Packet Preferencing, Redux

28 Mar ’05

A lot has been written about packet preferencing in the VoIP space lately, and the stories are accelerating as VoIP makes its push deeper into the retail telephone market – I commented recently on Michael Geist’s recent article on increasing ISP accountability – the particular context was the increasing social and economic importance of broadband access, and the proper role for regulation of broadband ISPs that, based on current market conditions, effectively operate in that context as an oligopoly.

Today Mark Evans has a post on Clearwire, and suspicions that it is packet preferencing to block Vonage, presumably because it would prefer to provide the service itself. Mark’s post focuses on Clearwire’s terms of service, which appear to permit it to prohibit customers from using high bandwidth apps.

This is nothing new of course – it was a concern I had when I was counsel for Hotline years ago – would ISPs block us, as they seemed to be able to do under terms of service? Then the answer was “no” – we were if anything a value-add for them.

But VoIP is different, of course – the ISP is potentially a competitor. In Ontario, Rogers and Bell are the principal broadband providers and both have terms of service that are, unsurprisingly, (heavily) biased in favour of the service provider. Each set of terms provides the service provider with discretion to cancel or terminate service for effectively any reason, and Rogers’ terms (both the terms of service and the acceptable use policy) expressly prohibit the use of their service to “create an unusually large burden on our networks”. So it would seem plain that the providers have at least the contractual right to do with this what they will.

But should they?

Previous post:

Next post: