Toronto, Ontario
‑‑- Upon resuming on Friday, November 13, 1998
at 9:45 a.m.
RESUMED: BERNARD KLATT
CROSS-EXAMINATION, Continued
MR. FREIMAN:
Q. Good morning, Mr. Klatt.
A. Good morning.
Q. Before we get back to the topics we were dealing with yesterday, I wonder if I could ask you about a couple of other groups or organizations that I didn't have a chance to discuss with you yesterday.
Do you know what NERN is?
A. I have seen the initials, but I have forgotten it.
Q. It might help if you I gave you the group to which it refers: National Research and Education Network. Does that help?
A. Not particularly.
Q. If I added that Vice-President Al Gore was the Chair of this group, does that help?
A. It sounds like a U.S. project.
Q. Isn't that a U.S. project to try to coordinate the information highway?
A. I am not sure how active they are.
Q. Do you know that that is the group, or you don't know whether that is the group?
A. No, I am not sure what the mandate or the charter or ambition might be.
Q. What about cisco?
A. It is a company that makes Internet router products.
Q. Are they a small company or a big company?
A. In the router business they could be considered the largest.
Q. Do they know what they are talking about when they discuss Internet matters?
A. In their area of expertise, yes.
Q. Would you define their area of expertise.
A. They do have recognized expertise in routing.
Q. If they talk about routers, you consider them to be authoritative.
A. Based on their product.
Q. If they talk about matters outside of routers that they themselves produce, are they authoritative?
A. It would probably depend on the context and the subject.
Q. Would you pay any attention to how they use words?
A. It would certainly be interesting to look at.
Q. But you wouldn't take it as necessarily definitive.
A. As I mentioned, on their products they would be the definitive source in respect of that.
Q. Is that the same standard that you apply for the authoritative nature of all companies or just cisco? Do you restrict the authoritative nature of what a company says to the products that it produces?
A. I would grant that the producer of the product would probably know more about it than perhaps a competitor or other entity.
Q. But that's about it. For instance, Microsoft. If you were looking at how they use words, what limit, if any, would you put on the authoritative nature of their discussions of words?
A. I am not quite sure I follow.
Q. I was trying to see what you believe to be the authoritative ‑‑ I asked you whether cisco was authoritative when it comes to the way it uses words, and I think what you told me ‑‑ and, if I am wrong, please do correct me. I think what you told me was that cisco is authoritative when it talks about its own router products. When it ventures beyond that narrow area, it would be interesting to see what they say, but not necessarily authoritative. Is that right?
A. They have expertise relating to Internet router issues. They participate on a variety of technical committees, so they do have people on staff who are knowledgeable.
THE CHAIRPERSON: Is that what you said?
MR. FREIMAN:
Q. Did you say that they were authoritative insofar as they talk about their own router products but, if they venture beyond their own router products, it is interesting to see what they say but not necessarily authoritative?
A. If they are commenting on something that is substantially out of their field of expertise, their authoritativeness would be considerably less.
Q. For instance, the way they use the word "telecommunications" ‑‑ authoritative or not authoritative?
A. They are not considered a telecommunications company.
Q. So they wouldn't know about that.
A. I wouldn't say they wouldn't necessarily know about it, but I don't ‑‑
Q. But you wouldn't trust them.
A. It would be interesting to see what they say in the context.
Q. That is why I wanted to know also with regard to Microsoft. Are they a telecommunications company?
A. They are not considered as such.
Q. So what they say about telecommunications would probably be beyond their area of expertise as well.
A. They do involve themselves in telecommunications protocols and products, so they definitely have expertise and understanding of matters that relate to that area.
Q. As opposed to cisco which never does any of those things, never involves itself in telecommunications issues.
A. I wouldn't characterize that as accurate.
Q. So what is the difference? Microsoft has an interaction with the telecommunications industry and so does cisco. Why is Microsoft reliable and cisco isn't?
A. I don't think I indicated any specific area.
Q. I am sorry...? The way they use the word "telecommunications", for example ‑‑ why is one authoritative and the other one isn't?
A. I didn't say one was or wasn't.
Q. I thought you did, sorry. I am just trying to understand the criteria that you are using to decide that one organization is authoritative in the area of how words are used and another might be less authoritative.
Specifically, you started to discuss cisco and you were first restricting it to their own products, and then we talked about Microsoft and you indicated to me that maybe their expertise was greater because they had interface with the telecommunications industry.
So I can apply the same standard to Microsoft as I apply to cisco. They are authoritative certainly in the area of the products they develop and, when you get outside the products they develop, it's interesting.
A. In terms of word usage, if we have a preponderance of dictionary definitions that define a word in a particular way, I am sure we can find novel or unique interpretations elsewhere. If the majority of reference material refers to and defines a word in a particular way, I would submit that that is the most accurate way of using that particular word.
Q. That is not really what I asked you. I asked you whether things are authoritative or not.
MR. CHRISTIE: It was a long convoluted question involving meaning. I think, with the greatest respect, the answer was responsive.
MR. FREIMAN: I guess Mr. Christie is not intending to re-examine.
MR. CHRISTIE: I beg your pardon?
MR. FREIMAN: I guess you are not intending to re-examine since you find it necessary to bring out all the points you would like to bring out in re-examination by ‑‑
THE CHAIRPERSON: Remarks go through the Chair.
Witness, I would ask you to direct your mind to the question and direct your answer in response to the question.
MR. FREIMAN:
Q. Can we try one more time? I want to understand what you consider to be authoritative in the writings and pronouncements of a company such as cisco when they are talking about definitions such as "telecommunications" or any other definition of words that are used in the telecommunications industry, and compare and contrast that with Microsoft.
A. For example, I would give cisco's understanding and definition of router terminology and processes and techniques a higher rate than that of Microsoft. In the area of software development or Internet applications, probably Microsoft would have the higher degree of expertise than cisco would.
Q. Let's see how this plays itself out in a minute.
THE REGISTRAR: Excuse me, the Court Reporter is having a hard time hearing with this equipment running. Could you try to raise your voice, please.
MR. CHRISTIE: Could we close off the equipment, perhaps?
THE CHAIRPERSON: Why is this on?
MR. FREIMAN: I am hoping to have Mr. Klatt's co-operation in order to authenticate some documents and to demonstrate some of the propositions that he has.
THE CHAIRPERSON: What are we doing, warming it up?
MR. FREIMAN: If we turn it off, we may not be able to turn it back on.
THE CHAIRPERSON: Mr. Klatt, you see what the problem is. Please raise your voice about as loud as I am talking.
MR. FREIMAN:
Q. Are you familiar with an organization called International Telecommunications Union?
A. ITU?
Q. Yes.
A. I know of it.
Q. What is it?
A. It is an international standards body, I believe, based in Switzerland.
Q. Yes, and what does it do?
A. It coordinates standards-making functions between various countries in the world.
Q. And you understand that it is an agency of the United Nations?
A. That is my understanding.
Q. You understand that it deals with technical standards. Do you also understand that it compiles statistics?
A. That could very well be one of the functions that they perform.
Q. Does it also deal with pricing policies internationally?
A. I am not aware of that.
Q. Do you know when the ITU was established?
A. No, I don't.
Q. If I suggest to you that it was established in the 19th century and, indeed, before the invention of the telephone and the telegraph, do you have any comment on that?
A. Like I mentioned previously, I am not a historian.
MR. CHRISTIE: If my friend is giving evidence on the subject, I object. Unless there is some witness to verify his statements, he is, in my submission, leading the cross-examination in a direction where he is giving evidence, not the witness.
THE CHAIRPERSON: I think it is obvious that the witness doesn't know the answer.
MR. FREIMAN:
Q. Do you understand that the ITU is involved in developing global standards for Internet telephony?
A. They may be involved in trying to coordinate standards and making efforts in that area.
Q. Is the ITU an authoritative body in discussing telecommunications matters?
A. The organization itself?
Q. Yes. When the organization publishes a document, is that authoritative?
A. My understanding is that they publish document describing agreed-upon standards that have been developed, and other product vendors or individuals who wish to implement products or software can choose to produce their products in accordance with it or extend it or a subset.
Q. I am not suggesting that their standards are mandatory, if that is what you are suggesting. I am asking whether, when the ITU issues a statement, that is authoritative on the subject matter that is covered, if it deals with telecommunications.
A. I am not sure in what area. That seems like a pretty broad ‑‑
THE CHAIRPERSON: In any area. You are familiar with the body. You have heard of the ITU as some sort of agency of the United Nations. Is what comes out of the ITU, you are being asked, in some way authoritative?
THE WITNESS: Certainly.
THE CHAIRPERSON: Next question.
MR. FREIMAN:
Q. I think yesterday I ended by ‑‑ before we get there, maybe we will see if this equipment actually works.
You will remember that we were looking at a document called "PSINet: The Difference is Our Network."
A. Right.
Q. I think you said you accepted that this was an authentic document.
A. I believe it has been on one of the PSI servers.
Q. One of the reasons that I put this up was so that, if you had any doubt as to the authenticity of any document that I present to you that purports to come from the Internet, we have a facility available to check it and actually to go to that site and to compare the document I am presenting to you with what today, at this moment and this second, is on the Net. I take it that you don't insist that we do that with this; you are willing to accept its authenticity. Correct?
A. I am sure it represents the position of whoever created it.
Q. One of the documents that Mr. Christie, through you, put into evidence was another document by the same organization, PSINet.
A. I believe so.
Q. And it was put into evidence in order to support the proposition that the Internet backbone providers, such as PSINet, do not own the underlying circuits over which the Internet backbone passes. They don't own the physical Internet backbone ‑‑ I am sorry, that is entirely wrong. Let me say it again.
This document was put into evidence ‑‑
MR. CHRISTIE: Let me object.
What this document was put into evidence for is not for this witness to say; it is for us to argue. I may have made the decision on why the document was put into evidence. Why should this witness answer that question?
MR. FREIMAN: Fine.
Q. Your view was, and one of the propositions that you hoped to illustrate with the PSINet document, was that Mr. Angus was wrong when he said that the Internet backbone was owned by telephone companies. As I understood it, your evidence was that PSINet is an Internet backbone company and it owns the infrastructure, it owns the portion of the Internet backbone that it provides. Was I right in that summary of your evidence when you discussed this matter with Mr. Christie, specifically PSINet?
A. I think what we were trying to illustrate was that the component that PSINet owns and operates is not a telephone company.
