In this report, we outline what streaming services ZEE5, ALTBalaji and STAR India said about TRAI’s public consultation on the regulation of OTT services. OTT Service Providers are abbreviated to only OTTs in the report. Some of these points have been edited and paraphrased. Note: STAR India’s responses are at the bottom, since it chose not to answer all questions individually.
Q1: Which service(s) when provided by the OTT service provider(s) should be regarded as the same or similar to service(s)being provided by the TSPs. Please list all such OTT services with descriptions comparing it with services being provided by TSPs.
- OTTs are distinct from network providers like TSPs and ISPs, though some of the services by OTTs such as VoIP, video calls, text messaging, etc may overlap with TSPs.
- Any OTT platform/application cannot be offered to consumers without access to physical infrastructures that TSPs and ISPs deploy
- OTT service providers are heavily dependent on the TSPs. TSPs control the underlying broadband Internet access infrastructure and the delivery of OTT service to the last mile user by controlling Internet access and connectivity.
- it will be counter-productive to have licensing for communication applications and Internet platforms. In fact, due to low entry barriers, TSPs have an advantage over the online service providers.
- Any attempt to regulate OTT service providers when they are already in a disadvantageous position will result in a fragmented regulatory approach towards Internet as a sector.
- The suggested implementation of “same service, same rules” approach is highly regressive. It is best to steer clear of this approach.
- Adopting the Body of European Regulators for Electronic Communications (BEREC)’s OTT service might just enable and foster a healthy regulatory environment in the country.
- However, in adopting a broad definition, we also run a risk of overlapping of services, and service providers.
Q2: Should substitutability be treated as the primary criterion for comparison of regulatory or licensing norms applicable to TSPs and OTT service providers? Please suggest factors or aspects, with justification, which should be considered to identify and discover the extent of substitutability.
- Substitutability should not be treated as the primary criterion for comparison of regulatory or licensing norms applicable to TSPs and OTTs
- OTT service, as a product, has unique and distinguishable features, functionalities, purpose and content, making them not substitutable.
- OTT services and telecom services are, at best, complementary to each other. They cannot be substituted with or for each other.
- Substitutability between the services to justify regulation or licensing requirements for TSPs will hurt consumers and industry.
- It will create a new barrier to entry for both new apps and service providers by raising the cost of service provision, where low barriers to entry, the open nature of the Internet, and rich interactions and experiences that OTT service providers (including digital platforms and services and content providers) enable are key to the continued growth of the digital economy.
- Substitutability is an incorrect criteria, whether primary or otherwise, for evaluating need for any regulatory or licensing norms applicable to TSPs and OTT service providers.
- Substitutability may be treated as the primary criterion for comparison of regulatory or licensing norms as applicable to TSPs and on service providers. Due consideration must be given to the distinction between the inherent services, and the ones which are ancillary only to the primary business purpose.
- National Regulatory Authorities (NRAs) in Europe, state that the lack of substitutability is attributed to be lower quality and security; and, lack of interoperability among OTT voice services.
- This point of inadequate operability standards refer to the requirement for the caller and the recipient party to be subscribed to the same service.
- Surveys must be conducted to understand the perception of the end users, before any parallels are drawn between the relevant stakeholders.
Q3: Whether regulatory or licensing imbalance is impacting infusion of investments in the telecom networks especially required from time to time for network capacity expansions and technology upgradations? If yes, how OTT service providers may participate in infusing investment in the telecom networks? Please justify your answer with reasons.
- Regulatory or licensing imbalance is not impacting infusion of investments in telecom networks, especially for network capacity expansions and technology upgradation.
- There is absolutely no imbalance in the regulatory environment in the operation of OTT players.
- Areas relevant to OTT service providers are already regulated by the Information Technology Act and the Rules (including the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 and IT (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011) notified thereunder.
- OTT service providers help in growth of business of TSPs. A substantial part of data consumption on TSPs’ network happens due to usage of various OTT services. Consumers buy data packs from TSPs and use them to access various OTT services.
- This growth in data consumption is actually helping TSPs in recovering losses in voice call tariffs over the last few years.
- Any regulation or licensing regime players could hamper innovation in digital applications, and raise costs for consumers and the economy at large, instead of spurring investment.
- In enabling access to data plans, the TSPs have benefitted from the increased data consumption due to the explosion of services.
- However, with the amendment to the unified access service license, TSPs now are allowed to offer internet telephony, or VoIP service from applications developed by TSPs which is untethered from the underlying network.
- This enabled Reliance Jio’s2 adoption of the databased Voice over Long-Term Evolution (Vol TE) technology.
- Dropped voice tariffs have been replaced or added with data revenues
- It is best for the Government and the Telecom industry to work together to create a balancing environment for the TSPs to invest in the network infrastructure rather than seeking the OTT service providers to invest.
- TSPs should ideally not be allowed to ‘double dip”: they should not be allowed to collect payments for the same traffic from content provider as well as the end user.
Q4: Would inter-operability among OTT services and also inter- operability of their services with TSPs services promote competition and benefit the users? What measures may be taken, if any, to promote such competition? Please justify your answer with reasons.
