On Net Neutrality in India

02 Apr 2015

Disclaimer: All of the following are my own personal opinion. These are my thoughts as an individual and not as part of any group, company or any other entity. In all the quotes mentioned here, the emphasis is mine.

Recently the TRAI (Telecom Regulatory Authority of India) sought views from the public on possible regulation on what it calls ‘OTT’ players, in this 118 page long document, where it has asked the public for its views on 20 questions.

‘OTT’ players in this case mean anyone who runs a service ‘over the top’ of the ISPs network. In effect, every website in the world, as well as almost every major mobile phone app in the world, amongst others.

Before I answer the 20 questions, there are general comments about the TRAI paper.

The term “OTT” Players, or “Over the Top” players is one of the many subtle tricks employed in this player to paint TSPs as entities who are somehow being taken advantage of. At least, that is the impression I get by the general tone of this paper and in particular, the terminology being used here.

I think TSPs could also be called ‘OTT’ players by electrical power distribution services. The Oil and Gas Industry can also call TSPs ‘OTT’ players as all the towers needed for telecommunication rely heavily on diesel too. The next thing we know we might have a call from power distribution companies and Oil and Gas companies complaining about the increase in consumption of these telecommunication services, and how who will pay for the strain it will cause on their respective companies operating costs.

One more important thing to note is that as the world advances, the nature of communication always changes. The times have advanced, and we cannot go back to an SMS-only model of text-based communication. In these times, one of the ways telecom companies are still relevant is that they enable these services. ‘OTT’ services are the very reason many people primarily use these TSPs.

Just in case anyone has forgotten, I would like to remind that the TRAI is, first and foremost, made to protect the consumers (the end-users like you and me), the interests of any entity, public or private, come lower in priority to the general well being and interest of the individual citizens of India. I hope TRAI will come out on the right side on the issue on net neutrality in India.

Question 1: Is it too early to establish a regulatory framework for OTT services, since internet penetration is still evolving, access speeds are generally low and there is limited coverage of high-speed broadband in the country? Or, should some beginning be made now with a regulatory framework that could be adapted to changes in the future? Please comment with justifications.

I do not believe a regulatory framework is needed. However, it is not really because of the reasons cited in the question, but because it will be counter-productive to the growth and long-term benefit of the web ecosystem.

IMO, more than a regulatory framework, we need a law ensuring network neutrality. The huge range of problems with discrimination based on price or non-price models will be discussed in the answers to further questions below.

One draft of a possible law or guidelines could be along the lines of the one proposed by the users of Reddit India. Of course, this still needs a lot of work, and is not ready.

I do not think it is prudent to have regulation on OTT services. The reasons will be discussed below.

Question 2: Should the OTT players offering communication services (voice, messaging and video call services) through applications (resident either in the country or outside) be brought under the licensing regime? Please comment with justifications.

A regulatory framework only would make sense if its easy to enforce and not arbitrarily used. At the heart of this matter lies the fact that the Internet is a very dynamic place, where technology and its applications are changing at a speed which few other industries can match.

This means it will be difficult to classify what is a communication service. Some would be clearcut - for example, Skype, WhatsApp etc. However, ‘Messaging’ can mean anything. Who is there is decide what is a ‘messaging’ service?

Because of this issue, compliance cannot realistically be enforced in the same manner for all players. At most, it could be only be enforced one some big players, but smaller players who do the similar service might fly under the radar. Even if compliance is somehow enforced, it will be extremely arbitrary. Once again, who will define which service is a voice/video/messaging service? There will be blurred lines. Can a greeting card website be clubbed as a ‘messaging service’ with the likes of whatsapp? Almost every major site in some way or another tries to incorporate messaging in some way or another. Who will define ‘messaging’? is GMail a messaging service? Are social media sites messaging services? What about reddit? Twitter? Taxi cab services also send messages to users, are they also messaging services? Apps for online shopping sites also send users notifications, so are they also messaging services?

The wording is so vague that pretty much any successful online service (related to any industry, not just telecommunication) can be deemed under these categories of “voice, video or messaging” services.

The only set of regulations which can realistically be imposed in a fair and transparent manner would be to make sure no discrimination is done in throttling traffic speeds for one website over another. In effect, regulations favouring net neutrality.

