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Telecom - Commission letter addressed to Howard Slawner (Vice-President, Regulatory Telecom)

Ottawa, 14 September 2020

Our reference: 8740-R28-202002484

BY EMAIL

Mr. Howard Slawner
Vice-President, Regulatory Telecom
350 Bloor Street East, 6th Floor
Toronto, Ontario  M4W 0A1
regulatory@rci.rogers.com

RE: Rogers Communications Canada Inc. Tariff Notice 67 / 67 A – Amendments to terms of service for Third Party Internet Access (TPIA) – Request for information

Dear Sir:

The Commission received Tariff Notice 67 (TN 67) from Rogers Communications Canada Inc. (RCCI), dated 6 May 2020, in which the company proposed to disclose changes and to incorporate edits to the terms and conditions of RCCI’s Third Party Internet Access (TPIA) Tariff. Specifically, RCCI proposed to disclose a new section 1.3.1 to be added in order to allow the company to apply internet traffic management practices (ITMPFootnote1) as a result of the current emergency situation and to safeguard the access of all retail and wholesale end users to high-speed services. In addition, RCCI proposed to incorporate edits to its section 1.4 TPIA Tariff pursuant to Telecom Order 2020-60.

The Commission subsequently received TN 67A from RCCI, dated 20 May 2020, which proposed to amend its original application (TN67) to add the word “temporarily” to address its application of ITMP measures on end-users and to correct bullet numbering in its proposed TPIA Tariff pages. RCCI also provided a website link, jointly with its TN application, referencing the technical ITMPFootnote2 disclosure requirements (i.e., “Network Management Policy” Footnote3) to its retail customers. RCCI proposed that the following wording be added to its TPIA Tariff:

1.3.1. During times of emergency or high demand, Rogers may apply internet traffic management practices (ITMP) to Internet Service (IS) to ensure all end users have access to in-demand resources. During these periods, any end-user whose disproportionate consumption of shared resources required for internet service is negatively impacting the access to service by other end-users, may have their service affected. Rogers maintains the ability to temporarily constrain the affecting end-user’s access to the shared resources, regardless of the application used. As a result of this ITMP, other end-users would see improved access to the Internet service whereas the affected end-user would see a restriction on their internet speed for a period of time.

1.4. The Customer may resell or share TPIA Service, in accordance with the terms of this Tariff. The Customer is responsible for ensuring that any Wholesale Customer complies with this Tariff and with the TPIA Service Agreement.

The Commission received interventions on TN 67 and TN 67A from Competitive Network Operators of Canada (CNOC), Distributel Communications Limited (Distributel), the Internet Society Canada Chapter (ISCC), Marc Nanni,, and TekSavvy Solutions Inc. (TekSavvy) (collectively, the Interveners)

CNOC and Distributel submitted that the Commission should issue guidance on the compliance with disclosure requirements as defined in TRP 2009-657, even when implementing a technical ITMP on a temporary basis for the purpose of maintaining network integrity during the COVID-19 pandemic (or any other emergency).

TekSavvy submitted that RCCI provided significantly more on its technical ITMP disclosure to its retail customers in their “Network Management Policy” compared to the wording in its TPIA tariff. It further questioned the need for RCCI to provide notice to end-users or wholesale customers or to file a tariff notice for Commission approval. TekSavvy continued that RCCI did not claim that it is applying the ITMP only for the purpose of network security or to temporarily address unpredictable traffic events in order to protect network integrity. By doing so, TekSavvy stated that RCCI concedes that the ITMP framework requirements do apply to this ITMP.

TekSavvy further submitted that end-users of wholesale-based service providers have consumed significantly more data than end-users of other service providers including cable-based carriers.Footnote4 As a result, the technical ITMP has a significant and disproportionate impact on secondary ISP traffic.

ISSCFootnote5 and Marc NanniFootnote6 submitted that RCCI’s “Network Management Policy” lacks transparency and proper disclosure and hence is non-compliant. Marc Nanni further noted that RCCI’s policy makes note of emergency and extreme situations, yet the tariff states it will apply to heavy users, which is undefined.

In its reply, RCCI submitted that its application of the ITMP was brought about as a result of the extraordinary and unpredictable Internet traffic growth arising from the current pandemic situation and, therefore, does not require prior Commission approval. It applied the same technical ITMP measures to both its retail and wholesale end-users and its ITMP does not have a significant and disproportionate impact on secondary ISPs’ traffic. In order to provide full transparency to all end-users, it updated its “Network Management Policy” and filed TN 67/67A as soon as the ITMP was implemented.

Commission staff has reviewed the edits to the terms and conditions proposed by RCCI in its TPIA Tariff, along with the interventions, and considers that it would be appropriate to request further information in order to assist the Commission in its review.

First, RCCI is requested to provide further clarification on why its proposed TPIA tariff wording as proposed in the new section 1.3.1 of its TPIA Tariff differs from the technical ITMP disclosure to its retail customers and/or why it believes that the proposed tariff wording meets the specific elements of the technical ITMP disclosure requirements set out in paragraph 60 of TRP 2009-657.

In addition, since the proposed wording in the new section 1.3.1 of its TPIA Tariff makes reference to times of emergency or “high demand”, Commission staff requests that additional information be provided to clearly describe what constitutes a “high demand” and “temporary” situation.

The following process is established for filing responses to the requests for information:

Sincerely,

Original signed by

Chris Noonan
A/Director, Competitor Services and Costing Implementation
Telecommunication Sector

c.c.: Abderrahman El Fatihi, CRTC, (819) 953-3662, abderrahman.elfatihi@crtc.gc.ca
CNOC - regulatory@cnoc.ca
Distributel - chris.hickey@distributel.ca
TekSavvy - akaplanmyrth@teksavvy.ca
Marc Nanni - m_nanni@hushmail.com
Internet Society Canada Chapter – Matthew Gamble – mgamble@mgamble.ca

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