CAIP calls on CRTC to reverse Bell throttling decision

The Canadian Association of Internet Providers has filed an application with the CRTC that calls on the Commission to rescind its November 2008 Bell throttling decision. The application alleges multiple errors of fact and law in the decision and points specifically to the CRTC's lack of a full understanding of the issues raised in the proceeding. CAIP argues that the CRTC specifically launched the larger net neutrality proceeding this summer in order to gain that fuller understanding, but argues that:

A broader proceeding in order to understand the complex issues raised in the CAIP application is a perfectly acceptable and responsible means of developing a thoughtful policy approach and decision on network management. What is entirely unfair and unacceptable, however, is the fact that the Commission rendered Decision 2008-108 without the benefit of a comprehensive understanding of the factual, legal and policy issues at play. In particular, if the Commission did not believe that it had an adequate evidentiary record or did not have a full understanding of the factual and legal issues raised by Bell's throttling of wholesale GAS services to be able to determine in an unqualified and final manner the issues raised in the CAIP proceeding, then it was procedurally unfair for the Commission to have rendered a decision on CAIP's application.

Moreover, CAIP highlights a concern raised by many in the net neutrality world - that the CRTC has already decided many of the bigger issues even before the July hearings begin. CAIP notes that:

in effect, the Commission has pre-judged certain factual and legal issues raised in the PN 2008-19 proceeding, thereby narrowing the scope of the Commission's decision in the PN 2008-19 proceeding even before it is made. As long as Decision 2008-108 stands, the perception that the Commission has pre-judged the outcome of PN 2008-19 on the key issue of the legality of CAP-based throttling pursuant to subsection 27(2) and section 36 of the Act will persist.

The application continues with specific examples of error in fact and law. These include errors in fact on P2P activities and the use of deep packet inspection as well as numerous errors in law, particularly in the way the CRTC interpreted sections 27(2) and 36 of the Telecommunications Act. The CAIP application comes as a surprise given that most of the attention had moved to this summer's net neutrality hearings and places the CRTC on the defensive just weeks before those hearings are scheduled to take place.

Michael Geist is a law professor and the Canada Research Chair in Internet and e-commerce law at the University of Ottawa.