A few thoughts on the T.R.A.I Consultation Paper on Regulatory Framework for OTT Services

The debate on Network Neutrality is the apple of everyone’s eyes these days and has been since the past two months, so it was expected that the Telecom Regulatory Authority of India (T.R.A.I.) would eventually make some proactive effort to try and address the issue and attempt to come out with a regulatory framework to fill an obvious lacuna in the telecom and broadcasting laws of the country. It has responded by releasing a Consultation Paper on 27th March, 2015 titled as “Consultation Paper On Regulatory Framework for Over-the-top (OTT) services”..Of course, the Consultation Paper released is more than what was demanded or expected from the T.R.A.I. In fact, it doesn’t simply ask for a debate on the principles of network neutrality, but also raises issues regarding the long term regulation of the internet and all “OTT” services. The phrase “Over – the – Top (OTT) services” has been defined in the Consultation Paper as “…applications and services which are accessible over the internet and ride on operators’ networks offering internet access services e.g. social networks, search engines, amateur video aggregation sites etc.”.At the time of writing, the T.R.A.I. had already received more than 5.5 lakh responses to the Consultation Paper, and is likely to receive even more, with time to submit comments till 24th April, 2015 and counter-comments till 7th May, 2015. In the meantime, listed below are a few points which stand out on a perusal of the document..I. The Consultation Paper is heavily biased in favour of Telecom Service Providers (TSP’s)..One does not need to be a master of technical jargon or legalese to note that the Consultation Paper displays an apparent bias in favour of Telecom Service Providers (TSPs). The very first question in the Consultation Paper does not ask whether OTT services require any regulation or not, but rather straight-away asks when such OTT services should be brought under TRAI’s control! Furthermore, there is an unusually high amount of reference to the revenue losses suffered by the TSPs, with an entire table (not to mention a full twelve pages complete with charts and diagrams!) displaying all the OTT applications which compete directly with traditional services provided by the TSPs or the areas which the TSPs were trying to enter (i.e., mobile banking)..The paper also cocoons all OTT services into three categories: (i) Messaging and voice services, (Communication services); (ii) Application eco-systems (mainly non-real time), linked to social networks, e-commerce; and (iii) Video / audio content. The categorisation of OTT applications into services in which TSPs are directly involved or were trying to grow not only adds credence to the argument of bias, but also displays a narrow frame of mind by ignoring the countless number of different OTT services which exist on the internet, from fitness and lifestyle to games and education, which are services far beyond this narrow categorisation..II. The Consultation Paper rarely takes into consideration the interest of the Consumers..The Consultation Paper shows very little consideration for consumer interest, with the emphasis being on the revenue loss suffered by the TSPs and how to effectively regulate the OTTs. In fact, what starkly stands out is that in all the twenty questions asked for consultation, there is only one which deals with consumer interest, and the emphasis on the specific portion of the paper is on security and privacy of the consumer, rather than on the benefits and detriments of such control over OTT services by TSPs and T.R.A.I. (It is not out of place to mention that the discussion on the security issue almost borders on paranoia, to use too harsh a term). Throughout the paper, one only finds a constant and often repetitive love for “Regulatory Imbalances” and “Impact on the economy” but very little deliberation of the impact on the consumer..III. It defines Network Neutrality correctly but does not display a lot of enthusiasm for it..To be fair, the Consultation Paper does give a proper definition of network neutrality. However, it displays a reluctance to actually accept or implement it. While displaying a partiality for application agnostic discrimination is fair (the author is personally also of the opinion that agnostic discrimination does not result in a violation of the principle of network neutrality), the over emphasis on the requirement of network discrimination, the fault with the principles as they are generally accepted, highlighting that it is a “slippery concept” and the repetitive emphasis as already highlighted above on revenue, expenditure and investment of TSPs reduces the credible intent of the paper to seriously debate a fair network neutrality policy..IV. It acknowledges and discusses Device and Search Neutrality.Another portion of the paper which deserves appreciation is the discussion on Device and search neutrality. Device and search neutrality, or “application store neutrality” revolves around the eco-system created by Apple iOS and its device as well as the Android OS and the absolute “gateway” control which they have to decide which applications are allowed to operate on their devices. Though not strictly part of the network neutrality debate (which is why it is often ignored), it is still an important issue which requires discussion. And while we’re on the question of network neutrality, we might as well discuss this as well..Conclusion .Presuming that we see a robust discussion on the issues in the consultation paper, there is still the question of the mandate of T.R.A.I. in subject areas where it actually does not have jurisdiction. Under Section 11 of the Telecom Regulatory Authority of India Act, 1997, the Authority has the power and function to ensure quality of service, effective compliance of universal service obligations, ensure technical compatibility and effective inter-connection between different service providers and efficient management of spectrum among others. However, it does not possess the authority to regulate the OTT applications themselves. At the maximum, it can claim to have jurisdiction over VoIP OTT applications with respect to Quality of Service which it already regulates as they can be classified as a “Telecommunication Service” under Section 2(k) of the Act. But it could certainly never claim any supervisory jurisdiction as of date over non-communication OTT services. Bringing them under the regulatory authority of T.R.A.I. will require not only some major amendments o the Act, but also a whole new set of regulations to govern the same..Sudipto Sircar is an advocate practicing in the Supreme Court of India