- There is no question of interoperability of OTT services with TSPs
- There is also no discrimination as far as accessing any OTT service available through various TSPs is concerned. An end subscriber may use the network of any TSP of their choice to access content available on an OTT platform.
- Consumers can anyway shift from one OTT product to another without any significant cost impact. Hence, no regulatory measure to achieve interoperability is needed.
- Interoperability should be implemented and promoted.
- Non-interoperability among different on services may cause network effect with lock-in; where an on end user cannot exit from a particular service and opt for another, which may lead to a barrier to competition.
- To this effect, enabling standards must be brought to the fore, for interoperability to be an option available to the end users.
Q5: Are there issues related to lawful interception of OTT communication that are required to be resolved in the interest of national security or any other safeguards that need to be instituted? Should the responsibilities of OTT service providers and TSPs be separated? Please provide suggestions with justifications.
ZEE5: No comments.
- Government has the sovereign right to intercept communications for the purpose of maintenance of law and order, and national security.
- There is a need that regulations like the Code of Criminal Procedure, the Indian Penal Code, and the Information Technology Act and its different rules, be maintained as technology agnostic. Also, the upcoming Personal Data Protection Bill has further recommendations in the lines of the present.
- Further, in terms of traceability and transparency of data, the nature of internet ensures that a lot of data is collected tracked and mimed by on service providers that can be made available subject to requests from authorized Government agencies only.
- Therefore, there is no need for additional Act and regulations for security for the purpose of on service providers only
Q6: Should there be provisions for emergency services to be made accessible via OTT platforms at par with the requirements prescribed for telecom service providers? Please provide suggestions with justification.
ZEE5: No comments.
- The essential difference between OTTs and TSPs is the way the service is delivered.
Q7: Is there an issue of non-level playing field between OTT providers and TSPs providing same or similar services? In case the answer is yes, should any regulatory or licensing norms be made applicable to OTT service providers to make it a level playing field? List all such regulation(s) and license(s), with justifications.
- There is no issue of non-level playing field between OTT service providers and TSPs providing same or similar services as both OTT Providers and TSPs complement each other.
- The nature of the services provided by OTTs as well as TSPs are totally different.
- OTT providers require infrastructure from the TSPs to enable users to use their services. TSPs can provide OTT services at any time by starting their own OTT businesses. But, not vice-versa.
- There is no need for further regulation or licensing of OTT service providers.
- All the expected projections concerning OTT services will be affected with introduction of additional compliance requirements. There are provisions of law which regulate the OTT sphere.
- The OTT service providers are guided by self-regulatory mechanisms.
Q8: In case, any regulation or licensing condition is suggested to be made applicable to OTT service providers in response to Q.7 then whether such regulations or licensing conditions are required to be reviewed or redefined in context of OTT services or these may be applicable in the present form itself? If review or redefinition is suggested then propose or suggest the changes needed with justifications.
- No regulation or licensing conditions have been suggested in response to Question No. 7, and thus, no review or redefinition is required.
- As discussed above, legacy telecommunications regulations should not be automatically extended to online applications because of the fundamental technical and business differences between traditional services and apps.
Q9: Are there any other issues that you would like to bring to the attention of the Authority?
- The future of digital product offerings and growth of OTT services will depend on a robust environment which does not stifle technology based innovation and provide a competitive market environment.
- Low entry barriers for new entrants, minimal regulatory barriers and technological advancement will be the cornerstone of such growth of the sector for investments, innovation and consumer interest.
- Therefore, we urge the Authority that a policy of forbearance is best suited.
- There be strengthening of the sector with the implementation of self-regulatory mechanism only
- Should there be consideration of framing of new laws, it should be sector specific which applies only to the service layer
- Companies like e-commerce platforms, social media companies, should be enabled to operate without being subjected to the restrictions of a regulation.
STAR India’s Response to Consultation Paper on Regulatory Framework for Over-The-Top (OTT) communication services
Authority and jurisdiction
- It is our humble submission that TRAI does not recommend any further regulation than which already exists, nor seek to regulate OTT Communication Services as they are not telecommunication services.
- OTTs are not licensees under Section 4 of the Indian Telegraph Act, 1885, and hence TRAI does not have the authority under the Act (Telecom Regulatory Authority Act, 1997) to regulate OTTs.
- All internet companies are subject to the extant law of the land such as the Information Technology Act, 2000, Competition Act, Consumer Protection Act, intellectual property laws, to name a few.
“Substitutability” as the basis for regulating OTT ecosystem
- The consultation paper assumes certain applications of OTTs as substitutes to TSP services. This assumption appears unfounded and there is no discernible rationale in keeping with any existing legal criteria or technical parameters, such as those outlined in basic competition law on substitutability, for TRAI to have concluded so in the consultation paper.
Regulation to deal with privacy and security concerns
- Provisions under the Information Technology Act and the rules notified thereunder specifically address these concerns.
- These regulatory frameworks are reinforced by provisions of the Draft Personal Data Protection Bill, 2018
- Therefore, while the concerns may be valid, a framework for dealing with those concerns already exists under other legislations.