Escolar Documentos
Profissional Documentos
Cultura Documentos
To
Shri A. Robert J. Ravi
The Telecom Regulatory Authority of India
Mahanagar Doorsanchar Bhawan
Jawahar Lal Nehru Marg, New Delhi 110002
Dear Sir,
We are grateful to the TRAI for making available the comments on its Consultation Paper
on regulatory framework for OTT services for public counter comments. On behalf of our
organisation, Alternative Law Forum, we have responded with some counter comments to
comments provided to the Consultation Paper herewith.
The Alternative Law Forum, established in 2000, is a collective of lawyers and researchers
who work on various issues of public interest. We have also been working and teaching in
the area of media and internet laws and regulation for many years, and our members in
the past have been part of expert groups constituted by the government, assisted in policy
oriented research and also made submissions on a number of issues of public importance.
We hope you will take our comments and counter comments into account for
recommendations on the subject.
Smarika Kumar
Keeping these principles in mind, we have framed our Counter Comments. We have
additionally divided our Counter Comment responses under three broad themes which
various comments to the TRAI Consultation Paper addressed. These are as following:
I.
II.
III.
Our Counter Comments under these themes are expanded on in the following pages:
para 5.3, TRAI Consultation Paper on Regulatory Framework for OTT Services, 27 March 2015,
available
at
<
http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP27032015.pdf>
2 We would thank discussions with Pranesh Prakash of Centre for Internet and Society, Bangalore
which helped in framing this definition of net neutrality for the Indian context.
1
I.
On Governance/Regulatory Mechanism for OTTs and
TSPs
I.1. There is no basis for developing a licensing or registration regime for
OTT services.
Some of the comments on the TRAI Consultation Paper like that of AUSCPI3 offer that OTT
services should be brought under a registration or licensing regime. We strongly disagree
with this, to point out that there is no basis for developing a licensing or registration regime
for OTT services because of the following reasons:
I.1.a. OTTs cannot legitimately be said to fall under telegraph under Telegraph
Act, 1885.
The prerogative for licensing telecommunications services stems from Section 4 of the
Telegraph Act. Various communication networks have been read by courts to be included
under the meaning of telegraph. In Union of India v. S. Prakash, the Allahabad High
Court had held regarding the definition of telegraph under the Telegraph Act, The
definition of 'telegraph' as given in the Act will also mean any appliance, instrument, or
apparatus used for transmission or reception of signs, signals, writing images and sounds
or intelligence of any nature through wire etc. including electricity and in view of this
definition, which is of wide import, the word 'telegraph' means appliance, instrument or
apparatus used for transmission or reception of signs, signals, ' images etc. through
electric wires with the use of electricity or waves.4 The Rajasthan High Court in Shankar
Birmiwal v. Union of India5 has held regarding the definition of telegraph, Since a
telephone is an instrument used for transmission and reception of sound by wire, it is
"telegraph" as defined in Section 3(1) of the Act and a telephone connection is a "telegraph
line" as defined in Section 3(4) of the Act. The provision of a telephone connection is,
therefore, governed by the provisions of the Act and the rules framed thereunder.
The above interpretations of telegraph under the Act imply that it refers to a physical
appliance, instrument or apparatus, or a network which is capable of transmission of
signals for communication.6 OTTs on the other hand, form a part of the Application Layer
of the internet, and ride on top of physical network and infrastructure, rather than being
a part of it in both the TCP/IP and OSI models. 7 There is an inherent difference in the
technology used by communications OTTs and TSPs for telephony and messagingthe
former uses packet switching, while the latter uses circuit switching. For this reason, they
cannot be classed as similar services. 8 Therefore OTTs cannot be said to fall under the
ambit of telegraph in the Telegraph Act, and therefore cannot legitimately be subject to
a licensing regime.
Pg 1,3,4, AUSCPI comments on TRAI Consultation Paper on Regulatory Framework for OTT
Services, 27 March 2015.
4 Union of India v. S. Prakash, 1990 (2) AWC 957
3
See also Piyush Joshi, Law Relating to Infrastructure Projects, LexisNexis (2004), page 390
The OSI Models Seven Layers Defined and Functions Explained, available at
<https://support.microsoft.com/en-us/kb/103884>, TCP/IP Protocol Fundamentals Explained With
a Diagram, available at <http://www.thegeekstuff.com/2011/11/tcp-ip-fundamentals/>
8 See Section 1.4.a of the present submission where we expand on these differences, and why OTT
and TSP cannot be classified as similar or same services.
