Telecom Commission Letter addressed to the Distribution List

Ottawa, 28 June 2019

Our reference: 8646-C12-201807611

BY EMAIL

Distribution List

RE: Net Neutrality

On 26 September 2018, as part of its ongoing monitoring and compliance activities, Commission staff requested information from a number of Internet service providers (ISPs) on their Internet traffic management and differential pricing practices that fall within the net neutrality policy framework.

Commission staff sent requests for information (RFIs) to the following ISPs, including all their subsidiaries, whether they are providing wireline, fixed wireless, mobile wireless, or satellite Internet services:

Bell Canada;

Bragg Communications Incorporated, carrying on business as Eastlink (Eastlink);

Cogeco Connexion Inc. (Cogeco);

Rogers Communications Canada Inc. (Rogers);

Saskatchewan Telecommunications (SaskTel);

Shaw Communications Inc. (Shaw);

TekSavvy Solutions Inc. (TekSavvy);

TELUS Communications Inc. (TCI);

Videotron Ltd. (Videotron); and

Xplornet Communications Inc. (Xplornet)

On 30 November 2018, Commission staff received the ISPs’ Footnote1 responses, with the exception of Xplornet, which submitted its response on 14 December 2018 after requesting and receiving an extension.

With this letter, Commission staff is:

Requesting that certain ISPs implement a corrective measure to ensure greater compliance with the net neutrality policy framework, as explained in detail below; and Issuing a second round of RFI questions to gather additional information from specific ISPs as part of its monitoring.

Disclosure of information regarding technical Internet traffic management practices (ITMPs)

In Telecom Regulatory Policy 2009-657 (TRP 2009-657), the Commission directed all ISPs, as a condition of providing retail Internet services, to disclose to their retail customers, clearly and prominently on their websites, information related to their technical ITMPs. The purpose of this disclosure is to adequately inform consumers about these ITMPs and the impact such practices have on retail Internet services. Footnote2

In the case of secondary ISPs (i.e., who provide retail Internet services as a result of receiving tariffed wholesale services from primary ISPs), they must also disclose those technical ITMPs applied by primary ISPs to wholesale services.

The Commission indicated that such information, or links to it, should be provided on web pages that describe the actual retail Internet service offerings. The Commission noted that, for example, where speeds are described, there should be links to information describing how ITMPs may impact these services. The Commission determined that the ISP must also reference its online disclosures in relevant marketing materials, customer contracts, and terms of service.

The Commission indicated that online disclosure should include the following information:

why ITMPs are being introduced;

who is affected by the ITMP;

when the Internet traffic management will occur;

what type of Internet traffic (e.g. application, class of application, protocol) is subject to management; and

how the ITMP will affect a user’s Internet experience, including the specific impact on speeds.

These online disclosures are to be made in a manner that is consistent with the Commission’s determinations in its Accessibility Policy. Footnote3

In Telecom Decision 2010-445 Footnote4 , the Commission applied the ITMP policy framework set out in Telecom Regulatory Policy 2009-657 to mobile wireless data services that provide Internet access.

Commission staff has reviewed ISPs’ responses to its 26 September 2018 letter and considers that the information regarding the technical ITMPs employed by those ISPs, with the exception of Cogeco Footnote5 and SaskTel, is not disclosed in a manner that is consistent with the requirements of TRP 2009-657.

Commission staff notes that such information is generally available in an ISP’s fair use policy or terms of service. However, Commission staff also notes that in most cases it is not provided or referred to on web pages that describe actual retail Internet service offerings where speeds are described, and where it is, it is not done in a sufficiently clear and prominent manner that would allow consumers to be adequately informed about these ITMPs and their impact on retail Internet services.

Therefore, the following ISPs, including all their subsidiaries, whether they are providing wireline, fixed wireless, mobile wireless, or satellite Internet services, are requested to amend their disclosure practices accordingly and to file a report with the Commission explaining their revised practices and how these comply with the disclosure requirements of TRP 2009-657, by no later than 29 July 2019:

Bell Canada;

Eastlink;

Rogers;

Shaw;

TekSavvy;

TCI;

Videotron; and

Xplornet.

Additional Request for Information

The following ISPs are requested to provide comprehensive answers to the attached questions by no later than 29 July 2019:

Bell Canada;

Eastlink;

Northwestel;

Rogers;

Shaw;

TCI;

Videotron;

Xplornet; and

TekSavvy.

