In its new consultation paper on Internet Neutrality, the Indian telecom regulator TRAI, seems to exceed its remit, whereas wanting into licensing of sure Internet providers that it says “might be regarded the similar or just like the providers offered by [Telecom Operators].
There’s one notably odd factor that stands out: the paper itself is titled “Consultation Paper on Regulatory Framework for Over-The-Top (OTT) communication Services”, however the paper “services as can be regarded the same or similar to the services provided by [Telecom Operators]” has a a lot wider scope, as a result of telecom operators additionally present content material, music and radio, information amongst different issues. Successfully, that is about Internet Regulation.
Feedback on the consultation paper
1. The TRAI doesn’t have the jurisdiction to grow to be an Internet regulator: The TRAI has been making an attempt to increase its jurisdiction to cowl the Internet, which isn’t its remit. It held a consultation on privateness, after which backtracked to say that it solely governs privateness in the telecom sector. In its suggestion, it stated that till the authorities passes the knowledge safety regulation, “the existing Rules/ License conditions applicable to TSPs for protection of users’ privacy be made applicable to all the entities in the digital ecosystem.”
It then issued a regulation that in impact held that if Apple doesn’t permit the TRAI SMS spam app on its App Retailer, then it has the authority to as telecom operators to dam these units from their community.
The TRAI Act (act, modification) talks about license circumstances for a service supplier, interconnection problems with telecom providers, spectrum administration, high quality of service and so on. None of this considerations providers offered by anybody on the Internet. The TRAI Act doesn’t permit TRAI to manage the Internet.
(Associated studying: Considerations about TRAI Consultation paper on Knowledge Safety)
2. Internet regulation shouldn’t be slipped in by way of the backdoor of telecom regulation: Internet regulation shouldn’t be a telecom concern. It isn’t the mandate of the TRAI or the Ministry of Telecom, however a remit of the Ministry of Electronics and Info Know-how (MEITY). Whereas there are governments calling for Internet regulation – French President Macron did that at the Internet Governance Discussion board yesterday – that is nonetheless one thing for the Union Authorities to think about, and for MEITY to implement.
three. The Internet is already extremely regulated: One assertion I observed being repeated on a number of TV channels yesterday was that messaging, voice calling and video content material purposes must be regulated as a result of they’re at present unregulated. An editorial in The Hindu factors in the direction of different nations subjecting apps to licensing or regulatory issues, and says that India should comply with go well with.
The concept on-line providers are unregulated is fake. All of this ignores the proven fact that the Internet is already extremely regulated: the Info Know-how Act (IT Act) covers features of legal responsibility of on-line providers, their duties and obligations, and has extreme penalties included. So why is there a necessity for including further laws?
four. License Raj for the Internet: Licensing is a way of exclusion and exclusivity, not inclusion. Hundreds of thousands of purposes which contain messaging will get impacted, as will every little thing that has video. In the event that they don’t have a license, they won’t be allowed to function.
As an alternative, entry must be un-bundled from providers: telecom operators ought to have a license to offer Internet entry, not particular providers. They need to be free of the regulation of calling and messaging, and given the shift to Internet Protocol, Internet Entry ought to be the solely service they supply. Voice, textual content, interactivity and so forth are all part of Internet providers.
Nevertheless, plainly whereas TRAI agrees that entry must be unbundled from providers, it nonetheless needs to manage on-line providers. In its VoIP ruling, it stated “So, the Authority is of the view that as per the present licensing framework, Internet Telephony service can be provided independent of the Internet access Service. In other words, the Internet Telephony service is un-tethered from the underlying access network”… “The separation of network and service layers of telecom service offerings is the natural progression of the technological changes in this domain.”… “It is now possible to separate provision of service contents, configuration and modification of service attributes regardless of the network catering to such service.”
5. Licensing will destroy shopper experiences of latest varieties of providers: All the things on the Internet is a remix: providers mix audio, video, textual content and interactivity to offer new shopper experiences. If part of this – messaging, voice and video – is licensed, providers will break down. Most ecommerce companies incorporate a messaging platform for buyer care. There are video games that incorporate each messaging and VoIP. There’s a Manchester United discussion board referred to as RedCafe.internet that as a Private Messaging function which permits customers to message one another. Messaging can also be a key function of all on-line social media exercise. Many video games combine Internet calling as an integral a part of their social engagement expertise, in order that players can speak to one another whereas enjoying, coordinate, collaborate and compete. Twitter Direct Messages and Fb messages are a type of messaging, that are part of the platforms. Carving out any of those segments will destroy shopper expertise and therefore public good.
What had Reliance Jio requested for in 2015?
It needed regulation, and stated that “…it would be a fallacious assumption that low internet penetrations and speeds warrant that the OTT services should be kept out of the regulatory framework just to facilitate their growth.”
- A regulatory framework to deal with safety considerations, with communication providers like WhatsApp and Viber, to convey them on par with telecom operators.