6
7
I.1.b. OTTs do not fulfil the rationale for the licensing regime under the Telegraph
Act, 1885.
The Supreme Court in Ministry of Information and Broadcasting v. Cricket Association of
Bengal9 has explained the rationale for the licensing regime for telecommunications
infrastructure. It has held, There is no doubt that since the airwaves/frequencies are a
public property and are also limited, they have to be used in the best interest of the society
and this can be done either by a central authority by establishing its own broadcasting
network or regulating the grant of licences to other agencies, including the private
agencies. This implies that to be licensed, a telecommunications resource must fulfil two
conditions: first, it must be a public property, and second it must be of scarce or limited
nature. Communications OTT players fulfil neither of these conditions as they are
transmitted as data packets which cannot be scarce, on top of TSP networks. This
additionally reinforces that there is no legal rationale to apply the licensing regime under
Telegraph Act to OTTs.
I.1.c. Licensing OTTs in this environment can adversely impact innovation and
ease of access of smaller players to the OTT market.
Licensing of OTTs can additionally create barriers for entry into the OTT marketcurrently
it is an extremely low cost operation, but licensing can make OTT operations highly costintensive. This will allow big OTT players to dominate and reduce incentives for innovation
and investment for smaller players by creating an oligopolistic OTT market. That is another
reason to prevent creation of a licensing regime for OTTs.
Access
(internet
and
providers
voice)
and
10
carriage
services
(national and international long
distance) are governed by
licenses issued under the
Indian Telegraph Act, 1855.
Privacy
Content
Telcos
must
implement
measures to prevent unlawful
content from being carried over
the network.
Security
Telcos
must
install
and
maintain
interception
and
monitoring systems at their
own expense, with provisions
for real-time monitoring of
traffic. Government agencies
must have direct access to this
data. Certain executives like
the CEO and CFO must be
security vetted if he/she is a
foreigner.
Telcos must be able to pinpoint
the geographical location of any
subscriber, and provide a
traceable identity of each user.
Telcos cannot employ bulk
encryption. Prior permission is
required for the use of
encryption above certain limits,
and the decryption keys must
also be deposited with the
government.
The
unified
license has done away with this
condition, and states that the IT
Act will govern the use of
encryption.
Breach of license conditions
could result in termination of
the
license,
and/or
the
imposition of financial penalties
by the government. Noncompliance
with
TRAI
regulations attract separate
penalties.
Telcos must satisfy certain
financial conditions to qualify
for a license, An entry fee
and annual license fees are
Law Enforcement
Encryption
Penalties
Financial Conditions
intermediaries
under
theInformation
Technology Act, 2000 and
rules on privacy, security,
content
removal
etc.
thereunder.
The privacy rules are
applicable
to
online
service
providers.
Services
related
to
healthcare,
banking,
finance
etc.
could attract additional
obligations.
To qualify for safe
harbours, online
platforms must remove
unlawful content and
follow the blocking rules.
The
government
can
require online platforms
and service providers to
intercept,
monitor
or
decrypt information under
different rules.
QoS
VAS
VoIP
N.A.
N.A.
N.A.
These provisions and some additional ones are expanded upon as following:
I.2.a. Issues of security and commercial liability for OTTs are addressed via the
Information Technology Act, 2000.
We would like to remind the Regulator that the Preamble to the Information Technology
Act, 2000 mentions that it is a legislation to provide legal recognition for transactions
carried out by means of electronic data interchange and other means of electronic
communication, commonly referred to as "electronic commerce". The provisions and rules
under the Act additionally cover grounds and procedures for security, encryption and key
disclosure by OTTs.
We submit accordingly that Table 3.1 provided in the TRAI Consultation paper 14 comparing
regulatory frameworks for TSPs and OTTs, which has also been endorsed in several
comments15, is extremely flawed as it does not take into account regulations mandated
for OTT players through legislations. Regulatory framework for any entity may be
established in three ways: Via legislations, via judicial interventions and orders and, via
executive regulations which may or may not be enforced by TRAI. We submit that for the
Regulator to ignore any regulatory framework for OTTs which is not enforced through it,
is a very defective understanding of what it means to regulate OTT players. Therefore to
say that there is no requirement at all for OTTs regarding security conditions and
regarding Monitoring services i.e. Lawful Interception and Monitoring16, to omit that a
major amount of security concerns are covered by existing legislations17 and to omit
Page 43 of TRAI Consultation Paper on Regulatory Framework for Over-the-Top Services, 27 March
2015, available at <http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP27032015.pdf>
