade quality of service
to all end-users. The Commission also set out the requirement for
equivalent treatment to both the cable carriers' retail broadband access
services and the third-party Internet access services provided to ISPs. |
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41. |
Bell Canada submitted that its
implementation of traffic shaping has not resulted in a substantial
lessening of competition. Bell Canada provided information on the record
to demonstrate that the total number of GAS end-users has continued to
grow each month, both before and after traffic shaping was introduced. |
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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
assumed that it had significant market power in the online content
distribution market, which it does not. Bell Canada also submitted that
usage-based billing had been launched a year prior to deployment of its
traffic-shaping measures. |
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Commission's analysis and determinations
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43. |
As noted above, the Commission considers
that, based on the record of this proceeding, Bell Canada has
established a need to implement traffic shaping of GAS ISP traffic
during peak periods and that P2P file-sharing applications can make
disproportionate use of the network. Further, the Commission notes Bell
Canada's submission that the traffic-shaping approach which it has
implemented is the only practical option that is technologically and
economically suitable, at this time, for addressing congestion in its
DSL network, and that, as noted above, there is no evidence on the
record regarding the availability, feasibility, or utility of
alternative solutions. |
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44. |
The Commission notes that Bell Canada's
traffic-shaping measures are applied such that there is equivalent
treatment for both its retail Internet service end-users and the GAS
ISPs' end-users. |
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45. |
There is no basis to conclude, based on the
record of this proceeding, that the implementation by Bell Canada of
traffic-shaping measures on GAS was intended, as alleged by CAIP, to
secure sufficient bandwidth for its own services or to prevent ISPs from
effectively competing against Bell Canada's introduction of usage-based
charges for its retail service. Further, 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. |
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46. |
The Commission notes that Bell Canada
provided data on the growth rate for GAS, which indicated that there was
no substantive change in the growth rate after implementation of its
traffic-shaping measures on GAS. The Commission further notes that there
is no evidence on the record to demonstrate - or even to suggest - that
competition has been reduced following the implementation of Bell
Canada's traffic-shaping measures. |
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47. |
In light of the above, the Commission
concludes that, in the circumstances of this proceeding, Bell Canada's
traffic-shaping practices with respect to GAS do not violate subsection
27(2) of the Act. |
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III. Is Bell Canada's traffic shaping with respect to GAS without
prior Commission approval in violation of section 36 of the Act?
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48. |
CAIP, supported by PIAC, CIPPIC, Acanac,
and others, submitted that Bell Canada's traffic-shaping practices
constitute control of content and influence the meaning and purpose of
telecommunications, contrary to section 36 of the Act. |
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49. |
CAIP submitted that Bell Canada altered the
meaning of content beyond recognition by slowing down the transfer rate
of P2P flows by as much as 90 percent. CIPPIC submitted that slowing
down of certain file transfers, such as news programs, alters the
meaning and purpose of telecommunications. |
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50. |
CAIP and others submitted that selective
application of traffic shaping to P2P applications is not
content-neutral and violates section 36 of the Act and the principle of
common carriage. CAIP submitted that Bell Canada exercised control by
classifying certain types of content as low priority and quarantining
such content until released in a manner determined by Bell Canada. |
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51. |
Bell Canada responded that its
traffic-shaping practices of slowing down the delivery of content does
not amount to controlling content. Bell Canada submitted that it is not
involved in any editorial control of the content being transferred
through P2P file sharing or in creating content or preventing access to
content. |
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52. |
Bell Canada also submitted that it does not
"influence the meaning or purpose" of P2P file-sharing communications
because it has no knowledge of the content. Bell Canada further
submitted that since the P2P file-sharing applications it is traffic
shaping are not time sensitive, there is no change to, or impact or
influence on, the "meaning or purpose" of telecommunications if delivery
of content is delayed. |
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53. |
CIPPIC questioned how Bell Canada could
assure the Commission that the purpose and meaning of content are
undisturbed when it slows down the transfer rate for a P2P flow for
which it does not know the nature of the content. |
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Commission's analysis and determinations
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54. |
The Commission notes CAIP's submission that
traffic shaping can result in data transfer rates being significantly
reduced. The evidence before the Commission is to the effect that the
telecommunications that are subject to traffic shaping in the
circumstances of this case reach their intended recipients with their
contents unchanged, although more slowly than if traffic shaping had not
been applied. |
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55. |
The Commission notes that, based on the
record of this proceeding, the traffic shaping carried out by Bell
Canada does not involve any editorial control over the content of the
telecommunications and does not involve blocking any telecommunications. |
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56. |
Finally, the Commission notes that Bell
Canada is only applying traffic shaping to file-sharing applications,
which, even without traffic shaping, require time for the complete file
to be transmitted before an end-user can access it. |
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57. |
Therefore, in the Commission's view, while
the traffic shaping carried out by Bell Canada of telecommunications
sent by P2P file-sharing applications involves controlling the speed of
telecommunications, it does not involve controlling the content. |
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58. |
Similarly, in the circumstances of this
case, the Commission considers that the traffic shaping carried out by
Bell Canada does not influence the meaning or purpose of
telecommunications. 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. |
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59. |
In light of the above, the Commission
considers that the traffic shaping carried out by Bell Canada does not,
in the circumstances of this case, engage section 36 of the Act. |
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IV. Is Bell Canada's traffic shaping with respect to GAS in
violation of any Commission rules related to privacy?
