Toronto, Ontario
‑‑- Upon resuming on Thursday, November 12, 1998
at 9:45 a.m.
THE CHAIRPERSON: I will deal with some preliminary matters.
An issue has been raised on behalf of the Respondent concerning the enactment of the amendments to the Canadian Human Rights Act which came into force on June 30, 1998 as Statutes of Canada 1998-99. The specific area of concern revolves around the repeal of section 54(1) of the Act and the substitution of a new section 54(1) and section 54.1(1).
Counsel for all parties take the view that the amendments to the Act, including those affecting section 54(1) of the old Act are not retrospective in operation and therefore do not bear on the issues in these proceedings in that regard.
We agree that it is trite law that no statute shall be construed to have a retrospective operation absent clear evidence that such a construction is intended. This presumption has no application to enactments or amendments which are procedural only.
With regard to Mr. Fromm's application, Mr. Fromm of the Canadian Association for Free Expression Inc. asked that a summons issue pursuant to section 50(3)(a) of the Canadian Human Rights Act to four persons: Sabina Citron, Mel Lastman, Ben Kayfetz and David Jones.
Mrs. Citron is one of the Complainants in these proceedings.
Mel Lastman is now the Mayor of Toronto.
Ben Kayfetz, we are told by the applicant, is a long-time associate of the Canadian Jewish Congress in which organization he held a position of Director of Community Relations and has been active in the monitoring of hate propaganda against Jews since the early 1960s.
Mr. Jones is said to be connected to an organization related to freedom of speech.
Mr. Fromm seeks to justify the compelling of Mrs. Citron to give evidence concerning the effect of the words in the complained of documents on herself and the community she represents and to explain why the words have the effect of exposing Jews to hatred or contempt.
Mr. Lastman, he said, could give evidence as to the social context of Toronto society and the effect of the words in his own extremely wide jurisdiction where he has had a lengthy and distinguished career as a municipal politician.
Mr. Kayfetz is offered as an invaluable source of evidence on the social context of Canadian society over the past four decades and could provide the Tribunal with the context to the complaints in these proceedings.
None of these references is expected to be voluntary, the last three mentioned perhaps for obvious reasons, and Mr. Jones because, as Mr. Fromm says, he does not want to give evidence in this case.
The Tribunal has an obligation before issuing a summons and forcing the attendance of witnesses compelling that they give oral or written evidence on oath to consider whether such evidence is "necessary for the full hearing and consideration of the complaint."
Before applying the standard contained in section 50, it should be pointed out that the organization Mr. Fromm represents was granted status in this Hearing upon specific terms, as was the case with the other interested parties. Broadly, the Tribunal made it clear that the participation of interested parties should not operate to unnecessarily extend the Hearing by calling redundant and repetitious evidence. Moreover, the nature of such evidence proposed to be called should fit squarely within the rules of relevance. There is no absolute right to summon witnesses (Cortroni v. Quebec Police Commission, 1978, 1 S.C.R. at page 1048.
The exercise of powers accorded under section 50(3)(a) imposes a duty on the Tribunal to use its power in a manner that is neither unfair nor oppressive, but reflects a careful exercise of discretion. The power accorded to the Tribunal is an exceptional one (Canadian Pacific Airlines v. Canadian Airline Pilots Association, 1993, 3 S.C.R., 724).
We are mindful of the coercive nature of the power of summons. This Tribunal is given a wide discretion under the scheme of the Act to protect the orderly processes of this Hearing. The applicant's terms of participation do not, in our view, extend to addressing the areas he seeks to explore through these witnesses, even assuming their relevance which is doubtful.
The Tribunal has heard evidence at length from Barbara Hall who was the Mayor of Toronto at the time the Complaint was initiated by the Mayor's Committee. It is difficult for the Tribunal to understand how evidence from Mayor Lastman would be of any assistance to us in relation to its obligation respecting a full hearing and consideration of the complaints. Such evidence would in our view, at the very least, be redundant and repetitive and would not likely fall within an area of relevance to the issues in this Hearing.
With respect to Sabina Citron, Ben Kayfetz and David Jones, it is our opinion that the evidence sought to be elicited from these witnesses has no direct or substantial connection with any issue in this Hearing. Even if such connection could be established, it is arguable that each of these witnesses would be called on the basis of some expertise and so are not, as a matter of law and practice, usually compellable except in relation to facts in issue.
Accordingly, we deny Mr. Fromm's application in respect of each of the persons named.
On other matters, with respect to Mr. Christie's intended motion, we said we would set a timetable for that. We are directing that the motion and the written argument with respect to that matter be delivered by November 27, that the response be delivered by December 4, that the reply, if any, be delivered by December 8, and we will hear the motion on the morning of December 9.
I want to remind counsel, particularly Mr. Christie, that by tomorrow at two o'clock we will expect a list of witnesses he intends to call to complete his response to the Commission's case and the best estimate of the duration of each witness. I will also ask other counsel for their intention with respect to what witnesses they expect to call in reply, if any. I realize that presents some difficulty in relation to not having heard everything that Mr. Christie has in mind.
MR. CHRISTIE: Mr. Chairman, I have to raise an objection briefly.
The hours of sitting have been extended from what were 10:00 a.m. to approximately 4:30 p.m. to, on the last occasion, 9:30 a.m. to actually 5:10 on Tuesday.
At the present time I find the circumstances quite oppressive. We should not be viewing this situation as a gallop to the finish line now that the evidence of the Commission is finished. This has serious consequences not only for my ability to represent my client but also for my client's health. My client is in his late fifties, and from Tuesday evening at eight o'clock until Wednesday at 3:30, he was either in Wellesley Hospital or the St. Michael's Coronary Care Unit.
This is not a desire to malinger, because he is here today with the same chest pains he had before. The doctors have not been able to find evidence of heart disease. I am not particularly reassured about that, but I assure you that we intend to be here if at all possible within reasonable hours.
I personally find this a stressful hearing. I am opposed by seven counsel, if not more, on most occasions, and it has been quite intense. The witness finds it tiring, I am told, and I think I understand that. It is a strenuous thing to be examined, maybe even more so to be cross-examined. I find it difficult to be on my feet from 10:00 a.m. until 5:00. I don't think I am being wimpish by saying that to do a good job and to avoid difficulties of either judgment or emotion we should have reasonable breaks.
It is not as if I want to sleep in until 9:30, but I really would like to be better prepared. That requires preparation sometimes in the morning and sometimes in the evening. When you have such a long day ‑‑ and I know it is a long day for you, too, but I don't really feel that the stress on yourselves is as severe as it is on counsel; at least, I hope it is not. Certainly I feel the stress.
I am not begging for anything unusual. I really ask you to consider this. I am advising you that, if something serious happens, it will in my opinion be as a result of the stress of these proceedings to Mr. Zundel. He is not under any other stress that I am aware of.
I really feel that it is important to give at least the same consideration to us. I know everybody is anxious to get it over with, and I don't blame anybody for that, but we would ask for the same consideration vis-à-vis time as was given to the Commission in the presentation of any of their evidence, whether it is reply or anything else. Tempers can become frayed; people get overtired when we push ourselves too hard. I am simply asking you to consider our request to return to what we thought were normal hours. Of course, it is up to you. You are quite entitled to fix hours as convenient and necessary.
I am advising you of the difficulty my client is experiencing, and I am trying to be candid about my own. I am asking you to perhaps return to 10 o'clock and 4:30 with a reasonable time for the lunch break.
THE CHAIRPERSON: Thank you, Mr. Christie. I will discuss that with my colleagues at the break. I believe this is the first time we have heard that there may be a health problem here and, of course, we will be sensitive to that.
I am not far removed from the role of counsel as opposed to sitting here. Both are stressful, but I am very mindful that the day sometimes seems longer to counsel than to the trier of fact. I can recall one occasion where there was a judge who was in the habit of resuming at 7:30 until 10 o'clock at night, which is enough to cause counsel to lose a lot of weight in the space of a week. I am not insensitive to the needs of counsel to have time to prepare their case and to the stress involved in a long day.
We will review our position on that and respond to your concerns.
MR. CHRISTIE: Thank you, Mr. Chairman.
I have three very brief points to cover with Mr. Klatt, if I may.
THE CHAIRPERSON: We had hoped that we had completed that, but they are very brief?
MR. CHRISTIE: They are indeed.
THE CHAIRPERSON: Before you do that, Mr. Fromm is on his feet.
MR. FROMM: Mr. Chairman, I was wondering if it would be possible to have a written copy of your ruling.
THE CHAIRPERSON: It is on the record. I don't have it written in a form that I can distribute. It is on the record. If I can get one for you, I will do that. I would have to get someone to complete it in that form.
RESUMED: BERNARD KLATT
EXAMINATION-IN-CHIEF, Continued
MR. CHRISTIE:
Q. Mr. Klatt, over the break have you considered any other points you want to observe on the specific evidence?
A. Yes, I have.
Q. Were there two points that you wanted to bring to light in that regard?
A. Yes.
Q. Would you refer to the pages, please, that you want us to consider.
A. Pages 1421 and 1422, I believe.
Q. I think you mentioned to me page 1409.
A. Yes, 1409 is the first one.
Q. And the line?
A. Line 20.
Q. There it says:
"The Internet does what it does to route the call."
Could you comment on that, please.
A. Apparently this is in reference to accessing a web site. This goes to the extent of understanding of Mr. Angus of the Internet. The Internet does not route telephone calls when accessing a web site. This indicates a misconception or a fundamental confusion regarding the operation of the Internet in this regard.
Q. On page 1421 and 1422 you had referred to lines 2 to 16 on both pages. There Mr. Angus was dealing with a fax machine. I will just read those lines quickly, and then I will ask you to comment.
"Q. What does a telephone used as a fax line transmit? Does it transmit graphics?
A. It transmits sound and electrical waves in the voice frequency.
Q. And it communicates them graphically. Is that right? Please tell me if that is so.
A. Graphical communication ‑‑
Q. I have a fax machine, and it transmits graphically, doesn't it?
A. It transmits graphics. It doesn't transmit graphically; it transmits electrically.
Q. Yes, I understand that it transmits electrically, but what it transmits, the meaning of what it transmits, is a graphic message.
A. What goes through is a graphic message, yes.
Q. So, in that sense, it is not communicating the sense, the meaning, telephonically; it is perhaps transmitting data that is translated into a graphic image at the other end. Is that not correct?
A. No.
Q. Tell me, then: In transmission of a fax, is it not transmitting a graphic image?
A. It is transmitting a graphic image telephonically.
Q. It is transmitting a graphic image telephonically?
A. Yes.
Q. By the means of the communication of sound?
A. Yes.
Q. The sound is not communicating anything, sir, is it? It is electronic impulses that create an image through the translation process.
A. I am sure, sir, you have had the experience of your telephone ringing and you answer and it's a fax machine that has called you by mistake.
Q. Yes, and I don't get any meaning out of it.
A. No, but you do hear a sound.
Q. You hear a sound, but that sound has no meaning and it does not transmit meaning, does it?
A. Not to your ear, no.
Q. According to your definition, then, if a telephone communicates Morse code, you are saying that it would not be communicating telegraphically; it would be communicating telephonically.
A. In my view, the adverb "telephonically" is derived from telephony which includes, as this definition says, graphics information."
A. This section is hard to view, other than a few points to raise. It goes to the fundamental misunderstanding of the basic electrical nature of telecommunications. He is insisting that the fax machine communicates graphics telephonically, but according to our dictionary definitions and accepted usage and practice in the industry it would be an incorrect assertion. He is also attempting to assert that the means of communication is by sound.
Q. Does sound transmit the fax?
A. No, it does not. The sound is totally incidental, much like in the case of a modem where it is irrelevant to the communication of the information itself.
Q. You have been asked a number of specific questions in relation to parts of the evidence of Mr. Angus. Does that signify that you agree with the rest of his evidence?
A. No, it does not. You could spend an extensive amount of time rebutting in greater detail errors and misconceptions and inferences that are not based on reality.
Q. Does your analysis enable you to comment on the general level of expertise of Mr. Angus that you perceive from the evidence you have analyzed?
A. Yes. In trying to be charitable to Mr. Angus, he no doubt has expertise in some areas of telephone systems but, in terms of the Internet and explanations relating to it, there are significant problems, inaccuracies, errors, misconceptions and statements that do not accord with reality
MR. CHRISTIE: Those are my questions. Please answer questions from other counsel.
THE CHAIRPERSON: Mr. Freiman, please.
MR. FREIMAN: I think Mr. Fromm has pride of place.
THE CHAIRPERSON: I am sorry, do you have any questions, Mr. Fromm?
MR. FROMM: I do.
CROSS-EXAMINATION
MR. FROMM:
Q. Mr. Klatt, do you have the transcript of Mr. Angus' testimony there?
A. I do.
THE CHAIRPERSON: You will remember my admonition on behalf of the Tribunal about not covering repetitive areas here.
MR. FROMM: I do, Mr. Chairman.
THE CHAIRPERSON: One might conclude that Mr. Christie has, with his usual skill, covered the field quite well.
MR. FROMM: Q. I would like to call your attention to pages 1185 and 1186. I would like you to begin reading at line 22 on page 1185 down to line 7 on 1186, beginning with Mr. Christie's question.
A. "Q. Not to you, though. How much do
you get paid every day for being here?
A. My fee in my contract with the Commission is $1,000 a day.
Q. Anything for preparation?
A. I am paid the same amount for my preparation time.
Q. How many days of preparation went into this case?
A. Up until last week, let's say a week and a half ago, I had billed $6,000, so six days."
Q. Mr. Klatt, how much are you being paid to testify in this case?
A. I am not being paid to be here or to give testimony.
Q. Mr. Klatt, are you familiar with an organization known as Electronic Frontier Canada?
A. Yes, I am.
Q. Are you familiar with its mission statement?
A. Yes, I have been a member of Electronic Frontier Canada, this will be my second year.
Q. I am going to show you a copy of the mission statement of Electronic Frontier Canada that has been downloaded from their web site. I was wondering if you could identify this.
A. Yes. That is their statement of purpose and goals that they are attempting to achieve and accomplish in relation to the Internet and free speech.
MR. FROMM: I would like to request that this mission statement of the Electronic Frontier Canada be marked as an exhibit.
MR. FREIMAN: The witness has said that he knows about Electronic Frontier and that he is a member. It evades me what the relevance is.
THE CHAIRPERSON: Can you give us that, Mr. Fromm? Keeping in mind why we are here, I am not sure what the mission statement of Electronic Frontier Canada has to do with this Hearing. We know that there are issues in this case about free speech as it impacts on section 13. We will deal with those matters in due course, but I am not sure that this advances anything, that there is an organization called this and that they have a mission statement.
MR. FROMM: Mr. Chairman, this is an organization that is made up of Internet Service Providers and people interested in the Internet. Since that is the medium that this Hearing is focused on, I thought it might be of some relevance to have their mission statement.
THE CHAIRPERSON: I don't see it, unless anyone else wants to speak it.
MR. CHRISTIE: One thing I would like to say in support of it is that it speaks of clear institutional policies. At the end of the day, our argument will be that interpreting section 13(1) in a much broader and new way is not very clear law. It would be impossible to say that it is clear institutional policies that are of assistance, and it might useful to be able to then say that people who are in this line of work and who are interested in this area are really requesting clarity so that there is a clearly defined boundary. I will be arguing that that is relevant to the free speech issue.
I don't know that we have any other source for that knowledge. There are only three short statements, and they are quite succinct in expressing what I would like to say. At least I can say that, in the context of our society, the people who are dealing with this problem are very anxious to have clarity. The interpretation being sought by the Commission is going to involve far greater vagueness and confusion and uncertainty. At least I could point to the fact that people are seeking some legislative certainty so that free speech can be demarcated. At least we can know where we offend and where we don't offend.
THE CHAIRPERSON: Mr. Freiman, please.
MR. FREIMAN: I still see little, if any, relevance. The fact that there are groups who have positions on free speech is of interest, I am sure, to Mr. Klatt and to Mr. Fromm. Again, it is simply unclear to me how that advances any matter in issue in these proceedings.
I am not saying that this is harmful in any way. I just don't see that it is relevant in any way.
MR. FROMM: I sought to bring forth witnesses who might be able to shed some light on the social context in which these statements are communicated. This is certainly part of the social context, being an organization that represents Internet users and service providers.
THE CHAIRPERSON: Mr. Fromm, we are ruling against you on this. We are not going to allow this document in. Go on to your next question, please.
MR. FROMM:
Q. Mr. Klatt, are you familiar with the Electronic Frontier Canada policy regarding the responsibility ‑‑
THE CHAIRPERSON: Go on to your next question. We are not going to allow the policy in because we consider it irrelevant and we are not going to mark the policy as an exhibit. Go on to your next question.
MR. FROMM:
Q. Can you indicate what the organization known as Electronic Frontier Canada believes are the responsibilities of Internet Service Providers?
THE CHAIRPERSON: That is the same area. I am asking you to go into a new area, any new area that you have in mind.
MR. FROMM:
Q. Are you aware of any statements made by the Electronic Frontier Canada with regard to efforts to censor the Internet in Canada?
THE CHAIRPERSON: Please follow the direction of the Tribunal.
MR. FROMM: Is the Electronic Frontier Canada completely verboten?
THE CHAIRPERSON: We are not going to allow any further questions about the Electronic Frontier.
MR. FROMM:
Q. Mr. Klatt, I would like to call your attention to Respondent Exhibit R-38 which you made reference to last day. Do you have a copy there?
A. Yes, I do.
Q. This is a document called "British Columbia Internet Association". I wonder if you could refresh our memory as to exactly what the British Columbia Internet Association is.
A. It is an association of Internet providers in British Columbia who choose to belong to this organization.
THE CHAIRPERSON: Mr. Fromm, we did allow this exhibit in through this witness and responded to the submissions of Mr. Christie in relation to page 2 of 3, paragraph 4 which deals with publication and/or telecommunications. It was limited to that area of this document. The rest we did not consider relevant.
MR. FROMM: That was page 2?
THE CHAIRPERSON: Yes, paragraph 4, "Publication and/or telecommunications."
MR. FROMM: I want to call the witness' attention to page 1.
THE CHAIRPERSON: Put the question, and we will rule on it.
MR. FROMM:
Q. Are you a member of the BCIA?
A. Yes, I am a member and have been since late 1995.
Q. So you are aware of their policies?
A. Yes, I am.
Q. Have you had any role in formulating those policies?
A. To some extent. I have had the opportunity to talk to Dr. David Godfrey, the President of BC Internet Association regarding some of these topics.
Q. To your knowledge, has the BCIA taken a position about freedom of expression on the Internet?
A. Yes. In the second paragraph ‑‑
MR. FREIMAN: I rise again. Mr. Fromm, being somewhat new to these proceedings, perhaps does not appreciate the extent of the Tribunal's ruling.
As I understand it, the policy about freedom of expression by organizations such as Electronic Frontier or the BCIA has not been found to be of any relevance by the Tribunal and therefore should not be the subject matter of questions.
MR. CHRISTIE: Let me make one observation.
In my submission, this being a case of first instance in this field, the Tribunal would be making a serious error to exclude consideration of social context beyond the narrow confines of what the Commission would ask you to consider.
Social context means social context in which we live, and this is part of it. In my submission, it is entirely inappropriate to restrict that term to only that which is of interest to the Complainants. That, in effect, is what will be the result if nothing in this nature is admissible.
THE CHAIRPERSON: I doubt that that is a correct statement, Mr. Christie. All the Tribunal is saying at this point is that we do not consider the BCIA Code of Conduct with respect to freedom of expression relevant in determining the result of this Hearing, according to law.
Move on to your next question.
MR. FROMM:
Q. Just to refresh our memory, Mr. Klatt, is it correct that you are what is called an ISP or Internet Service Provider?
A. I have been an Internet Service Provider from March of 1995 through the end of April 1998.
Q. In your role as an Internet Service Provider and on the basis of your previous testimony and as an active member of several Internet associations, are you aware of any attempts to pressure ISPs who attempt to guarantee freedom of expression for their clients, from your own experience?