15 See for example comments of COAI, AUSCPI, ASSOCHAM etc.
16 See Table 3.1 on Page 43 of TRAI Consultation Paper on Regulatory Framework for Over-the-Top
Services,
27
March
2015,
available
at
<http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf>
17 See paras 3.20-3.23 of TRAI Consultation Paper on Regulatory Framework for Over-the-Top
Services,
27
March
2015,
available
at
<http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf>
14
acknowledging that activities like DoS, spreading of malicious software etc. 18 are actually
covered by the Information Technology Act as criminal offences 19, is inherently incorrect.
For this reason, we disagree with comments of ASSOCHAM 20 and of COAI21 which claim
that security and legal issues in working of OTTs have not already been addressed.
I.2.b. Issues of regulation of speech and content of OTTs are addressed via the
Indian Penal Code, 1860 and the Information Technology Act, 2000.
The Indian Penal Code as well as the Information Technology Act together provide a
framework for addressing speech concerns over OTTs. There is a long history of
applications of these legislations and their judicial interpretation in adherence with the
Constitution of India.
In this context, it is extremely worrying when the Regulator seeks to address speech issues
under the head of Safety22 on the internet through additional regulation while ignoring
that issues like stalking, child pornography, financial fraud etc. over the internet are
already addressed through the Indian Penal Code and the Information Technology Act.
There also seem to be suggestions that speech on OTTs be additionally regulated 23 on
account of cultural sensitivitieswhich is an argument that tends to be unconstitutional.
We are also very concerned that the Consultation Paper regards that users of the social
media websites express opinions freely without the usual social restraint as a problem
which needs regulation24 along with some comments25, even though under our
Constitution, speech can only be regulated when it falls under a ground given under Article
19(2) and no ground of lack of social restraint is enough to prohibit it.26 Attempting any
sort of regulation of speech over OTTs outside of this context would thus be blatantly
unconstitutional. For this reason, we strongly disagree with AUSCPI comments which offer
that regulation for speech be framed outside of this existing legal framework for the
OTTs.27
1.2.c. Issues of consumer interests and their protection in respect of OTTs are
addressed via Consumer Protection Act, 1986 as well as Indian Contract Act, 1872
and Sale of Goods Act, 1930.
See Para 3.35 of TRAI Consultation Paper on Regulatory Framework for Over-the-Top Services,
27
March
2015,
available
at
<http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf>
19 See section 43 of Information Technology Act, 2000.
20 See Page 10, ASSOCHAM Comments on TRAI Consultation Paper on Regulatory Framework for
OTT Services, 27 March 2015.
21 See COAI Response to Qs 6 and 7, pages 11-12, COAI Comments on TRAI Consultation Paper on
Regulatory Framework for OTT Services, 27 March 2015.
22 Para 3.35 of TRAI Consultation Paper on Regulatory Framework for Over-the-Top Services, 27
March
2015,
available
at
<http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf>
23 Para 3.24-3.26 of TRAI Consultation Paper on Regulatory Framework for Over-the-Top Services,
27
March
2015,
available
at
<http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf>
24 Para 3.25 of TRAI Consultation Paper on Regulatory Framework for Over-the-Top Services, 27
March
2015,
available
at
<http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf>
25 See AUSCPI Response to Q5., page 2-3, AUSCPI Comments on TRAI Consultation Paper on
Regulatory Framework for OTT Services, 27 March 2015.
26 See most recently, Supreme Court judgment in Shreya Singhal and Others v. Union of India
(March 2015), available at <http://courtnic.nic.in/supremecourt/temp/wr%2016712p.txt>
27 See AUSCPI Response to Q13., page 3-4, AUSCPI Comments on TRAI Consultation Paper on
Regulatory Framework for OTT Services, 27 March 2015.
18
The Consumer Protection Act along with the Indian Contract Act and Sale of Goods Act
forms the regulatory framework which can address the interests of consumers with respect
to OTTs by providing for a mechanism to register and proceed on consumer complaints
against OTTs, an appeals mechanism, provisions for protection for consumers in standard
forms of contracts, false representation, fraudulent sales and sale of defective goods and
services by OTT players.
