Legal Implications of Telkom VS Dotco

[LoneGunman]

Telkom has made it clear that if they 'win' the court action, Dotco will be charged 'retroactively' for the monies that they didn't pay Telkom..

However, and lawyers please take note - especially those frightened baby lawyers of the many wimpish ISP's who were too scared of Telkom to take legal action - I would suggest that if Telkom LOSES its court action, this is a precedent-setting decision which is applicable to all ISP's, and Telkom then becomes legally liable to refund ALL the excess monies (equally 'retroactively') that all other ISP's have paid it, in this interim period.

Also, if Dotco wins their court action, this is a precedent-setting court action,
that has multiple implications to all other ISP's in the industry, not just Dotco.

If Dotco win, this means Telkom are liable for the repayment of all excess monies paid to it by other ISP's, AS WELL AS a return to the previous pricing structure.

Telkom can't thereafter justifiably argue that the pricings - having been found to be unreasonable for one ISP - do not apply to ALL ISP's. (It can't say that its prices, having been found to be unreasonable, can only be lowered for the company that took legal action in this regard.)

So you frightened wimps of the ISP's who rolled over and kept your mouths shut, and did nothing for months except pathetically whimper about your profits, shrug helplessly, and 'sympathize' with your customers, while knowing full well that you weren't going to do anything substantive but get on all fours and swallow - get new lawyers, some balls, and climb onboard to help Dotco.

 

[dominic]

lg for the most part i agreed with you but it does appear that as far as dotco goes it is being seen as a contractual issue - so the position may vary from isp to isp depending on the contract they have with the bandwidth capping scum, i.e. if dotco get a final order then may be precedent of limited scope and value

more interested to see whether anything comes of the webafrica appeal to icasa but not holding my breath

 

[LoneGunman]

I think its being 'seen' (and more interestingly, perhaps) REPRESENTED by Telkom as a purely contractual case - precisely to cloud the legal ramifications and precedent-setting nature of it.

Telkom can't agree legally, that their prices are unreasonable for this one ISP (which happened to contest it) yet attempt to argue that the similar prices which aren't being contested by other ISP's, however, ARE reasonable..

That's like saying "we're killing 50 people in roughly the same way - we'll agree to call this 1 case here, where the family complained - 'justifiable homicide' - but we think it has no legal implications for the other 49 deaths, and no one should point this out to the surviving families of the 49 other victims."

A legal decision in Dotco's favour viz the pricing by Telkom/Saix must surely have immediate implications for every other company that has similar arrangements and contracts with Telkom/Saix - at least those based on the central issue of 'charges to resellers based on Telkom/Saix's own determining of their bandwidth value/price'.
Surely this is inherently a precedent making situation.

I'm not suggesting that 'because Dotco has a contract', others with contracts automatically should receive the same legal breaks - but the common core is that if Telkom are legally told that their determination of the value of their initial bandwidth is false, inaccurate, incorrect or unacceptable - then every other ISP, in a contractual arrangement based and centered on this legally determined 'unacceptable' Telkom-decided pricing, would seem to have a legitimate claim to immediately revert to the previous pricing structure as well as claim for refunds from Telkom over this period?

 

[dominic]

I think its being 'seen' (and more importantly perhaps) REPRESENTED by Telkom as a purely contractual case - precisely to cloud the legal ramifications and precedent-setting nature of it.

Telkom can't agree legally, that their prices are unreasonable for this one ISP (which happened to contest it) yet attempt to argue that the similar prices which aren't being contested by other ISP's, however, ARE reasonable..

That's like saying "we're killing 50 people in roughly the same way - we'll agree to call this 1 case here, 'justifiable homicide' - but we think it has no legal implications for the other 49 deaths, and no one should point this out to the surviving families of the 49 other victims."

A legal decision in Dotco's favour viz the pricing by Telkom/Saix must surely have immediate implications for every other company that has similar arrangements and contracts with Telkom/Saix - as its based on the central issue of 'charges to resellers based on Telkom/Saix's own determining of value/price'
Surely this is inherently a precedent making situation.

I'm not suggesting that 'because Dotco has a contract', others with contracts automatically should receive the same legal breaks - but the common core is that if Telkom are legally told that their determination of the value of their initial bandwidth is false, inaccurate, incorrect or unacceptable - then every other ISP, in a contractual arrangement based and centered on this legally determined 'unacceptable' Telkom-decided pricing, would seem to have a legitimate claim to immediately revert to the previous pricing structure as well as claim for refunds from Telkom over this period?

this was precisely my initial response - that i could not see how telkom could do anything other than suspend the changes pending the court decision...without knowing the specifics of the contract situation i would think that come dec 5 and telkom getting reamed it will be potentially on the line for charges in the intervening period

very briefly - courts generally try to make any dispute which they hear (and which may set precedent) as narrow as possible but this in the case of dotco/telkom is a contractual issue as between the two of them. they have a contract which says X and now telkom is unilaterally trying to amend it to Y which will cause dotco damages in that customers will leave and revenue will drop. so it is telkom's conduct within the scope of the contractual relationship and this is how a court will look at it. It may well establish a broad enough principle so that other isps or even consumerws could use it but for that we will have to wait and see

icasa on the other hand has the power to deal with this but seems, like just about everyone, to be petrified of teklom

was at a conference two weeks ago with lots of high-powered types and plenty of teklom execs - was amazing that over 2 days there were only 2 people out of about 50 who could actually say the word "telkom" in a negative context///everyone else is too scared of their reaction