A. Yes. I have personal experience, plus I am aware of other ISPs and other individuals who are attempting to either harass ISPs or engage in what could be determined as Internet censorship attempts.
Q. Could you share with the Tribunal some of the specifics.
A. One of the earliest attempts I am aware of is the action of the Simon Wiesenthal Center which involved sending out 1,200 letters to Internet Service Providers across North America advising or requesting or attempt to coerce Internet Service Providers into not allowing specific types of content that they disagreed with to be hosted on web sites.
THE CHAIRPERSON: I don't want you to pursue that line any farther.
MR. CHRISTIE: I would like to put on the record my submission that it is entirely appropriate to demonstrate that these proceedings are being used for political purposes, and that is the thrust of the evidence. To exclude that consideration of the social context, to exclude that from consideration as to whether the complaints are in good faith or not or whether this process is being manipulated for political purposes, which is a very fundamental part of our argument, would be to deny consideration of one of the primary and most important things that you should be analyzing, and that is the good faith or otherwise of the Complainants and Intervenants and the weight to be given to their submissions. That should definitely be qualified by what efforts they have done and used in the past to achieve their political objectives, and whether you should take their submissions seriously or not should depend on whether they are actually involved in endeavouring to manipulate this Tribunal, manipulate this law, to achieve political objectives or not.
To demonstrate that they are attempting to achieve those same political objectives by other means, by more obvious political means, would certainly be relevant to show that these are not bona fide complaints but merely political complaints.
THE CHAIRPERSON: I would suggest to you, Mr. Christie, that my colleagues and I would be offended by any suggestion that we are subject to some manipulation. We dealt with the issue that you raised at the outset of this Hearing, and you know what our ruling was in that regard, and I should not have to repeat it each time it is raised.
Go on to your next question, Mr. Fromm.
MR. FREIMAN: I rise somewhat reluctantly and paradoxically. The Tribunal ruling is precisely correct, specifically on the area of irrelevance of motive.
I have been sitting rather than standing to object because, to be candid, I expect that every ruling of this Tribunal will become the subject matter of a judicial review application in any event.
THE CHAIRPERSON: We should not be interested in that, Mr. Freiman. I don't want to know about that.
MR. FREIMAN: I withdraw that. The reason that I had not risen in that, even in terms of this Tribunal's proceedings, we may be penny wise and pound foolish as we get the verdict every 15 seconds with regard to a ruling. In some sense, it may be preferable insofar as the witness has personal experience; it may bear on his own credibility to allow him to testify about his own experience and his own actions. That may reflect positively on his credibility; it may reflect negatively on his credibility.
MR. CHRISTIE: I love the double standard of the Commission which is so beautifully ironic. When it is useful to their purposes, they advise you to accept it; when it is not, they don't. When you agree with their position, they agree with you. Then they would like to qualify that by saying: But, on the other hand, we would like to be able to cross-examine on this area.
The motive of the witness is somehow relevant and, of course, we avoid the Complainants' motives being questioned by both your ruling and the fact that they never testified. Your latest ruling is that bona fides is also irrelevant.
I would submit that it is becoming too obvious that the Commission would like to play both sides of the street, to argue both sides of the issues, and to get the benefit of a ruling both ways. It is not unusual; we have seen this practice more than once, but we object to it. We submit that it is something which should not be encouraged and should not be allowed.
THE CHAIRPERSON: Please proceed to your next question, Mr. Fromm.
MR. FROMM: Mr. Chairman, in trying to organize the questions for Mr. Klatt, I was mindful of comments made on Tuesday about the focus of our particular brief. I tried to focus on the areas that have to do particularly with freedom of speech.
Q. Mr. Klatt, in response to the last question, as I recall it ‑‑
MR. CHRISTIE: Excuse me, I want to interrupt and correct one remark that you made, Mr. Chairman, that I implied that you were being manipulated. I said that the Commission is attempting to manipulate you, and I did not say that you were being political although that is not something that I would like to speak about.
The point I make is that you implied that I had said that you were politically manipulated. The attempt is being made.
THE CHAIRPERSON: Proceed, Mr. Fromm.
MR. FROMM:
Q. In response to my last question you talked about the experience of other Internet Service Providers. I would like to direct you to any personal experience you might have had in terms of efforts to intimidate you in terms of the service you provided. Have you had any such experiences?
A. Yes. We have been approached by Sol Littman. We were one of the Internet Service Providers that had clients that had material that Mr. Littman seemed to have some concern or objection with. We were contacted.
THE CHAIRPERSON: We have that on the record now. I would like you to move on to another topic.
MR. FROMM: Can I explore what happened next? He says he was contacted.
THE CHAIRPERSON: The fact that some organization associated with any of the interested parties in this matter attempted to influence Mr. Klatt or some other ISP not to publish certain matters is not before us. It is not an issue that is of relevance to us. I am asking you to move on to another area.
MR. FROMM: Does it not form part of the social context of intimidation which in fact led to the complaint which is before you today?
THE CHAIRPERSON: Ms Matheson, please.
MS MATHESON: Mr. Chairman, I just stand to put our position on the record. This is an expert witness, and I agree with the Tribunal's comments that what happened with the Electronic Frontier and its organization is not before us, but I think it is proper to explore the particular bias of the witness who is testifying.
I am not sure where Mr. Fromm is going, but ‑‑
THE CHAIRPERSON: We heard evidence-in-chief on this topic the day before yesterday in Mr. Christie's questioning.
MS MATHESON: Could I ask you to repeat that. I did not quite hear it.
THE CHAIRPERSON: What I was saying is that we heard some evidence in the same area, if I am correct, the day before yesterday when Mr. Christie was examining Mr. Klatt.
Would you go on to your next question, please.
MR. FROMM:
Q. What was your response to this question?
A. It occurred over a period of time, from the summer of 1996 initially to early this year, when a variety of press conferences were held, accusations were made, and attempts to have the Attorney General of British Columbia take action based on false information that was provided to the Attorney General regarding our business. There was intimidation of suppliers regarding our business. There was economic loss to our business. The original company that hosted our equipment received intimidation which caused them to ask us to vacate the premises with our equipment. The subsequent business that agreed to house our equipment also was subject to implied threats of commercial blackmail.
We attempted to hold a public meeting to present our views to the public. The CJC takes credit on their web page for influencing the Town of Oliver to cancel that meeting facility.
Our current Internet provider has received implied threats or what they perceive as intimidation from the CJC which has caused them to interfere with our connectivity and business relating to the Internet.
Q. I would just like to go back for a second. Torontonians are said to have a very self-centred view of themselves, and the hinterland in their opinion begins at Highway 427. Could you tell us a bit about the town of Oliver. How big is it?
A. It is not particularly large. It is close to 5,000 in population.
Q. After the intimidation attempts began and there was pressure on the Town Council and pressure on your local newspaper, what had become of your status in that community, in this small town of Oliver?
A. Through various attempts that were made, a petition was circulated throughout the town.
Q. Who initiated this petition?
A. I don't know the specific name, but it was circulated on the letterhead of the Town of Oliver. They claimed to have gathered 1,200 signatures and some say 900, but it was a significant number of signatures asking the Attorney General to investigate whatever this petition said.
We lost contracts with the School Board. We were requested not to continue providing instructional services at the college regarding Internet courses.
Q. How long have you lived in that community?
A. I have lived there approximately 30 years.
Q. As the pressure escalated and the petition was circulated, did you feel that your position as an ISP was understood by your fellow citizens?
A. No, it was not, because the local newspaper publisher seemed to take it on as a personal crusade of his to give us front page headlines in a negative light whenever possible.
Q. Did you try to do anything to communicate to people who were not on the Internet in your community what your position was an ISP, as you saw it?
A. Yes. We were interviewed by various news media organizations, TV and various radio stations, but they did not have much coverage locally. That was the motivation to hold a local public meeting so that we could express our views regarding our role as Internet Service Providers in relation to the Internet.
Q. Who was the intended audience of this public meeting?
A. The local citizens of the surrounding area of the town of Oliver.
Q. After the announcements of this public meeting had become known, what was your experience?
A. There was a variety of activity that took place to attempt to coerce the Town Council into revoking the permission they had given us to use the meeting room. There were threats or statements made to the effect that there was going to be violence. There was no basis in fact that I was ever able to determine. We talked to the local RCMP, and they told me that they had no expectation of violence.
The opportunity to use the meeting room was revoked the day before it was scheduled, after considerable expense had been incurred in terms of advertising in radio and print.
Q. Who revoked the permission to hold the meeting?
A. The Town Council held what was referred to as an emergency meeting on Friday morning. The meeting was scheduled for Saturday evening. On Friday morning they held an emergency Town Council meeting and then personally drove out to my place of business and delivered me a one-page letter stating that we no longer had the right to use the meeting room we had previously reserved.
Q. The Mayor and Council made this decision. Did anybody else claim responsibility for having changed the Town Council's mind on this?
A. Yes. As I mentioned, the CJC on their web page implies that they take credit for accomplishing that result.
Q. As of April of this year you were no longer an Internet Service Provider in British Columbia; is that correct?
A. Yes, that is t rue.
Q. But you indicate that you continue to run into problems. What sort of problems?
A. The company that bought out the portion of the Internet business that we sold, a company in Penticton, have our server still active although it is not used in hosting web sites. It was our own corporate web server. The fact that it was still visible on the Internet seemed to annoy people in certain organizations in Toronto. The Internet company in Penticton received phone calls which resulted in the disconnection or shutdown or interference with our Internet access to our current provider in Penticton.
Q. Do I understand correctly that this was in spite of the fact that you are no longer an Internet Service Provider?
A. That is correct.
Q. You are no longer providing service to any organization, political or otherwise?
A. Other than our own business content, that is correct.
MR. FROMM: Those are my questions.
THE CHAIRPERSON: Thank you, Mr. Fromm.
MR. FREIMAN: I wonder if I might ask the indulgence of the Tribunal to have Mr. Angus sit at the counsel table to assist me with references.
MR. CHRISTIE: I have no objection.
CROSS-EXAMINATION
MR. FREIMAN:
Q. Mr. Klatt, you indicated that, unlike Mr. Angus, you are not being paid at all for your testimony today. Is that right?
A. True.
Q. Where did you stay last night?
A. In Toronto.
Q. Where?
A. At a friend's place.
Q. Who is the friend?
A. Mr. Zundel.
Q. How long has he been your friend?
A. Since I first met him.
Q. When was that?
A. I can't remember the date.
Q. A week ago, two weeks ago, a month ago, a year ago, two years ago?
A. It would have been probably sometime before the initial instigation of these hearings, to my recollection.
Q. Sometime before 1996?
A. I don't know.
Q. Since then have you been in contact on a relatively regular basis with your friend Mr. Zundel?
A. In relation to this case, yes.
Q. And in relation to the shared areas of interest that you have?
A. I am not sure what you are referring to.
Q. Do you share areas of interest with Mr. Zundel?
A. In terms of freedom of expression on the Internet, yes.
Q. You communicate with him by e-mail from time to time?
A. No, I don't.
Q. You have stayed at his place before?
A. Yes.
Q. And he has visited your place in British Columbia?
A. Yes.
Q. Before we start, I want to get some idea of the scope of the expertise that you claim in the areas in which you have testified. As I understand it, the basis for your claim of expertise is two-fold.
First of all, it was your career before you formed Fairview Technologies. Right?
A. That would be part of it.
Q. That was your career in the various companies that you read out to us at some length a few days ago. Am I right that that basically consists of computer servicing and troubleshooting, whether computers or computer networks?
A. That would be a better characterization of the work I did for the first few years when I was at Digital Equipment, but that is not the extent of my experience with any of the three companies.
Q. That is the common thread that runs through all of your employment before you founded your present company, is it not?
A. If you wish to characterize it that way.
Q. You have characterized it that way, haven't you?
A. I don't think so.
Q. We have agreed that that does characterize what you did for Digital Equipment.
A. In part.
Q. In part. In dealing with General Electric - Calma, you state that you worked in the research and development of high-speed broadband coaxial data networking of CAD/CAM systems and you installed and troubleshooted computer systems, data and network installations. That is correct, is it not?
A. That is a partial description of what I did there, yes.
Q. That is your description.
A. I didn't describe everything I did.
Q. For Philips-Signetics, you say you designed and managed installation of corporate campus fibre optic data network, coordinated over 200 network systems consisting of mainframes, minicomputers, work stations and PCs, and you were responsible for troubleshooting and maintaining network services.
I am not being inaccurate about that, am I?
A. What is listed there is part of what I did, yes.
Q. So far as the Internet is concerned, even in the early days from 1980 onward, you were a consumer or a user of the Internet. You would use it in order to do research or to exchange communications via e-mail.
A. E-mail was not the only use for the Internet at that time.
Q. You also accessed information on the Internet in matters of interest to you.
A. Certainly.
Q. You did not construct Internet systems?
A. No, they were multimillion dollar ‑‑
Q. In fact, you are not an engineer?
A. I don't have a formal degree or title as engineer, no.
THE CHAIRPERSON: Excuse me for interrupting. Did you receive a certificate from the British Columbia Institute of Technology?
THE WITNESS: Yes. It is a two-year program. It is not a four-year program that results in a formal engineering degree.
MR. FREIMAN:
Q. In terms of your expertise since founding Fairview Technology Centre was in a number of businesses. One was simply the installation, servicing and advising customers with regard to personal computers and installation of networks.
A. Yes, that constituted part of our business.
Q. Since 1995 you were also an Internet Service Provider or ISP?
A. Yes.
Q. And that has been one of your major bases for familiarity with the Internet?
A. Yes.
Q. In that guise, we could generally divide the services you provided into three areas. You provided ‑‑
MR. CHRISTIE: I object to the choice of the word "guise" in the question. I think my friend should avoid being tricky. The word "guise" implies deception, and I don't think it is fair to put it to the witness that he accepted or adopted any guise.
MR. FREIMAN:
Q. In your role ‑‑ which I think Mr. Christie in going through the numerous dictionaries to which he has apparent access will find is a definition of "guise."
In your role as Internet Service Provider, I think we can identify three different roles. The first, you will agree with me, was to provide e-mail services to business and residential clients.
A. That is certainly a common function of an Internet Service Provider.
Q. And it is one that you fulfilled?
A. Yes, we did.
Q. How would that come about? How would you come to provide e-mail services for a particular individual or business?
A. The individual requesting to use our services would establish an account with us, and they would either choose or be given an e-mail address.
Q. How would that individual or group come to know about you and the availability of these services?
A. In a variety of means or methods.
Q. Tell me some of them.
A. We were listed on a number of the Internet Service Provider lists that are available on the Internet. We were listed in the BC Internet Association list of providers in British Columbia. We did some advertising.
Q. Where would the advertising have been?
A. In print form in Oliver and Osoyoos and by word of mouth. We were active in various discussion groups and e-mail discussion groups on the Internet.
Q. Did you advertise in France?
A. No.
Q. Do you know anybody in France?
A. Not that I know of.
Q. How would people in France know about you?
A. By any of the above methods.
Q. By reading the Osoyoos press?
A. If somebody sent it to them.
Q. So we have e-mail. The second is web site hosting. As I understand it, that means that you provided room on your server for people who wished to have web sites.
A. That would be essentially correct.
Q. Again, people would know about that service in the same way as they knew about e-mail service?
A. They could assume that, if we had the ability to provide e-mail service, it was likely that we would also be able to provide web service.
Q. And your advertising was the same?
A. I don't recall the advertising making specific mention of web hosting services, but it may have.
Q. Without any specific recollection of advertising web hosting services, do you have any idea how people would know to come to you if they wanted to place a web site on your server?
A. Like I mentioned, they could contact us through our listing in the various Internet Service Provider listings that are on the Internet, through word of mouth, through discussion on various e-mail lists, possibly through IRC.
Q. What is IRC?
A. Internet Relay Chat discussion.
Q. In addition to those two services, you also provided as, I take it, a significant part of your business dial-up access to the network?
A. Yes, we did have ability for people to connect in.
Q. Aside from those areas that you say give you expertise in the Internet and its ramifications, do you keep up with developments in the Internet?
A. I try to.
Q. Can you tell me what publications or what sources of information you consult?
A. One of them would be Internet World; our participation in the Internet trade shows such as Internet World in San José; Comdex; participation in the BC Internet Association's seminars and meetings; my participation in the Internet Service Provider-related discussion e-mail lists that I subscribe to.
Q. Would you agree with me that, if you are indeed an expert in the Internet, you ought to know the standard publications and reference sources?
A. It would be hard to know all of them.
Q. For instance, are you familiar with the Cook report?
A. I know of it.
Q. What is that? Tell me something about it.
A. I know of it.
Q. What do you know of it?
A. It is a fairly expensive report beyond the financial means of our company to subscribe to. I have seen reference to it.
Q. It is an authoritative source, but you simply cannot afford access to it.
A. I would not know if it is considered authoritative. I believe it is largely the opinions of the writer.
Q. You also say that you are familiar with Internet telephony. Is that true?
A. I have used Internet telephony products.
Q. You have done more than just give evidence about your use of Internet telephony products. You have spoken to us extensively over the last few days about what Internet telephony is, haven't you?
A. Do you consider that an extensive exposition on that topic?
Q. I heard the words almost as often as you say we heard the word "telephone" in Mr. Angus' evidence. You did refer to Internet telephony on more than one occasion, didn't you?
A. True.
Q. And about its characteristics?
A. Yes.
Q. And how it compares with standard telephony?
A. In what way?
Q. You told us about Internet ‑‑ I will retract that. Let me get to the point.
Do you do any reading on Internet telephony?
A. I subscribe to the VON e-mail list that Jeff Pulver distributes.
Q. Are you familiar with a publication called "Computer Telephony?"
A. Is that a hard copy print publication?
Q. Yes.
A. I don't believe I get that.
Q. Maybe this will refresh your memory. Have you ever seen this before?
A. Not this issue.
Q. Have you ever seen any issues of it before?
A. Not that I would say.
Q. Would you agree with me that it appears to be a publication devoted to various applications of telephony involving computers?
A. It describes itself as a magazine for computer and telephone integration.
Q. Do you think that is relevant to Internet telephony?
A. Possibly.
Q. Would you look at the Table of Contents. Do you see any articles about Internet telephony?
A. The cover mentions IP telephony gateway, so this particular issue appears to have at least one article on that topic.
Q. In fact, it has two articles on the topic, if you look at the Table of Contents. It is difficult because you can't click on a hard copy to get the Table of Contents. Maybe I can help you.
I am showing you page 4. You will see there is a heading called "IP Telephony." Just confirm to me that it does appear to deal with IP telephony in two articles.
A. There is a reference to an executive summary of IP telephony.
Q. Yes, and then an article about gateways.
A. It looks like a comparison between four IP telephony gateway products.
Q. Would you look at page 6, please. Can you tell me who the editor of this magazine is?
A. A person by the name of Rick Lumen.
Q. And the editor-in-chief?
A. Our good friend Harry Newton.
Q. Have you ever heard of him before?
A. In the context of his Telecom Dictionary, yes.
Q. You have heard about the Telecom Dictionary, but you were not aware that he also publishes a magazine about computer telephony?
A. No, I wasn't.
Q. I also noticed in your discussion of Internet, we heard mainly about the United States. You will agree with me?
Let me ask you: Do you also know anything about the Internet in Canada?
A. Certainly.
Q. Do you know what CaNet is?
A. That was the network that was set up to provide high-speed Internet connections in Canada.
MR. CHRISTIE: Is it C-a-Net?
MR. FREIMAN: CaNet, one word, or there may be an asterisk between the "a" and the "N."
Q. Do you know what Ca2Net was or is?
A. I don't have specific details on that.
Q. And Ca3Net?
A. I don't know what that involves.
Q. What about an organization with the acronym CANARIE? Do you know who they are?
A. I have heard of it, but I can't remember what all the letters stand for.
Q. You have heard of the organization. What does it do?
A. I can't give the complete definition of what it does, but it is my understanding that it is a group that is involved with the government to encourage the use of the Internet in relation to industry and research across Canada.