So to argue, as has been done in the Consultation Paper, that consumer protection laws
and rules do not apply to OTTs in the same way as they do to brick-and-mortar sellers28
is inherently false. This is adequately illustrated by the multitude of cases concerning OTT
services which have been brought before and addressed by consumer forums. 29
I.2.d. Issues of unfair business practices and competition concerning OTTs are
addressed through The Competition Act, 2002.
The Competition Act, 2002 seeks to address anti-competitive and unfair practices of
businesses, including that of OTT players. Accordingly, the Competition Commission of
India has been investigating the business practices of the OTT player, Google, to determine
if its search and advertising practices violate competition law in the country. 30 So when
the Consultation paper raises concerns about the unfair business models and lack of search
neutrality of OTTs which is funded through advertising31, it is to be remembered that
competition law already provides a regulatory framework to regulate such businesses.
Additional regulation may be needed in this regard, but that needs to be arrived at only
after comprehensive understanding of such additional regulations on competition,
innovation, ease of accessibility and diversity in OTT services.
Para 3.34 of TRAI Consultation Paper on Regulatory Framework for Over-the-Top Services, 27
March
2015,
available
at
<http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf>
29
See
for
eg.,
Ebay
India
Pvt
Ltd
v
Ajay
Kumar,
available
at
http://indiankanoon.org/doc/140261623/, Rediff.com India Ltd v. Urmil Munja, available at
http://indiankanoon.org/doc/119372137/ and MD, Air Deccan v. Sri Rama Aggarwala, available at
<http://indiankanoon.org/doc/130317199/>
30 See CCI receives probe report on Google anti-trust case (Mint, April 8 2015) available at <
http://www.livemint.com/Companies/DEMtlk0TU90D3hoCdnYgWN/CCI-receives-probe-report-onGoogle-antitrust-case.html>
31 Para 5.48 of TRAI Consultation Paper on Regulatory Framework for Over-the-Top Services, 27
March
2015,
available
at
<http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf>
32 See most recently, Supreme Court judgment in Shreya Singhal and Others v. Union of India
(March 2015), available at <http://courtnic.nic.in/supremecourt/temp/wr%2016712p.txt>
28
become increasingly conscious of their errors. 33 Any such move would bypass the
safeguards of the abovementioned legislations through unregulated use of their
gatekeeping power by the TSPs. It would be unabashedly unconstitutional and propagate
a chilling effect on speech and knowledge sharing on the internet, by giving TSPs/ISPs the
power to decide what constitutes pirated content and then make access to it difficult, when
this decisive power is exclusively reserved for the Judiciary under our Constitution 34. For
these reasons we also stand in strong disagreement with comments which ask for
additional regulation of OTTs outside of the abovementioned framework to combat piracy,
as this would be decidedly unconstitutional.35
I.2.f. Issues of privacy are addressed through the Privacy Bill, 2014 and
Information Technology Act, 2000.
Article 21 of the Constitution has been interpreted to include a right to privacy.
Additionally, there have been discussions regarding a comprehensive Privacy Bill tabled in
the Parliament, which carves out protection for sensitive data on the internet. 36 The
Consultation Papers concerns over users privacy leading to implications for the nations
security and financial health, cracking phishing, privacy, identity theft, child pornography
and cyber extortion37 are currently addressed by Information Technology Act, Indian Penal
Code38, and in future, by the Privacy Bill. For this reason, we disagree with comments of
ASSOCHAM which claim that privacy and legal issues in working of OTTs have not already
been addressed.39
I.2.g. No OTT regulation can operate outside the ambit of the Constitution of
India.
Lastly, the operation of all OTTs must fall under the scope of Constitution of India, and no
regulation of OTTs can stand to be in the violation of Constitutional safeguards and Part
III embodying Fundamental Rights.
In light of such legislations already existing to provide a regulatory framework for OTTs,
it is extremely dangerous for the Regulator to suggest questions in the Consultation Paper
which ignore their presence and application to OTTs. If any of the abovementioned
frameworks are found inadequate, imbalanced or lacking, the right route to take is a
democratic engagement with the Legislature via relevant MPs to consider amendment of
laws, or through petitions in Courts because changes in these frameworks impinge on
important Constitutional questions.