In fact, Infotel Broadband Services Ltd (now called Reliance Jio Infocomm, and is an ISP and TSP itself) stated the following in a letter to the TRAI, with regards to licensing of Internet/Data applications

Thus, especially in the case of data services, there is no case to govern a relationship/ arrangement that has no technical necessity.

Question 3: Is the growth of OTT impacting the traditional revenue stream of TSPs? If so, is the increase in data revenues of the TSPs sufficient to compensate for this impact? Please comment with reasons.

Technology changes certain industries, and companies and services have to adapt to it. In the 80s (and even 90s in india), audio cassettes were the primary way to buy music, but then came Compact Discs. After CDs, came MP3 and other digital mediums. Nowadays a lot of people don’t even bother with MP3s and instead go with subscription services like Spotify, Rdio and more. A certain Indian company who owns a major indian network operator indeed is an investor in such a music subscription service itself. I doubt they care about the decline in revenue this would have on CDs and audio cassettes, nor do they probably have a plan to compensate the CD manufacturing industry on potential losses of revenue their music subscription service will have on the CD manufacturing industry.

We did not overly care about horse-driven carts when automobiles were introduced. Industry needs to change and adapt to the technological landscape. There is even more money to be made here, and TSPs and ISPs are already doing very well for themselves.

Increase in data revenues is sufficient to compensate for this impact, especially in the long term. Mobile data usage is growing at an enormous rate. Last year’s mobile data traffic was nearly 30 times the size of the entire global Internet in 2000. In 2014, on an average, a smart device generated 22 times more traffic than a non-smart device. With the rise in smartphone usage, more and more people will be consuming data. If TSPs can still not capitalise on this enormously exploding demand for data, then it is advisable for them to re-look their operations, prices and other areas of business.

Regarding India in particular, in the same Cisco report, it is mentioned that Bharti Airtel reported mobile data traffic growth of 95% between 3Q 2013 and 3Q 2014, Reliance Communications reported mobile data traffic growth of 75% between 3Q 2013 and 3Q 2014.

There is an argument by some parties that OTT players are “freeloading” on TSPs as TSPs are the ones who are doing the hard work of investing in all the infrastructure, and the OTT players are just profiting on their infrastructure. However, a strong counter-argument is that these TSPs are profiting from increased data usage even though the hard work of making the actual apps and sites (that users pay data charges for) is actually done by the OTT players. So in effect, TSPs are “freeloading” off OTT players and getting increased data usage (which drives increased revenues for TSPs), all the while the task of envisioning a product, the risk of starting a company, finding investors, hiring, marketing, coding the app/site, etc are all done by the OTT player. In case of apps, there is also the cost of revenue share with the app store (which affects the OTT and the TSP is shielded from).

It is evident that in the long term, TSPs will stand to benefit more and more from increased data usage (based on usage of OTT services which they didn’t have any hand in building). This renders the primary argument of TSPs (that OTT players are taking advantage of TSP infrastructure while giving nothing in return) as nothing but an ineffective argument at best, and an untruth at worst.

This is evident in how much TSPs have benefited from increased data usage which OTT players provide.

Vodafone recently posted a profit owing to higher call rates and increased data usage. Airtel also recently posted a profit, in a major part owing to a surge in data revenue. Idea recently posted a profit, partly owing to it’s data plans attracting more users. MTS India posted 15% growth in revenue in Q2 2014, attributing growth in data revenue as the primary reason.

According to Gartner, by 2017, mobile apps will be downloaded more than 268 billion times, generating revenue of more than $77 billion.

To repeat, Increase in data revenues is more than sufficient to compensate for this impact, especially in the long term.

Question 4: Should the OTT players pay for use of the TSPs network over and above data charges paid by consumers? If yes, what pricing options can be adopted? Could such options include prices based on bandwidth consumption? Can prices be used as a means product/service differentiation? Please comment with justifications.

No. There are multiple problems associated with such a thing. The problems are discussed in answer to the next question. Furthermore, judging by the rates network operators charge mobile VAS services - (typically 60-70% of their revenues being payed to the network operator which has forced indian VAS players to look outside India for survival), it is evident that network operators will try to adapt a similar pricing strategy for OTT players - thereby further harming the web ecosystem, and making the barrier to entry for a successful entrant unnecessarily high (just like they have done with VAS services). Once again, nobody apart from the TSP benefits from this arrangement.

By the way, sites like Google for example, already pay ISPs for bandwidth.