Q. Is that an authoritative group?
A. I am sure there are knowledgeable people in it.
Q. Do you know anybody who is associated with it?
A. Personally, no.
Q. Do you know any names?
A. Personally, no I don't.
Q. You spent some time with Mr. Christie dealing with definitions from a dictionary. I have to tell you, Mr. Klatt, that I formed the impression that you were not necessarily familiar ‑‑
MR. CHRISTIE: I object to my friend expressing any question in cross-examination with which he prefaces the question with the remark "I formed the impression" or any of his own judgments or opinions. I will object to those as being improper cross-examination. It is not my friend's place to express his views.
THE CHAIRPERSON: It is preamble to a question, I assume, in relation to his understanding of certain evidence. I took it in that way and I assume ‑‑
MR. FREIMAN: I intended it in exactly that way and nothing further or more insidious.
Q. Am I correct, sir, that you were not necessarily familiar with all of the technical dictionaries that Mr. Christie referred you to? Am I right or am I wrong?
A. In what context or aspect?
Q. Did you know about them? Did you know what they were?
MR. CHRISTIE: About what?
MR. FREIMAN:
Q. Did you know about the existence of those volumes?
MR. CHRISTIE: I object to the question. What volumes is he talking about? Give the witness a chance to know.
THE CHAIRPERSON: I assume that you will become more specific in terms of what you are speaking about.
MR. FREIMAN: Yes.
Q. Did you know about all the volumes that Mr. Christie put to you?
A. I don't personally own them.
Q. Had you seen them before?
A. Some.
Q. Fibre Optics and Lightwave Communications Standard Dictionary; had you seen that before Mr. Christie asked you to look at it?
A. I believe so.
Q. Dictionary of Data Processing (1988); had you seen that before Mr. Christie ‑‑ you can have a look at the document, if you wish. Dictionary of Data Processing; had you seen that before you talked about it?
A. Not that one, no.
Q. Communications Standard Dictionary (1983) at page 12. Had you seen that before Mr. Christie referred you to it?
A. Not this specific page, no.
Q. This volume?
A. Possibly. I have consulted in the course of my work over the years a large number of reference materials.
Q. So you may have seen this before, but you don't have a specific recollection of it.
A. True.
Q. Dictionary of Computers, Data Processing and Telecommunications (1984) at page 19 by Jerry M. Rosenberg, Ph.D. Had you seen that before Mr. Christie referred you to it?
A. It is possible, but I can't say for sure if I have or not.
Q. You don't recall whether you have seen that one either.
The Computer Glossary we know you didn't see because you told Mr. Christie you didn't see it. Correct?
A. True.
Q. Newton's Telecom Dictionary you had seen, but you don't trust.
A. It is interesting.
Q. The fact that it is the number one selling telecommunications dictionary is of no special relevance to you,
MR. CHRISTIE: Is that question placed as a statement of fact? My friend is positing this question that it is the number one best-selling dictionary. I have not heard any expert evidence on that point.
THE CHAIRPERSON: I assume he is putting it as a proposition to the witness.
MR. CHRISTIE: It didn't sound like a proposition of a hypothetical nature or a question.
MR. FREIMAN:
Q. Mr. Klatt, do you accept that it is the number one selling telecommunications dictionary?
A. Not from personal knowledge.
Q. Do you have any reason to believe that what is stated on the cover of this publication, "#1 selling Telecommunications Dictionary" is incorrect?
A. There are all kinds of ways of characterizing whether or not a particular publication would be best-selling.
Q. It says "#1 selling Telecommunications Dictionary." Do you have any basis to believe that that is not correct, on any definition of the term?
A. Which page are we looking at?
Q. We are looking at page 26.
A. What is meant by the word "selling?" Is it in terms of sales, selling telecommunications products? I don't understand what that particular set of words is trying to imply.
Q. So you don't understand what "#1 selling Telecommunications Dictionary means." That is an obscure term for you?
A. Is to people who are selling telecommunications products?
Q. I am asking whether that is an obscure term for you.
A. For people who are in the business of selling telecommunications products, it could be their number one dictionary.
Q. I suggest to you that it means that it is the number one selling dictionary related to telecommunications.
A. That is not what it says. It says "#1 selling Telecommunications Dictionary."
Q. And this is the interpretive nexus, the framework, that you use to interpret Mr. Angus' testimony as well, is it, this sort of approach to interpreting phrases?
A. Not necessarily. It is just that I have no basis for knowing whether or not it is the number one selling telecommunications dictionary.
Q. Very well. Whatever meaning that phrase has is irrelevant to you in terms of considering the importance or acceptability of the definitions contained therein. Is that right?
A. Is it number one selling in Canada?
Q. Whatever interpretation you place on it, I am suggesting to you, is unimportant to you in considering its content.
A. It looks like a marketing promotion slogan or phrase.
Q. So it is unimportant to you in considering the validity of its contents.
A. I would not necessarily go by the marketing promotion material to determine whether or not it is considered a valid document.
Q. Would you agree with me, Mr. Klatt, that, if we are looking for the real world, real life meaning of words, it might be important, in fact it would be beneficial, to consult how real life users make use of those words?
MR. CHRISTIE: I missed a word. Real life what?
MR. FREIMAN: Users.
MR. CHRISTIE: Thank you.
Q. Would that be of some assistance to us?
A. I missed part of the question.
Q. Would it be of some assistance to us to consider how real life users make use of words and terms?
A. It could be.
Q. If we are doing that, would it be of any assistance to us to look at substantial users of telecommunications systems and telecommunications products to see how they use certain terms?
A. As far as I know, words are used by individuals; I don't think they are used by organizations per se.
Q. If organizations publish a paper and you wanted to make reference to B.C. Internet Association, they said something, didn't they? R-38 is something they said?
A. As I understand it, one or more individuals wrote it, so it would express the opinion of whoever wrote it, or perhaps they had two or three people agree on the wording that is expressed there.
Q. I take it, then, that we can ignore R-38 because it doesn't express anyone's opinion other than their own?
A. I didn't say that.
Q. Which way is it, Mr. Klatt? Is it something that the organization says or is something that a couple of individuals in a back room agreed on?
MR. CHRISTIE: In my submission, it is not either one or the other, since Mr. Klatt said it is what he agreed with. The evidence and relevance of it is what the expert before you says, and that is how it is incorporated, not whether or not it has merit on its own.
MR. FREIMAN: Mr. Christie doesn't like my cross-examination.
MR. CHRISTIE: I don't like the questions.
THE CHAIRPERSON: The expert is an expert witness, and he should be able to look after himself with that question.
MR. FREIMAN:
Q. Which one is it, Mr. Klatt?
A. The question being...?
Q. Is R-38 the expression of an opinion of an organization or is it something that a couple of individuals agreed on and it expresses and reflects only their view?
A. It could be both.
Q. You had difficulty with the question, did you?
A. I thought we were talking about some other general concept.
Q. So you can have an organization express an opinion.
A. In the form of what individuals choose to convey.
Q. I guess I am unclear. Does that have any impact on what the organization stands for and on its position?
A. I presume individuals would not continue to make statements that the organization disagreed with.
Q. Let's get back to my original question after that fascinating detour.
Would you agree that it might be of some assistance to us in establishing the real life use of words to have regard for what large organizational users say about the meaning of words?
A. In what context?
Q. In the context of understanding what those words mean.
A. You would have to give me an example.
Q. Would it be of assistance to know what the largest user of telecommunications services in the world has to say about the meaning of words?
MR. CHRISTIE: About the meaning of words? What words? If we are going to ask abstractions like that ‑‑ this is not a philosopher. The meaning of words is not the issue. If my friend wants to ask a question about words, he should put specific words.
THE CHAIRPERSON: I am not sure I am prepared to restrict the cross-examination at every turn with respect to the context of a certain line of questions.
MR. FREIMAN:
Q. I will help you, Mr. Klatt, because Mr. Christie doesn't want us to philosophize.
In the context of the meaning of telecommunication terms, would it be of assistance to us to have regard to what the largest user in the world of telecommunications services has to say?
It is not a tough question, Mr. Klatt.
A. Let's hear what they say.
Q. I want to know whether it would be of any use to us to find out what they say.
A. I am sure it could be of interest.
Q. Would it be influential to you or does it depend on what they say?
A. It depends on what the topic is.
Q. The topic is the very topic we have been talking about, the meaning of certain terms in the real world.
A. Let's see what they say.
Q. So you are not willing to tell me whether you think it is of any use at all for us to have regard to it in terms of understanding real life use.
MR. CHRISTIE: I object to the question. It is a philosophical dissertation in meaninglessness. If he has a specific question to put ‑‑ this is not a philosopher. It is up to you to decide whether it has implications and meaning, and a question should be put with reference to what it is, not in the abstract: Would the largest user of telecommunications' opinion be of some significance?
The witness is quite right to ask, "Show me what you are talking about."
THE CHAIRPERSON: I think we are moving in that direction. I will allow the question to stand.
Do you understand the question? He asked you whether you would regard it of some significance that the largest communications entity ‑‑
MR. FREIMAN: The largest user of telecommunications.
THE CHAIRPERSON: ‑‑ that the largest user in the world would accept the terminology in a certain way.
THE WITNESS: For the purposes of this discussion, I agree that it would be of interest from a user's perspective.
MR. FREIMAN:
Q. I am not asking for the purpose of a user's perspective. You are being tendered as an expert on the everyday meaning, the common sense meaning, of certain words.
MR. CHRISTIE: I object to that. That was not the thrust of his expertise. The common everyday meaning of words was not the thrust of his expertise. His expertise was defined in his curriculum vitae as the proper use of words, the scientific use of words, and we have gone through dictionaries.
If my friend has some other meaning he wishes to attribute to the witness, he should not put those words in his mouth.
MR. FREIMAN: The fourth point that Mr. Christie sought to qualify this expert witness on was the common sense meaning of the ordinary usage of terms like "telephony" and "telephonic" ‑‑
THE CHAIRPERSON: On that note, we will take our morning break.
‑‑- Short Recess at 11:10 a.m.
‑‑- Upon resuming at 11:29 a.m.
THE CHAIRPERSON: Ms Matheson, please.
MS MATHESON: I stood up to try to read my note, and it may or may not be of assistance. The last point of the qualification of Mr. Klatt in my note is the usual and ordinary understanding of the words "telephonic" and "telecommunication." Others may have notes, but that is mine.
MR. FREIMAN: That conforms to my note.
Q. Before I proceed, I forgot to ask you something else at the opening.
Are you familiar with the Canadian Internet Handbook?
A. To some extent.
Q. Do you ever use it?
A. Occasionally.
Q. Is it a valuable tool?
A. For certain purposes.
Q. What purposes would those be?
A. Identifying contact information for other Internet Service Providers and what services they have available or offer.
Q. Would you agree with the heading on this one, that it is the number one national bestseller? Do you have any reason to believe that that is wrong?
A. For the particular publisher it may be their number one selling book of that type.
Q. So you are also puzzled by the meaning of "number one national bestseller" with regard to this book.
A. In my experience, the marketing or promotional slogan has relatively little relevance in terms of the content.
Q. Would you agree with me that this is a publication that is used by the public in order to understand the meaning of terms related to the Internet?
A. No.
Q. The public doesn't use this at all?
A. They use it.
Q. But they don't use it for purposes of understanding what terms on the Internet mean?
A. I would hardly expect that that would be the primary use of that type of book.
Q. Would you agree with me that it does have an awful lot on what Internet terms mean?
A. Not from what I recall.
Q. So it doesn't have that.
A. It may indeed make reference to it. The editions that I have seen typically are a reference compilation of various Internet Service Providers across the country.
Q. And that is all you remember seeing in it?
A. It's the main end use that I have used it for.
Q. Have a look at this and maybe you can refresh your memory. Is that what this book is about?
A. It has certainly grown from the earlier versions that I have seen. This particular edition seems to be different from the earlier editions.
Q. Are you saying that you have not had an opportunity to look at this book since its earlier editions?
A. This is the 1997 one. I have earlier versions.
Q. Do you have any reason to dispute what is said about the 250,000 copies of this book being sold in Canada?
A. The publisher may have indeed shipped that many.
Q. That is also a puzzling term for you which you have difficulty accepting.
A. Is it sold to wholesalers or sold to end users? I don't know.
Q. Is it your view, then, that there is a substantial number of Canadians who use this as a reference book about the Internet? Nothing about the book gives you a clue?
A. This is not the Canadian Internet Handbook that was published on previous occasions.
Q. You are puzzled entirely as to what it is and what its status is, I take it?
A. I wouldn't say entirely.
Q. What is its status?
A. Jim Carroll and Rick Broadhead are widely recognized speakers on Internet topics, but I am not sure that they would be considered as definers of terms.
Q. What qualifications do you have that they don't?
A. I have set up and run Internet Service Provider businesses. I am not aware that either of them have.
Q. And that helps you to define terms where they can't?
A. I am not saying I would come up with any novel or new definitions necessarily.
Q. Just to know what the terms mean. You are proffered here as an expert on the meaning of terms.
A. Really?
Q. That is what Mr. Christie suggested you were. I take it you disagree.
A. I don't write dictionaries.
Q. I didn't ask whether you wrote dictionaries. I asked whether you have some particular training that allows you to give an opinion as to the meaning of words or terms that is superior to that of Mr. Broadhead and Mr. Carroll and, if you do, what it is.
A. I don't know what Carroll's or Broadhead's experience or background is in relation to mine.
Q. But you would not accept them as being competent to provide whatever number the book claims, 250,000 Canadian readers, with useful, common sense, as they are used interpretations of words.
A. My understanding is that Carroll and Broadhead speak on radio programs, give TV interviews, write publications. They talk about the Internet, but I am not aware that they have implemented Internet Service Provider businesses or used the Internet other than as a user.
Q. And that, for you, is crucial in defining your superior expertise in providing the Tribunal with information as to the real life meaning of certain terms.
THE CHAIRPERSON: I am not sure that the witness has said that his expertise is superior.
MR. FREIMAN:
Q. Is your expertise better than theirs?
A. I would guess in areas it might be.
Q. So, if you disagree with something they say, we should believe ‑‑
MR. CHRISTIE: I am going to object to this. It is in the abstract. "If they say something and you disagree, you are superior." Really, that doesn't deal with anything relevant. If there is a point that my learned friend wishes to make in relation to an alleged definition from this book, put it to the witness.
THE CHAIRPERSON: Clarify the question.
MR. FREIMAN: I am asking about your expert's qualifications and the weight that should be given to them, not individual definitions.
MR. CHRISTIE: The abstractions my friend is dealing with are so vague as to make it difficult for me to see the relevance of them.
MR. FREIMAN:
Q. Mr. Klatt, if it should come to a case where you and the authors of this book might disagree on a definition, are you saying that we should believe you?
A. Sure.
Q. Why?
A. My expertise is in actually using and implementing the Internet. Their expertise appears to be in writing and talking and communicating about the Internet.
Q. So I guess the readers of their book who read what they say and foolishly follow their dictates are using the terms wrongly.
A. I don't say that.
Q. In a case of disagreement they would be.
A. That depends on the specific instance.
Q. We will have a look at these gentlemen later.
MEMBER JAIN: Could I ask what earlier editions you were referring to, that you said you read?
THE WITNESS: He has published a Canadian Internet Handbook, as far as I know, every year from 1994 or possibly earlier. I have seen the 1994, 1995 and probably the 1996 editions. They are a substantially different organization and content from this 1997 edition.
MR. FREIMAN:
Q. Mr. Klatt, is there any doubt at all in your mind that the Government of the United States of America is the world's largest user of telecommunications services?
A. That is entirely possible.
Q. Would you say that it would be of any use to this Tribunal to have regard to the way the United States government uses certain words in a telecommunications context?
A. In terms of their legal definitions?
Q. Whatever definitions you are helping the Tribunal to understand. Would it be of any assistance to the Tribunal in the same context to have regard to the definition that is used by the Government of the United States of America?
A. We could certainly take a look at their definition and include it along with other definitions and see if it is in accordance with the preponderance of definitions that we already know about.
Q. Am I to understand that the way we are going to judge this is to count up dictionary references and whoever has the most references wins?
A. I don't think it is a matter of count. It is to see what is useful in terms of ‑‑ if we find one definition that is substantially at odds with the majority of other definitions, it might be of interest.
Q. I take it, then, that you know that we have a representative sample of the available technical dictionaries that Mr. Christie has seen fit to put before you.
MR. CHRISTIE: Is that a question? That is absolutely meaningless.
MR. FREIMAN: I thank Mr. Christie for his continual assistance.
MR. CHRISTIE: I have to understand a question, at least as a human being, in order to know whether it is objectionable. I don't know whether it's a statement, a question or a philosophical dissertation.
THE CHAIRPERSON: I think the witness understands the question.
MR. CHRISTIE: If that is the case, so be it.
THE WITNESS: I would like to hear the question again.
MR. FREIMAN: As Mr. Christie has said in the past, I will have to consult my notes to get the question right so that I am not accused of misstating it.
Q. Are you persuaded, then, that Mr. Christie has put before you a representative sample of technical dictionaries and the definitions and terms you looked at?
A. I would believe so.
Q. You didn't recognize any of the technical dictionaries when we went over them.
A. I don't think I said I didn't recognize any of them.
Q. Not a one, sir.
A. You didn't ask about them all.
Q. I didn't ask about Microsoft; that is not a technical dictionary. That is part of their web site.
A. I believe it is a print publication.
Q. Is there anything else I left out?
A. I am not sure which ones you are considering as technical dictionaries.
Q. I am not considering Webster's Third New World Dictionary a technical dictionary; do you?
A. It is a useful reference.
Q. I am not considering the Random House Dictionary as a technical dictionary; do you?
A. It would certainly be a useful reference.
Q. The 1966 edition would be an especially useful reference dictionary, wouldn't it, given that the Internet was not even thought of until 13 years after the date of the edition.
A. It would depend on the term or word in question.
Q. Maybe we should clarify that. Are you saying that words don't develop and that the meaning of words doesn't develop?
A. It sounds more like a question for a linguist.
Q. You told me that a 1966 dictionary could be very valuable in understanding the definition of a term with regard to a modality that was not in existence at the time of the dictionary.
MR. CHRISTIE: He didn't say that; those are not his words. It should not be misstated to him.
MR. FREIMAN:
Q. Is the 1966 Random House Dictionary useful in understanding the definition of terms like "telephony" or "telephonic" or "telecommunication" in relation to a medium or a modality that was not in existence at the time the definition was written?
A. The word would not have been used unless it was appropriate.
Q. I am sorry, I don't understand what you mean by that. What do you mean, the word would not have been used? By whom?
A. The person or persons who would choose to use that word.
Q. In 1966. You are telling me that we should look at 1966 definitions of these terms in order to understand how they might apply to the Internet?
A. They might be a lot closer to the context in which the words were understood when the section 13(1) legislation was being drafted.
Q. You are telling me, then, that the meaning of words is static and does not change, or are you not?
MR. CHRISTIE: That is not what he said.
MR. FREIMAN: I asked him: Are you or not?
THE CHAIRPERSON: I think it is an appropriate question.
THE WITNESS: The question being whether the definition of words can change over time?
MR. FREIMAN:
Q. Whether the definition especially of words in a technical context can change over time.
A. I think we have seen evidence where legislation gets updated, and I presume dictionary definitions can also change over time as well or additional meanings could be applied to them.
Q. In fact, you know that, as new inventions and new technologies are developed, old words change their meaning in order to accommodate the new technology, don't they?
A. I don't think we are trying to say that the words used to construct this legislation in 1970 are now to have different meanings in 1998. Is that what we are trying to infer here?
THE CHAIRPERSON: The question is not directed to the legislation. I think you understand that the question has to do with the usage of technical words.
THE WITNESS: I think he is saying that words in 1966 are not valid, that a new definition of a word for today should be considered valid.
