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Discussion Starter #1
Firstly, I sort of suggested this idea in the Usage Based Billing thread (even though I accidentally swapped "404" for "DNS lookup"). Secondly, I am not a lawyer.

It has been well known for months and in the case of Rogers, years, that some ISP's, (Bell, Rogers, Primus, which are the ones I know of) hijack failed DNS lookups. They insert their own content with paid advertising sponsored links.

As bad as that is, because the content of the returned page is more elaborate than a simple failed lookup page cached by your browser, the bandwidth required to deliver that hijacked dns lookup is greater than the browser default. I know that it isn't much, maybe a few KB, but here is where I am going.....

That hijacked substituted content is not what the consumer requested, and there is no consent given (I have never been queried by Rogers for a "yea or nay") as to whether the consumer is willing to accept it in substitution for the service requested. When this fact is coupled with usage caps and overage charges it gets interesting. An ISP that is charging for data consumed, but also delivering unsolicited data in substitution for the services (data delivery) contracted for is in violation of the (Ontario) Consumer Protection Act 2002. This legislation protects the consumer from negative billing, which I believe hijacked failed DNS lookups coupled with the UBB approach constitutes.

Arguments Against UBB + Hijacked DNS being legal:

Ambiguities to benefit consumer
11. Any ambiguity that allows for more than one reasonable interpretation of a consumer agreement provided by the supplier to the consumer or of any information that must be disclosed under this Act shall be interpreted to the benefit of the consumer. 2002, c. 30, Sched. A, s. 11.
Charging consumers for assistance
12. No person shall charge a consumer for assisting the consumer to obtain any benefit, right or protection to which the consumer is entitled under this Act, unless, before the consumer agrees to pay the charge, the person discloses the entitlement’s existence and direct availability to the consumer and the cost, if any, the consumer would be required to pay for the entitlement if the consumer obtained the entitlement directly. 2002, c. 30, Sched. A, s. 12.
Unsolicited goods or services: relief from legal obligations
13. (1) Except as provided in this section, a recipient of unsolicited goods or services has no legal obligation in respect of their use or disposal. 2002, c. 30, Sched. A, s. 13 (1).
No payment for unsolicited goods or services
(2) No supplier shall demand payment or make any representation that suggests that a consumer is required to make payment in respect of any unsolicited goods or services despite their use, receipt, misuse, loss, damage or theft. 2002, c. 30, Sched. A, s. 13 (2).
Request not inferred
(3) A request for goods or services shall not be inferred solely on the basis of payment, inaction or the passing of time. 2002, c. 30, Sched. A, s. 13 (3).
Material change deemed unsolicited
(4) If a consumer is receiving goods or services on an ongoing or periodic basis and there is a material change in such goods or services, the goods or services shall be deemed to be unsolicited from the time of the material change forward unless the supplier is able to establish that the consumer consented to the material change. 2002, c. 30, Sched. A, s. 13 (4).
Form of consent
(5) A supplier may rely on a consumer’s consent to a material change that is made orally, in writing or by other affirmative action but the supplier shall bear the onus of proving the consumer’s consent. 2002, c. 30, Sched. A, s. 13 (5).
Unconscionable representation
Without limiting the generality of what may be taken into account in determining whether a representation is unconscionable, there may be taken into account that the person making the representation or the person’s employer or principal knows or ought to know,
(a) that the consumer is not reasonably able to protect his or her interests because of disability, ignorance, illiteracy (I take this to include computer illiteracy), inability to understand the language of an agreement or similar factors;
Argument For UBB + Hijacked DNS being legal
Definition
(9) In this section,
“unsolicited goods or services” means,...
(b) services that are supplied to a consumer who did not request them but does not include,
(i) services that were intended for another person from the time the recipient knew or ought to have known that they were so intended,
(ii) a change to ongoing or periodic services that are being supplied, if the change in the services is not a material change, or
(iii) services supplied under a written future performance agreement that provides for the ongoing or periodic supply of services to the recipient without further solicitation. 2002, c. 30, Sched. A, s. 13 (9).
From (in this case Rogers, retrieved 17 Feb 2011) End User Agreement (their written future performance agreement)
Unless otherwise specified in the Service Agreement, we may change, at any time, any charges, features, content,
programming, structure or any other aspects of the Services, as well as any term or provision of the Service
Agreement, upon notice to you.
If you do not accept a change to the Services, your sole remedy is to terminate the
Service Agreement and the Services provided under the Service Agreement, within 30 days of your receipt of our
notice of change to the Services (unless we specify a different notice period), by providing us with advance notice
of termination pursuant to Section 31. If you do not accept a change to these Terms, your sole remedy is to retain
the existing Terms unchanged for the duration of the Commitment Period (as defined below), upon notice to us
within 30 days of your receipt of our notice of change in the Terms.
______________
Unfortunately, in this case, Rogers has failed to notify me that I may be charged for exceeding my bandwidth cap because of an unsolicited feature (hijacked DNS lookups). Therefore, Rogers is in violation of it's own TOS, which invalidates it with respect to section (9) (b) (iii) of the Act. Rogers therefore, does not have a valid exclusion from the unsolicited service clause of the Ontario Consumer Protection Act. Rogers bandwidth caps on an account are illegal when unsolicited failed DNS lookups are active.

Am I correct, or am I in error???
 

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Nice try but I highly doubt you'll get anywhere. Overage charges are per gigabyte and you don't get charged until you use a full gig. The Rogers Not Found page is 18 kilobytes. You'd have to hit 56 of them to get up to a megabyte. Rogers can easily argue that this bandwidth is accounted for in the partial gig they're not charging you for.
 

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Rogers rounds down so likely you would never be able to make it add up to anything meaningful.
 

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Discussion Starter #4
I've never come anywhere near my limit. The intention of this thread was meant to be more of thought experiment.

So okay, forget about actually adding anything up. My point is that they cannot implement UBB while their hijacked DNS policy is active. It is unsolicited and violates their own TOS effectively rejecting the unsolicited service exclusion. That's before you even turn on your computer.

You could leave your modem unplugged for the entire month and it wouldn't make it any less illegal (more legal) :confused:.
 

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I think the OP actually has a very good point in terms of the concept they are trying to highlight.

Agreed - inserted, redirect ad pages would be measured on a "microscopic" level in the grand scheme of things. But I think it's more of a "...to what end" concept the OP is conveying.

It really underscores what can/should be deemed customer usage in terms of billing and further demonstrates how difficult true UBB is to implement.

Another extreme example - should the emails I receive from my carrier be counted against me for usage? Again, it's at a microscopic level but it could be a situation where I am literally paying for my bills to be delivered via email - it's still data usage. So again, the concept of UBB completely breaks down - of course in favour of the carrier.
 

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Again, this is trivial to address: "Whatever your usage, we'll chop off 50 megabytes".
Where is this 50 meg number coming from? Is it basically an arbitrary data buffer to accommodate things that shouldn't be counted against a customer?

Again, re-directed carrier ad pages and the email example I mentioned are only a few potential items that shouldn't be considered customer data usage. I think it's a real "can of worms" the more you drill down on this. Then suddenly, establishing some arbitrary data buffer to accommodate them is much more difficult.

I wonder what percentage of customer data usage in a month is purely unsolicited advertising - images, banner ads, flash ads, etc. etc. I wonder how many megs a month's worth of email spam adds up to.

I think UBB encourages ad-block type browser plug-ins which really hurts businesses - ironically maybe the carriers themselves.
 

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Yes, it's an arbitrary number accomodating the *ISP's* unsolicited advertising. The ISP has no obligation to discount other traffic. You go to a website, you take responsibility for all the content, including advertising, pushed at you by that website.
 

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Yes, it's an arbitrary number accomodating the *ISP's* unsolicited advertising. The ISP has no obligation to discount other traffic. You go to a website, you take responsibility for all the content, including advertising, pushed at you by that website.
And you've highlighted yet another reason why data off the Internet should not be equated to resources like electricity and water.

When I turn my tap on - I only get the water I've "requested". When I flick a light switch, I only get the electricity I "requested" to operate it. It's a very specific request for a very specific thing.

Web traffic simply doesn't operate with those specifics. When I request a new web-page for content I am interested in, I have no knowledge of how much other stuff (eg. ads) is coming along with it.

Therefore, I say Internet service can only (and should only) be priced as a flat-rate like television channel packages. Only a portion of a television channel is actually content I requested (eg. specific TV shows) versus all the other stuff like ads that I didn't. I don't end up paying for all the commercial TV advertisements, they are part of the flat-rate. And likewise, I shouldn't be paying for the Internet advertisements I receive that I don't request.
 

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The TV channel package is not a great example. In every package you are most likely paying for channels you don't watch. So yes, you are paying for services you didn't request. If you still want to use that analogy, you are "paying" for TV commercials with your time and web ads with your bandwidth.
 

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The TV channel package is not a great example. In every package you are most likely paying for channels you don't watch. So yes, you are paying for services you didn't request. If you still want to use that analogy, you are "paying" for TV commercials with your time and web ads with your bandwidth.
...and this is exactly my point.

With services like TV and the Internet where you don't have specific control over the exact content being delivered, flat-fee based billing is the only reasonable option.