Q. We looked yesterday at page 2. On page 2 we have the following statement:
"PSINet relies on many Inter-Exchange Carriers (IXC) to provide TD point-to-point T1 and T3 circuits for this network."
I think we agreed yesterday that IXC or interexchange carrier is typically a long distance company and that TDM point-to-point T1 and T3 circuits are digital circuits. Correct?
A. Digital leased line circuit, yes.
Q. And they were originally developed for voice communication. Correct?
A. I don't know what the original motivation for their development was.
Q. They are used for telephone communication, and their first use was for telephone communication.
A. That is entirely likely.
Q. In fact, their capacity is often described in terms of voice channels, is it not?
A. It can be.
MR. CHRISTIE: Excuse me, for the record, is that referring to T1 and T3 circuits both, when you said "they?"
MR. FREIMAN: Yes.
Q. In fact, what PSINet does own is revealed in the third sentence in that paragraph:
"Additionally, PSINet's complete ownership and operation of all aspects of the switching substrates...guarantees the best possible operational and technical solutions for those requirements."
So PSINet leases the circuits and owns the switches. Correct?
A. That appears to be the case.
Q. When they say "switches," they include in that the concept of routers; is that correct?
A. True. But are you asserting that telephone calls go through their routers?
Q. I am not asserting anything, sir; I am asking you questions.
What is a POP?
A. Point of presence.
Q. Can you explain to the Tribunal what that is and what is its significance?
A. In the Internet Service Provider business, typically a company will start offering service in its local calling area.
MEMBER DEVINS: Could you speak up a bit, please.
THE WITNESS: Once they realize that there is additional market potential outside their local calling area, in order to economically serve that area, it will establish what is typically referred to as a point of presence, which typically consists of a location in another calling area that is not local to where the Internet Service Provider is based, where they put a leased line facility back to what is referred to as the head office. The point of presence at the remote calling area would then provide service for subscribers in that area.
MR. FREIMAN:
Q. The purpose of a point of presence is, in fact, to avoid incurring long distance telephone charges. Correct?
A. For the end users.
Q. And it is a way that the end users can link up with that particular provider.
A. True.
Q. If you look at the last two pages of the document in front of you, you will see an advertisement about points of presence for PSINet in Canada. I understand the column headed "City." That is the city that the end user may live in. We would be interested in the end user in this column. Right?
A. Right.
Q. And "Province" we understand. What is the access number?
MR. CHRISTIE: Are we referring to an exhibit and, if so, could I have the exhibit number?
THE CHAIRPERSON: It is not marked yet.
MR. FREIMAN: Let's mark it now as an exhibit.
MR. CHRISTIE: If it is not an exhibit, then I probably don't have a copy.
MR. FREIMAN: I think I did give you a copy but, if you would like a copy, here is one.
MR. CHRISTIE: Thank you.
MR. FREIMAN: Could we mark that as the next exhibit, please.
THE REGISTRAR: The PSINet document will be marked as HR-23.
EXHIBIT NO. HR-23: Document entitled "PSINet: The Difference is our Network"
MR. FREIMAN:
Q. Referring to the last two pages of HR-23, what is the access number? What can the end user do with that access number?
A. It can access the Internet through PSINet at that number.
Q. What do they do if they want to access PSINet? I suggest to you that they call that telephone number by means of their computer, and they are linked over their phone line to PSINet through these POPs. Correct?
A. That would be one description of it.
Q. What is another description?
A. The phone call ends at the point of presence they are calling. There is no phone call handling that occurs past that point on PSI's network that you are referring to.
Q. I said they are linked to the PSI network by a phone call made by the end user which travels over the phone line to the POP.
A. The original assertion was that PSINet was a telephone company.
Q. When did I say that, sir?
A. That was in the information that you referred to previously.
Q. Which information is that?
A. I would have to ‑‑
Q. Tell me because I am puzzled. I don't remember ever saying that PSINet was a telephone company.
A. Perhaps you didn't; perhaps it was in Mr. Angus' ‑‑
Q. I don't think Mr. Angus ever talked about PSINet.
Just before we leave HR-23, I suggest to you that PSINet is, in fact, somewhat ambiguous as to whether it is an Internet backbone provider or an ISP. Is that correct?
A. There is no hard and fast definition of what the Internet backbone is. Just about anybody knowledgeable in the Internet will have a different idea about what constitutes the Internet backbone.
Q. But no one would suggest that MCI was an ISP rather than a backbone provider, would they?
A. I believe MCI does provide ISP functions.
Q. It provides ISP functions, but its real business is as a backbone provider.
A. It's as real as any other part of their business.
Q. We won't argue about that. I am suggesting to you, though, that PSINet is advertising itself to the Canadian public as an alternative for Internet services to telephone companies. Do you agree with that?
A. Where do we see this?
Q. Look at the first page; look at the first paragraph:
"One of the most important things to know about PSINet is that we built our network specifically for Internet applications. It's the salient feature of our service, setting us apart from telephone companies, systems integrators, and the dozens of ISPs you see advertised in the back of your local business section."
Do you agree with me that PSINet sees itself as providing a similar, but superior, product or service to telephone companies?
A. What I see them saying is that they view themselves as setting themselves apart from telephone companies.
Q. It is superior to what the telephone companies can provide.
A. But I think we were arguing about the characterization that the Internet backbone providers are telephone companies, and you are showing us that you agree by that statement.
Q. None of those were questions that I asked you. I am simply suggesting to you that PSINet believes that it is offering a service that is similar to, but superior to, that of telephone companies.
A. I don't see the word "superior."
Q. It is a service that sets it apart from telephone companies. It can do something that telephone companies can't.
A. That I would agree with.
Q. What it can do is offer a network of leased lines and switches that is not used for voice communication; whereas, telephone companies offer a system of circuits, either leased or owned, and switches that sometimes are used for Internet traffic and sometimes used for data or voice traffic.
A. That seems accurate.
Q. In fact, sir, I suggest to you that the Internet as a whole ‑‑ we won't talk about backbone ‑‑ uses mainly leased lines and that those lines are exactly the same mix of copper and fibre that is used to run the public telephone service.
A. I would disagree with that.
Q. You would or would not?
A. I don't agree that that is the case.
Q. I would like to suggest to you further that the telecommunications community and the Internet community both effectively share the same public network. Do you agree with that?
A. What do you mean by "share?"
Q. They occupy the same public network.
A. In terms of having equipment located in the same facilities and buildings?
Q. The Internet and the telecommunications community share the same public network. Their communications are resident on the same public network. Do you agree or disagree with that?
A. I have seen equipment for Internet companies co-located with that of telephone companies.
Q. I asked you a larger proposition. The telecommunications community and the Internet community both effectively share the same public network. Do you agree or not?
A. No, they don't share them. You can't put a telephone call, in the normal sense of the word, across the Internet backbone.
Q. I don't think that is what I suggested.
MR. CHRISTIE: I suggest that, if my friend is going to quibble and argue with the witness, he should define the term "share" so that it cannot be capable of being understood in the way the witness understood it. If he wants to use ambiguous questions, I object to them.
MR. FREIMAN: Very well.
THE CHAIRPERSON: You might define the word "public."
MR. FREIMAN: I am sorry...?
THE CHAIRPERSON: How do you define the word "public?"
MR. FREIMAN: A public network is a network that is accessible to the public, that is not privately owned. It is a network of telecommunications common carriers.
Q. You understand what a public network is, don't you, Mr. Klatt?
A. In general.
Q. I would like to show you a report from the International Telecommunication Union in 1997 called "Challenges to the Network, Telecoms and the Internet." I have reproduced a small portion of that, and I want to give that to you and to the Panel.
You have before you the entire document so that there is no issue that this is an authentic excerpt from the document.
MR. CHRISTIE: Can I look at that, please?
MR. FREIMAN: Certainly.
Q. I would like to turn your attention to page 18.
MR. CHRISTIE: Since we have never been shown this before and it is a document of some several hundred pages, I wonder if it would not be appropriate to let either myself or the witness look at this, unless he has seen it and understands it.
MR. FREIMAN: He can have a look at it. If Mr. Christie wishes to re-examine him on it, I will lend him the material and he can look at it to his heart's content.
MR. CHRISTIE: The problem is at the moment, having never seen this before, that I don't know whether I have any objections to it. I would like to glance at the introduction to see what it represents before I am in a position to know what to do about it.
The witness was given it, and then I asked for it from the witness, so the witness can't have it. I don't particular want to deprive anybody of the right to go full speed ahead, but it seems to me that we should have a chance to at least glance at it and see what it is so that I might consider possibly objecting to it.
THE CHAIRPERSON: This, I assume, arose overnight.
MR. FREIMAN: Yes.
THE CHAIRPERSON: Because Mr. Christie has not had an opportunity to view it, do you want five minutes?
MR. CHRISTIE: Five minutes might be enough; it would be better than nothing.
‑‑- Short Recess at 10:15 a.m.
‑‑- Upon resuming at 10:23 a.m.
MR. FREIMAN: I have asked Mr. Christie to request the witness to excuse himself while Mr. Christie makes submissions.
‑‑- Witness Withdraws
MR. CHRISTIE: For the record, what I did was look at this large volume myself and then gave it to Mr. Klatt, and I discussed nothing with him about it. I have indicated to my friend that I have objections with the process that he proposes to embark on.
In the information I am given, I am given actually Chapter 3, page 18, and Chapter 7, page 64, for some consideration, with some marks on the side. That is basically the two pages that I have been given and that I think the Panel has been given. I note that this is two pages out of perhaps 200 pages, some of which may or may not be germane. I can already see, even from highlighted portions, that what we are being given is sort of a question without an answer and there may be answers interspersed through the volume.
Why I am concerned about this is simply because the perception created by the introduce of two page excerpts from an extensive publication is frequently contrary to other parts of the text or, in some cases, is taken out of context in such a way as to create an inaccurate meaning about the conclusions of either the author, for whatever they are worth, or the substance of the analysis that supports the author. The author may quote sources and indicate things which are contrary to what thesis is put forward in this less-than-two-page extract.
I am very troubled by that process because, for one thing, in the time available in cross-examination, I will not be able to find ‑‑ although I have found, for example, page 2 of Chapter 1 and page 1 of Chapter 1 which, had I seen them before, would be very useful to my own arguments. What this boils down to is a very grave difficulty in terms of determining if the context is correct for the excerpts that are being presented and being able, if need be, to examine.
