Jamaica Gleaner

VoIP fight rages on amid pro-sub­scriber court rul­ing

- McPherse Thompson As­sis­tant Editor – Busi­ness Guyana · United States of America · United Kingdom · Guyana Telephone and Telegraph Company

THREE WEEKS into a fi­nal ap­pel­late rul­ing that sided with a sub­scriber over a tele­coms in a VOIP case, the top two re­gional play­ers say they are still weigh­ing the judg­ment, which could po­ten­tially colour the type of ac­tions gov­ern­ments take across the Caribbean to reg­u­late over­the-top ser­vices.

The rul­ing was against Guyana Tele­phone and Tele­graph Com­pany (GT&T) in a case that be­gan in 2009 and was set­tled in the Caribbean Court of Jus­tice (CCJ) at the end of July.

Dig­i­cel told Sun­day Busi­ness that it was still study­ing the judg­ment, but the com­pany also re­mained res­o­lute that the case it­self sig­nalled a need for ur­gency in cre­at­ing reg­u­la­tions to po­lice OTT ser­vices, of which voice over In­ter­net pro­to­col ser­vices is a com­po­nent, that pig­gy­back on the net­works of tele­coms with­out per­mis­sion.

“Dig­i­cel’s view re­mains that there ought to be a level play­ing field,” the com­pany said via email. “We have in­vested over the years and con­tinue to in­vest bil­lions in a ro­bust net­work in or­der to pro­vide the best ser­vice to our cus­tomers ... . The un­reg­u­lated OTT op­er­a­tors, on the other hand, utilise our net­work but do not bear the bur­den of reg­u­la­tory fees nor do they pay taxes to the Gov­ern­ment,” it said.

LIME said it was still study­ing the CCJ de­ci­sion and so re­served com­ment.

The rul­ing in a case that CCJ’s judges said was of cru­cial sig­nif­i­cance to the en­tire re­gion held that GT&T was in breach of con­tract when it dis­con­nected a cus­tomer’s In­ter­net ser­vice for us­ing a VoIP ser­vice to make and re­ceive calls.

The ap­peal dealt with the ques­tion of whether GT&T law­fully blocked or sus­pended the dig­i­tal sub­scriber line – DSL – In­ter­net ac­cess pro­vided to the cus­tomer, James Sa­muels.

The CCJ held that GT&T was in breach of con­tract when it dis­con­nected Sa­muels’ ser­vice, say­ing the phone com­pany took ac­tion af­ter it dis­cov­ered that Sa­muels was us­ing his DSL In­ter­net ser­vice to make and re­ceive in­ter­na­tional calls us­ing VoIP tech­nol­ogy pro­vided by Von­age Com­pany of the United States.

The five-mem­ber CCJ panel also dis­missed a cross-ap­peal filed by GT&T, set aside a Court of Ap­peal de­ci­sion in favour of GT&T, and af­firmed the lower court’s de­ci­sion in Sa­muels’ favour.

Ac­cord­ing to the CCJ judg­ment, in 2006, Sa­muels ap­plied for and ob­tained DSL In­ter­net ser­vice from GT&T and later be­came a sub­scriber to Von­age, whose ser­vice al­lowed him to make and re­ceive calls elec­tron­i­cally.

Sa­muels wrote to GT&T about his in­tent to use his In­ter­net con­nec­tion for VoIP pur­poses and was ad­vised by the com­pany that the terms of his con­tract pro­hib­ited him from us­ing his ser­vice for in­ter­na­tional tele­phone ac­tiv­ity and in­ter­na­tional tele­phonic traf­fic by­pass, that is, bring­ing in or send­ing out in­ter­na­tional tele­phone calls.

Sa­muels pro­ceeded nonethe­less t o make calls t hrough

Von­age to busi­ness as­so­ci­ates in the United States, and GT&T re­sponded by cut­ting off his In­ter­net ser­vice.

On May 22, 2009, Sa­muels took GT&T to court, claim­ing that the dis­con­nec­tion was a breach of con­tract. He con­tended that there was no re­stric­tion when he en­tered into the con­tract with GT&T.

GT&T ar­gued that its con­tract with Sa­muels con­tained ex­press re­stric­tions on the use of its DSL ser­vice for “any in­ter­na­tional tele­phony ac­tiv­ity” or in­ter­na­tional tele­phony traf­fic by­pass.

It also ar­gued that Sa­muels’ use of Von­age was con­trary to the terms of his con­tract, con­tra­vened GT&T’s ex­clu­sive li­cence to pro­vide voice and data trans­mis­sion ser­vice in Guyana, as well as the pro­vi­sions of the Telecom­mu­ni­ca­tions Act, which pro­hibits the op­er­a­tion of an un­li­censed telecom­mu­ni­ca­tions sys­tem.

GT&T es­sen­tially ar­gued that Sa­muels’ ac­tions con­sti­tuted a “telecom­mu­ni­ca­tions ser­vice”.