MR. FREIMAN:
Q. Don't trouble yourself with legal interpretations, Mr. Klatt.
MR. CHRISTIE: Mr. Klatt does not understand the question and is seeking to have it clarified. I don't see why the Chair should tell him that he understands it when he has indicated twice that he is trying to understand it and paraphrases it back to Mr. Freiman, and Mr. Freiman gets angry at him. Please.
THE CHAIRPERSON: This is ‑‑
MR. CHRISTIE: I am well aware of what it is. Misleading statements that confuse witnesses are not really cross-examination.
MR. FREIMAN: Are you done, Mr. Christie?
MR. CHRISTIE: Yes. Is there anything you would like to add?
MR. FREIMAN:
Q. Mr. Klatt, I don't want you to trouble yourself about legal meanings and the meaning of words in statutes or otherwise. I want to understand in your area of expertise, which is allegedly the everyday, ordinary meaning of certain technological terms, whether you agree with the proposition that those terms can change their meaning as new technologies emerge.
A. It would depend on the word and the context.
Q. Telephony. Can it change its meaning as new technologies emerge?
A. Not in significant substance. They still maintain the understanding of what we are talking about.
Q. Let me put to you that I have it all wrong. Telephony means a system of signalling by means of musical sounds. Do you agree with me? That is the meaning of telephony, isn't it?
A. It is a meaning.
Q. That is the original meaning of telephony. That is the first recorded meaning of telephony.
MR. CHRISTIE: Is that my friend's evidence or ‑‑
MR. FREIMAN: No, it is your evidence, Mr. Christie.
Q. Let's look at page 51 of our Dictionary Definitions. "Telephony" there, we are told, was first used in 1835. Do you see that?
A. Correct.
Q. What is the date of Alexander Graham Bell's invention, sir?
A. I don't know the specific date.
Q. What is the decade of Alexander Graham Bell's invention, sir? What is the century of Alexander Graham Bell's invention, sir?
A. The 1800s.
Q. Before 1850 or after 1850?
A. Before.
Q. You are an expert in telephony and you know that Alexander Graham Bell invented the telephone before 1850. Would you agree with me that he did not invent the telephone before 1835?
A. I don't claim to be a historian.
Q. No, you certainly don't. Would you agree with me that Alexander Graham Bell did not invent the telephone before 1835?
MR. CHRISTIE: How is this relevant?
THE CHAIRPERSON: It is cross-examination. Continue.
MR. CHRISTIE: Doesn't it have to be relevant?
MR. FREIMAN: Mr. Christie really doesn't like the answers.
MR. CHRISTIE: Mr. Christie doesn't like the questions when they are irrelevant, so he objects to them, and the Chair won't rule on it.
THE CHAIRPERSON: Continue the cross-examination.
Ms Matheson, please.
MS MATHESON: Mr. Chairman, I would observe that if anything like this had transpired ‑‑
MR. CHRISTIE: It did transpire. It was exactly like this when I was examining witnesses.
THE CHAIRPERSON: I have given Ms Matheson an opportunity to speak.
MS MATHESON: Happily, the transcript will speak for itself. My point is a simple one. Mr. Christie would never accept this nor should Mr. Freiman be asked to accept the amount of interruption that is going on. It is going to be plain when we see the transcript how much of it is going on.
We are all very interested in seeing this through, and I would ask Mr. Christie, through you Mr. Chairman, to conduct himself by the same rules that he asked for everyone else.
MR. CHRISTIE: For the record, Mr. Chairman, I think I am. It is difficult to say, with the record as long as it is, whether my friend's superior views of it are accurate or not. I will continue to object to questions that I consider irrelevant and I will ask your ruling on them. I cannot understand why it is relevant for my client's witness to be asked the history of the telephone when he was never qualified in that area and he has never given any evidence about it in-chief. It is really quite irrelevant what year Alexander Graham Bell invented the telephone. If my friend wants to call that evidence, it would equally be irrelevant.
THE CHAIRPERSON: Continue, Mr. Freiman.
MR. FREIMAN:
Q. I put it to you, sir, that in 1835, when this word was first used, Alexander Graham Bell had not invented the telephone.
A. I will accept your assertion.
Q. In fact, the telegraph had not even been invented. Do you know that, or don't you know that?
A. It could well be true.
Q. You will agree with me that under the rubric that you have just given us five minutes ago "telephony" can only mean a system of signalling by means of musical sounds.
MR. CHRISTIE: I object to the statement made by the questioner that misleads the witness, that he made a rubric. I think, when the record is analyzed, it will be quite clear that the witness tried to avoid answering philosophical questions in the abstract. My friend is now reinterpreting the evidence to suggest that he issued a rubric, as my friend articulated.
I really think this is an inappropriate method and improper cross-examination.
THE CHAIRPERSON: Mr. Christie, I suppose I cannot prevent you from objecting to, if not every question, every second question that is being asked. This line, in my view, is quite appropriate in terms of what he is trying to show in connection with the development of definitions over a period of time. I don't know what the relevance ultimately will be, but it seems to me that it is an area which is allowed in cross-examination in light of this witness' evidence concerning the use of technical terms.
MR. CHRISTIE: I don't disagree with you on that point, Mr. Chairman. I am only raising the issue of misinterpreting what the witness says and putting it back to him, saying that he has issued a rubric that this definition cannot change over time or it is appropriate to use an 1835 definition. I didn't hear the witness say anything like that.
MR. FREIMAN:
Q. Will you accept that the word "telephony" changes its meaning over time?
A. It can be reworded.
Q. It changes its meaning over time.
A. If you wish to assert that.
Q. Do you agree or disagree, now that you have seen a definition of "telephony" from 1835 that refers to signalling by means of musical sounds and you know that that was established before Alexander Graham Bell invented the telephone ‑‑ and I am going to suggest to you by almost 50 years before Alexander Graham Bell invented the telephone ‑‑ that the definition of "telephony" changed between 1835 and some point after the invention of the device that Alexander Graham Bell patented?
A. Was this the definition of "telephony" in 1835? Is that what they are saying?
Q. That is what they appear to be saying.
A. Or are they saying that that was the first time that word was used? I don't think it was an 1835 dictionary that this came from.
Q. You are puzzled by the entry that says "1835" and is followed by:
"1. Name for a system of signalling by means of musical sounds, and for the practice of other early forms of telephone - 1835."
You are puzzled by the use of 1835 at the end of that phrase as well as at the beginning.
A. All I am saying is that this definition that we see here, is that the same definition that was in use for that term in 1835?
Q. If it isn't, when do you think it was in use?
A. I wouldn't know.
Q. Do you think it is in use today? You said this is not an 1835 dictionary, so do I understand that that is the meaning today? Is it?
A. Is this an 1835 definition?
Q. That appears to be what the dictionary is telling me. I don't want to put words in your mouth and I don't want to mislead you. If you don't see that as being evident from the text, tell me, and tell me when you think it is applicable.
A. You are telling me that the telephone did not exist in 1835.
Q. Yes.
A. Yet, we have reference to early forms of telephone.
Q. Yes.
A. So how can they be referring to early forms of telephone if it did not exist in 1835?
Q. I am suggesting to you that the early forms of telephone are signalling devices uses musical tones and other sounds ‑‑ far voice, far sound.
A. If they were sending music in 1835 and they didn't have a telephone, I would be impressed.
Q. They were signalling by means of musical tones. I suggest to you that somebody would stand in one location and would convey a message to someone in another location by means of musical tones. That is not a difficult concept, is it, sir?
A. And this wasn't telegraph either?
Q. No. Let me make it clearer for you. Are you familiar with old cowboy and Indian movies? Have you ever seen any of those?
A. Not recently.
Q. Have you ever seen a cavalry charge and there is a guy in front with a bugle and he blows his horn? Why do you think he is blowing his horn?
A. I have seen that depiction.
Q. Why do you think he is blowing his horn?
A. It could be a variety of reasons.
Q. Give me any.
A. To indicate direction or indicate to the troops that they are supposed to move.
Q. Yes. He is signalling by means of sound what he intends others to do. That's a telephone, isn't it?
A. That's a telephone?
Q. Isn't that what telephony means in this context? Isn't that what the dictionaries tell you telephony means?
A. I would submit that the dictionary definition is a relatively short explanation of what the particular author had in mind in terms of use of that word.
Q. So what is your final considered opinion about the accuracy of this definition?
A. It conveys an essential aspect of the definition of telephony.
Q. Without reference to wires and electronic means at all. Right?
A. It is true that there is no reference to electrical wires in that definition.
Q. I am suggesting to you that the word "telephony" has a history and that it is a history of development, and that it changes its meaning as new technologies emerge. Do you disagree with that?
A. The meaning of the word, in my experience and use and encountering other people who work in this field, has not changed substantially.
MR. FREIMAN: I wonder if the witness could be given Exhibit HR-9. I apologize to the Panel; I don't know that we have made extra copies. I will read it so that there is no ‑‑ I am sorry, HR-10.
MR. CHRISTIE: Could I look at it to see what we are talking about?
MR. FREIMAN:
Q. Have you ever seen this before? Its cover page says: "Telecommunications: Glossary of Telecommunications Terms prepared by National Communications System, Technology and Standards Division." Do you know what this is?
A. I am aware of it.
Q. What is it? What is the purpose of it?
A. It is generally used in reference to federal contracts in the U.S.
Q. What is its purpose?
A. The definition of terms.
Q. Would you turn to the last page where we have been looking at a little this morning. I will read to you the first definition of "telephony." By the way, have you seen this publication in preparation for this Hearing?
A. I may have.
Q. The first definition that is given is:
"The branch of science devoted to the transmission, reception and reproduction of sounds such as speech and tones that represent digits for signalling."
Do you agree with that definition, or is that off-base?
A. That would be in accordance with my understanding of the general use of the word "telephony."
Q. The next thing is:
"Transmission may be by various media such as wire, optics, fiber or radio."
Do you agree with that?
A. Sure.
Q. Next:
"Analog representations of sounds may be digitized, transmitted and on reception converted back to analog form."
Do you agree with that?
A. Sure.
Q. Finally:
"Telephony originally entails only the transmission of voice and voice frequency data. Currently includes new services such as the transmission of graphics information."
Do you agree with that?
A. For the purposes of the U.S. federal government contracting the various services they need, they probably felt it necessary to include that.
Q. But you don't think that is accurate because you were infuriated by Mr. Angus' use of "telephony" with regard to the transmission of graphic data.
MR. CHRISTIE: I object to the use of the word "infuriated." I would like to observe, before I am interrupted, that throughout both examination and cross-examination the one person who has never expressed what appears to be fury is the witness. The choice of the word "infuriated" is particularly inappropriate and, I would submit, editorial.
MR. FREIMAN:
Q. You were in great disagreement with Mr. Angus' use of the words "telephonic" and "telephonically" to describe the transmission of graphic information. In fact, I believe you said you couldn't understand what he had in mind and that that showed his ignorance.
A. It does not accord with common usage of the term.
Q. So the federal government has it wrong.
A. For their purposes it is probably useful.
Q. For your purposes it is not useful?
A. As I understand, this document is primarily used in general services administration which, as I understand, is involved in contracting goods and services for the use of the U.S. government. They probably have a need for including that in their definition.
Q. As I understand your testimony, sir, your objection to Mr. Angus' use of the words "telephone" and "telephonic" which you communicated to us on a number of occasions is that you wish to restrict those terms to analog voice communication. Do you agree or disagree?
A. I don't think I objected to the use of digital forms.
Q. You wish to restrict it to voice communication.
A. It is not restricted to voice.
Q. You wish to restrict it to what?
A. What restriction are you saying I am putting on it?
Q. Let me put it to you. In the discussion with Mr. Angus that you looked at with Mr. Christie today there is reference to fax communication, and you stated the opinion that fax communication is not telephonic. Correct? Or have you changed your mind?
A. I don't see that fax transmission accords with the generally accepted use of telephonic transmission.
Q. The use of a telephone device for the deaf ‑‑ you consider that communication between two terminals that are telephone devices for the deaf is not telephonic communication.
A. No, I don't see how it would accord with the usage and understanding we have for the word "telephonic."
Q. It does accord with what the U.S. government said "telephonic" was.
A. You mean in this particular last page definition?
Q. Yes.
A. But if we look at the word "telephonic" or "telephony", an essential component of it is sound. In the context of deaf people, it seems apparently and obviously contradictory.
Q. In that case, the use of the word "telephone" in the name of the device that is attached to the terminal is irrelevant or wrong.
A. Are we focusing on TDDs now?
Q. Yes, TDDs, telephone device for the deaf. That is not telephonic communication even though the terminal is called a telephone device.
A. I don't know what the rationale was for applying the term that they did to that particular device.
Q. But you reject it as being accurate.
A. It is not technically accurate. It may be convenient for the purposes of marketing or sales or for some other purpose.
Q. Or the way people use terms in the real world.
A. Not necessarily.
Q. In fact, as I understand it, you go even farther than that. It is your view that the nature of the terminal instrument determines the characterization of the circuit over which the message passes. Is that right?
A. I think that discussion focused more around the functional use.
Q. The function is determined by the terminal instrument, isn't it?
A. To a large extent.
Q. To what extent isn't it?
A. Depending on the device, it could be used for a variety of functions.
Q. Give me a device that can be used for a variety of functions.
A. Most common fax machines can be used for both voice communication and graphic or text communication.
Q. Let's see if I understand. If I have a plain telephone handset at two ends of my simple analog phone line that I have in my home, I have my telephone handset at one end and at the other end Mr. Angus has his telephone handset, that is a telephone line.
A. That would be the common usage for it.
Q. Because I don't have multifunctional equipment, I have a fax machine that just sends faxes. Let's assume that Mr. Angus has a fax machine that just receives and sends faxes. When I attach my fax machine to my end of my telephone line and Mr. Angus plugs in his fax machine, that is no longer a telephone line. You told Mr. Christie that that is a fax line or something other than a telephone line.
A. In my experience, in most cases that is what it is referred to.
Q. If I do go out and buy a multifunctional fax machine that has both a telephone and a fax and I attach that to my line and Mr. Angus attaches it to his line, it both is and isn't a telephone line simultaneously.
A. One wouldn't be talking on it and sending faxes simultaneously.
Q. But if we could, it would both be and not be. Right?
A. But you can't.
Q. If I have a digital line ‑‑ are you with me so far? Not an analog line any more, but a digital line. My understanding is that a digital line has certain specifications. One of them is T1. Do you know what that is?
A. I know the designation.
Q. What does it refer to?
A. The characteristics that are associated with that type of digital service.
Q. It's the capacity, isn't it?
A. That's one of them.
Q. It is 1.54 billion bits per second.
A. It's actually million.
Q. Sorry, l.54 million bits per second. Right? That its capacity.
A. That is full duplex also, so the actual full capacity is double that.
Q. You don't need that capacity to send one voice message across a digital line, do you?
A. In typical use, it carries probably a couple dozen.
Q. It would carry multiple messages simultaneously. Correct?
A. If fully utilized, probably a couple dozen.
Q. So, if simultaneously I plug in my telephone handset to a digital phone line and Mr. Angus plugs in his telephone handset as well and I make a call and simultaneously Mr. Taylor plugs in his fax machine and asks Mr. Kurz to plug in his fax machine and sends a message which, because we are sending them simultaneously, passes over the digital phone line simultaneously, that line both is and is not a telephone line at the same time, isn't it?
A. I know of no one in the industry who refers to a T1 line as a phone line.
Q. No one at all?
A. Not that I work with.
Q. And anyone who would refer to that as a phone line wouldn't know what they were talking about, would they?
A. I don't know what extent their knowledge would be.
Q. But in your view they would be using it entirely inaccurately and wouldn't know what they were talking about.
A. Yes, because you can't plug a handset into a T1 line and expect to communicate voice over it.
Q. The problem is the same, isn't it, with fibre optics. Fibre optics carry that much more traffic.
A. Yes, but they are not referred to as phone lines.
Q. And anybody who would talk about fibre optics as constituting phone lines, in your view, would not know what they were talking about.
A. There might be some context or construction that they could be used. Fibre optic lines, in my experience and practice in dealing with the industry, are not referred to as phone lines.
Q. Can I suggest to you, sir, that when fibre optic lines were first developed, as was the case with digital copper wire, as was the case with paired copper wire, they were developed in order to carry voice traffic?
A. That was one of the functions.
Q. That was the function that each of them was developed to fulfil.
A. In terms of fibre optic communication, I don't think that is necessarily true. I would say that probably was not the case.
Q. We will get to that in a minute. Will you agree with me that in the instance of analog and digital copper lines, they were both developed originally for the purpose of carrying voice traffic?
A. That was probably the initial major use of it.
Q. And they have subsequently been adapted for other uses, including the transmission of data.
A. Certainly.
Q. I would like to suggest to you, sir, that, even when you are dealing with a fax machine, you are dealing functionally with the same process as when you are dealing with voice communication. Do you disagree with me? Do you want me to explain it?
A. Sure.
Q. Will you agree with me that in both cases you use a jack in order to connect with the line. I won't call it a telephone line. You use the same jack?
A. Sure.
MR. CHRISTIE: Sorry, I can't quite hear.
THE WITNESS: Yes, you could.
MR. FREIMAN:
Q. And you use a wire and it is the same wire that you can use for voice communication.
A. True.
Q. And you use the local telephone company switch in both cases?
A. Yes.
Q. And you use the telephone signalling system to establish a connection; you use the touchtones to establish a connection at the other end?
A. That is the most common method today.
Q. If you are not using that, you are using an old-fashioned rotary dial, and you could use that for a fax machine as well. It would be a little more difficult, but it could be done.
A. True ‑‑ actually, it is not more difficult.
Q. Is it easy?
A. In terms of electronics, it's simpler.
Q. Because they are both analog. You use the same frequency in both ‑‑ that is, 300 to 400 hertz?
A. The voice frequency band, yes.
Q. And that is what you are using, the voice frequency band, aren't you?
A. True.
Q. And voice frequency means the sounds that the human voice can make, more or less.
A. In that restrictive means, yes.
Q. What is passing over the line are electronic signals that are analogous to the sounds made by a human voice.
A. Electrical characteristics are, to some degree, similar.
Q. They are similar because they are using the same voice band, the same frequency band. They are all sounds that are within the frequency band of the human voice. Correct?
A. Yes.
Q. And they both use a dial tone.
A. The dial tone is present no matter what.
Q. If the device at the other end doesn't answer, a busy signal is emitted.
A. A busy signal if that called line was already in use.
THE CHAIRPERSON: Whether it is in use for a voice reception or a fax reception?
THE WITNESS: The busy signal is generated from the central exchange indicating that connection to that desired number is not available.
MR. FREIMAN:
Q. Regardless of what that desired number is being used for. If unbeknownst to me Mr. Angus has disconnected his fax machine and put in a telephone handset and is talking to someone on the line, it will emit the same busy signal as it will emit if Mr. Angus has plugged in his fax machine and is receiving a fax from someone.
A. It is important to keep in mind that the busy signal does not originate from the device that you are trying to reach.
Q. As I said, if the device at the other end is being occupied, a busy signal is emitted, not that the device of the system emits a busy signal
A. There are other situations that can occur that will result in a busy tone, not necessarily that the device is busy at the other end.
Q. If the device at the other end is unavailable, then a busy signal is emitted.
A. It can be that you don't have sufficient capacity to reach the device. There are different types of busy signals indicating different conditions.
Q. It could be a busy signal for the trunk; it could be a busy signal for the line that is sought to be reached.
A. True.
Q. In both cases, one dials a telephone number, either a seven-digit number for local access or a 10-digit number for long distance access. We call those telephone numbers, don't we?
A. Sure.
MR. CHRISTIE: Could I ask what that last point was? I couldn't quite hear the exchange.
MR. FREIMAN: It dials a telephone number, either seven digits for local access or 10 digits for long distance access.
Q. When the device at the other end does answer, it sends a message back to the originating device saying, "I have answered. Stop ringing."
A. No, it doesn't go to the other end; it goes to the local switch.
Q. It sends it back to the switch saying, "I have answered. Stop ringing."
A. In the texts it is known as off-hook condition.
Q. So we have all of those similarities, but you still consider them to be different forms of communication and the line to be a different line. Correct?
A. I am not saying it is a physically different line.
Q. But it has a different name.
A. True.
Q. I put it to you that all of those nine characteristics that I enumerated for you are also present when a computer dials up an ISP, each and every one, aren't they?
MR. CHRISTIE: I think, in fairness, as I quote my learned friend Mr. Freiman, this is not a memory test. If my friend is going to refer to these nine, which I have had to write down and the witness hasn't, it fairly should be asked of him in relation to each one so that it doesn't become a memory quiz. But it is a fair question.
MR. FREIMAN:
Q. I will enumerate them all and, if you find one that is different, just tell me.
The use of a jack; the use of a wire; the use of a local telephone company switch; use of a telephone signalling system ‑‑ that is the touchtones or the rotary system; use of the voice frequency; use of the dial tone; if the device is not available, emission of a busy signal; dialling of a telephone number; and when an off-hook condition is detected, a message returned to the switch saying "Off-hook condition detected. Stop ringing."
They are all present when a computer through its modem contacts an ISP, aren't they?
A. Your list is incomplete in the context of communicating information.
Q. I asked you whether all those conditions obtain.
A. As a subset of the total conditions, it is an incomplete list.
Q. I asked you whether those conditions obtain.
A. It would appear that they probably do, but that is not a complete list.
Q. I heard you. You have criticized Mr. Angus on the basis of his use of the word "telephone" to describe the system to which the Internet is connected and you object to his calling that system a telephone system. Am I right?
A. Yes. The Internet system is not the telephone system, and the telephone system is not the Internet.
Q. I don't think he ever said that it was. He said that the Internet is connected to the telephone system, and you object to that.
A. To me, the telephone system is that part of the telecommunications network where you can place telephone calls. Except in a limited, narrow, emerging segment of Internet telephony, you cannot place telephone calls through the Internet.
Q. So am I right that you have objected to his use of the word "telephone" to describe the connection when he says that the Internet is connected to the telephone system?
A. The context I was objecting to specifically was the inference or statement that you place a telephone call to a web site and that the call is routed through the Internet.
Q. So you don't object to the idea that the Internet is connected to the telephone system, even when it is being used to signal between the computer and the ISP. Is that the telephone system or isn't it, in your view?
A. It is part of the telephone network.
Q. You have also objected to his use of the word "telephone line" to describe the line over which the connection with the ISP is made. Correct?
A. That is a characterization of it.
Q. You have objected to that characterization as inaccurate.
A. That is because in the context that we are discussing it is not used for a telephonic application.
Q. So you say it is inaccurate.
A. Yes, it is inaccurate.
Q. Most of all, you have criticized him for insisting that modems modulate digital data to analog tones. Correct?
A. By "tones" you mean...?
Q. You criticized him for saying that modems modulate digital data to analog tones. Perhaps I can read to you one of the quotes that you criticized. I am going to be referring to page 1384, and I will read the questions.
At line 22:
"Modems change the digital data into tones which are then changed into voltages which go through the network."
You found that inaccurate because you do not believe that modems modulate digital data to analog tones.
A. The original question I think we see at lines 11 and 12. You were asking if it converts into tones, and I am asking what you mean by the word "tone."
Q. You saw what he said and you objected to the idea that modems modulate digital data to analog tones or audio tones.
A. By "tone", are you ‑‑
Q. I am not referring to anything. I am using the word. You criticized him for using the words. Are you withdrawing the criticism?
A. No.
Q. Is it correct that modems modulate digital data to analog tones?
A. Let's look at lines 11 through ‑‑
Q. No, sir, let's not look at anything.
MR. CHRISTIE: The witness should be allowed to answer in the context in which he gave his answer. If he is going to be confronted with an answer, it must be the exact answer or, at least, allow him to say what he thinks he said.
MR. FREIMAN:
Q. Is it correct to say that modems convert digital data into analog tones?
MR. CHRISTIE: Excuse me, I have an objection.
My objection very clearly is this. The note we have is that the witness did refer to page 1384, lines 11 through 14, and the reason I objected was that the witness was cut off when he said, "Let's look at 11 to 14." I submit, and our notes indicate, that that is exactly what he referred to and defined in his answer. We have a record of his answer, too, and I don't think my friend is being fair about this.
THE CHAIRPERSON: Put the question again.
MR. FREIMAN:
Q. Quite aside from what is said at line 11, is it correct or incorrect to say that modems modulate digital data to analog tones?
A. Tell me what you mean by "tone."
Q. I am asking you a question, and you are the one to answer. Is it correct or incorrect to say that modems modulate digital data to analog tones?
A. If by "tones" you mean sound ‑‑
Q. I mean analog tones. Yes or no? Do they do that or don't they do that?
A. The sound associated with a modem is irrelevant to the function of the modem.
Q. Do modems modulate digital data to analog tones?
A. Not audible tones, in terms of the function of the modem.
Q. Do they modulate digital data to analog tones regardless of whether they are audible or not?
A. Is it a tone if it is not audible?
Q. Say yes or no. Do they modulate digital data to analog tones?
MR. CHRISTIE: With the greatest of respect, my friend is unwilling to characterize what he means by "tones," and the witness is asking him to do so so that he can answer precisely. I think, in all fairness, that is what my friend should do. He should define his terms because the witness can't answer an ambiguous question where there are two capable meanings of the word "tone."
MR. FREIMAN: Let him tell me what the two capable meanings are.
THE CHAIRPERSON: The witness is here as an expert and, if it makes no sense to him, then he can tell us that.
MR. CHRISTIE: He asked a question for definition. Is he entitled to have that defined or not?
THE CHAIRPERSON: Mr. Freiman expanded the question by way of explanation, I assume, and it is back to the witness now as to whether he can answer it in the expanded terms.
MR. CHRISTIE: The last point, sir, that the witness mentioned was to ask for a definition of "tone." At that point I asked that he be allowed to get a definition.
MR. FREIMAN: No.
THE CHAIRPERSON: Put the question again.
MR. FREIMAN:
Q. Is it correct or incorrect that modems modulate digital data to analog tones ‑‑ and I don't care whether those analog tones can be heard or not, whether they are audible or not.
A. Well, I do care. If you are saying that your understanding of the word "tone" is referring to an audible component, then the answer is: No, they do not need to in order to function as a modem.
Q. And if they don't? Does this sentence have any meaning to you that is correct: Modems modulate digital data to analog tones?
A. It creates varying electrical signals that can be converted to audible tones.
Q. Does it modulate digital data to analog tones?
THE CHAIRPERSON: The question is: Does it make any sense to you?
THE WITNESS: I am, by nature, a problem solver and I am having difficulty solving this problem. I am not clear what the questioner means in his mind by "tone."
MR. FREIMAN:
Q. You tell me what you mean.
MR. CHRISTIE: I am going to object ‑‑
MR. KURZ: Of course, you are.
MR. CHRISTIE: That's right.
I am objecting because the witness has answered the question to the best that any logical person could by asking for the two possible meanings of "tone." He has answered it both ways. He said: If you mean by sound, no; and if you mean absent sound, it could be.
MR. FREIMAN: That is not what he said. That is not what he said at all.
MR. CHRISTIE: The record is clear, and I say he answered it. These snickering gentlemen can interject alternatively as much as they like, but what I am submitting on the record is that this process of cross-examination has really become an intellectual abuse. The question has been answered. The witness has testified quite clearly and honestly.
THE CHAIRPERSON: I am not clear as to what the witness' answer is. The question seems to be straightforward. Whether the answer is straightforward is what the Tribunal is looking for.
The proposition that has been put to you a number of times ‑‑ I guess what we want to know is whether it has any significance to you as an expert. Does it state something that is logical, illogical, or otherwise?
THE WITNESS: If the inference is that in order for a modem to communicate information there has to be sound, that is not the case.
MR. FREIMAN:
Q. That is not the question I asked, Mr. Klatt. I said that I don't care whether the tones are audible. I want to know whether a modem modulates digital data to analog tones.
A. I am still not sure what the context and definition of the word "tone" is.
Q. You can tell me whatever you like. You have asked me whether I mean a sound that can be heard, and I said not necessarily. I am willing to entertain the possibility of analog tones not having any relationship to audible sounds.
Can you tell me whether it is correct or incorrect to state that modems modulate digital data to analog tones?
A. It modulates it into electrical signals of varying frequencies.
Q. Is that the same thing as saying that it modulates it to analog tones?
A. I don't know.
Q. I suggest to you that that is exactly what a modem does. It modulates digital data to analog tones, does it not?
A. I know what a modem does.
Q. Does it do that?
A. Not in my opinion.
Q. Are you telling me that somebody who would say that a modem modulates digital data to analog tones doesn't know what he is talking about?
A. If by "tones" he means something that is audible and in order for it to function ‑‑
Q. I don't care about audible ‑‑
MR. CHRISTIE: Can the witness answer, please? What my friend doesn't care about is not really a reason to interrupt the witness.
THE CHAIRPERSON: It was a follow-up question.
MR. CHRISTIE: No, it wasn't, sir, with all due respect. It was an interruption. In my submission, it is inappropriate to harangue the witness. It doesn't seem to bother you, sir, that that is what is going on, as has so often been practised, but I object.
What my friend doesn't care about is not a significant or pertinent or legitimate reason to interrupt the witness' answer.
THE CHAIRPERSON: Carry on.
MR. FREIMAN:
Q. I am not referring to whether it is audible or not. I am suggesting to you that what modems do precisely is modulate digital data to analog tones, and I am asking you whether somebody who would say that is wrong and doesn't know what he is talking about.
A. Somebody might say that, but what a modem does is modulate data into varying electrical signals in the analog frequency range.
Q. And you would never use those words, that a modem modulates digital data to analog tones, would you, because it would be incorrect, in your view, and inaccurate?
A. If the word "tone" implies audible sound.
Q. I am asking whether you would ever say that and you would know what you meant. Would you ever use those terms?
A. It is possible in the context of speaking to laymen where it might be more intelligible.
Q. So in the ordinary, everyday world where people are talking to each other and are using words as they are commonly understood, it is correct to say that modems modulate digital data to analog tones, isn't it?
A. That would not be the explanation given if you were trying to give a complete and accurate explanation of how a modem works.
Q. If you are trying to communicate with people in the everyday context, would that be correct or incorrect, accurate or inaccurate?
A. I think I have expressed my opinion regarding how a modem functions.
Q. I just want to go over it once again.
First of all, I put it to you that in the ordinary use of the word, modems modulate digital data to analog tones, and I want you to agree with me on that.
MR. CHRISTIE: At this point I object. My friend may want him to agree with him, but is it appropriate for my friend to batter the witness? I have counted seven times that the same question has been put to the witness and I have argued that he has answered, and you have held that he hasn't. Assuming that it is seven times ‑‑ and I think that is a conservative estimate ‑‑ is it really necessary to have my friend demand that the witness agree with him? Is that appropriate cross-examination here? I am in Toronto and I am learning all the time from superior intellects of the Toronto bar, but is that what is allowed, that you can demand in cross-examination that the witness agree with you?
THE CHAIRPERSON: The question has been asked a number of times. The Tribunal may be in doubt as to whether it has been answered at this point because of the confusion and the interruptions. Perhaps we could complete this line, and then we will break for lunch.
MR. FREIMAN:
Q. Mr. Klatt, I suggest to you that that was the ordinary and usual use of the term. It is the way the term is described in everyday speech, and it is the way that you would describe it in ordinary speech if you were talking to ordinary people and you didn't have a polemical agenda and you didn't have an intention to use the word in a narrow, overly-technical sense. Am I right or wrong?
A. It appears that we are into the technical aspects to a degree.
Q. Am I right or wrong?
A. You can suggest whatever you like, but I am trying to give you an accurate answer.
Q. Am I right or wrong that that is the way you would use it if you were talking to a lay audience and using the common, ordinary meaning of "modem."
A. If I had to use the word "tone" in that context, I would qualify it by saying "electrical tone."
Q. I am not saying you have to; you don't have to. I am suggesting to you that you would, and I want you to tell me whether you agree or disagree.
A. As I stated, I would qualify the word "tone" with "electrical," if we have to use the word "tone" in that context.
Q. Mr. Klatt, do you remember swearing an affidavit on or around February 19, 1997?
A. I presume there is a date on it.
Q. That was in the context of a judicial review application in the Federal Court of Canada Trial Division with regard to a case called Ernst Zundel v. Attorney General of Canada.
A. Very probably.
Q. Do you remember on that occasion that you took an oath ‑‑ you swore rather than affirming as you did here on Monday ‑‑ as to the contents of that affidavit?
A. I don't think I had a choice.
Q. Whether it was swearing or affirming, you bound your conscience to tell the truth?
A. Sure, to the best of my ability.
Q. And you did tell the truth?
A. To the best of my ability at that time.
Q. If you look at paragraph 5, please, I am going to read it to you and ask you whether these are words that were in your affidavit when you swore to it.
"In the case of Fairview, our customers use either a telephone dial-up or CATV cable connection. In the case of telephone dial-up, the customer must have a computer and a modem. The modem provides the link between the computer and the telephone system. It modulates and demodulates computer digital data to analog audio tones since the local telephone system works with audio tones only. The modulation/demodulation function is bi-directional and requires a modem at both the customer and Fairview ends of the local telephone link."
Did those words appear in the affidavit that you swore?
A. Yes, they did.
MR. FREIMAN: Thank you. This is a convenient time to break.
THE CHAIRPERSON: Will we mark this as an exhibit?
MR. FREIMAN: Yes, please.
MS MATHESON: I am sorry to interfere here, but ordinarily a prior inconsistent statement is not marked as an exhibit.
THE CHAIRPERSON: I am sorry...?
MR. FREIMAN: Ms Matheson is quite right. A prior inconsistent statement is ordinarily not marked as an exhibit, although the Tribunal may well want to do it so that the record is clear.
THE CHAIRPERSON: I was doing it for the purpose of the record.
THE REGISTRAR: The affidavit of Mr. Klatt will be marked as Commission Exhibit HR-21.
EXHIBIT NO. HR-21: Affidavit of Bernard Klatt dated February 19, 1996
MR. FREIMAN: I think what Ms Matheson was getting at is that it is not marked for the truth of its contents other than for the narrow purpose that it was used.
THE CHAIRPERSON: This reminder is for Mr. Christie.
The Tribunal throughout this Hearing has attempted to allow cross-examination on the basis of what the law allows in such circumstances. My memory is that we allowed you, Mr. Christie, considerable latitude in cross-examination, maybe not as much as you wanted. I am suggesting to you that you modulate your remarks with respect to what may be taken by us as a slight to the members of the Tribunal on our conduct this morning.
We will recess until a little after two o'clock.
‑‑- Luncheon Recess at 12:40 p.m.
‑‑- Upon resuming at 2:15 p.m.
MR. FREIMAN:
Q. Mr. Klatt, I wonder whether we can pick up now and discuss for a moment the actual stages in a trip to the Internet and through the Internet. What I would like to discuss with you is what happens when a computer is turned on and seeks access to the Internet, finds a web site and retrieves a message and comes back.
Am I right that really we are talking about three segments here? I will tell you the three segments that I think we are talking about ‑‑ and I may be wrong and you can correct me. I think the three segments we are talking about are, first, the dial-up portion of the trip ‑‑ that is, from the computer to the ISP; second, the connection from the ISP to the Internet itself; and, third, the message within the Internet or Internet backbone to the web server. Then, of course, we have a similar trip back from the web server to the backbone, from the entry point into the Internet to the ISP and from the ISP back to the computer.
Is it fair to think of those as three relatively different segments?
A. Not entirely. The Internet Service Provider is part of the Internet. The term "backbone" is used to designate a higher-speed portion of the Internet, but there is nothing inherently different in terms of characteristics, other than speed, in what is referred to as the backbone.
Q. We will try my division and at the end of the day, if you think I have not been careful in my choice of words and have not been careful in the way I have described the concepts, you can tell me that and we will deal with it as best we can.
First of all, I am correct, am I not, in saying that in common parlance the first part of the journey, the first mile as it were, which on the way back is the last mile, is commonly called the dial-up connection?
A. For that particular access, yes that is one term.
Q. It is the most common term, isn't it?
A. It could be.
Q. It is what you would call that portion of the trip when you are describing the service you provide to your Internet customers. You would call it dial-up access that you provide.
A. That is a common term for it.
Q. The vast majority of users reach their ISPs through the telephone network. Correct?
THE CHAIRPERSON: Through the what?
MR. FREIMAN: The telephone network.
THE WITNESS: I don't think that is necessarily correct.
MR. FREIMAN:
Q. You dispute that? You think the vast majority of users do not reach their ISP through the telephone network?
A. A particular class of users would use that method. There are certainly many users that have direct connect other than through that method. Your assertion that the majority still use what you refer to as dial-up I don't think is necessarily correct.
Q. You think it is incorrect.
A. It is certainly decreasing.
Q. Let me put to you a couple of propositions.
First of all, while you were still an ISP, alternative methods of access were never more than 10 per cent of your customer base.
A. But it was increasing.
Q. By the time you got out of the ISP business, it was no more than 10 per cent.
A. It depends on how you want to define "customer" or "user."
Q. Tell me how you define it in order to get the number higher or lower.
A. When we had the high schools connected, there was a substantial number of users that connected through the cable system, probably several hundred. I don't think they were all on simultaneously, but they certainly had access.
THE CHAIRPERSON: When did you cease to be an ISP?
THE WITNESS: At the end of April this year.
MR. FREIMAN:
Q. I am suggesting to you that in your own use of the words, 90 per cent of your customers used dial-up access.
A. Yes, if you consider the School District as one customer.
Q. I am also suggesting to you that the vast majority of users at the time that you were an ISP and down to the present reach their ISP through the telephone network.
A. I am sure in some areas that would be the case.
Q. I am talking in terms of North America. You seem to know a lot about the United States. I am talking in terms of the United States. A vast majority in the United States and, in fact, throughout the world.
A. I don't think that is necessarily correct. We see an increasingly large number of users getting direct access without any dial-up involvement at all through their corporate networks that are permanently attached with 24-hour access and direct connect. With the at-home network, we see a large number of cable companies growing their subscriber bases.
Q. Mr. Klatt, does the Federal Communications Commission in the United States have any knowledge about what happens on the Internet?
A. They are certainly interested in it.
Q. Do they have any knowledge?
A. I would say they do.
Q. Would it be safe to rely upon the Federal Communications Commission for information about the Internet? Do you know any reason why it would not be safe to rely on them?
THE CHAIRPERSON: Do you mean as to usage?
MR. FREIMAN: As to usage.
MR. CHRISTIE: That is two separate questions. Which one should he answer first?
MR. FREIMAN: The second one.
Q. Do you know any reason why it would not be safe to rely on the FCC for information as to usage?
A. I don't know that the FCC has specific knowledge of alternate forms of access. I think they are mainly interested in what is referred to as telephone access.
Q. Mr. Klatt, I am showing you a bound volume called "OPP Working Paper Series." It is from the Federal Communications Commission, Office of Plans and Policy, in Washington, D.C., and it is entitled "Digital Tornado: The Internet and Telecommunications Policy," and it is dated March 1997.
Before I start asking you questions, I am willing to change the time frame so that I don't confuse you or mislead you. Consider the points I put to you as at March 1997.
The vast majority of users reach their ISPs through the telephone network. Is that correct, or do you still believe that is not true?
A. That could well be the case.
Q. You don't dispute that.
A. I have no figures that would prove otherwise.
Q. Let me show you the book. From that book I have extracted several pages that I can provide to you and to my friends, and we will see whether you agree or disagree with some statements.
MR. CHRISTIE: There is a misprint, is there not, on the front page? Isn't it supposed to read "Telephone Policy"?
MR. FREIMAN: I wonder whether this document could be marked as the next exhibit.
MR. CHRISTIE: Could we have an indication of relevance, please.
MR. FREIMAN: It deals with issues of access to the Internet.
THE CHAIRPERSON: Is it statistical information?
