Netflix released its latest ISP Speed Index yesterday, including Canada for the first time. Given the popularity of the online video service, the Netflix report has attracted increasing attention as it offers a comparative look at the average download speeds for Netflix customers across Internet providers around the world. While the company acknowledges that there are various factors that influence speed (including device used, video quality, etc.), those issues are found across all ISPs, so the comparisons remain valid.

Canada’s performance is middling at best as the Netflix data indicates that we are a mid-tier country at best. Canadian speeds that do not compare well with most European countries (note that Asian countries such as South Korea and Japan are not included but would likely rank far ahead of Canada as well). The biggest surprise in the report is how poorly Rogers ranked, coming in last among the 14 Canadian ISPs that were measured. The ranking is particularly surprising since the other large cable companies (Shaw, Videotron, Cogeco, and Eastlink) all ranked in the upper half of Canadian ISPs.

The poor ranking, which would have placed Rogers in last place in many other countries (Denmark, Finland, Ireland, the Netherlands, Norway, Sweden, the UK, and Uruguay) raises questions about Rogers’ Internet traffic management practices. In response to the Netflix story and some tweets on the issue, Rogers responded:

Netflix test done just before we virtually doubled Netflix capacity, we’ll continue to add more capacity as required

I followed with a tweet raising questions about the meaning of doubling Netflix capacity and asking whether the company was throttling Netflix traffic. Rogers replied:

We don’t throttle Netflix. We’ve doubled capacity in the links that carry traffic from Netflix to our customers.

While these responses are meant to be reassuring, they raise troubling questions about how Rogers manages its network and whether the slow Netflix speeds could have been used to create a competitive advantage for its own online video services. While the company says that it does not throttle Netflix traffic (ie. deliberately slow it down), its response also suggests that it knew that the service was being slowed by insufficient capacity. I wrote about net neutrality in my weekly technology law column this week (Toronto Star version, homepage version) and the Rogers responses raise a host of related regulatory questions:

How long did it know that Netflix speeds were slow?

Why are Netflix-specific links within the network the problem?

Does Rogers separate Netflix traffic from other traffic?

If so, why does it not disclose the practice?

Is the slowing of video a violation of Section 36 of the Telecommunications Act, which the CRTC has said amounts to controlling the content?

Are other online video services affected in the same manner?

Are Rogers online video services affected?

The Netflix rankings are presumably designed to provide greater transparency on actual ISP speeds. Now that we have Canadian data, we need some answers from one of Canada’s largest ISPs on why it ranked so badly.