So it’s finally happened: the Telecom Regulatory Authority of India has brought telecom operators and marketers (not just Bulk SMS agencies) under the ambit of its SMS Spam regulations. This is a welcome move, and indeed, one we’ve called for repeatedly (see this from 2011 and this from last month). As per the new clauses added to the regulation, Telecom Operators will be fined Rs 5000 per complaint if SMS Spam is sent by a subscriber who is not registered as a telemarketer. The rationale here is that it is the telecom operators responsibility to verify the identity of the telemarketer, and there is still a financial incentive for telecom operators to allow Bulk SMS and spam, because of which a disincentive needs to be created. The TRAI has finally held the telecom service providers, the telemarketers and the entities that are engaging the telemarketers responsible for SMS Spam, saying that this new regulation “brings within their ambit the TSPs who provide bulk connections for modem farming for sending
of bulk UCC messages as also the organizations(principals) which engage unregistered telemarketers (as agents) for promoting the businesses interests of their principals.” The authority rightly points out that physical verification of subscribers is needed before the connection is activated, and bulk user premises have to be inspected by the TSPs at least once in six months.

Telecom operators will have to submit, by the 15th of every month, a list of all bulk SMS connections provided during the preceding month. Of course, this will create a situation wherein a telecom operator will be incentivised to not register complaints, but an independent setup should help.

On Customers Of Telemarketers

The other key development here is regarding customers of telemarketers. Typically, such messages have numbers to be called as a part of message. The TRAI has contended that these numbers belong to the clients of the telemarketer, and that in case of verified complaints, these numbers too must be disconnected, irrespective of telecom operator. For example, I received a message from +91-8867873297, and the message asked me to call either of two numbers to avail of the service being marketed: 9717889933 and 01143305933. Earlier, only +91-8867873297 would have been banned, but with this new regulation, both 9717889933 and 01143305933 will also be banned, after notices are served for the first and second complaint.

This is an excellent approach because if TRAI did not have a three-strike policy, it carried the risk of an unsuspecting entity not aware of the regulation being affected. I recently had a conversation with an exec from a firm that was using the transactional pipe for promotional messaging, and the marketer claimed that the telemarketing company had told them this was okay. Ignorance of the rules is no excuse, but two warnings should suffice. The TRAI rightly holds these organizations responsible, saying that “These organisations, being the principal are equally responsible for the non-compliance of the regulations and directions issued by the Authority to address the problem of UCC. It is the responsibility of these organisations (the principals) to ensure that the telemarketer engaged by them (the agent) for promoting their business either directly or through an intermediary follows all rules and regulations and if such organisation (the agent) fails in this responsibility, they (the principals) are to be held responsible for the acts and omissions of their agents.”