MR. FREIMAN: Apparently it is.
THE CHAIRPERSON: By the FCC?
MR. FREIMAN: By the FCC.
THE CHAIRPERSON: Related to...?
MR. FREIMAN: Access to the Internet or access to ISPs and the modes of access to the ISPs.
MR. CHRISTIE: If the expert recognizes this as authoritative ‑‑ perhaps he has adopted it, but I am not sure that you can introduce evidence in this form unless the expert adopts. It wouldn't have relevance.
MR. FREIMAN: I believe that the expert has sufficiently adopted the FCC as being authoritative, it being safe to rely on them, and knowing no reason why the Federal Communications Commission should not be relied on as a source of information about the Internet. In my respectful submission, that is more than adequate for the witness to be asked.
THE CHAIRPERSON: You can put further questions to the witness to establish that.
MR. FREIMAN:
Q. Do you recognize the Federal Communications Communication as authoritative in the field of telecommunications?
A. That have a variety of departments and divisions that they are involved in.
Q. I don't think that is exactly responsive to my question. Do you recognize the Federal Communications Commission as authoritative in the area of telecommunications?
A. They do have regulatory oversight in the U.S. In that context, in terms of defining regulations ‑‑
Q. They also have ‑‑
MR. CHRISTIE: I don't know if he had finished. It seems to me he wasn't.
THE WITNESS: I think their mandate is to provide a legal framework.
THE CHAIRPERSON: Is part of their role to acquire statistical information as a source of public knowledge?
THE WITNESS: That may be an incidental aspect of them, but I am not sure they are expected to do it as part of their mandate.
MR. FREIMAN:
Q. Do you deny, sir, that what the FCC says about telecommunications, including what it says about the relationship between the telephone network and the Internet, is authoritative?
Let me put it a different way. Is there anyone in the United States of America who is in a better position to know about the state of the telephone network than the Federal Communications Commission, in your view?
A. Probably the telephone companies themselves.
Q. Second to the telephone companies themselves.
A. I could mention their expertise and mandate, as I understand it, involves the legislative and legal framework that telephone companies need to operate in.
Q. In order to be able to exercise that mandate, do they need to know anything about the system that they are regulating?
A. I am sure they do.
Q. Do they know anything about the system they are regulating?
A. Apparently they do.
MR. FREIMAN: In my respectful submission, that is sufficient to establish the authority of this document, at least in terms of getting the expert's assent or dissent for the propositions made.
MR. CHRISTIE: May I make on observation? If this were admissible, then equally so would be admissible any policy papers from the Canadian Radio and Television Communications Commission. I am quite sure my learned friend would be objecting to their opinions about various things respecting the Internet. The FCC has no expertise, this witness has recognized, in the specific area of statistical information. He says they are a regulatory and legislative adviser.
I just make that observation. It seems to me to be stretching it drastically to say that this constitutes evidence that he has adopted as reliable vis-à-vis the statistics that he says are in this, which I have not seen before.
That is my submission.
THE CHAIRPERSON: The Federal Communications Commission, as I understand it, is a legal body established under laws propounded by the Congress of the United States and have a regulatory function. I assume that it can speak with authority on the area that purports to do with connection to the Internet and telecommunications policy.
Subject to weight and where this is going, we will allow it and proceed with the questioning on this issue.
MR. FREIMAN:
Q. Would you turn to page 48, please. Under the heading "Current Internet Access Pricing" we find the following sentence ‑‑ and I am looking at the third sentence in that paragraph. Let's read the whole thing so that there is no issue of taking it out of context, but I am interested in the third sentence.
"To access the Internet, a user must pay an ISP, and any applicable charges to connect to that ISP. Most ISPs charge a flat, monthly fee, although some assess a per-hour charge above a certain monthly threshold. The vast majority of users reach their ISPs today through the telephone network. The phone call to reach an ISP is usually considered a local call, because the ISP has established a point of presence (POP) in that local calling area."
Do you agree or disagree with the first sentence: "The vast majority of users reach their ISPs today through the telephone network," today being 1997?
A. It appears to be the opinion of Mr. Werbach.
Q. Do you disagree with that opinion?
A. I have no basis to conclude one way or the other.
Q. Do you agree that the phone call to reach an ISP is usually considered a local call?
A. Yes, I would agree with that.
THE CHAIRPERSON: Is that all the use you are going to make of this?
MR. FREIMAN: I may come back to it later.
THE CHAIRPERSON: We will just hold it for now. If that is the only use, I am not sure that we need to mark it.
MR. FREIMAN:
Q. You have suggested that there are other ways to access the Internet rather than using the telephone network. Correct?
A. It is not a suggestion; it is a reality.
Q. Among the modalities you talked about are coaxial cable, the RF spectrum and satellites.
A. Correct.
Q. I don't remember hearing anything else. Did I?
A. Not that I can recall.
Q. You have told us about a conference you went to where the ISPs expressed the opinion that there was no future in providing Internet access with a plain old telephone system. Do you remember that?
A. I don't recall that that was the words I used.
Q. You don't think you said that the gist of the conference was that there was no future in providing Internet access through the plain old telephone system?
A. The opinion had been expressed that they don't see that as a growing portion of their business.
Q. First of all, that part is correct.
A. They perceive what is referred to as the dial-up market being around for some time, but they see much more growth in the non-dial-up type of access.
Q. Perhaps relatively they do, but would you agree with me that the growth in the dial-up aspect of a network is along the order of 10 per cent annually?
A. It may have been.
Q. Let's talk 1997. Do you have any reason to believe that it was not along the order of 10 per cent annually up through and including 1997?
A. I don't recall seeing any statistics one way or the other.
Q. I am sorry, it is 10 per cent every week that I wish to suggest to you as the statistical information. Does that sound wrong?
A. Yes.
Q. Are you familiar with an organization called UUNET?
A. I know of it.
Q. You know more than of it. You told us an awful lot about it the other day, didn't you. Part of your evidence was as to what UUNET does and what it owns and who it is affiliated with.
A. Correct.
Q. So you know that UUNET is an Internet provider.
A. Correct.
Q. Would UUNET, as an Internet provider, be in a position to know what the statistics are about increase in dial-up access to the Internet in the United States through 1997?
A. For their particular user base, but I don't think their experience would necessarily be reflective of the industry in general.
Q. Who is the largest telephone company in the United States?
A. In terms of...?
Q. Size, revenues ‑‑ you tell me. In fact, you told the Tribunal a few days ago what the largest was. Maybe I was wrong.
A. Depending on the most recent configurations of companies that are bought or merged ‑‑ and it changes fairly often ‑‑ it could very well be MCI WorldCom.
Q. Am I correct that UUNET is a subsidiary of WorldCom, or do you not know?
A. At the present time that may be the case.
Q. In 1997 it was also the case, was it not?
A. I don't have specific recollection or knowledge.
Q. I am showing you a press release by UUNET dated February 19, 1997.
MR. CHRISTIE: Is this relevant if the witness hasn't seen it or adopted it? I would submit that this is a novel way to introduce the evidence.
THE CHAIRPERSON: I assume that he is putting it to the witness.
MR. FREIMAN: I am putting it to the witness.
MR. CHRISTIE: Thank you.
MR. FREIMAN:
Q. You see the line at the top right-hand corner, the URL. What does that tell us?
A. The web address where that presumably was obtained from.
Q. Do you have any doubts that it was obtained from this address?
A. It may have been there at one time.
Q. You have problems with cache words and authenticity. Right?
A. It is certainly possible, but the assumption is that it was there at one time.
Q. I am putting to you that UUNET, which describes itself as a subsidiary of WorldCom ‑‑ in the first sentence it calls itself a subsidiary of WorldCom Inc.
THE CHAIRPERSON: In the second-last line.
MR. FREIMAN:
Q. In the top paragraph, the paragraph beginning "February 19, 1997 ‑‑" It also says the same thing in the third paragraph, but it is first introduced as a subsidiary in the last two words of the third line.
A. Yes, I see that.
Q. Does that cause you to believe that it is a subsidiary of WorldCom?
MR. CHRISTIE: Excuse me, this is quite improper, in my submission. What my friend is doing is saying, "Read this. Does that cause you to believe?" That is introducing evidence not by either an expert or a witness who has any knowledge of the document. Does it cause you to believe it? Can I make you believe it? That is certainly not a way to make it admissible.
MR. FREIMAN: My friend spent the entirety of Monday and Tuesday introducing various materials downloaded from the Internet and asked the witness to comment on them.
MR. CHRISTIE: Yes, he adopted them.
THE CHAIRPERSON: He has adopted the fact that he knows about the UUNET, and I don't get the impression that he has any trouble identifying it as a publication that comes from the UUNET. Whether he agrees with any of the factual statements contained in the document remains to be seen.
MR. FREIMAN:
Q. Do you disagree that UUNET Technologies is the largest provider of Internet services in the world?
A. Do they claim that somewhere in this document?
Q. Yes, they do. They claim that in the second sentence.
A. It depends on what the writer of this document had in mind in terms of provider of Internet services. That is the assertion of the writer.
Q. You are not willing to acknowledge that fact. You don't know from your own knowledge.
A. I agree that he does have a significant presence, but it depends on what he had in mind in terms of describing himself as the largest provider of Internet services in the world.
THE CHAIRPERSON: Do we have to argue about the word "largest?" It is a significant provider?
THE WITNESS: True.
MR. FREIMAN:
Q. If it is not the largest, it is one of the largest and most significant.
A. It is a large provider.
Q. This press release claims that with dial access demand growing at the rate of over 10 per cent every week and traffic over the backbone almost doubling every quarter, UUNET ‑‑ et cetera, et cetera.
Do you dispute the statement that dial access was growing at a rate of over 10 per cent every week as at November 19, 1997?
A. Yes, I do. They assert that the demand for it is growing, not claiming that the actual access is growing at that rate. Many Internet Service Provider companies have expressed substantially increasing rates of demand, but are not able to meet the demand in many instances.
Q. I guess I don't quite understand. How does demand for access manifest itself?
A. In requests for service.
Q. Are you willing to acknowledge that requests for service to the Internet via dial-up access were growing at a rate of over 10 per cent every week into February of 1997?
A. But it doesn't follow that actual access was growing at that rate.
Q. Will you accept the first statement, that demand was growing at a rate of over 10 per cent every week?
A. As perceived or measured by somebody or some organization for UUNET, by whatever method they use for measuring or describing that, the perception they had.
Q. Do you have any reason to dispute that? Do you have any reason to doubt it, from your experience, knowledge, reading or other expertise?
A. We do know that the demand does exceed the reality.
Q. Sorry, I don't understand. Demand exceeds reality. Do you mean that the people want more access than is available?
A. True.
Q. Is that what you mean by demand exceeds reality?
A. Yes.
Q. So we are in agreement that as of 1997 more people were trying to get onto the Net through telephone access than there were lines available.
A. I know of no ISP that was able to install 10 per cent more lines every week or of where that has ever been the case.
Q. I put it to you, sir, that in fact what this press release is doing is announcing a new construction program by WorldCom and UUNET to accommodate the excess demand that is building up as of 1997.
A. For a press release I am sure that would be an encouraging number to portray, if they are looking for investors, or to portray whatever position the market may wish the media to perceive.
Q. But you doubt that that is true.
A. It looks like a good number.
Q. A good number means an accurate number or it looks like a number that would be good for the company to portray regardless of its truth?
A. I have never encountered any Internet Service Provider that was able to accommodate a 10 per cent growth in access lines per week.
Q. You have said that before, but that is not what the press release is saying at all, is it? It is saying that demand is rising at the rate of 10 per cent a week. We have established that that means that there is insufficient capacity to meet the demand, and the press release is announcing a construction program to attempt to meet the demand by providing more dial-up access.
A. Certainly they are attempting to meet the demand that they are unable to fill in their present circumstances.
Q. So the demand for dial-up access, the requirement to reach the Internet by dial-up access, was as of February 1997 growing at a rate of 10 per cent per week.
A. Highly unlikely. What was probably happening is that users placed requests and after a week or two had gone by they phoned again to ask if they could get the same service. It is probably multiple requests for the same service. Whatever method they are using to measure demand probably gets added into all that.
Q. So you interpret it as numbers of customers.
A. There is no indication as to how they decided to come up with the number of 10 per cent or what that was based on.
Q. Regardless, sir, of what the actual number is, you will acknowledge that as of 1997 there was an overwhelming majority of users using the plain old telephone system and that the demand for those services was growing and the demand exceeded the capacity.
A. Yes, the demand did exceed capacity.
Q. Do you agree with the first few stages also or are you only agreeing with the last statement?
A. I agree that the demand did indeed exceed capacity.
Q. Did you agree that demand was growing?
A. I am sure it was in many areas.
Q. Across the board?
A. Not necessarily. In many instances Internet Service Providers were adding additional access methods other than dial-up capability.
Q. So you disagree that demand was growing for dial-up.
A. No, I don't think I indicated that.
Q. By contrast, the RF spectrum ‑‑ first of all, let's see if we can understand the RF spectrum.
I will ask whether the Tribunal is content, given the witness' discussion of this document and the facts contained there in, to have this marked as the next exhibit.
THE CHAIRPERSON: You have made reference to those portions of the exhibit that you thought were relevant to your line of questioning. Is it necessary to mark the document?
MR. FREIMAN: No.
Q. What does "RF" stand for?
A. Radio frequency.
Q. So what we are talking about is using a certain portion of the radio frequency ‑‑ that is, the spectrum that is devoted to radio communication ‑‑ for connection to the Internet. Right?
THE CHAIRPERSON: Connection to...?
MR. FREIMAN: To the Internet ‑‑ I am sorry, to ISPs.
THE WITNESS: RF can be used not only for connection to ISPs.
MR. FREIMAN:
Q. It is usually offered by ISPs, isn't it? It is not offered by Internet backbone providers.
A. I don't know that it isn't. It certainly could be.
Q. Is it? Which Internet backbone provider provides RF access?
A. I don't know. I am saying it could be.
Q. But it is not.
A. I don't know that it is not.
Q. You don't know that it is. You are in no position to tell us that it is, are you?
A. I can't tell you that it isn't either.
Q. You are in a position to tell us that it is used to access ISPs.
A. In some areas, yes.
Q. Which areas?
A. British Columbia has several areas.
Q. Where else?
A. I understand there are certain areas of Calgary.
Q. Who is the provider?
A. I can't remember the Internet Service Provider's name, but the company that is doing the work is Wyland.
Q. Anybody else?
A. Outside of B.C.?
Q. In B.C., outside B.C.
A. Valley Link Communications, Sunshine Communications.
Q. You have shown us those two. Those are big companies, are they?
A. Compared to WorldCom, no.
Q. Compared to Rogers?
A. They would be smaller than Rogers.
Q. Compared to UUNET?
A. I believe Rogers is smaller than UUNET.
Q. Compared to PSINet?
A. Mostly likely smaller than PSINet as well.
THE CHAIRPERSON: Are either of them public companies?
THE WITNESS: No, not that I know of.
MR. FREIMAN:
Q. I suggest to you, sir, that RF spectrum providers provide a minuscule portion of the Internet access market in Canada. Do you disagree with that statement?
A. The characterization is minuscule in relative terms to overall users?
Q. Yes. As a percentage of overall users, the number who gain access to ISPs through RF spectrum is minuscule.
A. It is certainly smaller than other methods, but it is a choice that a user could choose to use.
Q. In certain portions of B.C. and Calgary.
A. And probably elsewhere.
Q. But you are not familiar with any other location.
A. I am sure I could find others.
Q. You haven't found them yet.
A. I haven't specifically looked either.
Q. You are aware of three.
A. As examples of use, yes.
Q. You are aware of three.
A. Those three, yes.
Q. And you have no more.
A. I am sure I could find more.
Q. Sitting here today, you are not aware of any more than those three.
A. How many more would you like to know about?
Q. I want to know who else you are aware of. I am putting the proposition to you that you are not aware of any more than those three.
A. If you would like to give me a couple of minutes, I could find more.
Q. Sitting here today, you are not aware of more than those three.
A. I am most familiar with British Columbia, and in British Columbia those are the ones that I know of.
Q. Before we get on to your interesting proposal, how do you propose to find more?
A. I can do a search on the Internet.
Q. Let's do it. We couldn't get it working. You may still get to do it, sir.
Let me put another proposition to you, sir. The use of the RF spectrum is in no way incompatible with the telephone network, is it? In fact, the telephone network uses RF spectrum.
A. That is often the case.
Q. Cellular phones, for instance, use the RF spectrum, especially PCS.
A. Yes.
Q. Satellite technology ‑‑ is that a big ticket item for Internet access in Canada?
A. There are certainly different levels that it can be accomplished at.
Q. I ask you: Is it used by a lot of people?
A. Not as much as other methods.
Q. Less even than RF spectrum, I suppose.
A. I don't have any information as to the relative usage numbers of either method.
Q. Do you know who provides satellite access in Canada?
A. Cancom does and Hughes does.
Q. Cancom is what, sir?
A. The Canadian provider of satellite communication services.
Q. Who owns Cancom?
A. I believe it is Telesat.
Q. What is Telesat? It is a regulated telephone company, isn't it?
A. It is more commonly considered a satellite telecommunications company.
Q. It is regulated as part of the Canadian telephone system, is it not?
A. It may be.
Q. Insofar as Hughes provides access, I take it that you are aware, or tell me you are not aware, that Hughes requires the consent of Telesat in order to provide satellite services in Canada.
A. Do they?
Q. Do you know?
A. No, I don't know.
Q. Finally, you talked about coaxial cable. You were the first in Canada, weren't you, sir, to provide coaxial cable access to an ISP?
A. For residential ‑‑
Q. For residential users.
A. That is my understanding.
Q. That was in 1995.
A. Correct.
Q. By the time you got out of the ISP business you still had not broken 10 per cent of your residential users for coaxial cable, had you?
A. I don't think so.
Q. And you were the first. For instance, a company like Rogers, which is now offering coaxial cable, was not even offering it in 1995, was it?
A. No, they weren't.
Q. Or in 1996?
A. They may have started in 1996.
Q. In what areas did they start in 1996?
A. It might have been in the Newmarket area or it might have been in the Vancouver area.
Q. The Toronto area didn't start until 1997, did it?
A. I am not familiar with the exact start date.
Q. In fact, from the point of view of the ordinary user, in 1997 it would have been entirely accurate to say in everyday common parlance that to connect to the Internet you needed a telephone line.
A. No.
Q. You have told me that you are familiar with the Canadian Internet Handbook and its authors. Am I right?
A. I know of them and I have heard them speak on the radio.
Q. And they are considered knowledgeable about the present state of the Internet in Canada?
A. Some aspects of it.
Q. Is there anyone who is considered more knowledgeable in terms of educating the public that you are aware of?
A. I don't know if they have academic credentials in terms of educational expertise.
Q. You are an educator also, aren't you? That is one of the things you told us in your CV, and you don't have any academic credentials.
A. I guess in that sense we would be comparable.
Q. And you are trying to educate this Tribunal. Correct?
A. I am trying to provide accurate information.
Q. Let's see if you agree or disagree with something that Messrs Carroll and Broadhead say in their publication. I have the entire volume here, but I have only reproduced some of the pages.
MR. CHRISTIE: In keeping with Mr. Freiman's policy, we would ask to see the entire volume to be sure there is no possibility ‑‑ we will need it overnight to compare it.
MR. FREIMAN: Of course. Perhaps you will allow me to hold on to it and then you can ask for it overnight.
MR. CHRISTIE: It would be appropriate if we could look at it first to compare it to make sure there is nothing out of context.
MR. FREIMAN: By all means.
MR. CHRISTIE: Could the witness have both so that he can compare it, since he has never seen ‑‑
MR. FREIMAN:
Q. You have not seen this particular volume before. Right?
A. No, this is an edition I have not had occasion to go through.
Q. Are you sure you are not mistaking it for the Canadian Internet Directory?
A. That is a possibility.
Q. Do you know the difference between the Canadian Internet Directory and the Canadian Internet Handbook?
A. Perhaps the one that I am most familiar with is the Directory. They are published by the same authors, to my recollection.