|
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60. |
CAIP submitted that the DPI technology used
by Bell Canada to implement its traffic-shaping measures could be used
to access and collect personal information of end-users without prior
knowledge or consent. By examining packet headers and packet content,
Bell Canada could identify the type of data being transferred, the ISP
network used, and an end-user's intention to acquire certain types of
content, all of which are personal information under Canadian privacy
legislation. CAIP, PIAC, and CIPPIC submitted that Bell Canada's actions
run counter to the letter and spirit of the Canadian telecommunications
policy objective under paragraph 7(i) of the Act and are in
violation of clauses 4.3 and 4.8 of the Personal Information
Protection and Electronic Documents Act (PIPEDA), Schedule 1. |
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61. |
CIPPIC noted that it had made a submission
to the Office of the Privacy Commissioner of Canada (OPCC) regarding
Bell Canada's violations of several principles of PIPEDA through its
implementation of DPI technology for traffic shaping. CIPPIC submitted
that the Commission should undertake a full investigation into the
privacy implications of current and future uses of DPI, and should work
with the OPCC to ensure that the use of DPI technology, if permitted at
all, is undertaken in a transparent and safe manner that protects the
privacy of Canadians. |
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62. |
Bell Canada submitted that privacy-related
issues concerning individual end-users are not relevant to this
application. Bell Canada submitted that paragraph 7(i) of the Act
is a legislative objective that can help clarify the purpose of the
legislation and is relevant to decision making, but is not a
power-conferring provision. |
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63. |
Bell Canada stated that it is compliant
with its privacy obligations and is not engaging in behaviour alleged by
CAIP and questioned by CIPPIC. |
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64. |
Bell Canada submitted that its DPI
technology examines the packet headers, not the contents, of
communication exchanges. Bell Canada further submitted that its DPI
equipment does not retain the information reviewed in the packet headers
and that the content itself is never reviewed, analysed, or stored as
part of the company's traffic-shaping measures. Bell Canada, as well as
any third party or vendor contracting with Bell Canada, does not access
individual user information such as the particular user, IP address,
account, or geographic location. Therefore, contrary to suggestions made
by certain parties, Bell Canada does not disclose such user information
to any third party for any purpose. |
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Commission's analysis and determinations
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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. |
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66. |
The Commission notes that paragraph 7(i)
of the Act states that an objective of Canada's telecommunications
policy is "to contribute to the protection of the privacy of persons"
and that this objective does not by itself impose an enforceable
obligation on Bell Canada. The Commission notes that Bell Canada is
prohibited, pursuant to its Terms of Service, from disclosing
confidential customer information, except in certain circumstances. The
Commission notes that the DPI technology used by Bell Canada examines
the header information of packets, which includes source and destination
IP address information, in order to carry out traffic shaping. There is
no allegation by any party nor any evidence on the record of this
proceeding that any of the examined header information is collected or
disclosed by Bell Canada or used by Bell Canada for any purpose other
than traffic shaping. No parties alleged that Bell Canada has collected,
retained, or disclosed customer information in its ongoing application
of its traffic-shaping measures. |
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67. |
In light of the above, the Commission finds
that, based on the evidence on the record of this proceeding, Bell
Canada's traffic-shaping practices do not violate any existing
Commission rules related to privacy. |
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V. Did Bell Canada act in violation of a Commission order to provide
advance notice of network changes?