I don't know what the witness' view is of this extract or even of this report, whether he adopts it or doesn't adopt it. If it is being tendered in a way to contradict the witness with some allegedly probative material, we would certainly take the position that we would need some time to consider, in terms of re-examination, just the implication of the extract in relation to whatever else there is here.
I concede that it is a complex subject and one that involves technical considerations. To be fair in terms of presentation of the Respondent's case, I would certainly ask, subject to whatever the witness may say, that somehow we be given the opportunity before this subject is exhausted, if this document is in some way admissible, to consider it in more detail and to re-examine if necessary ‑‑ that is, if the witness adopts it in some way and is then confronted with it.
THE CHAIRPERSON: I would suggest that we see how this develops. I think we can assume that what is going to occur here is that certain propositions in the document are going to be put to this witness. He may acknowledge them, adopt them or reject them. I believe the evidence supports the notion that the organization which has produced this document, the ITU, is a division of the United Nations. It has been acknowledged that there is some authority to that body.
I would suggest that we proceed and see how we make out. If you need some time to consider other parts of the report that may have a bearing on the questioning, we may be able to raise that in your re-examination. The volume has been made available to you, and we will see what happens.
Recall the witness, please.
Is there someone here who wishes to identify themselves?
MR. DeBONI: My name is Ross DeBoni. I am here on behalf of the Canadian Jewish Congress, on behalf of Joel Richler.
THE CHAIRPERSON: Thank you.
‑‑- Witness returns to the stand
MR. FREIMAN:
Q. Mr. Klatt, would you open the document ‑‑ I don't know whether Mr. Christie wants to give you the entire document so that you can flip through to answer any questions you have about context or whether you are content to go with these two pages. Perhaps it would be helpful for Mr. Christie to give you the document.
THE CHAIRPERSON: Witness, if you want to look at the entire document to assist you in answering the questions, please let us know that.
MR. FREIMAN:
Q. Would you go to page 18, please. I am not looking yet at the portion with the asterisk; I believe that was put in by someone other than myself.
You will remember that I put to you the proposition that the Internet and the public switched telephone network use exactly the same system. Correct? You had some difficulty with that.
Let me see whether you accept as accurate the proposition in the first paragraph, on the fourth line down.
MR. CHRISTIE: This is Chapter 3, page 18?
MR. FREIMAN: That is correct.
MR. CHRISTIE: Each chapter has separate numbering.
MR. FREIMAN:
Q. The proposition I would like you to consider is this:
"The Internet does not yet quite have the geographical spread of the Public Switched Telephone Network (PSTN), but it is not far behind. But that is not surprising because, after al, the Internet is an overlay on top of the PSTN. While the Internet mainly uses leased lines, those lines are exactly the same mix of copper and fibre that is used to run the public telephone service."
Do you agree with that proposition or do you disagree with that proposition?
A. It appears to me that the context of this chapter relates to the economics of the Internet, not to the functionality in terms of how it is actually implemented.
Q. But that is not my question. My question is whether you agree or disagree with the three sentences that I read to you.
A. Parts of it probably could be accepted, but the statement that the Internet does not have the geographical spread of the PSTN is not entirely accurate, because the Internet includes areas that the PSTN does not include. It is implying that the Internet is a subset of the PSTN, and that is not the case. The PSTN and Internet do not form a coterminous overlap and one is not a subset of the other.
Q. Let's direct our attention to the second sentence. Do you agree or disagree that the Internet is an overlay on top of the PSTN?
A. Parts of it may be considered that way.
Q. Do you agree with the statement that the Internet is an overlay on top of the PSTN?
MR. CHRISTIE: He has answered that. He doesn't have to agree in the way my friend wants him to agree. He said that it is partly true, and he has given an answer. He should not have to be forced to give the answer my friend wants. That is not really, as far as I am aware, the process of cross-examination. If he has answered it, he has answered it.
MR. FREIMAN:
Q. Do you agree or disagree, sir?
MR. CHRISTIE: I object to the question again. He answered it.
THE CHAIRPERSON: He answered in a particular way, and the question is put again whether he agrees with the proposition that the Internet is an overlay on top of the PSTN.
I take it you disagree with that proposition, do you?
THE WITNESS: It is true that I cannot accept it as being a 100 per cent factual statement. In fact, the Internet does not consist of an overlay on top of the PSTN. There are significant parts of the Internet that do not rely on the PSTN.
MR. FREIMAN:
Q. The next sentence ‑‑ do you agree or disagree with the statement that the Internet mainly uses leased lines?
A. I will agree that the Internet does make use of leased lines.
Q. I am asking for the whole proposition, mainly uses leased lines.
A. Are we considering Internet as being just U.S., just Canada, or worldwide?
Q. The ITU is an international organization. As I understand it, the Internet is now a global network. Isn't that what the chapter is talking about? It is talking about the Internet spreading all over the world.
A. True. If we consider the global Internet, there are large portions of the Internet that do not use leased lines.
Q. Do you agree or disagree with the proposition that the Internet mainly uses leased lines?
A. For ground-based services. Obviously, satellite links are not leased lines. If we are looking at miles covered, the satellite links would make up a significant portion.
Q. So you disagree with the proposition.
A. If it helps the discussion, I agree that the Internet does use leased lines.
THE CHAIRPERSON: It's a simple question. The proposition is that it mainly uses leased lines. Do you agree or disagree with that?
THE WITNESS: Within the continent that would be the case, but not worldwide.
MR. FREIMAN:
Q. Do you agree or disagree that with regard to the leased lines that are used in the Internet, those lines are exactly the same mix of copper and fibre that is used to run the public telephone service?
A. Is it referring to a percentage, like 30 per cent copper and 70 per cent fibre? What does it mean by mix?
Q. I can't tell you what he means. I can tell you what the International Telecommunication Union is saying, and I can ask you whether you agree or disagree. If you want to explain why you disagree, if you do, you can. I am asking whether you agree or disagree with the proposition that the leased lines used in the Internet are exactly the same mix of copper and fibre that is used to run the public telephone system.
A. No, I can't agree with that.
Q. If we go over the page, in the first paragraph I would like to put these propositions to you:
"One of the premises of this report is the assumption that the telecommunications community and the Internet community are very different, but that they are both effectively sharing the same public network."
Do you agree or disagree with the assumption being made by the International Telecommunication Union?
A. This seems to be in the context of some economic projections. I don't think they are making a definitive statement regarding the technical operations of either the public switched network or the Internet itself.
Q. I am asking you whether you agree or disagree with the assumption being made by the International Telecommunication Union that the telecommunications community and the Internet community are very different, but they are both effectively sharing the same public network.
A. It is true that the Internet does use portions of the public switched telephone network.
Q. Is that agreement or disagreement?
A. As I previously mentioned, there are portions that overlap and there are portions that are unique and different.
Q. So is that agreement or disagreement?
A. Like the very next sentence starts off, depending on your perspective.
Q. But I am asking you whether you are agreeing or disagreeing, because I am not sure what your ‑‑
MR. CHRISTIE: I object to the questioner demanding an answer in relation to a specific sentence without allowing the witness to put the sentence in context. That is what my friend is doing by demanding an answer without reference to the sentence.
THE CHAIRPERSON: The witness is being asked to agree or disagree with an assumption contained in this report. Can you direct your mind to the assumption?
MR. CHRISTIE: Sir, if I may, the assumption is not necessarily fully articulated in the first sentence.
MR. FREIMAN: I have certainly told the witness that, if he disagrees and he has a reason, I would be glad to hear the reason. Before we can understand the meaning of his response, we have to know whether he is in fact agreeing or disagreeing.
Q. I am happy to have you explain, but I need to know before we get there whether you agree or disagree that the telecommunications community and the Internet community are both effectively sharing the same public network.
A. I agree with the portion of the statement that would say the assumption that the telecommunications community and the Internet community are very different.
Q. And what about the next part of it, which is what I actually asked you, that both those communities are effectively sharing the same public network?
A. Like I said, depending on your perspective.
Q. So you both agree and disagree.
A. Depending perspective or context.
Q. Which perspective and context does it depend on?
A. The issue we were discussing. Is it economics or is it technically how it operates or what it is used for, what can be done over it. The answer could very well, and probably would, be different.
Q. In terms that the ITU appears to be talking about, which is the physical characteristics of the network on which the two communities operate, the telecommunications community and the Internet community, the environment on which they operate, are they both effectively sharing the same public network?
A. You could look at it in the sense that portions of it are being shared.
Q. That is your final answer to the question?
A. That is the best way I can understand what is being asked here.
Q. Let's look at the next sentence:
"Depending on your perspective, the Internet might be seen as a way of optimizing the performance of the public network ‑‑ by squeezing greater capacity utilisation out of the same pipes ‑‑ or as a parasite which sits on top of the network and drains its life-blood without investing very much in its growth and development."
First of all, do you understand this sentence as saying that there are two ways of understanding the implications of the statement that they are sharing the same public network?
A. I believe from the perspective of ITU, which is traditionally the background activity primarily involving telephone companies' interests, they are looking at this from an economic point of view, which is implied by the phraseology that is used there.
Q. Are we both on the same page that what they are talking about are the economic implications of the fact that the two communities share the same public network, namely, from one perspective it could be seen as the Internet community optimizing the performance of the shared public network and, from the other perspective, it could be seen as the Internet acting as a parasite on top of the same public network and draining it economically without contributing? Do we understand that in the same way?
MR. CHRISTIE: Sir, that question is so completely abstract.
MR. FREIMAN: I stand by the question.
MR. CHRISTIE: I frankly don't know what it means.
THE CHAIRPERSON: Let's see if the witness understands it.
THE WITNESS: In the context of a traditional telephone company, they very well might envision the Internet as a parasite which sits on top of the network draining the life-blood. That appears to be one of their concerns.
There are large portions of the equipment in the typical telephone building that are not ‑‑ for example, Internet components are not used for telephone company purposes, and telephone company equipment is not used for Internet purposes. To say that they are the same network is not accurate.
Q. It would be accurate, would it not, if it referred to the circuits being used, not the switches? Direct your mind to the circuits.
A. But the circuits don't connect to the same devices.
Q. Direct your mind to the circuits.
MR. CHRISTIE: The witness is the expert. My friend can't demand that he answer in the way my friend wants him to.
THE CHAIRPERSON: I think this line is appropriate. Continue.
MR. FREIMAN:
Q. Direct your mind to the circuits. Is it accurate in terms of the circuits, that they share the same public network in terms of the circuits?