- A nominal entry payment and a minimal license payment for OTT providers
- Internet hosting providers from inside India
- Establishing Lawful Interception and Monitoring (LIM) methods
- Verification and authentication of shoppers of telecom providers
- Offering needed amenities for steady monitoring of the system, not using any bulk encryption gear and taking prior analysis and approval of Licensor for any encryption gear for particular necessities.
- Offering decryption keys to the Authorities
- Restriction on switching of home calls/ messaging from outdoors the nation
- Sustaining name element report/ Internet protocol element report (IPDR) for Internet together with Internet Telephony Service for a minimal interval of 1 yr.
- Sustaining Parameters of IPDR as per the instructions/directions issued by the Licensor once in a while.
- Duty for making certain safety of privateness of communication and confidentiality of subscriber info.
- Measures towards Caller Line Identification (CLI) masking
6. The Similar Service Similar Guidelines argument is fallacious:
- VoIP providers are part of Internet providers: Telecom operators present three providers to shoppers: Circuit switched telephony (PSTN/PLMN) and messaging, and Cellular Internet. Internet calling (VoIP) and on-line messaging are integral elements of Cellular Internet. So, that is an occasion of 1 telecom operator service (Cellular Internet) substituting others (SMS and PSTN/PLMN voice calling).
- Internet providers and cellular telephony are distinct: VoIP providers and common telephone calling are two distinct providers that are imperfect substitutes, simply as rich-text messaging and SMS are imperfect substitutes and distinct from one another.
- When it comes to the flexibility of the service, Internet telephony and IP based mostly messaging (reminiscent of WhatsApp, WeChat and Line) are extra versatile and wealthy when it comes to options. The PSTN/PLMN providers have a aggressive benefit as a result of they will terminate calls on landline and cellular networks. VoIP calls can terminate on wireline IP networks, and calls could be acquired on desktops in addition to cellular units, whereas PSTN/PLMN telephony doesn’t have this software getting used extensively. Telecom operators can terminate VoIP providers on circuit switched networks.
- Common telephone calling (PSTN and PLMN) voice isn’t built-in into any on-line providers, and neither is it an integral a part of any of those, whereas Internet telephony (VoIP) is part of the Internet.
- VoIP providers haven’t any management over Internet entry High quality of Service: whereas cell phone calling has enough bandwidth for top name high quality, and telecom operators are liable for the high quality of their Internet entry service, VoIP service corporations have completely no management over the bandwidth obtainable to shoppers, since Internet entry is offered by telecom operators and ISPs.
- Similar Service Similar Guidelines is relevant solely and solely when enough spectrum is out there for buy by each software service supplier in the world, in order that they will take full management over the shopper expertise. That’s unattainable since spectrum is a restricted useful resource, and telecom operators have unique direct utilization of spectrum.
- Similar Service Similar Guidelines could also be made relevant to different imperfect substitutes: If similar service similar guidelines is to be made relevant to VoIP and messaging, then it have to be made relevant to all telecom operator providers which have comparable counterparts:
a. Cost gateway providers: Telecom operators combine with on-line service suppliers by way of their very own API22 or by means of service billing suppliers akin to Fortumo and Boku23. This enables shoppers who’ve saved cash in the telecom operator pay as you go pockets to purchase on-line music subscriptions, video streaming subscriptions, ebooks and articles, alongside with different content material. As per the “Same Service Same Rules”, Funds must be launched to retailers in 2three days, as specified by the RBI tips, which state:
i. All funds to retailers which don’t contain switch of funds to nodal banks shall be effected inside a most of T+2 settlement cycle (the place T is outlined as the day of intimation relating to the completion of transaction).
ii. All funds to retailers involving nodal banks shall be effected inside a most of T+three settlement cycle.
b. Cellular Pockets Services: Telecom operators retailer cash of their cellular account, which can be utilized to buy items and providers, together with by means of service billing. That is just like the semi closed pay as you go pockets ecosystem, whereby, as per the RBI tips, semi closed pay as you go pockets licensees have to permit clients to withdraw cash to their checking account, if required. Subsequently, as per “Same Service Same Rules”, shoppers must be allowed to withdraw cash from their pay as you go stability. Whereas we perceive that some telecom operators have subsidiaries and/or associates with cellular pockets licenses, they need to have to use individually for utilization of their cellular account.
c. Cellular VAS purchases: Telecom operators permit shoppers to purchase digital content material utilizing their saved stability quantity. That is just like bank card and debit card cost techniques. As per ‘Similar Service Similar Guidelines” norms, these transactions ought to comply with the two issue authentication system from the Reserve Financial institution of India, which mandates the utilization of both One Time Password or Verified By Visa/Mastercard 3D Safe to authenticate the transaction.
d. Music Streaming service: Telecom operators present music streaming providers on cellular VAS, referred to as Cellular Radio. That is just like FM Radio, and must be topic to the similar tips as FM music, and telecom operators ought to have to acquire a separate license to function in every circle.
e. Video streaming service: Telecom operators present video content material on demand, in addition to streaming providers. That is just like TV channels, and therefore telecom operators ought to want to use for an IPTV license for video streaming service.
f. Textual content alert service: Telecom operators present information by way of SMS alerts, together with cricket associated rating updates and comparable information. That is just like publishing information content material, and therefore telecom operators ought to have to get an RNI registration to function alerts.