Question 5: Do you agree that imbalances exist in the regulatory environment in the operation of OTT players? If so, what should be the framework to address these issues? How can the prevailing laws and regulations be applied to OTT players (who operate in the virtual world) and compliance enforced? What could be the impact on the economy? Please comment with justifications.

As mentioned in the answer to question 3, compliance would be very hard to enforce. It would probably be arbitrary and inherently unfair to those who would be required to pay (vs those who won’t pay).

Apart from that problem, it would also increase the cost of doing business by a very big margin. As of March 2015, there are 10 different mobile network operators in India, and at least 48 different national or local ISPs operating in India, according to the Internet Service Providers Association of India. This would mean that if tomorrow all those players wanted to have their own rules for paying data charges to network operators and ISPs, then just for one site (say Google), would need to talk to roughly 10 different TSPs (and if this trend spills over to ISPs as well, which I would expect in due time if this measure is passed through, then it would be a total of around 58 different entities), just to ensure a fast and decent experience. Even if they can pay the money, some OTT players may just not find it worth the effort to talk to all those entities to ensure the best experience (keep in mind these charges would vary from company to company and the agreements would need to renewed every year or a few sets of years.) In the cases where negotiation is not required and all operators just have a simplified per/TB plan for OTT players, even then some OTT players will not find it worth their time, effort or money to go ahead. All this would mean either a reduced experience for the end-user (because of denial of high speed to the site) or no access to the site at all (in the cases where OTT players block access to certain regions or ISPs to avoid paying data charges). Please keep in mind that in this case, the end users (who are honest, paying customers, and who are not at fault here) would suffer greatly, though no fault of their own.

The scenario possible is that Operators could effectively block a major website. Consider a scenario where TSPs require Wikipedia (which is one of the largest sites in the world) to pay a data charges. Wikipedia has a lot of traffic, and this, would need to pay a lot. However, it is a non-profit, and funded by donations over the world. It would be economically unsustainable for them to pay for data charges to ISPs and thus would have no choice but to block their site in India. Even if they do somehow find the funds to pay for data charges to TSPs, their donors from around the world might not take too kindly to the fact that most of their donations (which come from all around the world) are going to India in the form of data charges to ISPs. This might effect their funding, and even put the future of the site in risk. That entire wealth of knowledge and information might be at risk.

As you know, making a social media site successful is a huge task, and very few people have been able to crack how to do it. Part of what makes a site gain momentum as a social media site is also how many of your friends and contacts are already joined over there. If a TSP has a vested interest in their own fledging social media site, but faces competition from a OTT player like Facebook, then all they need to do is to impose an arbitrarily large data charge on Facebook. In effect, either Facebook is slow to users in comparison to the TSP owned site and users flock to the latter, who Facebook loses millions, once again hurting the company, which the TSP gains and can now put into their own site, or Facebook blocks access to users of the concerned TSP. In none of these cases, does the end-users gain anything of consequence, in fact, in most of these case, the end-user will suffer.

Question 6: How should the security concerns be addressed with regard to OTT players providing communication services? What security conditions such as maintaining data records, logs etc. need to be mandated for such OTT players? And, how can compliance with these conditions be ensured if the applications of such OTT players reside outside the country? Please comment with justifications.

The Indian IT Act already addresses these concerns. Law enforcement agencies and the Home Ministry already have procedures in place to deal with this - the role of regulation here will both be unnecessary and unenforceable, especially for OTT Players outside the country.

The best and the only feasible way to ensure security concerns is to let law enforcement agencies do their job. Ironically though, if net neutrality is not respected, it would lead to additional privacy concerns as TSPs would most likely need to look into data packets in a process called deep packet inspection. In the United States, deep packet inspection requires a court order.

India already has a bunch of contradictory policies and regulations on things like the level of encryption online services need to have. We need to simplify these (acting in co-ordination with all the agencies concerned) rather than add another set to the list.

Question 7: How should the OTT players offering app services ensure security, safety and privacy of the consumer? How should they ensure protection of consumer interest? Please comment with justifications.

In today’s times, it is important for end-users to know whether a site uses HTTPS or not, as if it does not, it makes the site more vulnerable to attacks. In a web browser, a user can easily see whether the site uses HTTPS or not, and based on that, make an informed choice on whether to continue on the site or not.

