We're not endorsing internet throttling: CRTC

The Canadian Radio-television and Telecommunications Commission is not defending internet throttling, the CRTC's vice-chairman said Thursday after the federal watchdog ruled Bell Canada was not breaking laws by slowing down certain uses of the internet.

The long-awaited decision, released earlier Thursday, means the company can continue throttling both its own home customers and its wholesale resellers.

The decision met with immediate criticism from net neutrality advocates, who said the internet needs to be protected from interference by service providers.

The CRTC acknowledged those concerns by launching a public proceeding alongside its decision that will look at whether new laws are needed to address the broader issue of network management and how much control service providers should be able to exert over their customers' internet use. 

Leonard Katz, the CRTC's vice-chairman, discussed the decision and the upcoming proceeding with CBCNews.ca:

CBCNews.ca: The decision seems to focus mostly on the fact that Bell was not discriminating between its retail and wholesale customers. The big question is whether Bell proved its network is congested and whether throttling is needed?

Katz: It was mainly based on whether discrimination was going on and one of the pieces of evidence that was filed was that Bell had done this back in October 2007 to their own retail customers. That weighed quite heavily into the fact that there was no discrimination here and that they weren't trying to do something anti-competitive. That was the major issue we looked at, whether Bell was trying to manipulate the market, and we didn't find it. They didn't violate the Telecom Act so we found for Bell and against [the Canadian Association of Internet Providers, the company's wholesale customers]. But by looking at the issues we also recognized that there are some more fundamental issues here because Bell and all the carriers own their networks and they claim they have the right to manage their traffic how they choose. We're saying, 'Is there something we should be looking at in regards to the extent to which their rights to manage their network ... infringe on other peoples' rights?' We're saying, 'Let's have a public notice and take a look at all the issues, not just one company, but all the companies, and not just one group of customers but all customers, and see if there really is a need for us to define guidelines or not in this case.'

CBCNews.ca: So today's decision isn't an endorsement of Bell's claims that its network is congested?

Katz: Absolutely not. In fact, someone told me Bell put out a press release that said the commission upheld its position that network management practices are a fundamental right of theirs. That's not what we said at all.

CBCNews.ca: Some of the key data detailing the level of congestion on Bell's network was filed privately. Why was this done confidentially and will this information ever be released publicly?

Katz: If it's filed in confidence, it's never released. Usually what happens when a party files something is confidence is they put out an abridged version with the numbers or whatever redacted from it. I'm sure that was done, I can't recall the specifics of it. Will it ever be released? No. If it's private, it's private. If it's competitively sensitive information with regards to the load of the network and time of day and statistics and everything else, we certainly would respect any company's confidentiality. Obviously upon looking at it, we felt it was justified.

CBCNews.ca: You were probably aware this would be an unpopular decision with net neutrality advocates and internet users in general. Did that come into consideration?

Katz: The evidence before us, as filed and defended or criticized by the parties … it was a public, transparent process. All the information was provided. We took a look at the evidence and the submissions of the parties and made a finding with regard to the specific claim and allegation, but also recognized there are broader issues we do need to get involved in, and that's why we issued the public notice.

CBCNews.ca: The time frame on this new process seems long. Can you explain why, and also when the CRTC might come to a final decision?

Katz: The submissions are due in February but I think what we also said is there's an opportunity for parties to comment on other parties' submissions. We also feel there may be some submissions filed in confidence, as you mentioned in regards to the previous case. What normally happens when someone files something in confidence is other parties challenge that claim and we adjudicate, so we had to leave some time in for that as well. That process takes us to July. We're doing it at the beginning of summer, which we recognize is not very popular, but short of that we'd have to move it to the fall and we didn't want to delay it any more than we had to. You have to follow due process on these things and that's how it shook out. We're also going to take some public comments from bloggers and there's an opportunity for the general public to comment as well, so we had to make some accommodations for that. I think that's 30 days or something. As for when the decision comes out, we're hoping to get it out before year-end next year.

CBCNews.ca: The CRTC is being criticized for siding with big business and that it has definitely happened in this case. What can you say to those criticisms?

Katz: We look at the specifics of each case and sometimes it falls on one side and sometimes it falls on a different side. In this case, given the narrow scope of this complaint, we ruled the way we did but I'm not sure anyone should be looking at this as a win-lose, it's the start of a process. We recognized there's a need to take a look at the broader issue in Canada of traffic- and network-management practices. This will begin the process.

CBCNews.ca:  There have already been some personal attacks on CRTC staffers, saying these people work for and are in league with Bell. What do you say about that?

Katz: We hire the best people that are available at any time we need them. When they come to the CRTC, they know what the rules and their obligations are. There are ethics requirements as well, and they adhere to them.

CBCNews.ca: U.S. regulators recently told Comcast to stop throttling its customers. What is different in Canada?

Katz: The [U.S. Federal Communications Commission] situation is very different. Comcast was actually blocking traffic that was coming across the network. What they may have agreed to do is something totally different. We'll look at what we think needs to be done in Canada, but Bell was not blocking at all. All they were doing was managing traffic on their network without impacting or influencing the content at all. Big difference.

CBCNews.ca: The [Canadian Association of Internet Providers] and its members have complained that they weren't notified in October that the decision would be delayed, or that a ruling was coming on Thursday. Can you shed any light on why weren't they notified in advance of either event?

Katz: None at all. I don't know what the timelines are. Usually the commission makes a decision and it goes to the lawyers and writers to craft the decision. Then we're told when it goes out and we put together the appropriate machinery to get it out the door. I have no idea who was notified, when they were notified or who was given advance notice or not. I would think we treat everybody the same. No idea at all.