To: Ms. Meenakshi Gupta
Acting Chairperson, Telecom Regulatory Authority of India (TRAI)
Mr Neeraj Mittal, Chairperson, Department of Telecommunications
Mr Rajeev Chandrasekhar, Minister of State of Electronics and Information Technology
Mr Ashwini Vaishnaw, Minister of Electronics and Information Technology
Regulatory mechanism for internet-based communication services and network usage fee: Civil society organizations, academics, and experts urge India to uphold net neutrality
We, the undersigned civil society organizations, consumer groups, academics, and experts represent a wide range of perspectives at the intersection of technology and society. We are writing to you to raise our concerns about the serious threats against the open, global Internet–and the opportunities it presents–posed by TRAI’s recent ‘Consultation Paper on Regulatory Mechanism for Over-The-Top (OTT) Communication Services, and Selective Banning of OTT Services’.
While TRAI has used the term ‘over-the-top’ or ‘OTT’ to describe internet-based services through the consultation paper, it is a misnomer. Services and platforms do not ‘free-ride’ on top of telecom companies’ infrastructure–they use the general-purpose internet. This open letter will refer to internet-based services as such.
If implemented, the following regulations could fragment the internet, undermine people’s rights, stifle innovation, and fracture the dividend that technology, digitization, and the open internet offer to hundreds of millions of citizens and the national economy.
- Online communication services must not be brought under a licensing regime
We believe there is no need to bring online communication services under a licensing or authorization framework. They are distinct from telecom service providers and must continue to be treated as such.
TRAI has not demonstrated or presented evidence of any market failure or lack of competition and innovation in online messaging to substantiate its claim that such a regulation would “promote a competitive landscape for the benefit of consumers and service innovation”.
The aim of licensing is to encourage responsible use of resources that are scarce in nature, which is why telecom companies which use spectrum are licensed. The internet, on the other hand, is a technology-neutral, general purpose network that does not use or depend on a scarce resource. The permission-less model of the internet fosters innovation and creativity, provides little to no entry barriers for new actors, presents freedom of choice to consumers, and offers secure communication channels that protect fundamental rights. A licensing framework will thwart creativity, present high barriers to entry and compliance, and undermine innovation. Start-ups and smaller businesses may not have the resources to obtain or maintain a license.
People benefit directly from new and diverse forms of internet-based communications which are possible only because of the openness of the internet. They are able to choose the manner in which they communicate (through text, audio, video or some combination), and are also afforded security and privacy. Licensing and authorization of internet-based services will hinder the ability of service providers to innovate and hurt people’s choices as consumers, the quality of their lives, and enjoyment of their rights as citizens.
Licensing online communication services will also result in services passing on costs of licensing to their customers. This means millions of people will no longer be able to afford and use such services, or will be offered low quality services, limiting their ability to exercise their fundamental rights to free speech and expression, assembly, and to carry on their profession or trade. Online communication services also provide users with innovation and security that enable them to communicate freely and safely.
- The application of the ‘same service, same rules’ principle to the governance of online communication services is flawed and misleading
Online communication services are not the same, or even substitutes for traditional telecom services. Given the inherently different nature of service between telecom and internet-based services, it is imperative that they are treated as two distinct groups of entities and regulated accordingly.
Telecom companies control the underlying internet access infrastructure, and are the gatekeepers to internet access. No one looking to access internet-based services can do so without paying a subscription fee to a telecom company. Thus, the argument that internet-based services ‘free-ride’ on telecom services is unfounded. Telecom services’ own customers pay telecoms directly to access the internet.
Telecom service providers also enjoy exclusive rights conferred upon them through their licenses, such as the right to acquire a scarce natural resource like spectrum, the right to obtain telecom numbering resources, and the right of way to set up infrastructure—all of which are privileges not enjoyed by internet-based services.
Internet-based services offer diverse options to individuals, as noted previously. One of the key innovations of internet-based communication services is the ability to send and receive end-to-end encrypted (E2EE) communications which are secure from any third party access, including service providers. E2EE is a technological advancement which allows Indians–including government agencies, health and financial service providers, journalists, whistleblowers, victims of abuse, and ordinary people–to enjoy a meaningful fundamental right to privacy. The structure of rules applicable to traditional telecom services, which are not capable of protecting the fundamental right to privacy in this way, cannot be applied to internet-based communication services without destroying people’s enjoyment of privacy and taking a technological step backward.
Such a move would also stifle innovation and the economy, undercutting India’s image as a leader in the IT sector, and the competitiveness of Indian companies internationally.
- Imposition of a network usage fee from internet-based communication services to telecom companies will harm the foundations of the internet
The proposal to introduce new obligations on internet-based services to pay telecom operators is in direct conflict with the model of networking on which the internet depends. This model implies that a network that wants to get connected to the internet has to make just one agreement with another network that has already achieved it. By this means, it will be automatically reachable by every internet user in the world.
Changing this model by introducing obligations to negotiate one-by-one contracts (thus replicating the telephone way of networking) is a step backwards. It will dramatically alter the fabric of the internet and will cause an irreversible fragmentation or splintering of the internet. This is a real threat to the internet as we know it and the success it has brought about in the country, as it will harm the existing competitive structure of the market, and the choices that are consequently available to people.
In 2017, TRAI itself recommended Net Neutrality principles, and emphasized non-discriminatory access to content, applications, and services on the internet.
- Selective banning of internet-based communication platforms damages net neutrality and rights
Selectively banning any communications services will discriminate among platforms, violating the principle of net neutrality by removing the assurance that people are able to enjoy equal availability of and access to all services. Blocking access to entire platforms distorts competition among internet-based services. Selective banning will also have a negative effect on people’s rights to free speech and expression, especially when they have relied upon particular communications services and have familiarity and ease of access to those services. The proposal does not provide any justification for banning access to entire services, which will have the same harmful consequences as an internet shutdown. Selective banning must not be permitted in the absence of any material to show its effectiveness, compliance with the principles of necessity and proportionality, and rule of law.
In light of the above, we urge the Telecom Regulatory Authority of India, Department of Telecommunications, and Ministry of Electronics and Information Technology to refrain from implementing the measures outlined above.
Article 21 Trust
Business and Human Rights Resource Centre
Center for Democracy & Technology
Center for Technology and Society at FGV
CIVICUS: World Alliance for Citizen Participation
Digital Empowerment Foundation
Digital Rights Watch (Australia)
Epicenter.works – for digital rights
Internet Freedom Foundation
IT-Political Association of Denmark
Open Net Korea
Software Freedom Law Center India (SFLC.IN)
The Bachchao Project
Academics and Technical Experts:
Dr. Konstantinos Komaitis, non resident fellow and senior researcher, The Lisbon Council; non-resident fellow, Tech and Democracy, DFRLab, The Atlantic Council
Mahesh Uppal, Com First