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68. |
CAIP submitted that Bell Canada violated a
Commission order in Telecom Decision 97-8, which directed local exchange
carriers to provide advance notice of network changes and allow for
testing of any proposed changes, as set out in Telecom Letter Decision
94-11. CAIP submitted that the notification requirements should apply to
changes in GAS, including the implementation of traffic shaping. In this
regard, Bell Canada had not provided any notice of network changes and
had not invited GAS ISPs to conduct technical tests of the changes. |
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69. |
Bell Canada submitted that the notification
requirement that CAIP referred to did not apply to the traffic-shaping
measures it had implemented for GAS because: |
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- the notification of changes referred to in Telecom Letter Decision
94-11 applies to "bottleneck" services, which correspond to essential
services. Because GAS was made a conditional mandated non-essential
service in Telecom Decision 2008-17, the notification of changes
requirement does not apply; and
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- GAS ISPs did not have to make adjustments in their networks as a
result of the implementation of traffic-shaping measures. Traffic
shaping did not entail a change to network-to-network interfaces,
which was what the notifiable changes in Telecom Decision 97-8 addressed. Traffic shaping is a part of capacity management and
network management activities that are internal to the operation of a
network and do not require Bell Canada to notify other carriers
pursuant to Telecom Letter Decision 94-11 and Telecom Decision 97-8
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70. |
Bell Canada submitted that it would provide
one day's advance notice in the future. |
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71. |
CAIP submitted that because GAS is a local
exchange service for which there are no economically feasible
alternatives, it is a bottleneck service for purposes of application of
Commission notification of network change policies. Further, the traffic
shaping of GAS is a "network change" as it required modifications to
Bell Canada's network including the installation of DPI boxes,
modification of logical paths, installation of other new equipment, and
reprogramming. As such, it is an appropriate case for applying
notification of change rules. |
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72. |
CAIP submitted that Bell Canada's
implementation of traffic shaping was a modification that caused
disruption to affected end-users. Bell Canada had not provided CAIP
members with any technical information about its traffic-shaping
measures. CAIP submitted that transparency and notice would allow
parties to understand the necessity of such measures and diminish
disputes through exchanges of information. |
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Commission's analysis and determinations
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73. |
The Commission considers that Bell Canada
is not in violation of the requirement to provide advance notice
pursuant to Telecom Letter Decision 94-11 and Telecom Decision 97-8, as
ISPs did not have to make any adjustments to their networks as a result
of Bell Canada's implementation of traffic shaping. |
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74. |
The Commission notes, however, that Bell
Canada's actions have had significant impact on the performance of its
GAS, albeit for one application, and that Bell Canada had not provided
any advance notice to its GAS customers. As a result, GAS ISPs
experienced end-user complaints and were not fully equipped to provide
appropriate responses. The Commission considers that the nature of the
changes resulting from the implementation of traffic-shaping practices
should oblige Bell Canada to provide prior notification to its GAS
customers. Accordingly, the Commission directs Bell Canada to develop
and file with the Commission, by 9 January 2009, proposed
notification requirements to address future changes that impact
materially on the performance of GAS. The Commission considers that the
notification period should be at least 30 days. The Commission further
considers that, at a minimum, the notification of changes should provide
clear and meaningful information describing what the changes are, what
traffic can be affected, under what conditions, and for how long. |
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Disposition of CAIP's application
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75. |
In light of all of the above, the
Commission denies CAIP's application. |
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Other matters
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(a) Resolution of complaints
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76. |
CAIP and others submitted that Bell
Canada's traffic-shaping measures affect non-P2P file-sharing
applications in certain cases, including VPN services, VoIP services,
and encrypted communications. |
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77. |
Bell Canada submitted that it was
addressing all reported complaints. |
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78. |
The Commission expects Bell Canada to
develop solutions for complaints on a timely basis. Accordingly, 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. |
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(b) Further process
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79. |
The Commission's determinations in this
Decision relate solely to Bell Canada's traffic-shaping practices in
relation to its wholesale GAS, and are based on the evidence filed in
this proceeding. The Commission notes that parties to this proceeding
have raised concerns related to existing and emerging Internet traffic
management practices that are beyond the scope of this proceeding. |
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80. |
In light of the importance of these
concerns, in a Public Notice issued today, the Commission initiates a
proceeding to review the current and potential Internet traffic
management practices of ISPs with respect to both retail and wholesale
services. The Commission will consider whether such practices are
consistent with the Act and whether any measures are required to ensure
this. The process for this further proceeding, which will include an
oral public hearing, is outlined in Telecom Public Notice 2008-19. |
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Secretary General |
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Related documents
|
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- Review of the Internet traffic management practices of Internet
service providers,
Telecom Public Notice CRTC 2008-19, 20 November
2008
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- Canadian Association of Internet Providers' request for interim
relief regarding Bell Canada's practice of "throttling" its wholesale
ADSL access services, Telecom Decision CRTC 2008-39, 14 May 2008
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- Revised regulatory framework for wholesale services and
definition of essential service, Telecom Decision CRTC 2008-17, 3
March 2008
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- Cogeco, Rogers, Shaw, and Videotron - Third-party Internet
access service rates, Telecom Decision CRTC 2006-77, 21 December
2006
|
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- Bell Canada - Gateway Access Service, Telecom Order CRTC
2006-258, 4 October 2006
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- Local competition, Telecom Decision CRTC 97-8, 1 May 1997
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- Telecom Letter Decision CRTC 94-11, 4 November 1994
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This document is available in
alternative format upon request, and may also be examined in PDF format or in HTML at the following Internet site: http://www.crtc.gc.ca |
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Footnotes:
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