The Telecom Regulatory Authority of India (TRAI) has issued a consultation paper on “convergence”, where it explores the idea of a converged regulation and regulator, licensing/permission-based regulation for providing online services—all of which are archaic and outdated telecom operator driven ideas, and largely dead since the first decade of this century.
This paper also suggests a shift in the regulator from its own position of unbundling, and a separation of content from carriage. Just a few years ago, one used to hear from the regulator about the value that unbundling services from access services brings to consumers, and even of WiFi hotspot services being unbundled from Internet access service providers.
In doing this consultation, the TRAI also brings up concerns that it raised in the first Net Neutrality consultation in 2015, which was eventually scrapped: unregulated online services and the possible need to license online services; the need to control the quality of services of online services, the dominance of a few players online, and “same service same rules”. Both the Telecom Bill and the TRAI’s consultation paper on convergence suffer an apparent over-influence of telecom operator lobbyists, and a lack of understanding of how the Internet works.
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I’ll leave you with 10 points that I culled out from the consultation paper, and added my comments:
1. Permission-based provision of online services: Quoting the IT Act Section 6A about the Delivery of Services by a service provider, the TRAI suggests that “as it appears from the plain reading of this provision in the Information Technology Act 2000, the service providers using electronic means to deliver services must have the permission of the appropriate Government in accordance with the policy governing such service sector.” It adds that the policy and legal framework for delivering such services over the electronic means (Internet) remain ambiguous, saying that “there is an urgent need to review the existing policy/institutional framework in the country.”
My take: The TRAI seems to think that online services must get government permission to launch, as per India’s IT Act, and there’s a need to review the policy framework in the country so that this doesn’t remain ambiguous. If that were the case, then we might as well scrap the idea of Digital India.
2. Regulatory overlap and confusion: Different ministries are regulating different aspects of online services. This impacts ease of doing business “as the Industry is not clear as to who will prepare policies, give permissions and who will decide the regulatory framework.” This, according to the TRAI, “impacts innovation as the response time to exploit new technologies increases. Thus, ambiguous regulatory environment will negatively impact the investment sentiment.”
My Take: The TRAI seems to believe that lack of regulation and regulatory clarity about which ministry will regulate an online sector hampers innovation. This ignores the idea that much of the innovation online has been because of a permissionless environment.
3. Quality of Services for online services: “…Telecom is monitored for its performance as a part of the regulations, while cloud services are not subjected to the same or similar regulations. The un-noticed transition of services from regulated to unregulated domain and that too without appropriate considerations of impact of such transitions on the protection of the interest of the customers may be a matter of concern for the telecom sector.”
My Take: The TRAI seems to believe that services have moved from a regulated ISP/telco-controlled data center operation to a cloud-based one.
4. Same service same rules: There are Internet services which are operating in the same space as licensed telecom service providers. OTT communications services do not have to adhere to the same regulatory obligations as those from TSPs. Also, TSPs are saying that OTT communications services are grabbing their SMS and voice call business. Big Tech firms are saying that these are not similar services and should be regulated separately.
My Take: The TRAI is strangely non-committal here, playing he-said-she-said-that telcos say online services are the same as theirs; big tech says they’re different. It’s almost as if the TRAI has forgotten how its Net Neutrality consultations dealt with this issue, and there’s no such thing as institutional memory.
5. Impact of 5G: “5G will lead to the convergence of multiple sectors and critical sectors will no longer work in silos. This calls for convergence between various regulatory bodies/authorities so as to arrive at a consensus on multiple regulatory frameworks and different laws applicable to them.”
My Take: Telcos are saying that 5G will force multiple sectors to converge but no one at TRAI has bothered figuring out what this means, not even reading what Stanford professor Barbara Van Schewick wrote in her TRAI submission on Net Neutrality, or what she said during the TRAI’s own open house discussion.
6. Reworking regulatory structure for broadcast and television: There’s a gap between how television and broadcast are regulated, in terms of the different ministries that are regulating them, and the laws/regulations that apply. Department of Telecommunications (DoT) handles registrations/approvals for telecom, MIB for Distribution Platform Operators, MEITY has no process of registration /licensing or regulatory oversight over Internet services providing communication or subscription-based video on demand. There’s a need to revisit existing administrative and functional arrangements.
My Take: TRAI, it seems, can’t understand how broadcast is different from unicast, and how Internet viewing is a private medium (remember this?), and it wants to explore whether there is a need for a licensing framework to bring broadcast on par with unicast. The same rules can’t apply to broadcast and unicast, and television and streaming.
7. Expansion of definition of telecommunications services to include online services: TRAI says that there’s a need to further expand the definition of telecommunications services and clearly bring ITeS services also under its ambit. “Many of the regulatory powers are with various ministries thereby bringing convergence in governance all the more challenging”.
My Take: TRAI thinks licensed access services and online services are the same. It seems to believe that the Internet is a service provided by telecom operators and not an independent interconnection of networks across the globe.
8. Competition issues: That there is convergence because multiple services are available for a single transmission medium or the same infrastructure. The same technology can be used to offer multiple types of audio, video, text, image, and multimedia services. “It is pertinent to note here that, the convergence of services, networks and devices, and development of converged service delivery digital platforms have increased the risks relating to market concentration and winner takes all approach.”
My take: TRAI is worried that everything moving to the Internet (which it calls convergence) leads to an increased risk of market dominance.
9. Single converged regulator: “Having a fully converged regulator for ICT sector which includes the data privacy and cyber-security functions also would help in increasing the confidence of the international investors and facilitate faster rollout of the digital services in the country.”
My Take: TRAI thinks it’s a prudent idea for a single regulator to regulate everything on the Internet. Who needs specialised ministries with competence in their own sector anyway? Also, who needs a data protection regulator?
10. Single converged regulation: “Key considerations for developing a single code/ Act may be by consolidating the laws governing provision of communication services, development, establishment, operation and expansion of communication services, communication infrastructure and networks and management of communication resources and for matters connected or incidental thereto. For example, it may cover: Traditional Telecommunication Services, Broadcasting & TV Services, IP based communication services, OTT Communication/Broadcasting Services, Subscription/ User-id based Video on Demand services, Linear/ Live Linear Television Channels through various OTT platforms, Machine to Machine (M2M) Communication Services, AR/VR communication.”
Translation: TRAI seems to think that just because some services are licensed owing to the provisioning of spectrum for access (a scarce public resource), or permission to uplink and downlink, for some inexplicable reason, the same norms need to be applied to services that don’t license spectrum or uplink or downlink.
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