Q. Yes, and the same publisher.
Could we look at page 70, sir ‑‑ and I don't care which you use, the book or the handout. They are equally fine with me.
You will see that the author says:
"Minimum Technical Specifications:
Here are the minimum computer requirements you need to use the Internet as we describe in this book:"
Then would you look at the second-last diamond. He says:
"You need a phone line. You can use the phone line you already have in your home; you do not have to install a separate phone line unless, of course, excessive use of the Internet starts a lot of arguments in the home because no one can use the phone."
Do you agree with that statement as one of the minimum requirements to access the Internet and to use the Internet as at 1997?
A. In the area he was familiar with that was probably the experience that he encountered.
Q. What are was he familiar with?
A. I think he is resident in southern Ontario, possibly Toronto.
Q. So you think that the Canadian Internet Handbook really is the southern Ontario Internet Handbook.
A. I think he is writing from his personal experience.
Q. So you accept this as being reality in southern Ontario, but you think it is wrong for the rest of Canada?
A. Certain parts of Canada.
Q. What parts of Canada is it not right for?
A. Various parts of British Columbia.
Q. I thought we had agreed that 90 per cent of access is by telephone.
A. What percentage?
Q. Ninety per cent. That was your experience.
A. In our particular subscriber base.
Q. And you live in British Columbia?
A. Correct.
Q. And you were the first to install the largest alternative mode of access to the Internet. You were the first in Canada to establish that?
A. In 1995.
Q. In 1995, that was the very first, and you disagree that the minimum requirement in ordinary parlance by and large, as it is commonly understood, is to have a phone line.
MR. CHRISTIE: With the greatest of respect, if my friend is referring to the quotation, it does not say "by and large" and all the other qualifiers he added. I think the question was: Is that statement correct?
MR. FREIMAN: Fine.
Q. You don't think it is correct because there is a small proportion in British Columbia who might have access through some other modality.
A. I imagine in 1997 other methods of accessing the Internet were certainly available, other than what Carroll and Broadhead refer to as needing a phone line.
Q. Do you disagree that this was the overwhelming experience of Canadians in 1997 when they accessed the Internet?
A. By 1997 there was a significant number of users in the Montreal area who were also accessing the Internet through their cable network there. I believe the company is Cogeco.
Q. What percentage of users in 1997 were accessing the Internet by coaxial cable within the Cogeco service area? Do you know?
A. No, I don't.
Q. I ask you once again: Do you deny that the overwhelming truth for Canadians wanting to use the Internet was that they would use the telephone?
A. More people used that method than other methods.
Q. Overwhelming.
A. That is your characterization.
Q. I put it to you, in terms of your conference, that there may be some pretty amazing new stuff. Are you familiar with that expression, "pretty amazing new stuff"?
A. I think so.
Q. Do you know if that has an acronym?
A. Such as...?
Q. Such as PANS.
A. Right.
Q. And your conference said that their future was in POTS and their present was in PANS ‑‑ sorry, the future was in PANS and the present was in POTS. That is true, isn't it? In 1997, whatever the future might have held, the present was in POTS, the plain old telephone service.
A. That may have been their way of characterizing the message they were trying to portray.
Q. And it would be true, would it not?
A. From the perspective of the person making the statement, they probably believed it.
Q. You wouldn't have believed it? Yes or no?
A. What is it that I am supposed to believe?
Q. That whatever the future was, the present was in POTS, plain old telephone service in terms of access to the Internet.
MR. CHRISTIE: The way you phrased it before was that the future was in POTS, not the present.
MR. FREIMAN: I corrected myself, sir. There are times when ‑‑ forget it.
MR. CHRISTIE: The last statement was that the present was in POTS. That is what I heard.
MR. FREIMAN: The present is in POTS. The future was in PANS and the present was in POTS, the plain old telephone service.
Q. Is that a difficult question?
A. Not particularly. I agree that there were more users using the traditional methods than the newer methods.
Q. Let's go to the second part, from the ISP to the backbone.
On your FTCNet, that connection was through a leased line. Correct?
THE CHAIRPERSON: Sorry, where are you now?
MR. FREIMAN: I am now moving to the second hop, from the ISP. We have done with the document, and I don't think we need to mark it. We are now on to the second hop from the ISP to the Internet.
THE WITNESS: Internet Service Providers are part of the Internet.
MR. FREIMAN:
Q. To the Internet backbone. Your connection to the Internet backbone was through a leased line.
A. True.
Q. A leased line is a line that is leased from the telephone company to a customer, often a business customer. Correct?
A. I haven't reviewed the specific definition of what is meant by leased line, but that is one way of referring to it, yes.
Q. It's an accurate way of referring to it.
A. We don't call it a telephone line.
Q. You called it a telephone line yourself, didn't you, sir?
A. A high-speed digital connection.
Q. Do you recall being cross-examined in the context of the affidavit that we saw just before lunch? Do you recall being cross-examined twice?
A. Let's refer back to that.
Q. I am asking whether you recall being cross-examined.
A. Yes, regarding paragraph 5?
Q. No. Do you recall being cross-examined twice, once by Mr. Vaissi-Nagy and once by Ms Matheson? Do you recall those events?
A. I thought you were referring to the discussion on this one.
Q. No. Do you recall that?
A. Yes, we did have cross-examination, but I don't recall the specifics of it.
Q. I suggest to you that in the course of that cross-examination you ‑‑
MR. CHRISTIE: If the suggestion is going to be made from a cross-examination that the witness doesn't recall, it is only fair and proper to put to him what you say he said and then deal with it accordingly.
MR. KURZ: Let him get to it.
MR. CHRISTIE: I am objecting to any reference to alleged cross-examination without reference to the text. The witness should have an opportunity to see it. He said he doesn't recall it. I am responding actually to Mr. Kurz' interjection which I probably shouldn't do.
THE CHAIRPERSON: We didn't hear it, so let's not talk about it.
I am sure Mr. Freiman knows how this kind of questioning needs to be conducted.
MR. FREIMAN:
Q. I am suggesting to you, sir, that the proper way to refer to the connection between your ISP and the Internet is as a telephone line, and that is the way you refer to it.
THE CHAIRPERSON: Do you understand the proposition?
THE WITNESS: In cross-examination I may have used ‑‑
THE CHAIRPERSON: Don't worry about the cross-examination. Just direct your mind to the question that has been put to you at this moment.
THE WITNESS: What is the question again?
MR. FREIMAN:
Q. The question is that the correct way of referring to the connection between your FTCNet ISP and the Internet is as a telephone line, and that is the way you agree to refer to it.
A. No. Based on my initial affidavit, I refer to it as a leased line.
Q. Do you remember being cross-examined on your affidavit by Mr. Vaissi-Nagy?
A. I recall that there was cross-examination.
Q. Do you recall taking an oath and swearing to tell the truth during the course of that cross-examination?
A. To the best of my ability.
Q. Did you so tell the truth to the best of your ability?
A. I attempted to.
MR. FREIMAN: I have to ask the Tribunal's indulgence. Mr. Taylor is not feeling well, and I have to rifle through to get my copy.
THE CHAIRPERSON: We will take our break now.
‑‑- Short Recess at 3:12 p.m.
‑‑- Upon resuming at 3:30 p.m.
MR. FREIMAN:
Q. Mr. Klatt, would you open the small leaflet in front of you. I have given the Registrar five copies for the Tribunal and distributed it to the various counsel.
I would like you to follow with me from Question 11 down to Question 15. This was not a very long cross-examination, was it, Mr. Klatt?
A. I don't recall the particular length.
Q. The transcript is only about 12 or 13 pages as far as I can tell. It appears to have adjourned at 10:25 a.m. it commenced at 10:10 a.m., so we are talking about a 15-minute cross-examination. You weren't too tired. Yes or no?
A. It was the first cross-examination I had ever been in, so it was stressful to me.
Q. Let's follow along the questions and the answers. I would like you, when I am finished, to tell me whether you were asked those questions and whether you accept that you gave those answers.
"Q. I wonder if you could please turn to paragraph 7 of your affidavit sworn February 19th? The first sentence of paragraph 7 I'll ask you to read, please?
A. Okay.
"Our server system comprises a small part of the Internet, and has a permanent connection to the Internet by a leased line."
Q. Could you please tell me from whom you lease that line that provides the permanent connection to the Internet?
A. From BC Tel Advanced Communications.
Q. So in fact it's a telephone line.
A. It's a leased digital line.
Q. But leased from a telephone company?
A. I'm not sure that BC Tel Advanced Communications is a regulated common carrier. It's not BC Tel.
Q. Okay, but it is not a co-axial cable line, it's a telephone line?
A. Correct."
Do you remember being asked those questions?
A. Apparently I was.
Q. And do you accept that you gave those answers?
MR. CHRISTIE: To put it in context I would ask that the following Questions 16, 17 and 18 be asked and the answers given so that there is no incompleteness.
MR. FREIMAN: "Q. And all access from
Fairview to the Internet has to go through this leased line?
A. At some point. At the moment, our actual physical connection does go via a rented co-axial cable line from the local cable company.
Q. Your physical connection from...?
A. From our servers to the BC Tel connection.
Q. Okay. and then ‑‑ okay, that's fine. And the BC Tel connection is located where, in Oliver?
A. Correct. At the cable company."
Do you remember being asked those questions and do you accept that you gave those answers?
A. Yes, apparently I did.
Q. In the course of that you agreed that the leased line was a telephone line.
A. I will have to look at it again. Questions were being asked regarding what kind of connection we had to the Internet. I answered at least twice, I believe, that it is a leased digital line. The question then was asked in comparison to whether or not it was a coax cable line, and he was comparing as between a coax cable line and a telephone line.
Q. And you agreed that as between those two it was a telephone line.
A. It is more similar to a telephone line than it is to a coax line, but that is not the term that I was attempting to convey as to how we refer to it.
Q. I suggest to you that it is, in fact, a correct use of the term "leased line" to call it a telephone line. That is the way it is understood in the business.
A. Not really.
Q. You said that you were familiar with the Cook Report.
A. I know of it.
Q. It is a report on telecommunications that is available through North America?
A. From what I have seen in reference to the Cook Report, Mr. Cook writes primarily on Internet-related topics.
Q. It is an Internet service that is available throughout North America?
A. I am not sure where it goes.
Q. It is an Internet report service and, you told us, an expensive one.
A. The last time I checked.
Q. I would like to provide you with a complete copy of the Alphabetical Glossary from the Cook Report. I will distribute to the Panel and to counsel just the excerpt that I intend to use.
Mr. Klatt, Mr. Zundel's counsel has requested that he be allowed to look at the entire document before you answer any questions. We will let him look at the entire document.
MR. CHRISTIE: I am interested to know whether the Cook Report has a home page or a front page index that indicates something about the nature of this Alphabetical Glossary, whether it is intended to be compendious or whether it is like Mr. Newton's essay version. I really don't know what this is intended to signify, and it would help to know.
THE CHAIRPERSON: If memory serves, reference was made to this publication this morning, and the witness indicated some familiarity with it
MR. CHRISTIE: He said he had heard of it. That is all I heard him say.
MR. FREIMAN: I propose to put some propositions to the witness with the assistance of this. I have given my friend the entirety of the glossary. If the witness believes the glossary is defective, he will let me know. If Mr. Christie believes that there is something wrong with the document, he will let me know. If they want to download it from the Internet, Mr. Klatt undoubtedly would be able to do that, although he can't speak to counsel. Mr. Christie has the benefit of Mr. Lemire who I understand has some passing familiarity with these matters. He can download the entire Cook Report if he likes. If there is an objection ‑‑ and we are not going to finish today with Mr. Klatt ‑‑ we will hear about it.
MR. CHRISTIE: Sir, I respectfully submit that it is very similar to the objections I ran into when I tried to put documents to witnesses. I have no objection to my learned friend putting any proposition that he wants to put to this witness and asking him whether in his opinion it is correct or not, but to indirectly attempt to introduce some authority to the proposition by reference to some text or document can only be done after the witness has accepted the authoritative and persuasive nature in his view as an expert of that document. Otherwise, we indirectly introduce the Cook Report as if it was evidence when nobody is here to verify it.
Neither my learned friend's own expert nor anyone else led us to believe that this was particularly credible.
THE CHAIRPERSON: It is not going to be evidence until the witness either acknowledges or accepts it as evidence. I think it is appropriate, having recognized the existence of the work as an alphabetical glossary within the Cook Report, to at least put the proposition to him based on certain definitions that might be contained.
MR. FREIMAN:
Q. I would just like to look at "leased line." The proposition that I would like to put to you is the one that you will find at page 11 of 23. "Leased line" is defined as follows:
"A leased line is the telephone circuit transmission channel reserved for the use of customer from point 'a' to point 'b' through phone company physical lines and switches."
Do you agree that that is an accurate definition of the term "leased line?"
A. Then he goes on further to qualify what he means.
Q. Yes.
"The line may be of different bandwidths of data carrying capacity. In data networking a bit pipe is a colloquial name for a leased line."
A. I think the last two words are saying what he is referring to. A leased line is a leased line.
Q. It is a telephone circuit reserved for the use of a customer through phone company lines and switches. Do you disagree with that proposition?
A. Is this Mr. Cook's definition that he has derived, or is this something copied from somewhere else that he is incorporating into his web page?
Q. Good try, Mr. Klatt, in terms of the hints that Mr. Christie is trying to give you, but I don't think ‑‑
A. I didn't get any hints from Mr. Christie.
MR. CHRISTIE: Just a moment, that is an unfair inference. I sat with no expression, no sound on my lips. I made no movements whatsoever. I don't know where my friend is coming from when he makes these innuendoes. There have been times when I have felt that some noises were being made, but no noise came from me and I made no remarks whatsoever. I really don't think it is fair to say that.
MR. FREIMAN: I will withdraw that.
THE CHAIRPERSON: Let's get back to the line.
MR. FREIMAN:
Q. First, let me get your assent or dissent from the proposition that a leased line is a telephone circuit transmission channel reserved for the use of customers from point "a" to point "b" through phone company physical lines and switches.
A. It appears to be possibly Mr. Cook's assertion, but I have seen a fair amount of criticism of his conclusions and ideas in various discussion groups that I participate in. Whether or not that is an accurate characterization I would be suspicious of.
Q. What sort of criticism have you seen?
A. That people who are knowledgeable on the topics that he comments on disagree with him.
Q. Give me an example where they dispute.
A. I would have to look at the archived messages to give you specifics.
Q. Where did you see this?
A. On the INet access mailing list.
Q. And you have no recollection whatsoever what the topic was?
A. I could venture a guess. I have seen various comments relating to what Mr. Cook puts out in his newsletter.
Q. What comments?
A. That he is inaccurate or incorrect or drawing wrong conclusions.
Q. About...?
A. About the telecommunications or Internet topics that he is addressing.
Q. And you have no "such as" to help me?
A. Not at the moment. To the best of my recollection, it was last year sometime.
Q. Your position is that this definition is not reliable and not accurate.
A. If it is Mr. Cook's personal definition, I would not characterize it as being accurate.
Q. Because you don't believe that anything Mr. Cook says can be taken at face value.
A. I don't think I would assert that.
Q. So why, if it is Mr. Cook's definition, do you think it is not accurate?
A. I don't know his qualifications or expertise.
Q. What was Mr. Rosenthal's qualifications and expertise, in your Dictionary Definitions in R-3? Rosenberg, I am sorry. Or how about Dr. Weik at page 12? What are his qualifications and expertise?
A. It appears that he has a doctorate in science.
Q. And that led you to assume that he was reliable?
A. At least he has some degree of knowledge in some aspect.
Q. As I recall, you also thought he was reliable because his publisher is a reliable company.
A. They do supply materials to libraries of educational institutes.
Q. That is how you evaluated the accuracy of the dictionary definitions put to you by Mr. Christie on Monday.
A. It goes to the probable value in terms of being reputable. This could be incorporated from some other glossary or it could be his own personal way of referring to what he considers a leased line.
Q. It does or does not correspond to your view of what a leased line is.
A. In my experience and in encountering other people who work in the Internet field, they do not refer to leased lines as telephone lines.
Q. Do you know what an IXC is?
A. I believe it stands for interexchange carrier.
Q. What are they?
A. Typically, that company would be involved in providing connectivity between two exchanges not in the same calling area.
Q. They are long distance telephone companies, aren't they?
A. They can perform that service.
Q. That is what they are.
A. I would disagree.
Q. We will put Mr. Cook away for a moment.
Before we leave the second stage, I want to talk with you about something called preferred routing. You disagreed, as I recall ‑‑ and please correct me if I am wrong ‑‑ with Mr. Angus and the statement that he made to the effect that it was not possible to control or predict the path of a message through the Internet. You cited preferred routing as the refutation of Mr. Angus' point.
MR. CHRISTIE: I think that is incorrect as to what the witness said.
MR. FREIMAN: I have invited him to correct me if I am wrong.
MR. CHRISTIE: All right.
MR. FREIMAN:
Q. Am I wrong, sir? Do you remember what you said about preferred routing and why?
A. Preferred routing is a method indicating a specific route.
Q. A specific route where?
A. Between two points.
Q. It is between an ISP and an Internet access point, isn't it?
A. An ISP is an Internet access point.
Q. An ISP is not a backbone provider, is it?
A. It is not typically considered as such.
Q. I am suggesting to you that preferred routing is a method of directing Internet traffic from an ISP to an Internet backbone provider.
A. It can be used for that.
Q. What else can it be used for? Once it gets into the Internet backbone, sir, I put it to you that there is no way of controlling the route. That is the essence of the Internet.
A. But the Internet backbone providers themselves set up preferred routes amongst each other.
Q. To go from one to the other. It is only one hop. Once it gets into the Internet backbone, it is impossible to control which way the message goes. That is the essence of the Internet, isn't it?
A. What in your mind are you calling the Internet backbone?
Q. What are you calling the Internet backbone, sir?
A. It is actually a relatively nebulous term. The definition of the Internet backbone varies with who wants to define what carriers or speeds make up the Internet backbone.
Q. So that we are all on the same page, you tell me what the Internet backbone is.
A. It is generally considered to be the Internet companies that have the largest speed connection between each other.
Q. It's an optical network?
A. Not necessarily, but probably increasingly so.
Q. It is not typically the destination of a call from the customer to the service provider. It happens, but quite atypically.
A. In most cases, it wouldn't be.
Q. I am suggesting to you again that all preferred routing is is a method of arriving at an Internet backbone provider, but once it gets there and it goes into the Internet cloud, as it is sometimes called, the message can go any which way.
A. No, it can't go any which way.
Q. It can go through a dizzying array of possible connections.
A. There are actually in many instances quite clearly defined policies as to what packets get routed for which destinations. Quite often Internet providers will make a decision as to how to route the packet based on the source. Particular suppliers' packets are only routed through specific routes. Other suppliers' packets will be routed through a different pattern.
Q. Are you suggesting, sir, that once it gets into the Internet cloud you can control how the message gets from its entrance point to the web server that is to provide the message?
A. As an end user, possibly not ‑‑ probably not.
Q. Definitely not.
A. But as an Internet user it is certainly possible to set it up so that it can be.
Q. Is that typically what happens when someone asks for a message from a web site?
A. I do know that Internet Service Providers set up preferred routing because they do want to control the specific paths which their data takes.
Q. We will get back to that. I don't want to prevent us from at least starting to look at the third section, and maybe that will make clearer some of the discussions we have had up to now.
The Internet backbone, you say, is a difficult term to define because...?
A. Because there is no definite boundaries as to what constitutes the backbone. It changes and evolves and expands and contracts depending on the various expansions and reconfigurations.
Q. But you had no difficulty identifying who owns the Internet backbone, did you?
A. The major players are generally considered to be that list of companies.
Q. I am curious, sir. You named only U.S. companies. Are you suggesting that there is no Canadian Internet backbone?
A. In the context of Canada, you could include fONOROLA, Ethernet. It depends on how far down the tree you want to consider the backbone.
