A reader sent me a note asking if I had any views on a recent Michael Geist posting that deals with an allegation that Bell’s wholesale internet service is throttling traffic.
In the interest of being responsive to a loyal reader (are there more of you out there?), these observations are dedicated to “GS”.
In his post, Professor Geist describes the issue as:
third party ISPs that buy their connectivity from Bell (“resellers”) are being left with irate customers who are suddenly subject to packet shaped services.
Michael posted the original news on Monday in response to chat room activity. He provided an update on Tuesday saying:
Bell has now reportedly confirmed that full throttling will be in place by early April. It claims that it is entitled to do so based on its contractual terms. Note that several people have written to emphasize the anti-competitive effects of this policy, given its impact on resellers servicing the business market.
Anti-competitive is a strong term. His readers’ comments on the blog are even stronger, with some suggesting that criminal charges should be filed. Others suggest nationalizing the internet – “Is the internet any less important that highways?”
Let’s try to look at this away from the hysteria.
What does it mean to say that there will be full throttling in place by early April? Does anyone really believe that no traffic will get through? Or, does it mean that Bell will apply the same types of traffic management to all of its customers, retail and wholesale? That is what a news report seems to be saying.
What can be meant by accusing Bell of anti-competitive behaviour.
The standard test for discrimination or undue preference is found in Section 27(2) of the Telecom Act. A carrier cannot unjustly discriminate against a competitor or confer an undue preference to itself or any of its customers.
No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage.
It seems to me that no one has said that Bell is providing its own customers with a different quality of service than that provided to its wholesale customers. Wouldn’t that be the first test? Then we could see if there is even a preference, let alone an undue preference.
It is worth looking at a number of cases where the CRTC has found that certain types of discrimination may exist, but are not unjust. Or, finding that certain preferences are not undue. I have written about some of these findings over the past two years – such as in Decision 2006-61, dealing with cable company VoIP versus over-the-top VoIP.
One of the affected resellers, Teksavvy, has been indicating in chat room postings that they do not believe in throttling traffic. In that case, I would suggest that the time has come for ISPs to start building out more of their own networks, if they want to remain true to their beliefs.
If an ISP is going to rely on reselling other carriers’ services, then its own beliefs are less relevant than the delivery practices of the underlying carrier.