Rogers’ internet throttling practices could open door to class action lawsuit: Geist

The last two days of the CRTC’s hearing into traffic management practices saw the large ISPs reveal details on how they throttle peer-to-peer traffic – practices that might prove illegal for at least one of those ISPs, according to an Ottawa law professor. Speaking with Tech Media Reports at the hearing on July 10, Michael Geist said Rogers Communications Inc.’ admission that it throttles the P2P traffic of all Internet service customers regardless of their service package might open the door to a class action lawsuit. Geist is a law professor at the University of Ottawa and holds the Canada Research Chair in Internet and E-commerce Law. The concern is how Rogers promotes its two fastest tiers, Express and Extreme. Both packages offer the same download speeds of 10 Mbps, but the Extreme package, which costs $13 more per month, offers a much faster upload speed of 1 Mbps versus 512 kbps for the Express package. “Yet Rogers disclosed that the upload speeds are actually identical for P2P traffic as they are both throttled equally,” Geist wrote in a follow-up email to TMR. “I find that extremely deceptive and can't help but wonder whether they open themselves up to a class action lawsuit by Extreme subscribers who don't get the service they think they do.” The revelation of Rogers’ P2P throttling practices came at about 20 minutes into questioning from Saskatchewan and Manitoba commissioner Candice Molnar. She asked the company how it throttles upstream peer-to-peer traffic for its different service tiers. “When you are throttling peer-to-peer, do you throttle it equally for all service packages, or do you throttle it as a percentage of upstream bandwidth, or how is it that you're throttling this peer-to-peer traffic?” Molnar asked. “It's the same for all packages, same bandwidth allocation for all of the different packages,” responded Ken Engelhart, senior VP of regulatory affairs at Rogers. But while Rogers may find itself in some legal hot water in the future, the same can’t be said for Shaw Communications Inc. because the Calgary-based communications provider discloses the speed at which it throttles P2P uploads. During its testimony, Ken Stein, senior VP of regulatory, said that Shaw guarantees a minimum of 80 kbps for P2P uploads. “Every customer on the network is going to get at least 80 kilobits per second, even under extreme congestion to operate their peer-to-peer,” he said. “If we don't put these restrictions in place what we'll find is that all the real-time protocols start to break down, peer-to-peer itself starts to break down and the ability for customers to access anything on the Internet becomes progressively difficult.” Shaw also acknowledged that it allows P2P to consume a disproportionate amount of bandwidth. Stein said that the company gives 30% of its available upstream bandwidth to P2P, yet that traffic is generated by less than 10% of its subscriber base. Geist said the fact that Shaw discloses the speed may get them off the hook. “They would argue they’ve disclosed it,” he says, noting that Shaw will tell its customers that they should have read the terms of service. ISPs offer greater transparency on throttling But Shaw wasn’t the only ISP to release specific information regarding the amount of bandwidth allowed for P2P traffic. Bell Canada, the last witness and the one that created the controversy in Canada, noted that it offers different speeds for file sharing depending on its peak period traffic management practices. Bell has set a period from 4 p.m. to 2 a.m. to put limits on downloads, but within that 10-hour time it throttles P2P at different rates. For the first two hours (4 to 6 p.m.) download speeds on P2P are limited to 512 kbps. From 6 p.m. to 1 a.m., download speeds are downgraded to 256 kbps, and then the last hour download speeds rise up again to 512 kbps. Jonathon Daniels, Bell’s VP of regulatory law, acknowledged that the speeds had yet to be posted on the company’s website, but there were plans to do so.

Rogers’ internet throttling practices could open door to class action lawsuit: Geist

Broadcast | July 15, 2009

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