The trial judge in Guyana, Jus­tice Rishi Per­saud, held that GT&T did not give Sa­muels suf­fi­cient no­tice of the re­stric­tive terms, which were only brought to his at­ten­tion af­ter his In­ter­net ser­vice had been dis­con­nected.

Per­saud was not con­vinced that Sa­muels’ use of Von­age con­tra­vened the Tele­coms Act, not­ing that the law was first passed in 1990 and would not have cov­ered re­cent ad­vances in tech­nol­ogy such as VoIP.

As such, the judge granted a dec­la­ra­tion that GT&T was in breach of con­tract, an in­junc­tion re­strain­ing any in­ter­fer­ence with Sa­muels’ In­ter­net ser­vice, a manda­tory in­junc­tion re­quir­ing a ces­sa­tion of the in­ter­rup­tion of his In­ter­net ser­vice and GUY$1 mil­lion in dam­ages.

That de­ci­sion was set aside by the Court of Ap­peal, whose premise was that Per­saud did not con­sider the is­sue of “im­plied terms”.

The Court of Ap­peal held that the re­stric­tive clause con­tended for by GT&T ought to be im­plied into the con­tract be­tween the par­ties in the in­ter­ests of busi­ness ef­fi­cacy.

How­ever, the CCJ said the Court of Ap­peal seemed to have as­sumed that GT&T’s busi­ness would be so ad­versely af­fected by the ac­tions of only one of their cus­tomers that a term must be im­plied in their con­tract with Sa­muels.

In so do­ing, the Court of Ap­peal made an er­ror, the CCJ said, al­lud­ing to a United King­dom court rul­ing which stip­u­lated t hat t he is­sue of im­plied terms must be pleaded and must be sup­ported by ev­i­dence.

“Es­pe­cially given the re­cent vintage of tech­no­log­i­cal ad­vance­ments such as VoIP, the court can­not ac­cept as a fore­gone con­clu­sion that an im­plied term was nec­es­sary in the in­ter­ests of busi­ness ef­fi­cacy,” the CCJ said.

GT&T had dis­con­nected Sa­muels’ ser­vice on the ba­sis that he was op­er­at­ing a “telecom­mu­ni­ca­tions ser­vice” which fell within the pa­ram­e­ters of the act.

How­ever, Per­saud held that Sa­muels’ use of his Von­age VoIP equip­ment on GT&T’s DSL line did not con­sti­tute a telecom­mu­ni­ca­tions ser­vice, hav­ing made note of a con­ces­sion by GT&T’s own wit­ness, Gene Eve­lyn, a di­rec­tor of the com­pany, that an In­ter­net-based ser­vice such as that pro­vided by Von­age did not qual­ify.

Eve­lyn said it was treated as a com­mu­ni­ca­tions ser­vice but not by the United States, nor could he iden­tify any coun­try that treated In­ter­net-based ser­vices as a telecom­mu­ni­ca­tion ser­vice.

In ar­riv­ing at his rul­ing, which favoured Sa­muels, Per­saud con­sid­ered a de­ci­sion of the Ja­maican Court of Ap­peal in the case of the Min­is­ter of In­dus­try, Com­merce and Tech­nol­ogy ver­sus In­fochan­nel Lim­ited but had no ex­pert guid­ance.

As such, he made no at­tempt to rule on whether VoIP ser­vices could be deemed to be a tele­phony traf­fic by­pass.

EX­PERT EV­I­DENCE

The CCJ agreed that the trial judge re­quired ex­pert ev­i­dence to de­ter­mine the is­sue, as demon­strated by the ap­proach in the In­fochan­nel case, and that the Guyana Court of Ap­peal and the CCJ it­self were in no bet­ter po­si­tion to of­fer a de­ci­sion on that is­sue.

“We note fur­ther the cru­cial sig­nif­i­cance of this is­sue to the gen­eral public in Guyana and we dare say in the en­tire Caribbean re­gion. This court is not dis­posed to de­cide such a fun­da­men­tal is­sue with­out the req­ui­site ev­i­den­tial foun­da­tion,” it said.

Re­spond­ing to Sun­day Busi­ness queries, Dig­i­cel said it has not yet con­sid­ered the rul­ing in de­tail but that such cases bring sharply into fo­cus the need to close the reg­u­la­tory gap on OTT ser­vices.

It said OTT ap­pli­ca­tions re­mained largely un­reg­u­lated in many coun­tries in the Caribbean, while other coun­tries strug­gle to de­fine and cat­e­gorise them.

“We l ook for­ward to the es­tab­lish­ment of a bal­anced reg­u­la­tory frame­work that ad­dresses the in­con­sis­ten­cies that cur­rently ex­ist while pro­vid­ing for in­no­va­tion in the sec­tor for the ben­e­fit of mo­bile con­sumers,” Dig­i­cel added.

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