However, in (non web browser) apps, there is seldom a way in which the end-user can know whether the communication with the server is done using HTTPS or not. I propose that we ask apps to mention it in their ‘about’, ‘help’ or other such page or section to mention whether the app uses HTTPS or not. If there is no such section in the app, then it should be clearly mentioned in the app’s page on the app store, as well as the companies own website, whether the app uses HTTPS or not.

This would help a user make an informed choice on whether they should trust the site or not.

Question 8: In what manner can the proposals for a regulatory framework for OTTs in India draw from those of ETNO, referred to in para 4.23 or the best practices summarised in para 4.29? And, what practices should be proscribed by regulatory fiat? Please comment with justifications.

From 4.23 to 4.26, the paper talked about the FCC, and it’s stand on net neutrality. It mentions

However, all these proposed regulatory rules are at draft stage. Going by past experience it may take a few years before they are formulated. And, in any case, the issue of the draft rules has opened the doors to litigation which is bound to ensue.

This does not diminish the fact that the FCC still bought this draft in the first place. There will be special interests which might oppose it, and it may take some time before the rules are set in place - this is expected and is common in such type of things. I’m not sure why this was even mentioned - The fact of the matter is that the FCC has found it important enough to draft these new rules for net neutrality. US President Barack Obama has also backed net neutrality consistently over the years. So support is not just from the FCC, but also directly from the White House.

The ETNO is the European Telecommunications Network Operators group, so it is obvious that their recommendations would be biased and heavily in favour of network operators. I find it strange that only their recommendations where sought opinion on, as it seems one-sided. If the ETNO’s views are being sought, then so should the views of the Internet Engineering Task Force (IETF), the Electronic Frontier Foundation (EFF), and the World Wide Web Consortium (W3C)’s views be sought and be given weight and consideration.

There are multiple problems associated with the proposal document, which I assume is this one, seemed to be made in collaboration with the Boston Consulting Group.

One of the points of their ‘five-strand’ program is the following:

Levelling the playing field between network operators and “over the top” service providers

Network operators and “OTT” players provide different services and are not competitors. The same way power distribution companies and air conditioner manufacturers are not competitors. Profits or Network Operators and “OTT” players are not mutually exclusive. There is no need to “level the playing field” here, instead we should look at how to make sure both industries grow and continue succeeding.

If TSPs think that OTTs are encroaching into areas traditionally handled by TSPs, then TSPs can do the same by building and investing in promising OTT services themselves. Norway’s telecommunication giant Telenor for example, has recognised the potential of WebRTC technology and has invested heavily in an OTT of their own called appear.in. If the future of communication goes towards the OTT way, then they have ensured they are well-poised to take advantage of it with their investment.

The ability to set different prices, based on usage and user experience, for both OTT providers and consumers, is required if telcos are to have the necessary incentives to make advanced network investments.

It is highly debatable whether it is “required” to charge from both end-users and OTT players. There is no explanation given why it has to be absolutely required. This claim of theirs of it being “required” is just an opinion, and should be treated as such, not as fact.

Any new regulations need to preserve the ability of operators and OTT players to develop innovative network management solutions so they can offer differentiated, value-adding services, while maintaining a non-discriminatory approach.

This statement inherently contradicts itself with it’s larger point. TSPs cannot offer discriminatory services (whether it is based on price or non-price models) and still call it a “non-discriminatory” approach.

Furthermore, they talked about enabling “innovative network management solutions”. Let’s dive deep in see what they mean by that. In the section “Innovative network management services”, they say the following:

Many digital services benefit from differentiated network management services that provide increased security, reduced latency, or higher throughput. For instance, e-commerce sites can boost revenues with faster page loads, and VOD services can increase customer loyalty with improved buffering. Network operators can capture a share of the growing digital services market by developing solutions such as these that benefit digital services providers and their customers.

None of this is new, and work is constantly being done to improve those areas even without differential pricing. All that is mentioned here is offering a faster service to a few by intentionally prioritising some sites over others. This is in no way doing anything technically innovative.

In fact, with net neutrality, there is more innovation. This is because since no site is given priority over others, sites try to innovate in areas like caching, compression, download sizes of their pages, CDNs, offline-use of web pages, and many many more areas. If all it takes to make your site faster is to pay a TSP more money, then work on all these things will take a backseat in favour of the easier approach of paying TSPs money - thereby actually slowing down innovation.

