Shortly before Canada Day the Canadian Radio-television Telecommunications Commission (CRTC) released their decision as to whether they were to modify the forbearance framework for mobile wireless data services. To date, the CRTC has used a light hand when it’s come to wireless data communications: they’ve generally left wireless providers alone so that the providers could expand their networks in the (supposedly) competitive wireless marketplace. As of decision 2010-445 the Commission’s power and duties are extended and the spectre of traffic management on mobile networks is re-raised.

In this post I’m going to spell out what the changes actually mean – what duties and responsibilities, in specific, the CRTC is responsible for – and what traffic management on mobile networks would entail. This will see me significantly reference portions of the Canadian Telecommunications Act; if you do work in telecommunications in Canada you’ll be familiar with a lot of what’s below (and might find my earlier post on deep packet inspection and mobile discrimination more interesting), but for the rest this will expose you to some of the actual text of the Act.

In amending the forbearance framework the CRTC is entering the regulatory domain on several topics pertaining to wireless data communications. Specifically, wireless providers are now subject to section 24 and subsections 27(2), 27(3), and 27(4) of the Act. Section 24 states that the “offering and provision of telecommunications service by a Canadian carrier are subject to any conditions imposed by the Commission or included in tariff approved by the Commission.” In effect, the CRTC can now intervene in the conditions of service that carriers make available to other carriers and the public. Under 27(2) carriers can no longer unjustly discriminate against or give unreasonable preference towards any person. This limitation includes the telecommunications carrier itself and thus means that neither fees nor management of the network can be excessively leveraged to the benefit of the carrier and detriment of other parties.

Under 27(3) the CRTC can determine as a question of fact whether carriers have complied with sections 25 (broadly dealing with tariffs), 27 (which concerns the monitoring and enforcement of elements of the Act) or 29 (where the CRTC must approve working agreements between carriers). Further, a question of fact may be used to determine whether a carrier is in compliance with a decision concerning sections 24 (on the conditions of service), 25, 29, 34 (addressing issues of forbearance) or 40 (concerning the connection of facilities between carriers or other facilities).

Broadly, what all of this means is that the CRTC has stepped aside from their position that potential regulation could negatively injure the state of competition in Canada’s wireless market. This isn’t to say that they are regulating, but that they have stepped away from their traditional stance of forbearance around wireless. The shift isn’t terribly surprising given the rise of new entrants to the mobile space in Canada such as Mobilicity and Wind Mobile, as well as the multitude of high speed data networks in the country.

Also important is that the CRTC has decided to apply the Internet Traffic Management Proceedings (ITMP) framework, emergent from the ITMP Decision, to the wireless environment. In short form, this means that the rules Canadian carriers have to follow when they throttle or modify data packets on wireline connections (i.e. the cables running into your home/business) now apply to the wireless space. The shift isn’t surprising, save that it happened relatively shortly after last year’s decision to forbear a decision on the wireless space but had been previously announced as an element of the broader Proceedings to review access to basic telecommunications services and other matters. For practical purposes few will realize any difference in the provision of their wireless data services this week than they did last. It does, however, lay the conditions under which throttling and packet modification appliances can be used. These appliances include those with deep packet inspection functionality.

The ITMP framework identifies what a carrier must do whenever there is a complaint levied to the CRTC concerning the use of a traffic management technique or technology. Specifically the carrier must:

• Describe the ITMP being employed, as well as the need for it and its purpose and effect, and identify whether or not the ITMP results in discrimination or preference.
• In the case of an ITMP that results in any degree of discrimination or preference:
  • 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.

Of course, this requires the a complaint be levied: such an action is challenging given that where a customer is dealing with properly installed traffic management gear the equipment is effectively invisible. Determining a problem thus requires a very technically savvy customer or group and/or bad configuration by the carrier(s). As such, the Framework remains useful but mired in some potential implementation problems. More likely any complaint will result from a modification to terms of service between an Incumbent Local Exchange Carrier (ILEC) and Competitive Local Exchange Carrier (CLEC).

What will be fascinating to watch, as a researcher, is whether with Decision Canadian carriers begin deploying traffic management equipment capable of scanning the payloads of mobile data packets. Moreover, if/when the technologies are deployed will we see a trojan-horse like approach in mobile that we did in wireline – will is first be used for subscriber management, then for throttling, then for sending messages over through the browser? If/when they do deploy the technology, will they immediately and publicly update their traffic management policies to reflect the analysis of wireless traffic or will it take another complaint to the Office of the Privacy Commissioner of Canada to ‘encourage’ such modifications? Hopefully after a round in front of the CRTC and OPC carriers will willingly put packet inspection information where the public can easily find it (i.e. not buried in terms of service and changed without notification in the dead of night) but only time will tell. Overall, the decision to implement the traffic management framework is certainly a positive step forward and confirms my earlier hopes that a policy of non-discrimination in the Canadian wireless market would be adopted. The next step will be to watch and see whether deep packet inspection-based equipment is deployed in wireless environments in a transparent fashion or not.