For the Regulator to take a backdoor approach to address relevant concerns through
creation of additional barriers without a bearing in law for the operation of OTTs is highly
undesirable. Creation of such barriers through imposition of technological constraints by
Para 3.36 of TRAI Consultation Paper on Regulatory Framework for Over-the-Top Services, 27
March
2015,
available
at
<http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf>
34 See Article 19(1)(a) read with Article 32 of Constitution of India.
35 See AUSCPI Response to Q5., page 2-3, AUSCPI Comments on TRAI Consultation Paper on
Regulatory Framework for OTT Services, 27 March 2015.
36 Elonnai Hickok, Leaked Privacy Bill: 2014 v. 2011 (Centre for Internet and Society, 31 March
2014), available at < http://cis-india.org/internet-governance/blog/leaked-privacy-bill-2014-v2011>
37 Para 3.26 of TRAI Consultation Paper on Regulatory Framework for Over-the-Top Services, 27
March
2015,
available
at
<http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf>
38 See Section 43 of Information Technology Act, 2000, and Section 292 of Indian Penal Code.
39 See ASSOCHAM Response on page 10, ASSOCHAM Comments on TRAI Consultation Paper on
Regulatory Framework for OTT Services, 27 March 2015.
33
giving gatekeeper TSPs/ISPs the arbitrary power to decide which OTT content can flow on
their networks will constitute the very violation of the rule of law and will be in ignorance
of Constitutional safeguards.
I.4. Equal treatment of TSPs and OTT communication players should not
be mandated because unlike popular assumption these are not same
services.
Many of the comments to the TRAI Consultation Paper have called for application of same
regulations for TSPs and OTTs as they offer same services. COAI in its comments has
submitted that certain services offered by OTT players, such as messaging/instant
messaging and VOIP telephony are perfect substitutes of the services that are being
offered by the TSPs under UASL/UL are perfectly substitutable.43 Therefore, it is argued
that under the principle of Same Services, Same Rules,44 OTT players should also be
subject to same regulations.
See ASSOCHAM Response on page 4, para 9, ASSOCHAM Comments on TRAI Consultation Paper
on Regulatory Framework for OTT Services, 27 March 2015.
41 Banyan Tree Holding Ltd v. A Murali Krishna Reddy and Another , Delhi HC 2009, available at
http://indiankanoon.org/doc/151685239/
42 Hydak Fluidtechnick Gmbh and Another v. Flutec Industries, Delhi HC 2013, available at
http://indiankanoon.org/doc/163669016/
43 See COAI Response on page 1, Submission 3, COAI Comments on TRAI Consultation Paper on
Regulatory Framework for OTT Services, 27 March 2015.
44 See COAI Response on page 1, Submission 4, COAI Comments on TRAI Consultation Paper on
Regulatory Framework for OTT Services, 27 March 2015.
40
10
I.4.a. OTT communication services and TSP telephony are two inherently different
technologies and cannot be classed as similar services.
OTT communication services are based on packet-switching technology, whereas TSP
telephony is based on circuit- switching technology. Because of this inherent difference in
the technologies they employ, OTT communication services and TSP telephony cannot be
classed as similar services even when they might seek to serve the same ends. TRAI
Recommendations on Internet Telephony of 2008 themselves recognise this.45 Therefore,
it is irrational to class to different technologies in the same box and aim to work out a
common pricing and regulatory mechanism for the two.
I.4.b.The quality of OTT communication services is still not at par with TSP
telephony.
Quality of OTT communication services is still worse off than TSP telephony in India. Most
of the mobile internet connection in India, which still constitutes a large part of internet
usage operates on 2G. This keeps the quality of OTT communication services low as
packets drop easily and calling services cannot keep up with the quality of TSP telephony.
Based on this quality of services differentiation, TRAI Recommendations on Internet
Telephony46 did not class them as similar services which need to be priced differently from
other internet data. There is rationale for this understanding to still continue.
I.4.c. Quality of Service norms should not be mandated for OTT services.
Some comments like that of COAI47 and ASSOCHAM48 have argued that QoS norms should
be mandated for OTT communication services under the principle of Same Services, Same
Rules. We have already pointed out how OTT and TSP communication cannot be equated
as same services in Section I.4.a, and therefore how the principle of Same Services, Same
Rules fails. Additionally, it would be highly unfair to mandate Quality of Service norms for
OTTs because they actually have no control over the network they are riding on. It is the
TSPs which control the network. So even if QoS norms are mandated, OTTs will not be
able to meet up to them because they would not be able to adjust the network to meet
these requirements.
I.4.d. Lack of data in the Indian context analysing OTT call quality and substitution
of revenues of TSP telephony by OTT communication services.
