Did CRTC misunderstand CAIP throttling case against Bell?
Today's CRTC network management hearing featured some stunning discussion on the throttling of wholesale services that undoubtedly left many observers wondering whether the Commission actually understood what it was doing in the CAIP throttling complaint against Bell (CAIP has asked the Commission to reconsider the decision). The discussion started when MTS Allstream adopted the position that dominant carriers should not be permitted to throttle or traffic shape at the wholesale level. In other words, any traffic management practices should be limited to the ISP that interacts directly with a customer at the retail level. MTS argued that the wholesale service (known as GAS or Gateway Access Service) is more like a private virtual network, where the ISP is purchasing capacity. The GAS is not strictly an Internet service and MTS assured the Commission that the use of the wholesale services should not have a congestion impact on the carrier's retail Internet services.
This is relevant since the CAIP complaint involved GAS. CAIP was concerned that Bell's throttling was being done not to relieve congestion, but rather for competitive reasons. It believed that Bell was concerned that independent ISPs would offer retail customers non-throttled services (which ISPs like TekSavvy did), which might lead some to consumers to leave Bell (which they began to do). Of course, this is an illustration of why competition would address many net neutrality concerns (assuming consumers can choose an alternate provider). Yet Bell's approach was to throttle everyone's service at the retail and wholesale level, so that this form of competition would be eliminated. And the CRTC, perhaps not even understanding the specifics of the services at issue, let them get away with it.
Michael Geist is a law professor and the Canada Research Chair in Internet and e-commerce law at the University of Ottawa.