Q. What about Bell Canada?
A. They are very likely as well.
Q. Do you know?
A. I have no particular experience in dealing with Bell Canada.
Q. You said you knew about CaNet.
A. I know of them.
Q. CaNet, I suggest to you, was an effort to integrate what were previously separate provincial Internets. The original Internets in Canada were organized provincially. They linked universities to each other, and then provided a link from those universities to the Internet in the United States, to similar institutions. Is that correct or not?
A. That sounds like a description of what it was at that time.
Q. I am suggesting to you that CaNet was an effort to link those provincial Internets into a single Canadian entity.
A. That may have been one of their goals.
Q. I am suggesting to you that the function of CaNet was to manage leased lines to unite the provincial Internets. Do you agree or not?
A. I have no knowledge in that particular area.
Q. I am suggesting to you that those lines were leased from telephone companies. Do you have any knowledge in that particular area?
A. No, I don't.
Q. I am suggesting to you that CANARIE, which you identified ‑‑ and maybe I can help you with the acronym. The Canadian Network for Advancement of Research Industry and Education. Does that sound about right?
A. That would most likely be the case.
Q. I have forgotten whether you knew anything about CANARIE.
A. Other than that it exists; in particular detail, no.
Q. You gave us a brief description of what CANARIE was and what it did.
A. It is a network attempt to provide services for, I believe, primarily government research and educational institutes across Canada.
Q. Are you aware that it was CANARIE that developed a new network to replace CaNet in order to form the Canadian Internet?
A. Not in specifics, no.
Q. Are you also aware that after CANARIE developed this network, it called it CANet 2?
A. I haven't heard that designation.
Q. Are you aware that CaNet 2 was turned over to Bell Canada Advanced Technologies to be integrated into the commercial Internet?
A. That may be the case in Ontario. I am not aware of any Bell Canada operations in western Canada.
Q. Your view is that Bell Canada Advanced Technologies only operates in Ontario and Quebec?
A. From what I have seen.
Q. I suggest to you that the Canadian Internet backbone is, in fact, comprised of Bell Canada Advanced Technologies, AT&T Canada, fONOROLA, Sprint and BC Tel Advanced Communications.
A. Are you stating that those companies make up CANARIE?
Q. No, hardly. CANARIE is an institution, as you said. It is not a private company. I am suggesting that those are the companies that control the Internet backbone in Canada. But you don't know about that?
A. In large portion, that would be the case.
Q. You say "in large portion." Do you know or not know? Up to now you don't seem to know anything about the development of Canadian ‑‑
MR. CHRISTIE: Is what my friend is putting to the witness going to be proven or is it just that my friend can rattle on his thesis and how the telephone companies in Canada are related and how advanced communications companies are telephone companies? Is that to be taken as fact when the witness has no knowledge of it?
THE CHAIRPERSON: Mr. Klatt, you don't have to know everything. If you don't know the answer to something, shorten it down by saying "I don't know."
MR. CHRISTIE: He has said that many times. I have listened carefully when I am half asleep.
MR. FREIMAN:
Q. Am I correct in saying that I can't ask you any questions about the Canadian Internet because you don't know much about it?
A. In the context of your question, I do know that there are connections to the Internet that go outside Canada that don't go through CaNet.
Q. I don't think I asked you that. I just wanted to know what you knew about the Canadian Internet backbone and the Canadian Internet.
I am putting to you as a proposition that you don't know much about it.
A. In terms of the companies ‑‑
Q. In terms of its history ‑‑
MR. CHRISTIE: Can he answer at least? I am trying to hear him, and I keep hearing Mr. Freiman interrupting him.
MR. FREIMAN:
Q. I suggest you don't know much about it in terms of its history. Correct?
A. I haven't spent much time following its development.
Q. Nor about its actual ownership or control?
A. That part doesn't become much of a concern as long as it operates. That is our primary area of interest.
Q. Or its connections with the U.S. Internet?
A. Like I mentioned, there are connections to the U.S. Internet which don't go through CaNet.
Q. And that is about all you know?
A. Ask me some more questions.
Q. Let me ask you about the U.S. Internet. You seem to know more about that than you do about the Canadian Internet.
First of all, you have told us that the U.S. Internet ‑‑ and you called it the Internet backbone, but it is the U.S. Internet backbone ‑‑ is owned by a number of companies. I think you listed the following and, if I have misstated or misquoted you, I would like you to tell me. I think you named MCI ‑‑
A. Yes.
Q. Sprint.
A. Yes.
Q. GTE.
A. Yes.
Q. UUNET.
A. Yes.
Q. PSINet.
A. Yes.
Q. AGIS/NET99 ‑‑ I think said, depending on how you defined the Internet backbone, that company would qualify, and the same for Digex.
A. That is in my view a more accurate term to refer to the Internet backbone. There are other companies that other people consider as part of the Internet backbone.
Q. But those are the ones that you named?
A. In my view of what is referred to as the Internet backbone, the demarcation is somewhere between that range of companies.
Q. In connection with those companies, I believe that you denied that the Internet backbone is owned by telephone companies.
A. Companies that call themselves telephone companies.
Q. Companies that are called telephone companies in ordinary speech, for ordinary purposes.
A. I think what I was trying to convey was the companies which in their own description don't refer to themselves as telephone companies.
Q. Would you agree that the regulator refers to them as telephone companies?
A. In terms of their Internet part of the business?
Q. In terms of who they are. Their regulator refers to the largest companies on your list as telephone companies.
MR. CHRISTIE: What regulator, and can the witness be shown where this is supposed to happen? Otherwise, my friend is just giving evidence.
MR. FREIMAN: First, I have a right to test the proposition and then, depending on the answer, I can follow it up with evidence or do whatever, and Mr. Christie can berate me if I fail to be fair to the witness. First I am entitled to put the proposition to Mr. Klatt and then, depending on his answer, to proceed to the next point.
MR. CHRISTIE: I think he is still required to at least identify what regulator my friend is speaking about.
MR. FREIMAN:
Q. Who is the regulator of telephone companies or telecommunications companies in the United States?
A. My understanding is that it is the FCC, the Federal Communications Commission.
Q. Let me just make sure we are both talking about the same thing. First of all, we have established that UUNET is owned by MCI WorldCom. Correct?
A. That appears to be the case.
Q. I am suggesting to you that MCI WorldCom, GTE, Sprint and, in fact, a company that you did not mention as an Internet backbone owner, AT&T are all referred to by their regulator as telephone companies.
A. That is certainly their historical designation.
Q. I am suggesting to you that in 1997 or 1998 that is how they are referred to by the FCC. Do you agree or disagree with that?
A. I don't know what the FCC calls them.
Q. Would it be at all influential in your understanding of what the proper designation of these companies would be to know how the regulator designated them?
A. You could look at it.
Q. You are not going to commit yourself as to whether it is at all influential.
A. Influential to me or to the Panel?
Q. To you.
THE CHAIRPERSON: To your opinion.
MR. FREIMAN:
Q. Don't tell me what the Panel is going to think. Tell me what you would think.
MR. CHRISTIE: Can you let him say what he thinks?
THE WITNESS: I agree that historically they have been referred to as telephone companies.
MR. FREIMAN:
Q. I don't think that was the question I asked you, Mr. Klatt. I asked you: Would it be at all influential to your opinion to know how the regulator designates these companies in 1997 or 1998?
A. I am certainly willing to look at it.
Q. But you are not willing to commit as to whether it would be influential.
A. I would have to see the context.
Q. If the context were simply a designation of these companies by the name "telephone company," or not by the name "telephone company," would that be influential for you?
A. In terms of my understanding what the extent of the backbone is?
Q. In terms of your statement that they are not telephone companies, your definition of them as not being telephone companies.
A. What definition are we using for a telephone company?
Q. Your definition. I am asking for its influence on your definition of whether these are telephone companies.
A. If the telephone company is supposed to be able to complete telephone calls, some of those companies don't.
Q. I am still not sure that that is an answer to my question. I really didn't ask a very complex question. I asked you whether knowing how the regulator refers to them would be influential in the formation of your opinion as to whether they are telephone companies or not.
MR. CHRISTIE: If that is not a complex question, I wonder what is.
THE CHAIRPERSON: It has been put a couple of ways, but it seems to me fairly straightforward.
If you knew that the FCC characterized these companies as telephone companies, would it make any difference to your thinking, in the formation of your opinion such as you have expressed it?
THE WITNESS: It would be interesting to see what they call them because some of those companies are incapable of handling or completing telephone calls.
MR. FREIMAN:
Q. So that is your answer to the Chairman's question.
A. If a regulatory body wants to refer to a business as a telephone company, that is their prerogative to do so for whatever regulatory procedures or concepts they have in mind. In terms of being able to complete telephone calls, they don't perform as a telephone company.
Q. So the answer is that it would not be influential because you have your own definition.
A. If a telephone company can't complete telephone calls, what kind of a telephone company is it?
Q. Maybe I could put the document to you and see whether you have a reaction.
This is a four-page document. The cover indicates that it is the 1997 edition of the Federal Communications Commission Preliminary Statistics of Communications Common Carriers. I have excerpted Part 2 dealing with Telephone Carriers. The third page sets out a preliminary statistics of communications common carriers. This calls itself a list of telephone carriers reporting to the Commission for the year ended December 31, 1997. It says that they are local exchange carriers.
Over the page is preliminary statistics of communications common carriers for interexchange carriers. I am interested in the preliminary statistics of communications common carriers for interexchange carriers.
First, are we agreed that interexchange carriers means long distance?
A. That is the conventional interpretation for that term.
Q. Would you agree with me that the FCC lists under telephone carriers AT&T Communications, Inc., MCI Communications Corp., Sprint Corporation, WorldCom, Inc., and farther down the page GTE Communications Corp.?
A. We are looking at AT&T ‑‑
Q. MCI, Sprint, WorldCom and GTE.
Would you agree with me that the Federal Communications Commission considers all of these to be telephone carriers or IXCs?
A. They are certainly listed under that category.
Q. Does that in any way change your view as to whether these are telephone companies?
A. If they are performing the function of being able to complete and handle telephone calls, then that would be indeed an accurate characterization. I don't see AGIS/Net99, Digex, or ANS Network.
Q. I was not suggesting that they were there. I asked you for MCI, GTE, Sprint, AT&T and WorldCom.
MR. CHRISTIE: This is somewhat misleading, in my submission, Mr. Chairman.
Whether AT&T Communications, Inc. is AT&T that provides Internet services or MCI Communications Corp. is the same or Sprint Corporation Long Distance Division is the same as the Internet provider, I don't know. The impression is being left that that is all they are, one company with one name. I think the world is a little more complicated than that.
MR. FREIMAN: Mr. Christie is giving evidence.
MR. CHRISTIE: I am objecting to misleading the witness. That is what I am doing.
MR. FREIMAN: May I request, in view of the nature of the objections, that, if Mr. Christie has such an objection, he allow the witness to be excused and that he present his objection rather than presenting an objection and a long explanation in the presence of the witness?
In my respectful submission, there is nothing whatsoever misleading. Mr. Klatt yesterday gave us his opinion about AT&T Communications. He brought us all sorts of downloaded documents. There is absolutely nothing misleading about the question of whether these companies are telephone companies.
THE CHAIRPERSON: The evidence is in for what it is worth, and we will deal with that later. Go on to your next question.
THE WITNESS: Just to comment on that, we see changes from reality already in the first four companies listed. MCI and WorldCom are listed as separate entities. That is no longer the case, as I understand it.
MR. FREIMAN:
Q. This was a 1997 document, and I take it you do not expect a 1997 document to include the details of a 1998 merger, or do you?
A. We are expecting 1998 definitions of words to apply to 1970.
Q. I am happy with 1997, sir. I am happy with the state of the world in 1997.
In my respectful submission, this document can be marked as an exhibit. It was acknowledged for its authenticity and trustworthiness.
MR. CHRISTIE: I didn't hear the witness acknowledge its authenticity or its accuracy, nor has anyone proven it. I don't really know what it means. It is a piece of paper produced as preliminary statistics of communications common carriers. Its accuracy or authenticity are verified by nobody. I don't think the witness verified it. Precisely what it means is still uncertain.
THE CHAIRPERSON: It is a portion of a statistical report, is it?
MR. FREIMAN: Yes.
THE CHAIRPERSON: Are you seeking to put it in as a public document?
MR. FREIMAN: Yes. A U.S. government agency purports to set out factual matters. In fact, the witness acknowledged that this is the regulator and has treated this as an authentic representation of what the regulator is saying. Mr. Christie can argue what its meaning might be or what weight you should give it. All those matters I fully expect.
MR. CHRISTIE: May I just say one final thing? The witness has recognized the FCC as a regulatory agency in the United States. As to the authenticity of this, I don't think he has expressed any opinion. Is my friend prepared to swear that it is authentic and accurate? If not, who is?
THE CHAIRPERSON: It purports to be statistical information which are matters of public record.
MR. CHRISTIE: Is this a public document? Someone usually has to verify that it is. I don't really know where it comes from. There is no web site address. Nobody has verified where it came from. I am not saying that my friend would fabricate anything, but how are we know exactly what it is? It just comes in from my friend's files.
MR. FREIMAN: Mr. Christie is now asking that each document in evidence be proved. I will object to each and every document that Mr. Christie has purported to rely on up to now since none of them was proved.
THE CHAIRPERSON: The designation on it is Federal Communications Commission, 1997 Edition. I am going to allow it on the basis that I previously suggested.
THE REGISTRAR: The document will be marked as HR-22.
EXHIBIT NO. HR-22: Document entitled "Preliminary Statistics of Communications Common Carriers, Federal Communications Commission, 1997 Edition"
MR. FREIMAN:
Q. I also want to suggest to you that, in fact, going back to our list of companies that you say are involved in ownership of the Internet backbone, of all the companies that you cited, if you accept that UUNET is a subsidiary of WorldCom and, therefore, of WorldCom MCI, that the companies MCI, Sprint, GTE and UUNET make up an overwhelming majority of the Internet backbone providers in the U.S. Internet backbone.
A. I wouldn't necessarily characterize that as being accurate. I know of a source that will give us that information in more detail. From what I recall seeing, that would not be an accurate assertion.
Q. So your assertion is that PSINet, AGIS/Net99 and Digex make up a significant portion of the U.S. Internet.
A. Yes, they do.
Q. Do they make up half?
A. I don't know percentages.
Q. I suggest to you that it is less than half.
A. It may be less than half.
Q. I suggest to you that it is less than a quarter.
A. I am not willing to venture a guess as to what percentage.
Q. Do you know?
A. No, I don't know the percentage.
Q. I am going to suggest to you further, sir, that companies like PSINet don't own the circuits through which the traffic on the Internet backbone passes.
A. I do know that, if PSINet removed the part that they do own, you wouldn't have an Internet backbone.
Q. I am suggesting to you that PSINet does not own the circuits through which the portions of the Internet backbone that it provides run.
A. That may be the case.
Q. That is the case. Do you accept that?
A. I have no proof one way or the other.
Q. I put before you a document that carries with it an Internet URL at www.psi.ca\services\network.html that purports to be a PSINet document. Are you willing to accept that this is an authentic downloaded copy of a document that PSINet has on its web site?
A. It probably represents an accurate description of what they had there on that date.
Q. On that date. What date would it have been?
A. It appears to be yesterday.
Q. 11/11/98. You have no anxieties about caching problems?
A. Other than to realize that it is entirely possible that the document could have been cached somewhere along the way.
Q. You had no anxieties about the documents that you downloaded in terms of caching problems, did you?
A. Other than that I am aware that certainly I may not have been retrieving the document that is there today.
Q. But you offered them in evidence as authentic documents in terms of the testimony that you provided to us.
MR. CHRISTIE: Excuse me, my friend misstates the situation entirely. He didn't tender them as authentic documents. He tendered them as documents he accepted as accurate. That, in my respectful submission, is the difference between what he has done and what my friend is endeavouring to do.
When an expert accepts a document's validity as part of his opinion, he can be cross-examined on it. But this document, similar to the last one, can never be cross-examined, unless he adopts it. That is why I submit it is not usually admissible.
THE CHAIRPERSON: He has identified the document, so he can put certain propositions to the witness to see if he accepts those propositions.
MR. FREIMAN:
Q. I put it to you, sir, that in terms of the network architecture of PSINet, the reality is that PSINet relies on leased circuits from interexchange carriers ‑‑ that is, long distance telephone companies ‑‑ to provide its circuits for its network.
A. That is certainly one component of what they would rely on.
Q. You accept that. Correct? They don't physically own the circuits over which their Internet backbone service runs.
A. It doesn't say that.
Q. Let's look at the second paragraph under "Network Architecture." It says:
"PSINet relies on many Inter-Exchange Carriers (IXC) to provide TDM point-to-point T1 and T3 circuits for this network."
We had better make sure that everyone knows what these words mean. We now know was inter-exchange carriers are. Do you know what TDM is?
A. It refers to Time Division Mutliplexing.
Q. That means a circuit that can be shared among a number of messages according to time.
A. True.
Q. T1 and T3 circuits are digital circuits, T1 being the relatively slow 1.54 million bits per second and T3 being approximately 28 T1 circuits. Correct?
A. You are contradicting your earlier assertion where you claimed that that was a telephone line.
Q. Am I?
A. From what I recall of our ‑‑
Q. Why is it contradictory?
MR. CHRISTIE: Could he possibly finish his answer?
MR. FREIMAN:
Q. Why is it contradictory, sir?
A. This morning you were claiming that that was a telephone line.
Q. And I am not claiming it's a telephone line now?
A. You are calling it a digital circuit.
Q. Isn't that a telephone line?
A. If it cannot be used for completing or carrying telephone calls ‑‑
Q. So we are back to that. It's not a telephone ‑‑
MR. CHRISTIE: Once again, for about the third time in a row Mr. Freiman interrupts before the witness is finished. I admit that it has been a long day, and the witness appears somewhat slow, but he still has to finish an answer.
THE WITNESS: I am not aware of a T3 circuit being able to communicate voice over.
MR. FREIMAN:
Q. I put it to you, sir, that the reality is that the entire Internet backbone, as well as the lines that access the Internet backbone, are built on circuits that were originally designed to carry voice traffic.
A. Voice traffic was certainly one of the features they had in mind when they were designing it. I don't know whether it was the primary reason or the only reason.
Q. The circuits that comprise the Internet and, in fact, that comprise the links from the computer by telephone line to the ISP and from the ISP to the Internet backbone and throughout the Internet backbone consist of circuits that were originally developed to carry voice traffic. Do you agree?
A. In the design considerations of the various types of networking, I am sure voice was a consideration. Whether it was the primary one or the only one, I don't think that was necessarily the case.
Q. In fact, sir, I put it to you that the Internet and the telephone network pass over the same system and are from any high-level vantage point indistinguishable from one another.
A. In your way of visualizing it.
Q. You don't agree with that.
A. No. I have given several examples previously where that is not the case.
THE CHAIRPERSON: I think we will leave it at that point and continue tomorrow. How long do you think you will be tomorrow?
MR. FREIMAN: I thought I would only be two hours to three hours today. I am having some difficulty with speed in my exchanges with the witness. I expect an hour to two hours.
THE CHAIRPERSON: You are under cross-examination, so please do not discuss your evidence with anybody. We will resume at 9:30 tomorrow.
MR. CHRISTIE: Excuse me, I just want some direction. This witness has been staying at Mr. Zundel's house. If the Panel would prefer him to stay elsewhere or feels it appropriate to make any direction on that ‑‑
THE CHAIRPERSON: It is not the Panel's concern to direct where this witness will stay.
MR. CHRISTIE: We will take those steps, I guess. Thank you.
MR. FROMM: Mr. Chairman, in what form do you want the notice of witnesses which you told us we had to have for you tomorrow? Do you want a written list or can we present it orally?
THE CHAIRPERSON: Whatever is most convenient. If you can provide a written list, that's fine.
‑‑- Whereupon the Hearing was adjourned at 4:30 p.m.
to resume on Friday, November 13, 1998
at 9:30 a.m.