There is a lack of concrete data and studies in the Indian context regarding the impact of
OTT communication services, OTT call quality, spread of its usage and user experience,
and comparative analysis with TSP telephony and if OTT communications are really
affecting revenues of TSP telephony, and if yes, by how much. Unless such data is released
by an industry-independent authority, it will be extremely premature to comment on or
devise a regulation for differential pricing for data access and OTT communication services.
We suggest that TRAI take studies and steps to release this kind of data.
TRAI Recommendations on Issues Related to Internet Telephony, August 18, 2008, available at
http://www.trai.gov.in/WriteReadData/Recommendation/Documents/recom18aug08.pdf
46 TRAI Recommendations on Issues Related to Internet Telephony, August 18, 2008, available at
http://www.trai.gov.in/WriteReadData/Recommendation/Documents/recom18aug08.pdf
47 See COAI Response to Q5., pages 9-11, COAI Comments on TRAI Consultation Paper on
Regulatory Framework for OTT Services, 27 March 2015.
48 See ASSOCHAM Response on page 4, para 10, ASSOCHAM Comments on TRAI Consultation Paper
on Regulatory Framework for OTT Services, 27 March 2015.
45
11
We would additionally like to emphasise that while OTT services might not be subject to
the same regulatory obligations as TSPs, they are nevertheless subject to many regulatory
obligations as discussed in Section I.2. of this submission. We submit that considering that
OTT and TSP services are not the same, such difference in regulatory frameworks is
actually justified under Article 14 of the Constitution of India.49
49
12
II.
On Net Neutrality
II.2.a. Indian TSP market does not exist in perfect competition and is dominated
by a few TSP players.
Prof. Yoos argument that differential pricing can create competition via creating
specialised markets is workable only in a scenario of perfect competition, unlike the Indian
TSP market which while competitive, is also characterised by the dominance of a few big
players. This has been pointed out in numerous criticisms of Prof. Yoos arguments,
including notably by Prof. Barbara van Schewick of Stanford Law School, in her paper,
Towards an Economic Framework for Network Neutrality Regulation.52 She argues out
that differential pricing for OTTs can actually be harmful for innovation and competition in
the long run. The work of Vishal Misra, of the University of Columbia and others of the
para 5.3, TRAI Consultation Paper on Regulatory Framework for OTT Services, 27 March 2015,
available
at
<http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP27032015.pdf>
51 See COAI Response to Q14., page 17, COAI Comments on TRAI Consultation Paper on Regulatory
Framework for OTT Services, 27 March 2015.
52 van Schewick, Barbara, Towards an Economic Framework for Network Neutrality Regulation.
Journal on Telecommunications and High Technology Law, Vol. 5, pp. 329-391, 2007. Available at
SSRN:http://ssrn.com/abstract=812991
50
13
IEEE53 also points out that thinking of internet as a two-sided market is simplistic, because
transactions are more complicated due to internet architecture, and therefore needs to be
determined via Shapley value under game theory.
We point this out to rebut comments like that of COAI which propose the use a two sided
approach to understand network transactions on the internet, and then draw conclusions.
We submit that such processes of analysing and drawing conclusions about network
transactions on the internet are obsolete and inherently flawed, because of the reasons
and research cited above.
II.2.b. There is a need for fairer consumption of bandwidth by different OTTs, not
for fairer charging of such disproportionate consumption.
We do however understand that some OTTs consume more bandwidth than other OTTs,
due to their early entry in the market and dominance, and because of the kind of heavy
data (for videos, images, gaming) they may need to transport. This disproportionate
consumption has two implications:
(i)
It can lead to lack of media diversity on the internet, by reducing the speed of access
to content of some OTTs because of large portions of bandwidths used by other OTTs.
(ii) It additionally creates an unequal and unfair position whereby some OTTs by flooding
the bandwidth with their heavy data can easily and speedily bring their content to
consumers, while other OTTs have to suffer from low speeds created by such flooding.
The Supreme Court of India, considered a similar situation with regard to newspapers in
its judgment of Bennett Coleman and Others v. Union of India.54 The minority judgment
by Justice Mathew in this opinion declared that lack of media diversity propounded by such
effect and the unequal consumption of (bandwidth) resource respectively stand in violation
of Article 19(1)(a) and Article 14 of the Constitution of India. This opinion has found
support in the subsequent case of Ministry of Information and Broadcasting v. Cricket
Association of Bengal55 whereby media diversity has been declared as an essential part of
Article 19(1)(a).