So in conclusion, because of the above reasons, I see no substantial reason why there is a need to draw anything related to the question of “OTT players” and net neutrality from the ETNO based on that paper. They have not managed to demonstrate why the so called “levelling the playing field” between TSPs and OTT players is absolutely required, and neither have given any convincing arguments on the benefits it would provide regarding “innovative network management services”.

Question 9: What are your views on net-neutrality in the Indian context? How should the various principles discussed in para 5.47 be dealt with? Please comment with justifications.

The Internet is a great level playing ground for both small and big services. Part of what makes the Internet so full of innovation is the platform allowing small startups to innovate and succeed. Today, startups like Flipkart, Snapdeal, Housing, Zomato and have created a big positive change in the way business is done.

Most startups rely on venture capital funding, especially when they reach a stage when they are getting popular enough and are getting more and more traffic. This is a critical stage and venture capital money is more often than not the way in which these startups find the funds to manage it. However, getting venture capital is not an easy task, especially in India where most VCs are more risk-averse than, say, in Silicon Valley. If we introduce differential pricing and break net neutrality, then it would mean startups will need to ask for more funding to factor in differential pricing in case their site gets popular (which is the goal), and the more money you ask VCs - In effect, straining the startup funding ecosystem, which could prevent or at least slow down future Flipkarts, Snapdeals, etc from emerging. This would be very bad for Indian companies using the Internet as their primary platform.

Hon’ble Union Telecom Minister Mr. Ravi Shankar Prasad himself has said that Net Neutrality is important for India, mentioning the following words to US Under-Secretary of State Catherine Novelli -

“The Internet must promote local along with the global. For India, net neutrality is very important.”

- Hon’ble Union Telecom Minister Mr. Ravi Shankar Prasad.

Here is another quote from him about his positive stance on net neutrality.

Internet is property of world. Global world must be linked to local. Net neutrality is important as Internet is meant for masses. We will need to take stakeholders views to see broadly what should be the governance architecture to deal with [net neutrality].

- Hon’ble Union Telecom Minister Mr. Ravi Shankar Prasad.

He also tweeted the following:

image

Also, at the 25th Anniversary Celebrations of NASSCOM (which was also attend by Hon’ble Prime Minister Shri Narendra Modi), Shri Prasad had the following vision regarding Prime Minister Modi’s “Digital India” campaign.

A non-discriminatory platform where anyone can plug in for services.

Such a vision of Digital India and digital empowerment of the common people of India cannot happen in an environment where discrimination (whether price or non-priced based models) happens on digital services. As such, if net neutrality is not respected, it will be a big blow to Shri Modiji’s vision of Digital India.

If TRAI recommends regulations going against the spirit of net neutrality, then they would need to explain their stand in front of the Hon'ble Union Telecom Minister and why it goes against his, as well as (presumably) the present central government's stand on the matter.

Question 10: What forms of discrimination or traffic management practices are reasonable and consistent with a pragmatic approach? What should or can be permitted? Please comment with justifications.

There does not seem to be an approach which would seem reasonable, fair or pragmatic for most OTTs in this scenario. The justifications on why such practices would be arbitrary enforced, and a pain to negotiate with so many different ISPs and Network Operators etc has already been given as answers to the above questions.

The only reasonable and consistent approach to dealing with discrimination would be if TSPs are aiding law enforcement (for example, IT Act section 69A) in investigating a public threat, or if there is some malicious strain on the network, like a DDOS attack. Even then, whenever legally possible, TSPs should make it clear to the users which site has been blocked, for how much time approximately, and the reason for the block (for example, mentioning the court order, etc), as well as whom to contact in case the site wants to work with authorities in order to remove the block.

However, apart from emergency scenarios like the ones mentioned above, there should not be any discrimination based on either price or non-price models.

Question 11: Should the TSPs be mandated to publish various traffic management techniques used for different OTT applications? Is this a sufficient condition to ensure transparency and a fair regulatory regime?

Doing it would not make it fair, and its not a sufficient condition to ensure a transparent and fair regulatory regime.

This goes back to the answer to the first question, that a framework for OTTs, no matter how fair and transparent, is simply not required. Fairness and transparency in the regulation will still not stop significant friction in the market.

Fairness and transparency cannot compensate for a set of regulations which are simply not needed, and which are hurtful to consumers in the long-term.

Question 12: How should a conducive and balanced environment be created such that TSPs are able to invest in network infrastructure and CAPs are able to innovate and grow? Who should bear the network upgradation costs? Please comment with justifications

The TSPs (or third party companies involved in infrastructure creation and maintenance) would need to bear the network upgradation costs, as they are the ones who are upgrading their network.

