New Delhi: The topic of net neutrality has once again become a bone of contention between over-the-top (OTT) apps such as WhatsApp, Netflix and Telegram, and telecom service providers such as Reliance Jio, Bharti Airtel, and Vodafone Idea.
At stake are the charges users will pay for the internet and the apps they use, and the very concept of net neutrality.
Net Neutrality is the principle that service providers should treat all data on the internet equally, and not discriminate or charge differently by user, content, site, platform, or application.
In July, the Telecom Regulatory Authority of India (TRAI) had released a consultation paper on the regulation of OTTs, for which it has now received comments from telecom service providers (TSPs) and groups representing OTTs.
The TSPs have reiterated their demand for bringing OTTs under the regulatory regime so as to ensure a level playing field and have asked that OTTs pay a fair and reasonable charge to TSPs for the increased data use they generate.
Many industry bodies, civil society organisations and consumer groups, however, have argued that OTTs are adequately regulated under the existing Information Technology Act, 2000.
These bodies, including Broadband India Forum (BIF), Asia Internet Coalition (AIC), Internet and Mobile Association of India (IAMAI), Consumer Unity & Trust Society (CUTS) and The Dialogue, have also warned that imposing a network usage fee — as the TSPs demand — will pose a potential threat to net neutrality principles and lead to consumers being burdened with extra charges.
The telecom operators, though, contend that net neutrality is about treating all content equally and is completely unrelated to the ‘fair share charge’ they’re asking OTTs to pay.
In their comments, uploaded on the TRAI website this month, the Cellular Operators Association of India (COAI), Bharti Airtel, Reliance Jio and Vodafone Idea (Vi), have mooted that only large or significant OTT service providers should be liable to pay a ‘fair share charge’ to operators.
The operators’ body argued that similar to entities charging users for the commercial use of their property or infrastructure, TSPs — who invest in nationwide telecom infrastructure — should get fair and reasonable share charges from the users utilising their network infrastructure.
The industry body, in line with suggestions from Bharti Airtel, Reliance Jio and Vi, has suggested that start-ups or smaller OTT providers be exempt from “fair share charge” to ensure that innovation and entrepreneurship remain unaffected.
Regarding concerns by civil society bodies and the OTT apps that such charges would impact India’s net neutrality stance, the COAI said in its submission: “It is necessary to recognise that net neutrality concerns unbiased treatment of content and is completely unrelated to the fair share charge to be paid by OTTs to TSPs. It is worthwhile to emphasise here that our member TSPs are committed to follow the net neutrality principle as per their licensing conditions.”
This stance was reiterated by each of the private sector telecom service providers as well. Vodafone Idea, in its submission, said that “content and services will remain fully accessible with no traffic management/differentiation implemented for any specific entity.”
“There will be no throttling, no blocking and no paid prioritisation,” it added. “The price for the traffic paid by end users will not change depending on whether the traffic originator is subject to fair share payments or not.”
Bharti Airtel, too, said that the “need for systemic traffic generators to contribute fairly to network deployment has nothing to do with the net neutrality debate”.
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‘OTTs not free riders’
Meanwhile, think tank BIF reiterated that OTT services and the services provided by licensed TSPs are not the same and hence should not be subject to the same regulations. It added that OTT services are already subject to regulations and any additional regulations that are required to be imposed or enhanced, should be done under the existing IT Act.
“They (OTTs) are not free riders insofar as they do not merely ride on top of the TSPs networks as the name OTT suggests,” BIF said. “Not only are huge investments made by the OTT service providers to bring the content as close as possible to the end customers but, more importantly, the OTT services are significant revenue generators for the TSPs, without which the network pipes would be virtually empty.”
It added that ‘same service same rules’ is a competition principle, but OTT services and TSP services are not part of the same relevant market.
“Consumers use telecommunication for basic voice and SMS services and OTT applications for rich interactive content and multiple features,” it said.
However, this line of argument faced opposition from the TSPs. Reliance Jio deemed the assertion that the principle of ‘Same Service, Same Rules’ does not apply because OTTs operate in a different layer as compared to licensed TSPs as “invalid.”
“Unified license (UL) granted under the Telegraph Act is required for both installation/maintenance of telecommunication networks as well as provisioning of communication services using such networks,” Jio said in its own submission. “Therefore, the UL is required for providing any or all layers of telecommunication which include the network layers such as physical network/internet and services layers such as voice, video and messaging.”
It added that any OTT service that enables one-to-one communication — whether voice-based, or video-based, or messaging-based or through file transfer — can be used by consumers in place of regular communication services offered by licensed TSPs and therefore have potential exposure related to national security and/or data privacy.
“Hence, in public interest, such OTT communication services should be brought under the licensing and regulatory framework by introducing a new chapter in unified license as UL (OTT Communication),” Reliance Jio argued.
Charging the consumer double
IAMAI, in its submission, clarified that its members Airtel and Reliance Jio have divergent views from those expressed by it. The association also expressed concern that the TRAI consultation paper floated the idea of a “collaborative framework” between OTT communication service providers and licensed telecommunication service providers that seems to “give substance to the… ill-conceived cost-sharing demands made by certain industry associations”.
The revenue-sharing mechanisms would essentially mean charging twice for the same service as consumers already pay TSPs for the data they consume, the industry body pointed out, adding that a part of this ‘fair charge’ will eventually be passed on to consumers, thus raising the cost of internet usage.
“It also goes against the net neutrality framework notified by the Ministry of Communications in 2018, which states ‘the network should be neutral to all the information being transmitted through it (and) all communication passing through a network should be treated equally i.e., independent of its content, application, service, device, sender or recipient address,” it argued.
It further stressed that it is not OTT players that “consume humongous amounts of bandwidth”, but consumers themselves who independently transact and purchase data from TSPs.
In its submission, another industry body, AIC, further explain that if TSPs are permitted to charge different rates to different OTT services — which could be based on a variety of factors such as the existing relationship with an OTT service, or whether these rates are contingent depending on the popularity of such service — then the principle of net neutrality becomes violated.
TSPs, it added, may also create revenue sharing exemptions for their own OTT services (especially given that most TSPs have ventured into the OTT space as well) and this can lead to concerns under both the principle of net neutrality, as well as competition law.
(Edited by Zinnia Ray Chaudhuri)
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