A. By circuits, are we talking about telephone circuits or Internet circuits?
Q. We are talking about the same mix of copper and fibre.
A. Would it be helpful to consider a telephone high-capacity line for a telephone circuit? Is that what we are referring to?
Q. I am trying to help you to conceptualize the statement from the ITU. You seem to have difficulty because the switching equipment that the Internet uses is not identical to the switching equipment that is used for voice communication or for data communication. So I am asking you to direct your mind simply to the circuits and to see whether that makes any sense to you about sharing the same public network.
A. But the circuits don't make up the Internet.
Q. I am not sure I am going to get any farther.
A. That is an incomplete assumption in terms of reference to the Internet.
Q. So you are disagreeing with the statement on the basis that you have to consider the switches.
MR. CHRISTIE: Which statement?
MR. FREIMAN:
Q. The statement that they are both effectively sharing the same network, and one can be seen either as a parasite on the other or as optimizing the performance of the other.
MR. CHRISTIE: That is two statements. He has been over the first one many times, and you are putting the two together.
THE WITNESS: We can't have an Internet with just telephone company switches.
MR. FREIMAN:
Q. I don't think that is what was being suggested to you. If you understand the network as consisting of circuits ‑‑
A. The network doesn't consist of just circuits.
Q. If you were to understand the network as consisting of circuits ‑‑
A. It would be an incomplete understanding.
THE CHAIRPERSON: Don't argue. Just listen to the question.
MR. FREIMAN:
Q. ‑‑ would that help you in terms of understanding whether you can agree or disagree with the statements in this paragraph?
A. If you consider the highway system as just bridges ‑‑
Q. If you consider the highway system as just roads and not overpasses or toll booths or directional signals ‑‑ you may understand the highway system as including the toll booths, but for the moment we won't talk about the toll booths. We will just talk about the highway.
A. Toll booths are not an essential component of the highway.
MR. FREIMAN: I think we have exhausted this discussion.
THE CHAIRPERSON: I don't know why this is so difficult, but maybe you could go on to something else.
MR. FREIMAN: I think so.
MR. CHRISTIE: I understand why it is so difficult, because he is not agreeing with my learned friend and saying what others would like him to say. The witness is the expert and, if the questions are phrased properly, in my submission, he has answered every single one of them. I really don't appreciate the editorial comment that you made, sir, at this point.
THE CHAIRPERSON: I don't care whether you appreciate it or not. Please continue.
MR. CHRISTIE: I object to it. I don't think it is fair without re-examination ‑‑
THE CHAIRPERSON: I can make comments about the witness' demeanour and the witness' willingness to answer questions, and it will bear on what weight the evidence is given.
MR. CHRISTIE: I can object to it, and I do.
MR. FREIMAN:
Q. In general, sir, can I take it that, because of the numerous qualifications that you put on the statements, you disagree with the statements on the second page as they are phrased?
A. Like I mentioned, the first part I can agree with.
Q. That is that they are very different.
A. Correct.
Q. And after that?
A. With the qualifications that I have noted.
Q. You say that they are effectively sharing the same public network you disagree with and that the Internet optimizes the performance of the public network by squeezing greater capacity out of the same pipes ‑‑ you disagree that they are the same pipes, or do you agree that they are the same pipes?
A. The Internet does not use the same circuits as the telephone company does.
Q. Do you disagree with the concept of squeezing greater capacity utilization out of the same pipes because you believe that pipes include switches? Am I right?
MR. CHRISTIE: He said circuits.
MR. FREIMAN: No, he didn't say circuits.
MR. CHRISTIE: He said they don't use the same circuits. He didn't say switches, so please ‑‑ he said circuits.
MR. FREIMAN:
Q. Did you say circuits or switches? I will go with whatever you said.
A. I don't recall at the moment.
MR. CHRISTIE: Could it be read back?
THE CHAIRPERSON: What did you intend to say?
THE WITNESS: That the Internet doesn't use the same circuits that the telephone system uses.
MR. FREIMAN:
Q. So you disagree.
A. I agree with what I just said.
Q. But you disagree that the Internet is squeezing greater capacity utilization out of the same pipes because you believe that they don't use the same pipes.
A. If we are talking Internet telephony ‑‑
Q. No, we are talking about the Internet and the public switched telephone network or the telecommunications network, the telecommunications community. Am I right that you don't believe that they use the same pipes?
MR. CHRISTIE: In doing that, my learned friend has put the word "telephone company" in place of "telecommunications."
MR. FREIMAN: I changed it back to telecommunications.
MR. CHRISTIE: As long as it is clear that the document says "telecommunications community," not telephone company.
MR. FREIMAN: Yes.
Q. Do you still remember the question?
A. I think I am being asked whether I agree with the statement that the Internet and the telephone circuits are the same.
Q. No, that they utilize the same pipes.
MR. CHRISTIE: He has answered that many times. I know he hasn't answered it to my friend's satisfaction, and it has become increasingly apparent that he hasn't answered it to your satisfaction, sir, but I submit to you that he has answered the question many, many times.
THE CHAIRPERSON: It may be that we have reached the point where counsel will have to consider whether we are going to get any more out of this that will be of any use to this Tribunal. There seems to be a divergence of opinion in the witness' mind, which he is entitled to articulate and he has in his own way.
MR. FREIMAN: I would like to mark this as the next exhibit, please.
MR. CHRISTIE: My submission is that this is not a piece of evidence. I suppose it is up to you to decide. It may be admissible as to something, I don't know what. It is not probative of anything. The witness has not accepted it unqualified. What is the purpose for which it is being tendered?
THE CHAIRPERSON: The argument to mark it, I suppose, Mr. Christie, is that these propositions were put to the witness, and his answers may or may not be relevant on some issue that you and other counsel will be arguing about, and the Tribunal had better have a copy of the document for those purposes. It is not evidence, but what is contained in the document.
MR. CHRISTIE: Thank you.
THE REGISTRAR: The document will be marked as HR-24.
EXHIBIT NO. HR-24: Document entitled "Challenges to the Network, Telecoms and the Internet" published by International Telecommunication Union
MR. FREIMAN:
Q. Moving on, sir, I believe you suggested to the Tribunal ‑‑ and, if I am wrong, please correct me ‑‑ that it would be possible to avoid the telephone system entirely in connecting to the Internet, and you gave the example of AlphaCom as one example ‑‑ I believe it was the only example you showed us ‑‑ of avoiding the telephone system entirely. Is that the purpose of the AlphaCom evidence?
A. That is what they claim their product does.
Q. I would like to refer you to a document that was downloaded from the Internet ‑‑ and, again, we have a facility available if you have any hesitation or doubt or worry as to the authenticity of this document. I would be glad to have you download it or call it up and we will look at it directly.
Do you have any such doubt? Would you like to verify the authenticity?
A. I believe I have seen this document sufficiently.
Q. Have you had an opportunity to look at the document?
A. Yes.
Q. Do you think it would be useful and necessary to download it to ensure that it is accurate, or are you willing to accept that it is an authentic download from this site?
A. It probably is.
MR. FREIMAN: Could we mark this as the next exhibit, please.
THE CHAIRPERSON: What portions are you going to refer to?
MR. FREIMAN: I am going to be referring to the third page, the Executive Summary.
THE CHAIRPERSON: Let's see where we go with it.
MR. FREIMAN: Just so the Tribunal remembers, I believe that evidence about AlphaCom was introduced in terms of a document that was downloaded from Interactive Frontier talking about the Transatlantic Online page and how it was going to keep track with a sailboat. That was the document we objected to being put into evidence because it didn't say anything about the technology that was in use.
Q. This is AlphaCom. This is the technology that you say bypasses the telephone system. I would like you to turn to page 3. Under "Executive Summary," follow with me and see whether you have any comments on this:
"AlphaCom International, Inc. (alphaCom or the Company) is an emerging company with the exclusive right to sell a high-speed wireless access computer modem called the InSat Wireless."
That is what you were referring to as being able to bypass the telephone system. Correct?
A. Right.
Q. Next sentence:
"This modem can provide a direct, 24-hour connection to the Internet for a desktop or laptop computer using the existing digital cellular telephone system in most major metropolitan areas."
Is that an accurate description, to your knowledge, of what the InSat Wireless communication that AlphaCom International sells does?
A. That is one the ways I understand it can be used, yes.
Q. How else can it be used? Can you find something in this document that tells us about anything else?
A. The other documentation I have seen regarding this product indicates that it works through their OrbCom satellite network that is being put in place.
Q. This works through OrbCom?
A. I believe that is what I have seen in other documents.
Q. Can you refer us to a document?
A. It would take me a few minutes to locate it.
MR. FREIMAN: Fine.
For the Tribunal's benefit, what we have done is hooked up a laptop computer to a projection screen. We have called up Netscape which is a browser software that allows us to have access to the Internet. We have connected through PC Anywhere by calling PC Anywhere phone number, and that got the image we have on the screen.
MR. CHRISTIE: My friend should not be giving evidence about phone numbers. He may be sliding it to the Tribunal very gently that that is his view.
THE CHAIRPERSON: It is not evidence.
MR. CHRISTIE: It is very useful psychological conditioning. Shall we put it that way?
THE CHAIRPERSON: We are immune to that.
MR. FREIMAN:
Q. While you are doing that, may I suggest to you, sir, that the OrbCom satellite provides Internet e-mail and e-mail only?
MR. CHRISTIE: I hope my friend will give the witness a chance to do what he asked him to do. He is operating a computer at the moment, and to ask him questions in the process doesn't seem entirely fair.
THE CHAIRPERSON: Let's wait until he completes his duties here.
‑‑- (A Short Pause)
THE WITNESS: If Mr. Freiman has information that indicates that OrbCom does not provide anything other than e-mail ‑‑
MR. FREIMAN:
Q. That is my understanding, yes. In fact, what is indicated on the document, sir, that was not introduced into evidence was that the sailing yacht was going to be kept in touch with Interactive Frontier using the OrbCom satellite communication system, a wireless satellite modem from InSat, and that Internet access was going to be provided only by AlphaCom. In other words, I suggest to you that OrbCom is a method of getting messages, either telephone messages or short fax messages or short e-mail messages, and AlphaCom provides the Internet access. The Internet access by AlphaCom is access by means of the public cellular telephone network.
MR. CHRISTIE: That is not giving evidence, I take it.
MR. FREIMAN:
Q. That is a proposition I am putting to you.
THE CHAIRPERSON: Do you understand what Mr. Freiman just said?
THE WITNESS: I think he is saying that that is his understanding of what their current capabilities are.
