Bell Canada has admitted defying regulations when it recently started throttling peer-to-peer traffic without permission, says an association representing Internet service providers trying to stop the telco's practice.
The Canadian Association of Internet Service Providers (CAIP) made the allegation in a rebuttal filed last week to Bell's written arguments against CAIP's call for an injunction from the Canadian Radio-telecommunications and Television Commission (CRTC).
The association is demanding a temporary stop order before a full hearing is held into blocking Bell's traffic-shaping, which the telco says is a lawful response to a small number of P2P users downloading massive files who are slowing Internet traffic for most subscribers.
CAIP members buy connectivity from Bell under a tariff approved by the CRTC, and say many of their subscribers are angry that their download speeds have slowed. Bell says its deep packet inspection traffic management solution only takes place during the peak hours of 4:30 p.m. to 2 a.m., and only on P2P traffic such as BitTorrent. Earlier this month Bell replied in writing asking to dismiss the plea.
However, in its rebuttal the association says that document "expressly acknowledges that it (Bell) could have applied for a tariff amendment," rather than act unilaterally. "If that's the case, then it was not up to Bell to flout the law by unilaterally amending the service without prior notice and without prior Commission approval," CAIP president Tom Copeland wrote.
The rebuttal is the latest round in the fight between ISPs and Bell which the regulator will have to referee. It has given no date when a ruling will be issued.
In the rebuttal CAIP insists there is a "strong public interest" in ensuring that until final determination of the dispute the CRTC should order Bell to immediately cease and desist from applying the throttling measures in the manner that it did.
"Otherwise, the Commission will be inviting other telcos to interfere with the content being carried over their telecommunications networks on vague, unsubstantiated 'network management' grounds," the rebuttal says.
Bell says CAIP has produced no evidence of financial damage to its members. In reply the association acknowledges that "the harm to CAIP's members is likely to be very difficult to quantify in damages," but says that's doesn't outweigh their "right to predictability and reliability in the wholesale services that it is paying Bell for, nor the market share losses."
CAIP also insists that Bell's real intent is "eliminating or reducing competition in downstream retail markets for Internet access and other services," an allegation Bell denies. But, the rebuttal says "if CAIP is correct in this and the commission fails to grant CAIP's request for interim relief, the public interest in competition in telecommunications markets in Canada and respect for the non-discrimination provisions of the Telecommunications Act will have been irretrievably damaged.
"If Bell and other common carriers believe that the commission will not act to restrain anti-competitive behaviour pending the outcome of proceedings before, parties may well flaunt the law in order to reap the benefits of antic-competitive conduct even if they realize that in the end, they will be constrained from engaging in anti-competitive measures.
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