How time flies. It was more than a year ago that the Canadian Association of Internet Providers (CAIP) first filed their application to the CRTC asking for Bell Canada to be ordered to provide their customers with preferential service at wholesale rates – or, in other words, to have their traffic exempted from Bell’s traffic management processes.
The application was denied in a Decision last November, and the CRTC opened a generalized proceeding to examine the state of the network management practices within the entire internet services industry.
Earlier this week, CAIP filed an application to have the CRTC review its November dismissal.
CAIP’s application appears flawed, perhaps because in the year that has passed, CAIP may have forgotten what it first asked for.
Why do I say that? Right up front, in paragraph 4 of its new application, CAIP says that troubled by the CRTC opening a new proceeding on the very day that it made its decision to reject the original application.
The fact that the Commission did so leads to troubling questions regarding the Commission’s understanding of the factual and legal issues at play in the CAIP proceeding and the adequacy of the record in that proceeding and hence the fairness of the process that led to Decision 2008‐108.
Let’s review.
CAIP’s original application [
pdf, 1.03 MB] was already prime for splitting into two processes. It filed an application that specifically looked at Bell and only Bell. CAIP asked for immediate relief, but at the same time, CAIP sent a legislative alert by email that points to the broader industry importance of the issues being raised last year:
The “throttling” reduces 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.
Broad issues call for a wider process; immediate relief requires a faster, narrower focus. CAIP’s original application was somewhat pre-ordained to be split into two processes. The Decision last November correctly dealt with the immediate issues in respect of whether Bell’s treatment of wholesale traffic was discriminatory; the network management proceeding launched the supplementary investigation to provide a review of the industry as a whole.
In particular, the public notice asks “whether any measures are required to ensure that such practices are in accordance with the Act” and, then, it re‐opens all of the central issues of fact and law raised in the CAIP proceeding and purportedly decided by the Commission in Decision 2008‐108
Not at all. It is almost as though the application was written without regard to the introductory paragraphs in Decision 2008-108:
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. 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.
Decision 2008-108 looked at certain practices of Bell. The public notice looks at the broader issues and the industry as a whole.
The broader issues arose because of the public campaign to submit comments, many of which were outside the scope of the original application. If the CRTC had broadened the original proceeding, then it would have been unreasonable to deliver a timely ruling on the more immediate question.
We’ll get into a more substantial examination next week. It is a 66 page application with nearly 200 paragraphs. Today’s comments look just at the first 5 paragraphs.
This application adds to the list of issues to be raised in the Regulatory Blockbuster at The 2009 Canadian Telecom Summit next month. Have you registered yet?
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