MR. FREIMAN:
Toronto, Ontario
‑‑- Upon resuming on Friday, November 13, 1998
at 9:45 a.m.
RESUMED: BERNARD KLATT
CROSS-EXAMINATION, Continued
MR. FREIMAN:
Q. Good morning, Mr. Klatt.
A. Good morning.
Q. Before we get back to the topics we were dealing with yesterday, I wonder if I could ask you about a couple of other groups or organizations that I didn't have a chance to discuss with you yesterday.
Do you know what NERN is?
A. I have seen the initials, but I have forgotten it.
Q. It might help if you I gave you the group to which it refers: National Research and Education Network. Does that help?
A. Not particularly.
Q. If I added that Vice-President Al Gore was the Chair of this group, does that help?
A. It sounds like a U.S. project.
Q. Isn't that a U.S. project to try to coordinate the information highway?
A. I am not sure how active they are.
Q. Do you know that that is the group, or you don't know whether that is the group?
A. No, I am not sure what the mandate or the charter or ambition might be.
Q. What about cisco?
A. It is a company that makes Internet router products.
Q. Are they a small company or a big company?
A. In the router business they could be considered the largest.
Q. Do they know what they are talking about when they discuss Internet matters?
A. In their area of expertise, yes.
Q. Would you define their area of expertise.
A. They do have recognized expertise in routing.
Q. If they talk about routers, you consider them to be authoritative.
A. Based on their product.
Q. If they talk about matters outside of routers that they themselves produce, are they authoritative?
A. It would probably depend on the context and the subject.
Q. Would you pay any attention to how they use words?
A. It would certainly be interesting to look at.
Q. But you wouldn't take it as necessarily definitive.
A. As I mentioned, on their products they would be the definitive source in respect of that.
Q. Is that the same standard that you apply for the authoritative nature of all companies or just cisco? Do you restrict the authoritative nature of what a company says to the products that it produces?
A. I would grant that the producer of the product would probably know more about it than perhaps a competitor or other entity.
Q. But that's about it. For instance, Microsoft. If you were looking at how they use words, what limit, if any, would you put on the authoritative nature of their discussions of words?
A. I am not quite sure I follow.
Q. I was trying to see what you believe to be the authoritative ‑‑ I asked you whether cisco was authoritative when it comes to the way it uses words, and I think what you told me ‑‑ and, if I am wrong, please do correct me. I think what you told me was that cisco is authoritative when it talks about its own router products. When it ventures beyond that narrow area, it would be interesting to see what they say, but not necessarily authoritative. Is that right?
A. They have expertise relating to Internet router issues. They participate on a variety of technical committees, so they do have people on staff who are knowledgeable.
THE CHAIRPERSON: Is that what you said?
MR. FREIMAN:
Q. Did you say that they were authoritative insofar as they talk about their own router products but, if they venture beyond their own router products, it is interesting to see what they say but not necessarily authoritative?
A. If they are commenting on something that is substantially out of their field of expertise, their authoritativeness would be considerably less.
Q. For instance, the way they use the word "telecommunications" ‑‑ authoritative or not authoritative?
A. They are not considered a telecommunications company.
Q. So they wouldn't know about that.
A. I wouldn't say they wouldn't necessarily know about it, but I don't ‑‑
Q. But you wouldn't trust them.
A. It would be interesting to see what they say in the context.
Q. That is why I wanted to know also with regard to Microsoft. Are they a telecommunications company?
A. They are not considered as such.
Q. So what they say about telecommunications would probably be beyond their area of expertise as well.
A. They do involve themselves in telecommunications protocols and products, so they definitely have expertise and understanding of matters that relate to that area.
Q. As opposed to cisco which never does any of those things, never involves itself in telecommunications issues.
A. I wouldn't characterize that as accurate.
Q. So what is the difference? Microsoft has an interaction with the telecommunications industry and so does cisco. Why is Microsoft reliable and cisco isn't?
A. I don't think I indicated any specific area.
Q. I am sorry...? The way they use the word "telecommunications", for example ‑‑ why is one authoritative and the other one isn't?
A. I didn't say one was or wasn't.
Q. I thought you did, sorry. I am just trying to understand the criteria that you are using to decide that one organization is authoritative in the area of how words are used and another might be less authoritative.
Specifically, you started to discuss cisco and you were first restricting it to their own products, and then we talked about Microsoft and you indicated to me that maybe their expertise was greater because they had interface with the telecommunications industry.
So I can apply the same standard to Microsoft as I apply to cisco. They are authoritative certainly in the area of the products they develop and, when you get outside the products they develop, it's interesting.
A. In terms of word usage, if we have a preponderance of dictionary definitions that define a word in a particular way, I am sure we can find novel or unique interpretations elsewhere. If the majority of reference material refers to and defines a word in a particular way, I would submit that that is the most accurate way of using that particular word.
Q. That is not really what I asked you. I asked you whether things are authoritative or not.
MR. CHRISTIE: It was a long convoluted question involving meaning. I think, with the greatest respect, the answer was responsive.
MR. FREIMAN: I guess Mr. Christie is not intending to re-examine.
MR. CHRISTIE: I beg your pardon?
MR. FREIMAN: I guess you are not intending to re-examine since you find it necessary to bring out all the points you would like to bring out in re-examination by ‑‑
THE CHAIRPERSON: Remarks go through the Chair.
Witness, I would ask you to direct your mind to the question and direct your answer in response to the question.
MR. FREIMAN:
Q. Can we try one more time? I want to understand what you consider to be authoritative in the writings and pronouncements of a company such as cisco when they are talking about definitions such as "telecommunications" or any other definition of words that are used in the telecommunications industry, and compare and contrast that with Microsoft.
A. For example, I would give cisco's understanding and definition of router terminology and processes and techniques a higher rate than that of Microsoft. In the area of software development or Internet applications, probably Microsoft would have the higher degree of expertise than cisco would.
Q. Let's see how this plays itself out in a minute.
THE REGISTRAR: Excuse me, the Court Reporter is having a hard time hearing with this equipment running. Could you try to raise your voice, please.
MR. CHRISTIE: Could we close off the equipment, perhaps?
THE CHAIRPERSON: Why is this on?
MR. FREIMAN: I am hoping to have Mr. Klatt's co-operation in order to authenticate some documents and to demonstrate some of the propositions that he has.
THE CHAIRPERSON: What are we doing, warming it up?
MR. FREIMAN: If we turn it off, we may not be able to turn it back on.
THE CHAIRPERSON: Mr. Klatt, you see what the problem is. Please raise your voice about as loud as I am talking.
MR. FREIMAN:
Q. Are you familiar with an organization called International Telecommunications Union?
A. ITU?
Q. Yes.
A. I know of it.
Q. What is it?
A. It is an international standards body, I believe, based in Switzerland.
Q. Yes, and what does it do?
A. It coordinates standards-making functions between various countries in the world.
Q. And you understand that it is an agency of the United Nations?
A. That is my understanding.
Q. You understand that it deals with technical standards. Do you also understand that it compiles statistics?
A. That could very well be one of the functions that they perform.
Q. Does it also deal with pricing policies internationally?
A. I am not aware of that.
Q. Do you know when the ITU was established?
A. No, I don't.
Q. If I suggest to you that it was established in the 19th century and, indeed, before the invention of the telephone and the telegraph, do you have any comment on that?
A. Like I mentioned previously, I am not a historian.
MR. CHRISTIE: If my friend is giving evidence on the subject, I object. Unless there is some witness to verify his statements, he is, in my submission, leading the cross-examination in a direction where he is giving evidence, not the witness.
THE CHAIRPERSON: I think it is obvious that the witness doesn't know the answer.
MR. FREIMAN:
Q. Do you understand that the ITU is involved in developing global standards for Internet telephony?
A. They may be involved in trying to coordinate standards and making efforts in that area.
Q. Is the ITU an authoritative body in discussing telecommunications matters?
A. The organization itself?
Q. Yes. When the organization publishes a document, is that authoritative?
A. My understanding is that they publish document describing agreed-upon standards that have been developed, and other product vendors or individuals who wish to implement products or software can choose to produce their products in accordance with it or extend it or a subset.
Q. I am not suggesting that their standards are mandatory, if that is what you are suggesting. I am asking whether, when the ITU issues a statement, that is authoritative on the subject matter that is covered, if it deals with telecommunications.
A. I am not sure in what area. That seems like a pretty broad ‑‑
THE CHAIRPERSON: In any area. You are familiar with the body. You have heard of the ITU as some sort of agency of the United Nations. Is what comes out of the ITU, you are being asked, in some way authoritative?
THE WITNESS: Certainly.
THE CHAIRPERSON: Next question.
MR. FREIMAN:
Q. I think yesterday I ended by ‑‑ before we get there, maybe we will see if this equipment actually works.
You will remember that we were looking at a document called "PSINet: The Difference is Our Network."
A. Right.
Q. I think you said you accepted that this was an authentic document.
A. I believe it has been on one of the PSI servers.
Q. One of the reasons that I put this up was so that, if you had any doubt as to the authenticity of any document that I present to you that purports to come from the Internet, we have a facility available to check it and actually to go to that site and to compare the document I am presenting to you with what today, at this moment and this second, is on the Net. I take it that you don't insist that we do that with this; you are willing to accept its authenticity. Correct?
A. I am sure it represents the position of whoever created it.
Q. One of the documents that Mr. Christie, through you, put into evidence was another document by the same organization, PSINet.
A. I believe so.
Q. And it was put into evidence in order to support the proposition that the Internet backbone providers, such as PSINet, do not own the underlying circuits over which the Internet backbone passes. They don't own the physical Internet backbone ‑‑ I am sorry, that is entirely wrong. Let me say it again.
This document was put into evidence ‑‑
MR. CHRISTIE: Let me object.
What this document was put into evidence for is not for this witness to say; it is for us to argue. I may have made the decision on why the document was put into evidence. Why should this witness answer that question?
MR. FREIMAN: Fine.
Q. Your view was, and one of the propositions that you hoped to illustrate with the PSINet document, was that Mr. Angus was wrong when he said that the Internet backbone was owned by telephone companies. As I understood it, your evidence was that PSINet is an Internet backbone company and it owns the infrastructure, it owns the portion of the Internet backbone that it provides. Was I right in that summary of your evidence when you discussed this matter with Mr. Christie, specifically PSINet?
A. I think what we were trying to illustrate was that the component that PSINet owns and operates is not a telephone company.