Companies are also requested to update their responses to the 26 September 2018 RFI for any new service offerings or changes that may affect their previous responses.

A copy of this letter and all related correspondence will be publicly accessible through the Commission’s website and could potentially be incorporated into the record of a future Commission proceeding.

Companies that wish to designate information contained in their submissions as confidential must do so in accordance with the Act and with the CRTC Rules of Practice and Procedure: Footnote6

A person wishing to designate information as confidential must provide a detailed explanation regarding: why the information falls into a category that may be designated as confidential; and why disclosure would not be in the public interest, including the specific direct harm that would be likely to result from the disclosure and why this would outweigh the public interest in disclosure.

A person designating information as confidential must either file an abridged version of the document, omitting only the information designated as confidential, or provide reasons why an abridged version cannot be filed.

Sincerely,

Original signed by

Michel Murray

Director, Dispute Resolution and Regulatory Implementation

Telecommunications Sector

c.c.: Martin Brazeau, CRTC, martin.brazeau@crtc.gc.ca

Attach. (1)

Distribution list

Bell Canada, bell.regulatory@bell.ca

Bragg Communications Incorporated, carrying on business as Eastlink, Regulatory.Matters@corp.eastlink.ca

Cogeco Connexion Inc., telecom.regulatory@cogeco.com

Northwestel Inc., regulatoryaffairs@nwtel.ca

Rogers Communications Canada Inc., rwi_gr@rci.rogers.com

Saskatchewan Telecommunications, document.control@sasktel.com

Shaw Communications Inc., Regulatory@sjrb.ca

TekSavvy Solutions Inc., akaplanmyrth@teksavvy.ca

TELUS Communications Inc., regulatory.affairs@telus.com

Vidéotron Ltd., dennis.beland@quebecor.com

Xplornet Communications Inc., xplornet.legal@corp.xplornet.com

A. Question to Bell Canada Footnote 7

In your responses to Commission staff’s RFI Question 1, you noted that all Bell MTS mobile customers who exceed a specific threshold of use, including those on unlimited plans, will have their speeds slowed. In particular, you indicated that if a customer’s total usage exceeds the threshold (currently 10GB for CDMA, 15GB for HSPA/LTE) in a 30-day period, their data speed will be slowed to 128 kilobits (CDMA) or 512 kilobits (HSPA/LTE) per second for downloads and uploads for the reminder of the billing cycle.

You also noted that Lucky Mobile “Zone” data plans offer a fixed amount of full-speed data, and unlimited additional data at reduced speeds at no extra cost while In-Zone. You indicated that if a customer’s In-Zone data usage in a month exceeds its data allotment, its data speed will be reduced from up to 3 Mbps to up to 128 Kbps (for both download and upload) until its next billing cycle or until it purchases additional full-speed data units.

Address, with rationale and data, why these practices should not be considered to amount to blocking the delivery of content or Internet traffic to an end-user. Your answer should include information to explain, for example, how the reduced speed does not cause degradation to the service to such an extent that it would amount to controlling the content and influencing the meaning and purpose of the telecommunications in question.

B. Questions to Eastlink

In your responses to Commission staff’s RFI Question 1, you noted that Rural Connect’s subscribers will experience maximum burst speeds of 500 Kbps download and 500 Kbps upload applicable to video streaming services such as Netflix and YouTube.

You also noted that Rural Connect’s subscribers will experience maximum speeds of 128 Kbps download and 80 Kbps upload applicable to Peer to Peer file sharing applications.

Address, with rationale and data, why these practices: Do not degrade or prefer one application, class of application, or protocol over another resulting in discrimination, preference or disadvantage. Irrespective of your view on this issue, provide the following information to explain why any discrimination, preference or disadvantage is not unjust, undue or unreasonable: demonstrate that the ITMP is designed to address the need and achieve the purpose and effect in question, and nothing else;

establish that the ITMP results in discrimination or preference as little as reasonably possible;

demonstrate that any harm to a secondary ISP, end-user, or any other person is as little as reasonably possible; and

explain why, in the case of a technical ITMP, network investment or economic approaches alone would not reasonably address the need and effectively achieve the same purpose as the ITMP. Should not be considered to amount to blocking the delivery of content or Internet traffic to an end-user. Your answer should include information to explain, for example, how the reduced speed does not cause degradation to the service to such an extent that it would amount to controlling the content and influencing the meaning and purpose of the telecommunications in question.