To address this issue of media diversity, Justice Mathew in his Bennett Coleman opinion
stated that the infrastructure on which a newspaper runs, viz. limited newsprint needs to
be equitably distributed within a limit. In other words, those who can afford owing to their
business models, to purchase more newsprint (or use more bandwidth in context of the
internet), should not merely be allowed to do so---because in such a scenario those who
have deep pockets will be able to promote their speech (in internet context, make their
content more accessible by using a larger portion of the bandwidth and slowing down the
content of others).
In interests of the consumer-citizens, viz. the right to access a diverse amount of
information under Article 19(1)(a), such a scenario should not be allowed. Regulation
instead, must be designed so that consumption of bandwidth by different OTTs can be
made more fairly, and not merely so that those with more money like dominant OTTs can
make their content more accessible. Accordingly unlike some comments56, we also
disagree with the application of ETNO principles in the Indian context. In this regard, zeroRichard T. B. Ma, Dah Ming Chiu, Fellow, IEEE, John C. S. Lui, Fellow, IEEE, ACM, Vishal Misra,
Member, IEEE, and Dan Rubenstein, Member, IEEE, On Cooperative Settlement Between Content,
Transit, and
Eyeball Internet Service Providers, 2008, available at
http://dnapubs.cs.columbia.edu/citation/paperfile/194/ToN_InternetEco2.pdf
53
54
55
See COAI Response to Q8., page 13, COAI Comments on TRAI Consultation Paper on Regulatory
Framework for OTT Services, 27 March 2015.
56
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rated traffic may be allowed as long as it can exist in a competitive market for zero-rated
traffic, and without violating any of the General Principles outlined in the Preamble.
II.3.a. OTTs operate on the internet, and VAS operate on mobile networks.
OTTs operate on the internet, i.e. the Application Layer on both wired and wireless
networks. VAS on the other hand operate on the mobile network only. OTTs thus operate
beyond mobile networks and therefore, cannot be treated as an evolved form of VAS.
II.3.b. VAS is mobile operator specific, OTTs are not, and should not be.
Different VAS are provided only via a specific mobile operator network, i.e. different TSPs
have different kinds of VAS which they offer, and which operate only on that particular
TSP network. OTTs do not work this way as they can ride on top of all networks, they need
not be service provider/TSP- specific. If they are forced to be TSP specific, it will be a
violation of net neutrality as TSPs will then arbitrarily discriminate on what kind of OTT
content is allowed on their networks.
Details of Traffic Management Techniques used by TSPs and ISPs for various kinds
of traffic, and for different OTTs (if applicable)
Amount of data carted by various TSPs and ISPs as part of their internet services
both over wired and wireless networks yearly, and over the past 10 years
Proportion and amounts of data carried by TSPs/ISPs for different OTTs and the
revenue earned from different OTTs on this data yearly, and over the past 10 years.
Pricing for data charges and revenue earned by TSPs/ISPs through their data
services on wired networks and on wireless networks yearly, and over the past 10
years.
Bandwidth capacities of various TSPs and ISPs in both their wired and wireless
networks yearly, and over the past 10 years.
See ASSOCHAM Response in para 9, page 4, ASSOCHAM Comments on TRAI Consultation Paper
on Regulatory Framework for OTT Services, 27 March 2015.
58 See ASSOCHAM Response in para 9, page 4, ASSOCHAM Comments on TRAI Consultation Paper
on Regulatory Framework for OTT Services, 27 March 2015.
59 See COAI Response to Q10 and Q11.., pages 14-15, COAI Comments on TRAI Consultation Paper
on Regulatory Framework for OTT Services, 27 March 2015.
57
15
Proportional usage of bandwidth by various OTTs over different TSPs and ISPs over
both their wired and wireless networks yearly, and over the past 10 years.
Details of current and past peering arrangements between different TSPs/ISPs both
over their wired and wireless networks.
16
III.1.a. There is no concrete data cited which backs claim of TSP revenue loss.
Most of the comments which submit that TSPs are losing revenue because of OTTs cite
concrete data in their favour. COAI has cited some figures in its comments saying,
According to an industry research, the number of mobile operators generating revenues
from OTT services by charging for data is falling year-on-year. In 2013, this figure was
one-fifth, down from 26% the previous year, and 50% in 2011. But it does not attribute
a source for these figures, merely referring to an industry research. 60 It, therefore should
not be given consideration, especially when it is in favour of turning regulation towards
TSP industry itself that such industry research is sought to be used. These claims do not
seem to be supported by facts.
III.1.b. There are reports indicating the growth of TSP revenue is driven by data.
On the other hand, there are many other news reports, which indicate otherwisethat
TSP rise in revenue is actually driven by data. NASSCOM points out in its comments61 that
Vittorio Calao, Vodafone groups CEO has stated, Growth in India has accelerated again
(October-December), driven by data.. Vodafones Indian unit outpaced its group
counterparts to report 15% organic growth in revenue in the quarter through December
(2014), as subscribers used more of its premium data services, even as the basic voice
telecom service remained under pressure, like its top rivals.62 Airtel itself has stated in
management presentation in November 2014 that mobile data revenue is going to drive
their future.63 There are also reports indicating that data revenues for TSPs is growing
exponentially, and these revenues make up for incidental loss from SMS and call
revenues.64
17
Joe Karaganis, Media Piracy in Emerging Economies, (Social Science Research Council, March
2011), page 14, available at http://www.ssrc.org/publications/view/C4A69B1C-8051-E011-9A1B001CC477EC84/
67 See ACTO Response on page 5, ACTO Comments on TRAI Consultation Paper on Regulatory
Framework for OTT Services, 27 March 2015.
66
18
Richard T.B.Ma and Vishal Misra, The Public Option: A Non-Regulatory Alternative to Network
Neutrality
(IEEE,
2012),
available
at
http://dnapubs.cs.columbia.edu/citation/paperfile/212/ToN_PublicOption.pdf
69 Linda Crane, Net Neutrality is All Good and Fine, The Real Problem is Elsewhere (University of
Columbia), available at http://www.cs.columbia.edu/2014/net-neutrality/
68
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We submit that in designing a governance framework no one of the above principles should
be sought to be preserved at the cost of another and vice versa. In light of this, we are
critical of COAIs Sabka Internet, Sabka Vikas initiative, as it seeks to preserve access
at the cost of net neutrality, competition, and innovation in OTT markets.
I.
I.1. There is no basis for developing a licensing or registration regime for OTT services.
I.2. Concerns of Security, Privacy, Speech and Copyright Protection in Relation to OTTs
are already addressed by existing legal frameworks, and new frameworks are not needed.
I.3. Licensing or registration of OTTs is not necessary to provide legal basis for
enforcement of Indian laws for the OTTs.
I.4. Equal treatment of TSPs and OTT communication players should not be mandated
because unlike popular assumption these are not same services.
II.
On Net Neutrality
para 5.3, TRAI Consultation Paper on Regulatory Framework for OTT Services, 27 March 2015,
available
at
<
http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP27032015.pdf>
70
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III.
Amount of data carted by various TSPs and ISPs as part of their internet services
both over wired and wireless networks yearly, and over the past 10 years
Proportion and amounts of data carried by TSPs/ISPs for different OTTs and the
revenue earned from different OTTs on this data yearly, and over the past 10 years.
Pricing for data charges and revenue earned by TSPs/ISPs through their data
services on wired networks and on wireless networks yearly, and over the past 10
years.
Bandwidth capacities of various TSPs and ISPs in both their wired and wireless
networks yearly, and over the past 10 years.
Proportional usage of bandwidth by various OTTs over different TSPs and ISPs over
both their wired and wireless networks yearly, and over the past 10 years.
Details of current and past peering arrangements between different TSPs/ISPs both
over their wired and wireless networks.
On Investments in Network Infrastructure
III.1. It is unlikely that TSPs are losing revenue because of rise in OTTs in the Indian
market. This is because most reports indicate that TSPs in India are gaining revenues
driven by data.
III.2. Even in a scenario of falling revenues from TSP telephony, the burden of innovation
and innovative business models in the TSP market should be borne by TSPs, and not
sought to be covered by burdening OTT communication services.
III.3. TSP licensing regime should be modified to remove restrictions on the use of new
technologies in PSTN networks, to promote TSP innovation.
III.4. Models for bearing Network Upgradation and Expansion Costs in Absence of
Differential Pricing: These could include strengthening the USOF fund utilisation,
mandating TSPs to invest in expansion and upgradation of network infrastructure by
cutting down percentage contribution to USOF, and by creating a public option or municipal
ISP to enhance competition, expansion and net neutrality, while also generating
government revenues.
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