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MediaNama’s submission to TRAI on Free Data and Net Neutrality

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In case you missed it, the battle for Net Neutrality in India isn’t over yet. The TRAI has multiple processes in place, which collectively cover the areas explored by the regulator in the consultation paper on OTT Regulation, brought out on March 27th last year. The consultation processes taking place currently:
Free data consultation: A follow up of the Differential Pricing (Net Neutrality) ruling
Net Neutrality pre-consultation: looking at throttling and licensing of VoIP. This is likely to be followed by a Net Neutrality consultation.
VoIP licensing: exploring termination of VoIP calls on regular phone calling.

Apart from this, there are other consultations in progress: on Mobile TV, and cloud computing. Maybe we’ve missed listing some (or a dozen). Why is this important?

MediaNama, late last night, filed its submission with the TRAI on the issue of Free Data. In the submission, we’ve raised a concern that “The large number of consultation papers brought out by the TRAI in a short space of time, all related to issues of great concern to the Internet users, some of them related to issues that have already been addressed in previous consultations, makes it difficult for citizens to contribute meaningfully, and goes against the spirit of the process.

The TRAI needs to space out its consultation papers.

On the issue of Free Data

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We’ve raised two initial issues:

  1. We are concerned that some of the models which the TRAI has mentioned in this consultation paper might used to evade or bypass the Discriminatory Pricing regulations, in case they allow telecom operators to collude with content providers.
  2. We believe that the CECN ruling needs to be clarified by the TRAI, and that any replication of content or services, or provisioning of content or services available online on the CECN, needs to be prevented.
  • On free data, we believe that the telecom operators should not be in a position to give one content provider an advantage over another, nor should they be in a position to give their own products and services preference over others. This advantage can be by means of allowing giving of free data for consumption of some services over others. Telecom operators should not be allowed to offer free data for usage of specific websites or apps. Mobile Data and money in the telco wallet are telecom resources. Telecom operators have the ability to offer users, as incentive, unlimited data-back and unlimited cash-back for the usage of specific websites and services. Both these schemes would have the exact same impact as zero rating or differential pricing.
  • Reimbursement has the same effect as Zero Rating:
    • If a user has 100 MB data left for consumption. In a zero rating scenario, if a user uses the equivalent of 10 MB, she will be left with 100 MB, and the 10 MB is reimbursed as it is being used: i.e. for every byte used, a byte is given back immediately. In a data back scenario, if the usage is metered and the user is given 10 MB back, but after a short period of time, or upon completion of a target amount of usage. However, the effect is the same, and the user still has 100 MB. This means that the usage of that specific website has cost the user nothing in terms of data, and the usage is zero rated.
    • If a user has Rs 100 left in her wallet: In a zero rating scenario, if a user uses the equivalent of Rs 10, she will be left with Rs 100, and the Rs 10 is reimbursed as it is being used: i.e. for every paisa worth of data used, a paisa is given back. In a mobile telco wallet cash-back scenario, if the usage is metered and the user is given Rs 10 back, but after a short period of time or upon completion of a target amount of usage. However, the effect is the same, and the user still has Rs 100. This means that the usage of that specific website has cost the user nothing in terms of data, and the usage is zero rated.  
  • On Telco Agnostic Platforms: The TRAI needs to ensure that platforms which are used to provide data are truly agnostic. For platforms to be truly independent, the TRAI must not allow any form of vertical integration between a telecom operator and the platform. These platforms can have the same effects as the harms created by app specific Zero Rating. It is essential that neither telecom operators, nor a telco agnostic platform, nor a content provider is in a position to make access to a specific website, application or content for free: it gives disproportionate power over access to the entity enabling differential pricing.
    We’ve explained this in the submission.
  • Data as a reward model should only allowed be allowed provide data in a manner compliant with equal rating. No continuous or “trickle” rewards: If the data as a reward model for activities is allowed, there is a chance that some websites may abuse this system too: for example, a music service can calibrate data rewards to be the same as the bandwidth consumed for listening to a song. Thus, even such models may be scrutinized by the TRAI upon complaints.
  • The TRAI should also mandate telecom operators should not discriminate between subscribers of their data services, whether they are end users or platforms which purchase data recharges from them for rewarding customers. To that effect, individual recharges which are made available to platforms should also be made available to individual customers. As per the Licensing conditions: “The LICENSEE shall not in any manner discriminate between subscribers and provide service on the same commercial principle “
  • Prevent regulatory arbitrage: allowing platforms to tie-up with telecom operators to buy minutes in bulk from telecom operators is now a licensed activity, which VNO’s are allowed to do, along with other functions and activities. Also, while VNO’s are restricted to a single telecom operator or ISP for a particular type of service, the act of allowing unlicensed players to buy data in bulk, and across telecom operators, to provision an access service for users, may be seen as regulatory arbitrage.

We’ve also given extensive comments on CECN and submitted, once again, excerpts from our submission on Facebook’s Free Basics, given that the TRAI Chairman said that he wouldn’t have had an issue with Free Basics if it were to be allowed across mobile operators:

“Free Basics had essentially tied up with Reliance Communications. So, if you went through the Reliance pipe, these sites were free. If you went through the Airtel or Vodafone pipes, these sites were not free. It’s as though a shop in (Delhi’s) Connaught Place is giving discounts but to only those who come in a bus provided by Mr X. If you don’t come by that bus, no discount. That is not a good thing. If you give a secular discount, it is fine.” – RS Sharma, TRAI Chairman

Source: Business Standard

Please see our filing here

Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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