Q. We looked yesterday at page 2. On page 2 we have the following statement:
"PSINet relies on many Inter-Exchange Carriers (IXC) to provide TD point-to-point T1 and T3 circuits for this network."
I think we agreed yesterday that IXC or interexchange carrier is typically a long distance company and that TDM point-to-point T1 and T3 circuits are digital circuits. Correct?
A. Digital leased line circuit, yes.
Q. And they were originally developed for voice communication. Correct?
A. I don't know what the original motivation for their development was.
Q. They are used for telephone communication, and their first use was for telephone communication.
A. That is entirely likely.
Q. In fact, their capacity is often described in terms of voice channels, is it not?
A. It can be.
MR. CHRISTIE: Excuse me, for the record, is that referring to T1 and T3 circuits both, when you said "they?"
MR. FREIMAN: Yes.
Q. In fact, what PSINet does own is revealed in the third sentence in that paragraph:
"Additionally, PSINet's complete ownership and operation of all aspects of the switching substrates...guarantees the best possible operational and technical solutions for those requirements."
So PSINet leases the circuits and owns the switches. Correct?
A. That appears to be the case.
Q. When they say "switches," they include in that the concept of routers; is that correct?
A. True. But are you asserting that telephone calls go through their routers?
Q. I am not asserting anything, sir; I am asking you questions.
What is a POP?
A. Point of presence.
Q. Can you explain to the Tribunal what that is and what is its significance?
A. In the Internet Service Provider business, typically a company will start offering service in its local calling area.
MEMBER DEVINS: Could you speak up a bit, please.
THE WITNESS: Once they realize that there is additional market potential outside their local calling area, in order to economically serve that area, it will establish what is typically referred to as a point of presence, which typically consists of a location in another calling area that is not local to where the Internet Service Provider is based, where they put a leased line facility back to what is referred to as the head office. The point of presence at the remote calling area would then provide service for subscribers in that area.
MR. FREIMAN:
Q. The purpose of a point of presence is, in fact, to avoid incurring long distance telephone charges. Correct?
A. For the end users.
Q. And it is a way that the end users can link up with that particular provider.
A. True.
Q. If you look at the last two pages of the document in front of you, you will see an advertisement about points of presence for PSINet in Canada. I understand the column headed "City." That is the city that the end user may live in. We would be interested in the end user in this column. Right?
A. Right.
Q. And "Province" we understand. What is the access number?
MR. CHRISTIE: Are we referring to an exhibit and, if so, could I have the exhibit number?
THE CHAIRPERSON: It is not marked yet.
MR. FREIMAN: Let's mark it now as an exhibit.
MR. CHRISTIE: If it is not an exhibit, then I probably don't have a copy.
MR. FREIMAN: I think I did give you a copy but, if you would like a copy, here is one.
MR. CHRISTIE: Thank you.
MR. FREIMAN: Could we mark that as the next exhibit, please.
THE REGISTRAR: The PSINet document will be marked as HR-23.
EXHIBIT NO. HR-23: Document entitled "PSINet: The Difference is our Network"
MR. FREIMAN:
Q. Referring to the last two pages of HR-23, what is the access number? What can the end user do with that access number?
A. It can access the Internet through PSINet at that number.
Q. What do they do if they want to access PSINet? I suggest to you that they call that telephone number by means of their computer, and they are linked over their phone line to PSINet through these POPs. Correct?
A. That would be one description of it.
Q. What is another description?
A. The phone call ends at the point of presence they are calling. There is no phone call handling that occurs past that point on PSI's network that you are referring to.
Q. I said they are linked to the PSI network by a phone call made by the end user which travels over the phone line to the POP.
A. The original assertion was that PSINet was a telephone company.
Q. When did I say that, sir?
A. That was in the information that you referred to previously.
Q. Which information is that?
A. I would have to ‑‑
Q. Tell me because I am puzzled. I don't remember ever saying that PSINet was a telephone company.
A. Perhaps you didn't; perhaps it was in Mr. Angus' ‑‑
Q. I don't think Mr. Angus ever talked about PSINet.
Just before we leave HR-23, I suggest to you that PSINet is, in fact, somewhat ambiguous as to whether it is an Internet backbone provider or an ISP. Is that correct?
A. There is no hard and fast definition of what the Internet backbone is. Just about anybody knowledgeable in the Internet will have a different idea about what constitutes the Internet backbone.
Q. But no one would suggest that MCI was an ISP rather than a backbone provider, would they?
A. I believe MCI does provide ISP functions.
Q. It provides ISP functions, but its real business is as a backbone provider.
A. It's as real as any other part of their business.
Q. We won't argue about that. I am suggesting to you, though, that PSINet is advertising itself to the Canadian public as an alternative for Internet services to telephone companies. Do you agree with that?
A. Where do we see this?
Q. Look at the first page; look at the first paragraph:
"One of the most important things to know about PSINet is that we built our network specifically for Internet applications. It's the salient feature of our service, setting us apart from telephone companies, systems integrators, and the dozens of ISPs you see advertised in the back of your local business section."
Do you agree with me that PSINet sees itself as providing a similar, but superior, product or service to telephone companies?
A. What I see them saying is that they view themselves as setting themselves apart from telephone companies.
Q. It is superior to what the telephone companies can provide.
A. But I think we were arguing about the characterization that the Internet backbone providers are telephone companies, and you are showing us that you agree by that statement.
Q. None of those were questions that I asked you. I am simply suggesting to you that PSINet believes that it is offering a service that is similar to, but superior to, that of telephone companies.
A. I don't see the word "superior."
Q. It is a service that sets it apart from telephone companies. It can do something that telephone companies can't.
A. That I would agree with.
Q. What it can do is offer a network of leased lines and switches that is not used for voice communication; whereas, telephone companies offer a system of circuits, either leased or owned, and switches that sometimes are used for Internet traffic and sometimes used for data or voice traffic.
A. That seems accurate.
Q. In fact, sir, I suggest to you that the Internet as a whole ‑‑ we won't talk about backbone ‑‑ uses mainly leased lines and that those lines are exactly the same mix of copper and fibre that is used to run the public telephone service.
A. I would disagree with that.
Q. You would or would not?
A. I don't agree that that is the case.
Q. I would like to suggest to you further that the telecommunications community and the Internet community both effectively share the same public network. Do you agree with that?
A. What do you mean by "share?"
Q. They occupy the same public network.
A. In terms of having equipment located in the same facilities and buildings?
Q. The Internet and the telecommunications community share the same public network. Their communications are resident on the same public network. Do you agree or disagree with that?
A. I have seen equipment for Internet companies co-located with that of telephone companies.
Q. I asked you a larger proposition. The telecommunications community and the Internet community both effectively share the same public network. Do you agree or not?
A. No, they don't share them. You can't put a telephone call, in the normal sense of the word, across the Internet backbone.
Q. I don't think that is what I suggested.
MR. CHRISTIE: I suggest that, if my friend is going to quibble and argue with the witness, he should define the term "share" so that it cannot be capable of being understood in the way the witness understood it. If he wants to use ambiguous questions, I object to them.
MR. FREIMAN: Very well.
THE CHAIRPERSON: You might define the word "public."
MR. FREIMAN: I am sorry...?
THE CHAIRPERSON: How do you define the word "public?"
MR. FREIMAN: A public network is a network that is accessible to the public, that is not privately owned. It is a network of telecommunications common carriers.
Q. You understand what a public network is, don't you, Mr. Klatt?
A. In general.
Q. I would like to show you a report from the International Telecommunication Union in 1997 called "Challenges to the Network, Telecoms and the Internet." I have reproduced a small portion of that, and I want to give that to you and to the Panel.
You have before you the entire document so that there is no issue that this is an authentic excerpt from the document.
MR. CHRISTIE: Can I look at that, please?
MR. FREIMAN: Certainly.
Q. I would like to turn your attention to page 18.
MR. CHRISTIE: Since we have never been shown this before and it is a document of some several hundred pages, I wonder if it would not be appropriate to let either myself or the witness look at this, unless he has seen it and understands it.
MR. FREIMAN: He can have a look at it. If Mr. Christie wishes to re-examine him on it, I will lend him the material and he can look at it to his heart's content.
MR. CHRISTIE: The problem is at the moment, having never seen this before, that I don't know whether I have any objections to it. I would like to glance at the introduction to see what it represents before I am in a position to know what to do about it.
The witness was given it, and then I asked for it from the witness, so the witness can't have it. I don't particular want to deprive anybody of the right to go full speed ahead, but it seems to me that we should have a chance to at least glance at it and see what it is so that I might consider possibly objecting to it.
THE CHAIRPERSON: This, I assume, arose overnight.
MR. FREIMAN: Yes.
THE CHAIRPERSON: Because Mr. Christie has not had an opportunity to view it, do you want five minutes?
MR. CHRISTIE: Five minutes might be enough; it would be better than nothing.
‑‑- Short Recess at 10:15 a.m.
‑‑- Upon resuming at 10:23 a.m.
MR. FREIMAN: I have asked Mr. Christie to request the witness to excuse himself while Mr. Christie makes submissions.
‑‑- Witness Withdraws
MR. CHRISTIE: For the record, what I did was look at this large volume myself and then gave it to Mr. Klatt, and I discussed nothing with him about it. I have indicated to my friend that I have objections with the process that he proposes to embark on.
In the information I am given, I am given actually Chapter 3, page 18, and Chapter 7, page 64, for some consideration, with some marks on the side. That is basically the two pages that I have been given and that I think the Panel has been given. I note that this is two pages out of perhaps 200 pages, some of which may or may not be germane. I can already see, even from highlighted portions, that what we are being given is sort of a question without an answer and there may be answers interspersed through the volume.
Why I am concerned about this is simply because the perception created by the introduce of two page excerpts from an extensive publication is frequently contrary to other parts of the text or, in some cases, is taken out of context in such a way as to create an inaccurate meaning about the conclusions of either the author, for whatever they are worth, or the substance of the analysis that supports the author. The author may quote sources and indicate things which are contrary to what thesis is put forward in this less-than-two-page extract.
I am very troubled by that process because, for one thing, in the time available in cross-examination, I will not be able to find ‑‑ although I have found, for example, page 2 of Chapter 1 and page 1 of Chapter 1 which, had I seen them before, would be very useful to my own arguments. What this boils down to is a very grave difficulty in terms of determining if the context is correct for the excerpts that are being presented and being able, if need be, to examine.
