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The Xplornet's Release: Digging into the Documents

Thursday July 14, 2011

Earlier this week, Xplornet Communications Inc. (formerly Barrett Xplore Inc.) issued the following press release in response to my post on the CRTC's net neutrality enforcement:

Xplornet Communications Inc., (formerly Barrett Xplore Inc.) is aware that allegations made online by Michael Geist on Friday July 8th, 2011 have been reprinted by various media. The statements made in Mr. Geist's original article omit material information and draw incorrect conclusions regarding Barrett Xplore Inc.'s actions.  Reprinting this blog entry, or Geist's allegations regarding Barrett Xplore Inc. (or Xplornet Communications Inc), represent the publication of materially misleading statements regarding our company.

To say I was surprised by the release would be an understatement. Xplornet never contacted me to discuss the post or express concern about its content. The original post did not directly target Xplornet, but rather focused on the CRTC enforcement record. It pointed to complaints against several different providers and listed all complaints I obtained as part of an Access to Information request. With respect to Xplornet, I stated the following:

There has been only one complaint that led to a clear change in provider policy. In January 2010, ExaTEL, an Ontario-based Internet phone company, filed a complaint against Barrett Xplore, a satellite Internet provider. ExaTEL alleged that Barrett Xplore was degrading Internet telephony traffic, creating an unfair advantage for its own phone service.

The CRTC ruled that there was no undue preference, but that the throttling of time sensitive traffic violated its guidelines. Faced with the prospect of changing its practices or seeking special approval from the CRTC, Barrett Xplore changed its throttling approach to ensure that Internet telephony was unaffected.

Barrett Xplore was also the source of the longest running complaint as the company took months to respond to CRTC requests to improve its disclosure practices. Only after the Commission threatened to launch a public proceeding into the matter did Barrett Xplore respond.

All of this information was documented in the CRTC documents I posted online (here and here). In follow-up interviews, including in a Cartt.ca article, Xplornet has raised four issues: (1) the threat of a public hearing came from an employee new to the file; (2) some of the CRTC documentation was misdirected and therefore delayed in receipt; (3) the ExaTEL problem arose from technical issues involving a particular codec with challenges identifying the source of the problem, and (4) the change in throttling practices was a result of technical changes, not the CRTC finding.

Each claim merits further examination. The claim that a new CRTC employee was brought to the file is inconsistent with the CRTC record. The October 2010 and April 2011 (which contained the threat) were both signed by Lynne Fancy, a Director General at the CRTC. In fact, an earlier June 2010 letter (posted here for the first time) was also signed by Fancy, who was clearly involved with the file for at least a year.

Second, it may be true that some CRTC communication was misdirected, but that hardly seems relevant. The CRTC April 2011 letter chronicles phone calls and meetings directly between CRTC staff and the company:

  • During a spring 2010 meeting in Ottawa with Commission staff, Barrett discussed its Internet services and agreed to address concerns raised by staff regarding the company’s ITMP disclosures.
  • Barrett’s ITMP disclosure issues were discussed again during a conference call with Commission staff on 27 September 2010.  At that time, the company indicated that it would provide Commission staff with copies of updated ITMP disclosure pages that would address staff concerns.
  • On 8 October 2010, Commission staff received via e-mail copies of Barrett’s revised ITMP disclosures, which the company indicated would be posted on its website.  In a letter dated 2 November 2010, Commission staff indicated that the company’s proposed online disclosure for prospective customers did not meet the requirements of TRP 2009-657.  Staff requested that Barrett confirm by 2 December 2010 that it had made the required changes – as specified in the 2 November 2010 letter – to its proposed disclosures.
  • In a telephone conversation with you on 7 January 2011, Patrick Owens of the Commission noted that the company had not yet responded to requests set out in the 2 November 2010 staff letter, nor to a request to respond to a complaint from ExaTEL Inc. about Barrett’s ITMP.  In an e-mail dated 21 January 2011, Barrett indicated that it had amended its ITMP in order to avoid throttling ExaTEL’s voice over Internet Protocol services, but did not address the matter of non-compliant ITMP disclosures.

Third, while I did not post the ExaTEL complaint in the original post, a copy of their August 2010 letter to the CRTC can now be found here. The letter discusses Xplornet's response to their initial complaint. There is no reference to codecs or other technical issues. Instead, ExaTEL directly challenges Xplornet's throttling practices, describing them as "not only anti-competitive but [is] also damaging to Vianet/ExaTEL's reputation as a leader in VoIP Telephony."

Fourth, it is possible that the change to the Xplornet throttling policy was due to technical changes at the company. However, that is not what the company told the CRTC. As noted in the April 2011 CRTC letter:

In an e-mail dated 21 January 2011, Barrett indicated that it had amended its ITMP in order to avoid throttling ExaTEL’s voice over Internet Protocol services, but did not address the matter of non-compliant ITMP disclosures.

Simply put, the Xplornet release was unnecessary and the follow-on reaction inconsistent with the public record at the CRTC. I believe the company should retract it.

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