7. Licensing of VoIP and messaging quantities to double charging license charges: If VoIP providers should be licensed and compelled to pay a license charge, then that quantities to double charging by the authorities for knowledge providers: first, from telecom operators, and secondly from VoIP and messaging suppliers.
eight. On interconnection laws: When licensing creates exclusivity and limits competitors, regulation additionally must allow shopper curiosity, and therefore interconnection turns into needed, considering the switching value. That is thus essential in the telecom sector. On the Internet, which doesn’t have licensing, with no/low value of obtain and entry, and thus zero/low switching value, interconnection isn’t crucial.
On Mirror Now yesterday, Gopal Aggarwal of the BJP additionally talked about knowledge being a earlier asset and needing regulation, as part of this consultation.
9. Authorities needs to form customers’ web expertise? In its differential pricing ruling, the TRAI had stated that “In India, given that a majority of the population are yet to be connected to the internet, allowing service providers to define the nature of access would be equivalent of letting TSPs shape the users’ internet experience. This can prove to be risky in the medium to long term as the knowledge and outlook of those users would be shaped only by the information made available through those select offerings.” Proscribing on-line providers by way of licensing or additional regulation would quantity to the TRAI itself shaping customers’ on-line expertise.
10. Licensing will encourage vertical integration: Licensing will allow shutting down of unlicensed gamers, and dependency of licensed Internet providers on telecom operators; most ISPs and telecom operators would have already got licenses for these providers contained in the Common License, and this might imply vertical integration. In its differential pricing ruling, the TRAI had stated about vertical integration that:
“This poses an even greater concern in cases where there might be a conflict of interest in the service provider’s role as a service provider as well as a participant in a vertical market where it acts in competition with other content providers. New and smaller service providers will face crucial challenges in view of the significant market power enjoyed by bigger service providers and content providers.”… “allowing the keepers of the infrastructure to differentiate on the basis of content, would impose negative externalities on the rest of the network as internet serves as infrastructure for many other markets. This is especially so since the internet is a fluid and dynamic space where a user could be a simple subscriber at one moment (when she accesses the internet through a data pack), and become a content provider (when she writes a blog post) at the next.”
11. Income loss argument is fallacious: There’s excessive competitors in the telecom sector, and the decline in telecom operator revenues is a perform of this competitors, particularly due to Jio’s selection to offer limitless free calls. This isn’t one thing that’s being accomplished by on-line Internet providers, or that Internet customers are liable for. Telecom operators shouldn’t be blaming the Internet for his or her points.
Actually, on the income loss argument, the TRAI itself had stated that “the Internet use is growing at an unprecedented high rate and existing providers will generate revenue from data services which will be required by a subscriber to make even an Internet Telephony call.” ”Growing income realizations from knowledge providers resulting from growing Internet visitors won’t solely compensate for the lack of typical voice visitors however may even improve the income potential of the final mile entry networks.”
12. Anti-trust points gained’t come into play and TRAI has been criticised in the previous for wanting into them: Final yr, the Competitors Fee of India wrote to the TRAI Chairman RS Sharma, saying that their transfer to create a framework on predatory pricing “definitions, concepts of the Competition Act and decisional practices of international anti-trust jurisdictions, may blur the lines between the two bodies and lead to confusion,” in line with The Financial Occasions. Competitors points are addressed based mostly on two considerations: one is market dominance and secondly, on abuse of dominance. Dominance clearly at present rests with telecom operators, with regards to voice providers. Secondly, there isn’t any abuse of dominance, as a result of there isn’t any dominance. In reality, shoppers have benefited due to the availability of voice and video calling providers.
13. TRAI might carve out exception for licensing VoIP and what it phrases as “services permitted under the license”: In its suggestions to DoT on Internet Neutrality, the TRAI had stated that:
To the extent that such providers are permitted underneath the license and in addition fall underneath the definition of specialized providers, they might not be topic to the rules of non-discriminatory remedy”… “the provision of such services should not be detrimental to the availability and overall quality of Internet Access Services. This could be monitored using various quality of service parameters.”
VoIP is a service permitted underneath the license. Might the TRAI supply licensing as a way to raised high quality of service, and an exception from its Internet Neutrality laws?
Disclosure: I used to be a co-founder of the SaveTheInternet marketing campaign for Internet Neutrality in India.