C. Questions to Northwestel

In your responses to Commission staff’s RFI Question 1, you noted that you employ a Sandvine “Fairshare” product to prioritize time-sensitive protocols such as real time video and voice applications while deprioritizing filesharing protocols (bit torrents) during peak times of congestion. You indicated that when congestion occurs at peak times and the practice is employed, filesharing protocols will run slower than normal.

Address, with rationale and data, why this practice: Does not degrade or prefer one application, class of application, or protocol over another resulting in discrimination, preference or disadvantage. Irrespective of your view on this issue, provide the following information in your response to explain why any discrimination, preference or disadvantage is not unjust, undue or unreasonable: demonstrate that the ITMP is designed to address the need and achieve the purpose and effect in question, and nothing else;

establish that the ITMP results in discrimination or preference as little as reasonably possible;

demonstrate that any harm to a secondary ISP, end-user, or any other person is as little as reasonably possible; and

explain why, in the case of a technical ITMP, network investment or economic approaches alone would not reasonably address the need and effectively achieve the same purpose as the ITMP. Should not be considered to amount to blocking the delivery of content or Internet traffic to an end-user. Your answer should include information to explain, for example, how the reduced speed does not cause degradation to the service to such an extent that it would amount to controlling the content and influencing the meaning and purpose of the telecommunications in question.

D. Question to Rogers Footnote 8

In your responses to Commission staff’s RFI Question 1, you noted that chatr customers’ data speeds will be reduced from up to 3 Mbps to up to 64 Kbps (for both download and upload) until their next anniversary date, once they have reached 100% usage.

Address, with rationale and data, why this practice should not be considered to amount to blocking the delivery of content or Internet traffic to an end-user. Your answer should include information to explain, for example, how the reduced speed does not cause degradation to the service to such an extent that it would amount to controlling the content and influencing the meaning and purpose of the telecommunications in question.

E. Question to Shaw

In your responses to Commission staff’s RFI Question 1, you noted that, where a Freedom Mobile wireless customer exceeds their monthly data amount, you reserve the right to reduce its speeds for the remainder of the applicable monthly billing cycle down to a speed of 256 Kbps for downloads and 128 Kbps for uploads. You added that in extreme cases, where data usage levels within the applicable monthly billing cycle continue to be particularly high, you may slow the customer’s speed down to a maximum of 32 Kbps for downloads and 16 Kbps for uploads.

Address, with rationale and data, why these practices should not be considered to amount to blocking the delivery of content or Internet traffic to an end-user. Your answer should include information to explain, for example, how the reduced speed does not cause degradation to the service to such an extent that it would amount to controlling the content and influencing the meaning and purpose of the telecommunications in question.

F. Questions to TCI

In your responses to Commission staff’s RFI Question 1, you noted that during periods of peak congestion when fixed wireless traffic becomes heavier, and for a limited number of cell sites, the network capacity is redistributed by providing the fixed wireless traffic with lower priority than mobile wireless traffic at that site. This practice affects customers subscribing to TCI’s fixed wireless high-speed Internet offering known as SmartHub.

Address, with rationale and data, why this practice: Does not degrade or prefer one application, class of application, or protocol over another resulting in discrimination, preference or disadvantage. Irrespective of your view on this issue, provide the following information in your response to explain why any discrimination, preference or disadvantage is not unjust, undue or unreasonable: demonstrate that the ITMP is designed to address the need and achieve the purpose and effect in question, and nothing else;

establish that the ITMP results in discrimination or preference as little as reasonably possible;

demonstrate that any harm to a secondary ISP, end-user, or any other person is as little as reasonably possible; and

explain why, in the case of a technical ITMP, network investment or economic approaches alone would not reasonably address the need and effectively achieve the same purpose as the ITMP. Should not be considered to amount to blocking the delivery of content or Internet traffic to an end-user. Your answer should include information to explain, for example, how the reduced speed does not cause degradation to the service to such an extent that it would amount to controlling the content and influencing the meaning and purpose of the telecommunications in question.