If the network is run by a third party, like Bharti Infratel, Reliance Infratel, etc, then it might be up to those parties to do it as well. Companies like Indus Towers are involved in putting up and maintaining infrastructure, in particular, telecom towers. Increased demand would mean increased business for those players too.

To give an analogy, if the electric grid system needs an upgrade, the entity in charge of the grid is responsible for it and bears the charge for the upgrade. They do not ask for TV companies, Fan companies, AC companies and others which run on top of this electric grid network, to bear that cost. They can increase the charge to the end-user if they see fit, and the end-user is free to pay the increased cost and continue to get electricity, or to disconnect the connection.

Even in the toll-tax analogy - If the road needs upgrades, you ask the people riding on the roads (the end-users) for increased toll-tax, rather than ask Tata, or Maruti and any of the others for extra charges (even in the case of most of the vehicles passing through the road being of one brand, say Tata Trucks, the toll-tax won’t be demanded of Tata, but of the truck driver driving the Tata truck).

So if WhatsApp, Facebook, Youtube etc are resulting in increased data usage, then increase data charges as you see fit so that the end user pays for it, rather than ask the companies themselves for increased data charges. The user will have a choice, depending on how happy he is with the TSP, to either pay the increased cost, or to start looking for alternatives.

In the very ETNO report mentioned by the consultation paper, there was a special mention of the example of Bharti Airtel (on Page 24, “The impact of scale and standardised IT networks”), and how they built a network in Rwanda from scratch in just 83 days - which is described as “the fastest ever greenfield approach in the region”. This proves that TSPs are capable and forthcoming to rapidly scale up infrastructure whenever required.

Question 13: Should TSPs be allowed to implement non-price based discrimination of services? If so, under what circumstances are such practices acceptable? What restrictions, if any, need to be placed so that such measures are not abused? What measures should be adopted to ensure transparency to consumers? Please comment with justifications.

No.

The biggest problem is discrimination itself. Whether it is a price based or a non-price based discrimination does not change that it is still discrimination. This pitfalls of discrimination has been communicated in answers above.

Question 14: Is there a justification for allowing differential pricing for data access and OTT communication services? If so, what changes need to be brought about in the present tariff and regulatory framework for telecommunication services in the country? Please comment with justifications.

There is simply no reasonable justification for allowing differential pricing.

Harvard Law Professor Lawrence Lessig had this to say about differential pricing in the net neutrality context

I do have a problem if the carrier is saying, “Okay, YouTube or Blip.tv, you’re going to have to pay a certain amount to have access to [the customers on] our network.” We’ve seen this again and again in history. A new technology shakes up a marketplace. Then there’s a period of amazing, generative competition. And then it gets consolidated and taken over, often through a conspiracy with the government that produces concentrated monopoly industries. Radio is the best analogy.

We should try our best to avoid this type of situation, so that the Internet remains a place of tremendous innovation. In order to do so, we need it to continue to have a low barrier to entry for services to emerge. Differential pricing will run counter to this, and thus, must not be adopted.

Question 15: Should OTT communication service players be treated as Bulk User of Telecom Services (BuTS)? How should the framework be structured to prevent any discrimination and protect stakeholder interest? Please comment with justification.

Firstly, the definition is OTT ‘Communication’ services is very vague. Services which don’t even use SMS can be grouped as OTT Communication services here. Most OTT services which need to use services like SMS, can and do tie up with services like RedFox, IndiaSMS and others, who actually provide services like bulk SMS etc. The services who tie up with OTT players to provide services like bulk SMS etc should be treated as Bulk Users of Telecom Services, not the OTT players themselves.

Question 16: What framework should be adopted to encourage India-specific OTT apps? Please comment with justifications.

The definition is “india-specific” is vague, and not, well, specific. India-specific could mean a service made by a company in India. It could also mean a service made in some other country, but with most of it’s users in India.

India is a big market, especially for communication services, and most big OTT Players can assure you that they are paying attention to India as a market even without any proposed regulation. As far as indian companies doing OTT communication apps, they should compete with everyone else without any hand-holding or help from regulation, in order to innovate and make the best possible service.

The best thing to encourage indian companies who make these apps, would be to provide a conducive environment in terms of training and funding, but these are outside the scope of this discussion.

