dispute between the Canadian Association of Internet Providers (CAIP) and Bell Canada generated lots of controversy in the telecommunications industry over the past few months, but it's safe to say most of the public has been more interested in the latest summer movies or the Olympics — even though the outcome of this argument could affect anyone who likes to watch movies or sports events online.

The core of the issue is a practice called traffic shaping by the industry and bandwidth throttling by some critics.


A protester holds up his sign at a rally for net neutrality in Ottawa on May 27, 2008. (Peter Nowak/CBC) ((Peter Nowak/CBC))

Bell limits the speed at which internet users can download files when they're using a peer-to-peer connection, a common way of exchanging large files such as songs, movies and software programs. It's not the only ISP to do so, but Bell owns the data network used by many CAIP members — small internet service providers (ISPs) who provide their own internet access packages to customers. Bell applies bandwidth throttling to customers of its own Sympatico High Speed service, and it also shapes the traffic of CAIP members who provide similar services using Bell's local phone lines — whether the smaller providers like it or not.

CAIP, a group of mostly small ISPs, filed a complaint in April with the Canadian Radio-television and Telecommunications Commission (CRTC), asking that Bell be forced to stop the practice. In May, the CRTC denied CAIP's request for a temporary injunction to stop Bell from applying bandwidth throttling while its case was being heard. A CRTC decision on the matter is expected by the end of October.

The CRTC will not decide whether throttling is legal, though; the case involves whether Bell violated its wholesale agreements with CAIP members by applying bandwidth shaping. The CRTC has promised to look at the larger issue of throttling once this case has been decided.

The larger issue goes beyond the CAIP complaint and divides even advocates of the principle Bell is being accused of violating: Net neutrality. The concept of Net neutrality is one in which all internet traffic is considered equal and nobody plays traffic cop. Some say that instead of allowing internet traffic to flow freely, priority should be given to data such as streaming video files and voice-over-IP (VoIP) calls to ensure that playback is smooth, while less time-sensitive traffic such as e-mail can be shunted into the "slow lane."

Management versus discrimination

So where is the line between legitimate network management and unjust discrimination by internet service providers against some content or customers?

Bell doesn't deny throttling peer-to-peer traffic - but Bell calls it traffic management. The company's position is that it must manage internet traffic to maintain satisfactory service for all internet users in the face of increasing network congestion — to which peer-to-peer traffic is, Bell says, a significant contributor.

'In order to continue to ensure a consistently high level of service for all of its customers, whether retail or wholesale customers, Bell Canada is required to manage its network in such a way that no customer, service or application consumes excessive bandwidth that may impede the use and enjoyment by other customers.' — Bell response to CAIP submission to CRTC

"In order to continue to ensure a consistently high level of service for all of its customers, whether retail or wholesale customers," the company says in its response to CAIP's complaint submitted to the CRTC, "Bell Canada is required to manage its network in such a way that no customer, service or application consumes excessive bandwidth that may impede the use and enjoyment by other customers."

The broad issue: What's network management and what's discrimination?

From a technical perspective, "they're pretty much the same thing," says Cynthia Lee, research analyst with SeaBoard Group, a telecommunications consultant company. Both involve giving some traffic preferential treatment.

The real distinction, Lee says, is motivation — it's network management if the goal is to make the network work better, and discrimination if the goal is something like favouring the network operator's service over a rival's. And motivation is hard to determine.

A growing number of businesses route phone calls over data networks, for example. Because transmission delays are very noticeable in a VoIP phone call and not noticeable when, say, delivering e-mail, network managers routinely give priority to the packets of data that make up those conversations, sometimes at the expense of less urgent data.

Would it be legitimate for an internet service provider to do that?

Possibly, says Philippa Lawson, director of the Canadian Internet Policy and Public Interest Research Clinic at the University of Ottawa, which has intervened to support the Canadian Association of Internet Providers' CRTC complaint. But she adds that it would only be legitimate after a regulatory ruling, and not as a result of a decision in a private boardroom.

But Bernard Courtois, chairman and chief executive of the Information Technology Association of Canada and a former senior executive at Bell, argues that it's better to let carriers experiment than to clamp down with regulation.

Carriers shouldn't treat their own services differently from those that compete with them, Courtois says, and they shouldn't treat various online applications differently unless there are substantial differences in those applications' impact on the network — in which case different treatment may be justified.

Lee is also cautious about regulation. "Obvious abuse, I believe, should be addressed under the Competition Act," she says.

Looking for solutions

Jon Peha, professor of electrical engineering and public policy at Carnegie-Mellon University in Pittsburgh and author of a 2007 paper entitled The Benefits and Risks of Mandating Network Neutrality, and the Quest for a Balanced Policy, suggests working in from the edges, outlawing what is clearly wrong and specifically allowing what most people can agree is OK.

'It is better to put some rules in place that limit what appear to be the worst of abuses [by carriers].' — Jon Peha, Carnegie-Mellon University

"It is better to put some rules in place that limit what appear to be the worst of abuses [by carriers]," he says. "And at the same time, you should be giving some certainty to providers that other sorts of behaviour will not get them into trouble, so that they will not be afraid to invest."

Lawson says there's no need to throttle specific applications. If the network is so congested, she says, ISPs should replace unlimited access plans with a tiered model where customers pay for different levels of use, just as they do with cellphone minutes. Some already do this. They might also charge more at peak periods.

That would be fairer than targeting all peer-to-peer downloads, says Tom Copeland, chair of CAIP. He says the present approach penalizes the person who watches one video a week along with those who spend six hours every day downloading peer-to-peer files.

"I think that's a reasonable method of curbing [excessive use]," Lee says, "and for me personally, it's the preferred method."

Or better yet, Lawson says, carriers could add capacity - paid for, if necessary, by higher prices for heavy users.

That sounds like the law of supply and demand at work. But Courtois says it's not that simple.

The small number of heavy users use so much more bandwidth, he says, that truly charging them for what they use would make prices exorbitant and probably drive them away. And if the carriers spread the cost of adding capacity more evenly, everyone would pay more. Either way, falling demand could leave carriers with costly new capacity they would no longer need.

The variety of opinions may seem daunting, but that's exactly why this issue deserves attention. Lawson fears the CRTC decision on CAIP's complaint will focus too narrowly on Bell's decision to impose throttling on independent providers, and says it needs to address how all ISPs manage network traffic and establish clear rules.

"We need a CRTC proceeding on the broader throttling issue," she says.

The author is a Canadian freelance writer specializing in technology.