G. Questions to Videotron

In your responses to Commission staff’s RFI Question 1, you noted that the upload transmission for services named Très Grande Vitesse 120, Très Grande Vitesse 200, Fibre Hybride 120, Fibre Hybride 200 et Fibre Hybride Giga is subject to an ITMP. In particular, you noted that if the usage level of an upload channel exceeds the threshold over which congestion occurs, the system locates the modems that drive a significant amount of upload data and assigns these modem uploads low priority. You added that depending on the severity and duration of congestion, these modem upload speeds may be reduced. Indicate the lowest level to which speeds may be reduced. Address, with rationale and data, why this practice: Does not degrade or prefer one application, class of application, or protocol over another resulting in discrimination, preference or disadvantage. Irrespective of your view on this issue, provide the following information in your response to explain why any discrimination, preference or disadvantage is not unjust, undue or unreasonable: demonstrate that the ITMP is designed to address the need and achieve the purpose and effect in question, and nothing else;

establish that the ITMP results in discrimination or preference as little as reasonably possible;

demonstrate that any harm to a secondary ISP, end-user, or any other person is as little as reasonably possible; and

explain why, in the case of a technical ITMP, network investment or economic approaches alone would not reasonably address the need and effectively achieve the same purpose as the ITMP. Should not be considered to amount to blocking the delivery of content or Internet traffic to an end-user. Your answer should include information to explain, for example, how the reduced speed does not cause degradation to the service to such an extent that it would amount to controlling the content and influencing the meaning and purpose of the telecommunications in question.

H. Questions to Xplornet

In your responses to Commission staff’s RFI Question 1, you noted that certain legacy offerings remain subject to grandfathered ITMP practices that impose different conditions, such as peak period allowances, daily usage allowances and transaction allowances. You added that in all cases, when an allowance has been exceeded, the service speed is set to recovery mode, which provides a sustained, slower speed until the period is reset. During peak periods, non time-sensitive traffic may also be slowed.

You also noted that a subset of your legacy plans is subject to a dynamic congestion management policy, which, during periods of congestion, slows the usage of the top 10% of users for a 15-minute period until congestion clears.

You indicated that users may experience slower speeds for a certain period of time, or while using certain applications and that, at no point, will transfer speed fall below 100 Kbps.

Describe the types of applications that may be slowed down as a result of these measures. Address, with rationale and data, why any of these practices: Do not degrade or prefer one application, class of application, or protocol over another resulting in discrimination, preference or disadvantage. Irrespective of your view of this issue, provide the following information in your response to explain why any discrimination, preference or disadvantage is not unjust, undue or unreasonable: demonstrate that the ITMP is designed to address the need and achieve the purpose and effect in question, and nothing else;

establish that the ITMP results in discrimination or preference as little as reasonably possible;

demonstrate that any harm to a secondary ISP, end-user, or any other person is as little as reasonably possible; and

explain why, in the case of a technical ITMP, network investment or economic approaches alone would not reasonably address the need and effectively achieve the same purpose as the ITMP. Should not be considered to amount to blocking the delivery of content or Internet traffic to an end-user. Your answer should include information to explain, for example, how the reduced speed does not cause degradation to the service to such an extent that it would amount to controlling the content and influencing the meaning and purpose of the telecommunications in question.

I. Question to TekSavvy

In response to Commission staff’s RFI Question 1 regarding the use of technical ITMPs, TekSavvy reported that it blocks some inbound traffic ports to fixed wireless customers. TekSavvy stated that the practice is needed because fixed wireless customers share limited spectrum and blocking these inbound traffic ports allows the company to maintain overall service quality on its fixed wireless access service.

On its website, within its Shared Internet Resource Policy, TekSavvy indicates the following: End-users whose Internet service is provisioned over TekSavvy’s own SkyFi access, a fixed-wireless access service whose users share limited spectrum, are subject to inbound traffic blocks on ports 21 (FTP), 22 (SSH), 53 (DNS), 80 (HTTP), and 443 (HTTPS). This prevents FTP, SSH, DNS, and Web servers from being operated from behind a consumer fixed-wireless connection, maintaining overall service quality within the shared spectrum. Address, with rationale, why TekSavvy’s practice described above should not be considered to lead to blocking the delivery of content or Internet traffic as described in paragraph 122 of TRP 2009-657.