Question 17: If the OTT communication service players are to be licensed, should they be categorised as ASP or CSP? If so, what should be the framework? Please comment with justifications.

Due to the multiple problems associated this approach, which has been discussed at length in this document, I do not think OTT communication services should be licensed.

Question 18: Is there a need to regulate subscription charges for OTT communication services? Please comment with justifications.

If by “subscription charges for OTT Communication services”, it meant the charges an OTT service can charge the end-user (for example, Rs 50 per year etc) then I believe it should be up to the OTT service to determine that. The end-user will have a choice whether to pay that money or to discontinue usage of the OTT service.

If “subscription charges” here means the charges the OTT player needs to pay a TSP, then I believe there is no need for such regulation since I do not believe differential pricing (or any other discrimination) should be done on OTTs by TSPs in the first place.

Question 19: What steps should be taken by the Government for regulation of non-communication OTT players? Please comment with justifications.

No regulation is necessary of such OTT Players. The internet, and the OTTs running on it, are already innovating, competing, and succeeding well.

The definition of “communication” and “non-communication” OTT players is not clear. It can be argued that almost every even remotely popular online service might be a “communication” service (judging by the inclusion of services like Ola Cabs, GMail etc as “messaging” apps in the TRAI paper, this seems likely the case).

Question 20: Are there any other issues that have a bearing on the subject discussed?

Yes. There is international precedent in allowing net neutrality.

Brazil, Chile, Mexico, Netherlands, Slovenia, Peru and Japan have adopted rules in favour net neutrality. Norway’s regulator NPT also favours net neutrality.

Perhaps the most note-worthy would be the United States, where The President of the United States of America, Barack Obama, has constantly expressed his commitment to net neutrality and the Chairman of the United States FCC (Federal Communications Commission) Tom Wheeler has recently spoken out strongly in favour of net neutrality.

Just reading Tom Wheeler’s full text on the question of net neutrality and the future of internet regulation will answer many of the questions asked in the TRAI consultation paper. I would recommened everyone to read it. As mentioned in my response to question 8, the fact that the FCC created this draft in the first place, and the US Obama administration backing it, is a clear sign in favour of net neutrality there, despite it being in draft stage (as it is a recent development).

United Nations Special Rapportuer on freedom of expression lauded United States FCC move in favour of net neutrality, mentioning the following:

It is especially important that the new rules prevent ISPs [internet service providers] from discriminating against some types of content in favour of others, either by slowing down delivery speeds or by creating a fast lane to ensure quicker delivery for only some content providers that have paid extra fees.

- David Kaye, The United Nations Special Rapporteur on freedom of opinion and expression.

Foregoing network neutrality will lead to a “balkanization” of the internet, where one TSP provides users access to fast access only to a very limited set of online services. Network operators in the past have created such walled gardens where only a certain set of services work in their network and not much else. With the internet we were finally free from such a walled garden approach, but if net neutrality is not respected, then once again we might face a similar situation where only a few services work effectively, and others become unusably slow. If TSPs offer such a walled garden approach, then it must be required for them to also offer a service for users to access all sites without any discrimination, at a fair price.

Today a lot of government services are also online, and differential pricing might effect it too. It will hurt funding for startups, and harm the promising but sensitive startup ecosystem in India. Businesses outside India might think twice before offering their services in India owing to additional costs and effort. None of this will benefit anyone apart from TSPs in the long term, and will lead to long term damage to society.

All this might lead to a new kind of “Digital Divide” in India, running counter to, and hurting Prime Minister Modi’s Digital India vision. It is because of all these reasons that I urge the TRAI to not have regulations on OTT players and make sure that discrimination (whether price based or non-price based) never happens in India.

This vision of a Digital India can only succeed with an open internet ecosystem with network neutrality fundamental part of it. Whether it is the postal worker in a city confirming directions on a map service, or a child studying in a poor village looking up educational videos, or a farmer looking for critical weather information, or a small town shop owner who simply wants to message and send visual details about the product he’s selling to another customer - we don’t want them all to suffer just because their network operator didn’t happen to have made the proper deal with whatever critical service in question.

Network neutrality will make sure all of India can progress together, united.

I would like to conclude by once agin re-iterating an important quote by our current Union Telecom Minister.

For India, net neutrality is very important.”

- Hon’ble Union Telecom Minister Mr. Ravi Shankar Prasad.

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