I don't know what the witness' view is of this extract or even of this report, whether he adopts it or doesn't adopt it. If it is being tendered in a way to contradict the witness with some allegedly probative material, we would certainly take the position that we would need some time to consider, in terms of re-examination, just the implication of the extract in relation to whatever else there is here.
I concede that it is a complex subject and one that involves technical considerations. To be fair in terms of presentation of the Respondent's case, I would certainly ask, subject to whatever the witness may say, that somehow we be given the opportunity before this subject is exhausted, if this document is in some way admissible, to consider it in more detail and to re-examine if necessary ‑‑ that is, if the witness adopts it in some way and is then confronted with it.
THE CHAIRPERSON: I would suggest that we see how this develops. I think we can assume that what is going to occur here is that certain propositions in the document are going to be put to this witness. He may acknowledge them, adopt them or reject them. I believe the evidence supports the notion that the organization which has produced this document, the ITU, is a division of the United Nations. It has been acknowledged that there is some authority to that body.
I would suggest that we proceed and see how we make out. If you need some time to consider other parts of the report that may have a bearing on the questioning, we may be able to raise that in your re-examination. The volume has been made available to you, and we will see what happens.
Recall the witness, please.
Is there someone here who wishes to identify themselves?
MR. DeBONI: My name is Ross DeBoni. I am here on behalf of the Canadian Jewish Congress, on behalf of Joel Richler.
THE CHAIRPERSON: Thank you.
‑‑- Witness returns to the stand
MR. FREIMAN:
Q. Mr. Klatt, would you open the document ‑‑ I don't know whether Mr. Christie wants to give you the entire document so that you can flip through to answer any questions you have about context or whether you are content to go with these two pages. Perhaps it would be helpful for Mr. Christie to give you the document.
THE CHAIRPERSON: Witness, if you want to look at the entire document to assist you in answering the questions, please let us know that.
MR. FREIMAN:
Q. Would you go to page 18, please. I am not looking yet at the portion with the asterisk; I believe that was put in by someone other than myself.
You will remember that I put to you the proposition that the Internet and the public switched telephone network use exactly the same system. Correct? You had some difficulty with that.
Let me see whether you accept as accurate the proposition in the first paragraph, on the fourth line down.
MR. CHRISTIE: This is Chapter 3, page 18?
MR. FREIMAN: That is correct.
MR. CHRISTIE: Each chapter has separate numbering.
MR. FREIMAN:
Q. The proposition I would like you to consider is this:
"The Internet does not yet quite have the geographical spread of the Public Switched Telephone Network (PSTN), but it is not far behind. But that is not surprising because, after al, the Internet is an overlay on top of the PSTN. While the Internet mainly uses leased lines, those lines are exactly the same mix of copper and fibre that is used to run the public telephone service."
Do you agree with that proposition or do you disagree with that proposition?
A. It appears to me that the context of this chapter relates to the economics of the Internet, not to the functionality in terms of how it is actually implemented.
Q. But that is not my question. My question is whether you agree or disagree with the three sentences that I read to you.
A. Parts of it probably could be accepted, but the statement that the Internet does not have the geographical spread of the PSTN is not entirely accurate, because the Internet includes areas that the PSTN does not include. It is implying that the Internet is a subset of the PSTN, and that is not the case. The PSTN and Internet do not form a coterminous overlap and one is not a subset of the other.
Q. Let's direct our attention to the second sentence. Do you agree or disagree that the Internet is an overlay on top of the PSTN?
A. Parts of it may be considered that way.
Q. Do you agree with the statement that the Internet is an overlay on top of the PSTN?
MR. CHRISTIE: He has answered that. He doesn't have to agree in the way my friend wants him to agree. He said that it is partly true, and he has given an answer. He should not have to be forced to give the answer my friend wants. That is not really, as far as I am aware, the process of cross-examination. If he has answered it, he has answered it.
MR. FREIMAN:
Q. Do you agree or disagree, sir?
MR. CHRISTIE: I object to the question again. He answered it.
THE CHAIRPERSON: He answered in a particular way, and the question is put again whether he agrees with the proposition that the Internet is an overlay on top of the PSTN.
I take it you disagree with that proposition, do you?
THE WITNESS: It is true that I cannot accept it as being a 100 per cent factual statement. In fact, the Internet does not consist of an overlay on top of the PSTN. There are significant parts of the Internet that do not rely on the PSTN.
MR. FREIMAN:
Q. The next sentence ‑‑ do you agree or disagree with the statement that the Internet mainly uses leased lines?
A. I will agree that the Internet does make use of leased lines.
Q. I am asking for the whole proposition, mainly uses leased lines.
A. Are we considering Internet as being just U.S., just Canada, or worldwide?
Q. The ITU is an international organization. As I understand it, the Internet is now a global network. Isn't that what the chapter is talking about? It is talking about the Internet spreading all over the world.
A. True. If we consider the global Internet, there are large portions of the Internet that do not use leased lines.
Q. Do you agree or disagree with the proposition that the Internet mainly uses leased lines?
A. For ground-based services. Obviously, satellite links are not leased lines. If we are looking at miles covered, the satellite links would make up a significant portion.
Q. So you disagree with the proposition.
A. If it helps the discussion, I agree that the Internet does use leased lines.
THE CHAIRPERSON: It's a simple question. The proposition is that it mainly uses leased lines. Do you agree or disagree with that?
THE WITNESS: Within the continent that would be the case, but not worldwide.
MR. FREIMAN:
Q. Do you agree or disagree that with regard to the leased lines that are used in the Internet, those lines are exactly the same mix of copper and fibre that is used to run the public telephone service?
A. Is it referring to a percentage, like 30 per cent copper and 70 per cent fibre? What does it mean by mix?
Q. I can't tell you what he means. I can tell you what the International Telecommunication Union is saying, and I can ask you whether you agree or disagree. If you want to explain why you disagree, if you do, you can. I am asking whether you agree or disagree with the proposition that the leased lines used in the Internet are exactly the same mix of copper and fibre that is used to run the public telephone system.
A. No, I can't agree with that.
Q. If we go over the page, in the first paragraph I would like to put these propositions to you:
"One of the premises of this report is the assumption that the telecommunications community and the Internet community are very different, but that they are both effectively sharing the same public network."
Do you agree or disagree with the assumption being made by the International Telecommunication Union?
A. This seems to be in the context of some economic projections. I don't think they are making a definitive statement regarding the technical operations of either the public switched network or the Internet itself.
Q. I am asking you whether you agree or disagree with the assumption being made by the International Telecommunication Union that the telecommunications community and the Internet community are very different, but they are both effectively sharing the same public network.
A. It is true that the Internet does use portions of the public switched telephone network.
Q. Is that agreement or disagreement?
A. As I previously mentioned, there are portions that overlap and there are portions that are unique and different.
Q. So is that agreement or disagreement?
A. Like the very next sentence starts off, depending on your perspective.
Q. But I am asking you whether you are agreeing or disagreeing, because I am not sure what your ‑‑
MR. CHRISTIE: I object to the questioner demanding an answer in relation to a specific sentence without allowing the witness to put the sentence in context. That is what my friend is doing by demanding an answer without reference to the sentence.
THE CHAIRPERSON: The witness is being asked to agree or disagree with an assumption contained in this report. Can you direct your mind to the assumption?
MR. CHRISTIE: Sir, if I may, the assumption is not necessarily fully articulated in the first sentence.
MR. FREIMAN: I have certainly told the witness that, if he disagrees and he has a reason, I would be glad to hear the reason. Before we can understand the meaning of his response, we have to know whether he is in fact agreeing or disagreeing.
Q. I am happy to have you explain, but I need to know before we get there whether you agree or disagree that the telecommunications community and the Internet community are both effectively sharing the same public network.
A. I agree with the portion of the statement that would say the assumption that the telecommunications community and the Internet community are very different.
Q. And what about the next part of it, which is what I actually asked you, that both those communities are effectively sharing the same public network?
A. Like I said, depending on your perspective.
Q. So you both agree and disagree.
A. Depending perspective or context.
Q. Which perspective and context does it depend on?
A. The issue we were discussing. Is it economics or is it technically how it operates or what it is used for, what can be done over it. The answer could very well, and probably would, be different.
Q. In terms that the ITU appears to be talking about, which is the physical characteristics of the network on which the two communities operate, the telecommunications community and the Internet community, the environment on which they operate, are they both effectively sharing the same public network?
A. You could look at it in the sense that portions of it are being shared.
Q. That is your final answer to the question?
A. That is the best way I can understand what is being asked here.
Q. Let's look at the next sentence:
"Depending on your perspective, the Internet might be seen as a way of optimizing the performance of the public network ‑‑ by squeezing greater capacity utilisation out of the same pipes ‑‑ or as a parasite which sits on top of the network and drains its life-blood without investing very much in its growth and development."
First of all, do you understand this sentence as saying that there are two ways of understanding the implications of the statement that they are sharing the same public network?
A. I believe from the perspective of ITU, which is traditionally the background activity primarily involving telephone companies' interests, they are looking at this from an economic point of view, which is implied by the phraseology that is used there.
Q. Are we both on the same page that what they are talking about are the economic implications of the fact that the two communities share the same public network, namely, from one perspective it could be seen as the Internet community optimizing the performance of the shared public network and, from the other perspective, it could be seen as the Internet acting as a parasite on top of the same public network and draining it economically without contributing? Do we understand that in the same way?
MR. CHRISTIE: Sir, that question is so completely abstract.
MR. FREIMAN: I stand by the question.
MR. CHRISTIE: I frankly don't know what it means.
THE CHAIRPERSON: Let's see if the witness understands it.
THE WITNESS: In the context of a traditional telephone company, they very well might envision the Internet as a parasite which sits on top of the network draining the life-blood. That appears to be one of their concerns.
There are large portions of the equipment in the typical telephone building that are not ‑‑ for example, Internet components are not used for telephone company purposes, and telephone company equipment is not used for Internet purposes. To say that they are the same network is not accurate.
Q. It would be accurate, would it not, if it referred to the circuits being used, not the switches? Direct your mind to the circuits.
A. But the circuits don't connect to the same devices.
Q. Direct your mind to the circuits.
MR. CHRISTIE: The witness is the expert. My friend can't demand that he answer in the way my friend wants him to.
THE CHAIRPERSON: I think this line is appropriate. Continue.
MR. FREIMAN:
Q. Direct your mind to the circuits. Is it accurate in terms of the circuits, that they share the same public network in terms of the circuits?