This versus water/electricity where you can very specifically regulate how much you use because you know exactly what is being delivered.

Above the flat-fee you pay - connection speed should be the only incremental cost for Internet service; usage should have zero affect on cost.
 

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This versus water/electricity where you can very specifically regulate how much you use because you know exactly what is being delivered.
You know exactly how many KWh you'll be using in February? Really? Unless you live in a one room shack with one light bulb, you can only estimate how much you'll be using. An you can reduce that by unplugging always-on devices, turning down the heat, not charging toys, turning off lights, etc., just like you can reduce bandwidth by not using the Internet so much.
 

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I think the OP brings up a very good point, even if the extra bandwidth is trivial. Just a few KB or MB may push monthly usage over a GB boundary only rarely. OTOH, with hundreds of thousands of customers, that can add up to a significant amount of money. Overbilling on such a large scale is taken seriously by the CRTC and other government agencies.

OTOH, there are much larger issues at stake. Something like this would be a thorn in the side of Bell-Rogers though.
 

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Discussion Starter #16
Just use an alternative DNS server like Google or OpenDNS.
This thread isn't actually about my scenario - it was meant to be a hypothetical starting point, or as Civuck previously asked:
... "...to what end"...
I've been using OpenDNS since shortly after Rogers started hijacking. The point is that designating an alternate DNS server is beyond the capabilities of the average internet user. I suspect most consumers would rather just suffer through it, rather than figure out how to clean-up their computer.

Today, it is failed DNS look-ups (I believe you can opt-out of provider marketing emails). What about tomorrow?

Cheers.
 

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You know exactly how many KWh you'll be using in February? Really?
No, you've missed my point.

Water is water, electricity is electricity. You turn on a tap, flick a switch - that's exactly what you are getting and nothing else until you turn them off. Billing for that is straight-forward - you asked for this, you got this and now pay this.

Data on the other hand can be so many things these days - often well beyond what you really want. I may want the core content of a web-page, but not all ads associated with it - but I'm getting them anyway.

you can reduce bandwidth by not using the Internet so much
I shouldn't have to reduce my Internet usage to accommodate all the things I didn't request in the first place - like ads.

Again, this is the distinction with water & electricity - I know what I am getting with those things.

Data is more often than not a complete mystery as to how much you are going to get, regardless of whether you wanted all of it or not. And because that's the nature of it, flat-fees are the only reasonable and realistic way to bill for it.
 

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I think the OP brings up a very good point, even if the extra bandwidth is trivial. Just a few KB or MB may push monthly usage over a GB boundary only rarely. OTOH, with hundreds of thousands of customers, that can add up to a significant amount of money. Overbilling on such a large scale is taken seriously by the CRTC and other government agencies.

OTOH, there are much larger issues at stake. Something like this would be a thorn in the side of Bell-Rogers though.
Not to mention even basic things like monthly Windows updates that can use considerable bandwidth - particularly if you have multiple computers in your household. UBB would suddenly attach a cost to those.
 

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Again, it's *your* choice to have multiple computers and *your* choice to use Windows. Your ISP has nothing to do with that. It's common sense - you use more bandwidth (electricity/water), you pay more. Why should one person, who uses 10 gigabytes a month, pay the same as a family of four heavy users who might use 300 gigabytes a month? Establish a base cap, say 20 gigabytes, and then charge a reasonable fee of perhaps 10 cents a gigabyte after that.
 

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Again, it's *your* choice to have multiple computers and *your* choice to use Windows. Your ISP has nothing to do with that. It's common sense - you use more bandwidth (electricity/water), you pay more. Why should one person, who uses 10 gigabytes a month, pay the same as a family of four heavy users who might use 300 gigabytes a month? Establish a base cap, say 20 gigabytes, and then charge a reasonable fee of perhaps 10 cents a gigabyte after that.
I disagree - I am 100% against UBB for Internet service in any shape.

And you simply cannot equate data delivery to electricity/water delivery. Data is free, it's the delivery infrastructure that has costs. The light in the fibre optic cable is still blinking whether I'm sending packets across it or not.

Internet service should be a flat-fee for unlimited data usage - ISPs should compete on pricing for the speed of the delivery.

How is it two customers with identical TV channel packages can pay the same amount despite one customer watching 10x as much TV? Do you consider that fair despite the huge usage difference?

How is it a person can pay 59cents for a stamp to deliver a letter across the country yet someone else only needs to have a letter go across the street, yet it costs the same amount?

How is it one customer can make 10 local phone calls in a month and another can make 1000 local calls in a month and they both pay the same amount for basic telephone service?

Certain services should not be based on the "ya use more, ya pay more" business model and Internet service should be one of them.
 
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