Answer to Question 1: A regulatory framework for OTT services, besides stifling the adoption of intuitive modes of mobile communication, will further facilitate business practices by which telecom operators tie up with select OTT service providers providing the latter's services at low charges while competing services come at a higher cost to the end user. Apart from wresting away freedom of choice of consumers, it also enables telecom operators to operate without the constraints of non-price competition. For example, if a telecom provider with a large base of consumers ties up with an OTT service provider, with a similarly large base of users, then it can start charging supra-normal prices for their combined services since end-users will be locked into this eco-system. The hassles of changing over to another service provider combined with the opportunity cost of losing out on using a very popular OTT service will make users reluctant to switch.
Furthermore, there are already legislations in place to monitor usage of data services in the form of the IT Act and the Telegraph Act, when required. Therefore, I see no reason for formulating another cumbersome framework for OTT services. The TRAI, being a body of the State, has to act in Public interest. The fact that telecom operators are facing declining profits (such profits are still sizeable), does not encumber upon TRAI a responsibility to safeguard that, at the possible expense of the end-user's freedom of choice and privacy. If anything, the continuing trend of adoption of OTT services will encourage competition among telecom operators on both price and non-price grounds. This point also addresses the (strictly theoretical) absence of quality adherence by OTTs. Competition will ensure that both telecom operators and the former will formulate and adhere to these standards.
Answer to Question 2: The very definition of "communication services"itself is liable to be void for vagueness. What is to be regulated and what isn't? Regardless of this fact, why is there a need to regulate modes of communication (that are purely optional and not used by a huge majority of the mobile-using population in India), in the first place? This is unnecessary. Again, such a measure would curtail consumer choice, especially when certain OTT services are preferred because they provide a significant improvement in user experience as compared to the communication services offered by telecom operators. Does this not tend towards conferring telecom operators a dominant position in the market? These questions need to be answered specifically and justified with substantial empirical data, since the repercussions of implementing such a regime will impact the end user adversely.
Answer to Question 3: Is there any empirical data backing the claim that the growth of OTT services are directly and significantly affecting the revenue streams of telecom operators? In the absence of such data, it is hard to accept that argument. Furthermore, why should consumers be deprived of an improved service if telecom operators cannot provide a competitive solution for that need? If anything, the fact the OTTs result in the increased adoption and usage of data services of the telecom operators, this should adequately compensate the latter for any loss in revenue from text/voice services.
Answer to Question 4: There is no intelligible differentia for classifying types of data. As long as the end-user is paying for data usage, OTT service providers are not supposed to be charged anything extra.
The argument that telecom operators are losing out on revenue is not to be conflated with the argument that end users or OTT service providers be charged an access fee over and above the data charges. If the former is sought to be addressed, then the tariffs for data usage could be increased instead. That's an acceptable form of price-competition.
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Satya S. Sahu
ID No. : 2088
II Year B.A.L.L,B. (Hons.)
National Law School of India University,Bangalore