A. By circuits, are we talking about telephone circuits or Internet circuits?
Q. We are talking about the same mix of copper and fibre.
A. Would it be helpful to consider a telephone high-capacity line for a telephone circuit? Is that what we are referring to?
Q. I am trying to help you to conceptualize the statement from the ITU. You seem to have difficulty because the switching equipment that the Internet uses is not identical to the switching equipment that is used for voice communication or for data communication. So I am asking you to direct your mind simply to the circuits and to see whether that makes any sense to you about sharing the same public network.
A. But the circuits don't make up the Internet.
Q. I am not sure I am going to get any farther.
A. That is an incomplete assumption in terms of reference to the Internet.
Q. So you are disagreeing with the statement on the basis that you have to consider the switches.
MR. CHRISTIE: Which statement?
MR. FREIMAN:
Q. The statement that they are both effectively sharing the same network, and one can be seen either as a parasite on the other or as optimizing the performance of the other.
MR. CHRISTIE: That is two statements. He has been over the first one many times, and you are putting the two together.
THE WITNESS: We can't have an Internet with just telephone company switches.
MR. FREIMAN:
Q. I don't think that is what was being suggested to you. If you understand the network as consisting of circuits ‑‑
A. The network doesn't consist of just circuits.
Q. If you were to understand the network as consisting of circuits ‑‑
A. It would be an incomplete understanding.
THE CHAIRPERSON: Don't argue. Just listen to the question.
MR. FREIMAN:
Q. ‑‑ would that help you in terms of understanding whether you can agree or disagree with the statements in this paragraph?
A. If you consider the highway system as just bridges ‑‑
Q. If you consider the highway system as just roads and not overpasses or toll booths or directional signals ‑‑ you may understand the highway system as including the toll booths, but for the moment we won't talk about the toll booths. We will just talk about the highway.
A. Toll booths are not an essential component of the highway.
MR. FREIMAN: I think we have exhausted this discussion.
THE CHAIRPERSON: I don't know why this is so difficult, but maybe you could go on to something else.
MR. FREIMAN: I think so.
MR. CHRISTIE: I understand why it is so difficult, because he is not agreeing with my learned friend and saying what others would like him to say. The witness is the expert and, if the questions are phrased properly, in my submission, he has answered every single one of them. I really don't appreciate the editorial comment that you made, sir, at this point.
THE CHAIRPERSON: I don't care whether you appreciate it or not. Please continue.
MR. CHRISTIE: I object to it. I don't think it is fair without re-examination ‑‑
THE CHAIRPERSON: I can make comments about the witness' demeanour and the witness' willingness to answer questions, and it will bear on what weight the evidence is given.
MR. CHRISTIE: I can object to it, and I do.
MR. FREIMAN:
Q. In general, sir, can I take it that, because of the numerous qualifications that you put on the statements, you disagree with the statements on the second page as they are phrased?
A. Like I mentioned, the first part I can agree with.
Q. That is that they are very different.
A. Correct.
Q. And after that?
A. With the qualifications that I have noted.
Q. You say that they are effectively sharing the same public network you disagree with and that the Internet optimizes the performance of the public network by squeezing greater capacity out of the same pipes ‑‑ you disagree that they are the same pipes, or do you agree that they are the same pipes?
A. The Internet does not use the same circuits as the telephone company does.
Q. Do you disagree with the concept of squeezing greater capacity utilization out of the same pipes because you believe that pipes include switches? Am I right?
MR. CHRISTIE: He said circuits.
MR. FREIMAN: No, he didn't say circuits.
MR. CHRISTIE: He said they don't use the same circuits. He didn't say switches, so please ‑‑ he said circuits.
MR. FREIMAN:
Q. Did you say circuits or switches? I will go with whatever you said.
A. I don't recall at the moment.
MR. CHRISTIE: Could it be read back?
THE CHAIRPERSON: What did you intend to say?
THE WITNESS: That the Internet doesn't use the same circuits that the telephone system uses.
MR. FREIMAN:
Q. So you disagree.
A. I agree with what I just said.
Q. But you disagree that the Internet is squeezing greater capacity utilization out of the same pipes because you believe that they don't use the same pipes.
A. If we are talking Internet telephony ‑‑
Q. No, we are talking about the Internet and the public switched telephone network or the telecommunications network, the telecommunications community. Am I right that you don't believe that they use the same pipes?
MR. CHRISTIE: In doing that, my learned friend has put the word "telephone company" in place of "telecommunications."
MR. FREIMAN: I changed it back to telecommunications.
MR. CHRISTIE: As long as it is clear that the document says "telecommunications community," not telephone company.
MR. FREIMAN: Yes.
Q. Do you still remember the question?
A. I think I am being asked whether I agree with the statement that the Internet and the telephone circuits are the same.
Q. No, that they utilize the same pipes.
MR. CHRISTIE: He has answered that many times. I know he hasn't answered it to my friend's satisfaction, and it has become increasingly apparent that he hasn't answered it to your satisfaction, sir, but I submit to you that he has answered the question many, many times.
THE CHAIRPERSON: It may be that we have reached the point where counsel will have to consider whether we are going to get any more out of this that will be of any use to this Tribunal. There seems to be a divergence of opinion in the witness' mind, which he is entitled to articulate and he has in his own way.
MR. FREIMAN: I would like to mark this as the next exhibit, please.
MR. CHRISTIE: My submission is that this is not a piece of evidence. I suppose it is up to you to decide. It may be admissible as to something, I don't know what. It is not probative of anything. The witness has not accepted it unqualified. What is the purpose for which it is being tendered?
THE CHAIRPERSON: The argument to mark it, I suppose, Mr. Christie, is that these propositions were put to the witness, and his answers may or may not be relevant on some issue that you and other counsel will be arguing about, and the Tribunal had better have a copy of the document for those purposes. It is not evidence, but what is contained in the document.
MR. CHRISTIE: Thank you.
THE REGISTRAR: The document will be marked as HR-24.
EXHIBIT NO. HR-24: Document entitled "Challenges to the Network, Telecoms and the Internet" published by International Telecommunication Union
MR. FREIMAN:
Q. Moving on, sir, I believe you suggested to the Tribunal ‑‑ and, if I am wrong, please correct me ‑‑ that it would be possible to avoid the telephone system entirely in connecting to the Internet, and you gave the example of AlphaCom as one example ‑‑ I believe it was the only example you showed us ‑‑ of avoiding the telephone system entirely. Is that the purpose of the AlphaCom evidence?
A. That is what they claim their product does.
Q. I would like to refer you to a document that was downloaded from the Internet ‑‑ and, again, we have a facility available if you have any hesitation or doubt or worry as to the authenticity of this document. I would be glad to have you download it or call it up and we will look at it directly.
Do you have any such doubt? Would you like to verify the authenticity?
A. I believe I have seen this document sufficiently.
Q. Have you had an opportunity to look at the document?
A. Yes.
Q. Do you think it would be useful and necessary to download it to ensure that it is accurate, or are you willing to accept that it is an authentic download from this site?
A. It probably is.
MR. FREIMAN: Could we mark this as the next exhibit, please.
THE CHAIRPERSON: What portions are you going to refer to?
MR. FREIMAN: I am going to be referring to the third page, the Executive Summary.
THE CHAIRPERSON: Let's see where we go with it.
MR. FREIMAN: Just so the Tribunal remembers, I believe that evidence about AlphaCom was introduced in terms of a document that was downloaded from Interactive Frontier talking about the Transatlantic Online page and how it was going to keep track with a sailboat. That was the document we objected to being put into evidence because it didn't say anything about the technology that was in use.
Q. This is AlphaCom. This is the technology that you say bypasses the telephone system. I would like you to turn to page 3. Under "Executive Summary," follow with me and see whether you have any comments on this:
"AlphaCom International, Inc. (alphaCom or the Company) is an emerging company with the exclusive right to sell a high-speed wireless access computer modem called the InSat Wireless."
That is what you were referring to as being able to bypass the telephone system. Correct?
A. Right.
Q. Next sentence:
"This modem can provide a direct, 24-hour connection to the Internet for a desktop or laptop computer using the existing digital cellular telephone system in most major metropolitan areas."
Is that an accurate description, to your knowledge, of what the InSat Wireless communication that AlphaCom International sells does?
A. That is one the ways I understand it can be used, yes.
Q. How else can it be used? Can you find something in this document that tells us about anything else?
A. The other documentation I have seen regarding this product indicates that it works through their OrbCom satellite network that is being put in place.
Q. This works through OrbCom?
A. I believe that is what I have seen in other documents.
Q. Can you refer us to a document?
A. It would take me a few minutes to locate it.
MR. FREIMAN: Fine.
For the Tribunal's benefit, what we have done is hooked up a laptop computer to a projection screen. We have called up Netscape which is a browser software that allows us to have access to the Internet. We have connected through PC Anywhere by calling PC Anywhere phone number, and that got the image we have on the screen.
MR. CHRISTIE: My friend should not be giving evidence about phone numbers. He may be sliding it to the Tribunal very gently that that is his view.
THE CHAIRPERSON: It is not evidence.
MR. CHRISTIE: It is very useful psychological conditioning. Shall we put it that way?
THE CHAIRPERSON: We are immune to that.
MR. FREIMAN:
Q. While you are doing that, may I suggest to you, sir, that the OrbCom satellite provides Internet e-mail and e-mail only?
MR. CHRISTIE: I hope my friend will give the witness a chance to do what he asked him to do. He is operating a computer at the moment, and to ask him questions in the process doesn't seem entirely fair.
THE CHAIRPERSON: Let's wait until he completes his duties here.
‑‑- (A Short Pause)
THE WITNESS: If Mr. Freiman has information that indicates that OrbCom does not provide anything other than e-mail ‑‑
MR. FREIMAN:
Q. That is my understanding, yes. In fact, what is indicated on the document, sir, that was not introduced into evidence was that the sailing yacht was going to be kept in touch with Interactive Frontier using the OrbCom satellite communication system, a wireless satellite modem from InSat, and that Internet access was going to be provided only by AlphaCom. In other words, I suggest to you that OrbCom is a method of getting messages, either telephone messages or short fax messages or short e-mail messages, and AlphaCom provides the Internet access. The Internet access by AlphaCom is access by means of the public cellular telephone network.
MR. CHRISTIE: That is not giving evidence, I take it.
MR. FREIMAN:
Q. That is a proposition I am putting to you.
THE CHAIRPERSON: Do you understand what Mr. Freiman just said?
THE WITNESS: I think he is saying that that is his understanding of what their current capabilities are.
MR. FREIMAN: