Dear Sir
Please accept my compliments on a brilliant and comprehensive consultation paper on the subject.
I have appended my comments for consideration in the body of this mail as well as a separate document.
Regards
Dr Anjan Ray
Citizen of 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.
Response 1: It is my view that given the high cost of
spectrum and hidden costs of remote infrastructure in the country, some form of
regulation on OTT providers is necessary now with option for review and
revision as the situation evolves. In
effect, OTT usage increases TSP cost without commensurate access to profit,
resulting in potential increases of TSP charges on voice, which affects the
most vulnerable of services and national costs of messaged public services
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.
Response 2: OTT
services increase the potential of national security risk and unsolicited
commercial communications. Since the end
consumer is impacted regardless of whether this happens via traditional mobile
telephony or OTT services, regulation is required to level the playing field
and protect the general public from malpractices by users of OTT services. This also puts onus on the OTT service
provider for monitoring as well as transparency, which is similar to the issues
with encryption that Blackberry faced not so long ago.
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.
Response 3: Being a
member of the general public and not being privy to the deep economic aspects
of TSP operations, I cannot comment knowledgeably on this matter. However, my perception is that any shortfall
in data revenue of the TSPs must perforce be made up either through increased
data charges per unit, increased voice charges per unit or a combination of
both. It would be unfortunate if, as I
mentioned in Response 1 above, this were to translate into higher voice costs
for the more economically vulnerable sections of society, who are today far
more dependent on communications and connectivity for their livelihoods as well
as their safety and security than they were even a decade ago.
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 of product/service differentiation?
Please comment with justifications.
Response 4: I believe
it is necessary for some loading of additional charges to OTT players in order
to level the playing field in the marketplace, especially since the
consultation paper clearly shows that the OTT players leverages resources that
require that a relatively high upfront cost by TSPs. At the same time, given the high pace of
evolution in this marketplace, differential pricing must be kept simple and
therefore the idea of bandwidth consumption as a metric – whether linearly or
slab wise – seems to be both effective and logical.
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.
Response 5: It would be simplistic the regulation model that
is currently applied with TSPs was also to be applied with OTT players. In particular, enforcement of KYC and
verification norms, disconnection of telecom resources to violating users and
heavy penalties for non-compliance by OTT players in line with that experienced
by TSPs would go a long way.
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.
Response 6: In an increasingly globalized world, most
operating corporations accept that compliance with the laws of the land where
they operate (that is, provide goods and services to consumers) constitute good
governance. Although there is a
likelihood that bilateral or multilateral international agreements would need
to be worked out over time, a fairly simple start can be made by providing data
sufficiency and transparency requirements coupled with audits, penalties for
negligence or violation and – if such penalties are not paid promptly pending appeal
–blocking these OTT applications via notices to all TSPs.
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.
Response 7: OTT players
- as well as TSPs –need to start maintaining a public registry of
individual and organization names that have been reported for infringements of
security, safety and privacy of consumers.
The resulting adverse impact to a violators brand image is likely to be
much more of a deterrent than any form of monetary penalties. At the moment, the TRAI regulations are such
that the privacy of spammers is protected because their identity is not made
public – while databases of public mobile numbers are freely sold to such
spammers not just in India but also abroad.
There needs to be very strong penalties include jail terms – potentially
under the ambit of the CrPC – for sales of such databases, especially where
they contain DND registered numbers.
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.
Response 8: The needs of each country and the ability to
regulate within that country are fairly unique and driven by geo-political
factors as well as structures of government.
Either a price discrimination model or the FRAND approach, or a suitable
combination of both, may be easier to adopt in India relative to separation of
regulatory practices which would be a lot harder to enforce.
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.
Response 9: without prejudice to paragraph 5.47, the key
issue here is the “dumb pipe” philosophy espoused by the defenders of
net-neutrality in paragraph 5.6. In a
market where a very large number of consumers span a wide spectrum from
near-illiterate purely functional voice use to highly sophisticated complex
applications capable of supporting nefarious activities or distributing
malware, this philosophy is akin to a supply chain of drinking water where
anyone can pour water into the source from which this water is
distributed. In careless hands, the
water could be inadvertently contaminated and – God forbid – in intentionally
malicious hands, the water could be poisoned deliberately. If our infrastructure and capabilities had
the ability to discern and manage the load as is the case in the EU or the U.S.
or in China, all of which are been mentioned in the CP, Net-Neutrality would
possibly be welcome.
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.
Response 10: Practices that relate to either high volumes of
bandwidth (and thus spectrum) use as well as those which create explicit
revenues for the OTT through direct charges to end users should come within the
ambit of regulation. In order to be
pragmatic, the regulatory framework should be adaptive to changing market
conditions rather than prescriptive which could require frequent ad hoc
revisions.
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?
Response 11: this appears to be a good starting point and
could be reviewed, say, one or two years after initial implementation.
Question 12: How should the 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.
Response 12: in principle, this concept is no different from
upfront investment in power generation and distribution infrastructure for
electricity. Ideally, the TSP should be
the investor in such infrastructure but special financing vehicles (similar to
Power Finance Corporation) should be available to mitigate risk and encourage
scalable investment in line with the growing communications needs of the
country.
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.
Response 13: it is hard to comment on non-price service
discrimination models without knowing the specifics.
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.
Response 14: it may be simpler to allow an uniform data
tariff structure with permissions for discounting to non-OTT users.
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.
Response 15: treating OTT communication service players as
BUTS suppliers may not be entirely appropriate since not all OTT services might
qualify if a clear set of criteria were laid down. It may be appropriate to treat any OTT
service that allows real-time voice transmission or continuous messaging
(i.e. delivers an outcome in exactly the
same as voice telephony and SMS) as BUTS.
Question 16: What framework should be adopted to encourage
India-specific OTT apps? Please comment with justifications.
Response 16: OTT apps that can be shown to enhance National
Security, safety and liberty of citizens, productivity and control of economic
crimes such as bribery and corruption could be encouraged by providing
discounts similar to my suggestion in response 14
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.
Response 17: since
not all OTT service players follow the same model, a clear set of criteria
should be laid down that can differentiate between ASP-type offerings and CSP-type offerings. Please see response 15.
Question 18: Is there a need to regulate subscription
charges for OTT communication services? Please comment with justifications.
Response 18: if a
regulatory framework is already being made available for TSP-mediated effective
end-user pricing of OTT services, any separate intervention in regulation of
subscription charges would cause multiple distortions in the market and are
probably best avoided.
Question 19: What steps should be taken by the Government
for regulation of non-communication OTT players? Please comment with
justifications.
Response 19: As
mentioned in clause 6.2 of the CP, Even non-communication OTTs such as videos,
gaming and e-commerce are consuming scarce bandwidth. Differential pricing or surcharges for high
bandwidth use – just as this is done for high use of power or water as scarce
National Resources –ought to be considered.
Question 20: Are there any other issues that have a bearing
on the subject discussed?
Response 20: None
from my point of view.
Dr Anjan Ray, H-1518 Second Floor,
Chittaranjan Park, New Delhi 110019