“Will the prospective regulator be able to manage convergence (bringing regulations under one umbrella)? Because it’s very complex” Amrita Choudhury, Director, CCAOI, said at an event organised by MediaNama on Internet Regulation, Convergence and TRAI on February 24, 2023.
She pointed out that the term ‘convergence’ has been discussed several times over the last few decades but it is not an end by itself. She recommended that it would be prudent to wait for various regulations (Telecom Bill, Data Protection, etc.) in the works presently, and then identify the gaps and plug them accordingly.
Choudhury was speaking at the session which dealt with issues of convergence, 5G, permission, quality of services, and regulatory overlap as discussed in the consultation paper released by the Telecom Regulatory Authority of India (TRAI) on regulatory convergence for broadcasting and telecom services.
The deadline to submit comments on the consultation paper has been extended to March 27, 2023, so you can share your feedback to Sanjeev Kumar Sharma, Advisor (Broadband and Policy Analysis), TRAI, on the following address: advbbpa@traLgov.in with a copy to jtadv- firstname.lastname@example.org
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Key takeaways from the discussion
Lack of clarity: Choudhury said that it would be better to harmonise regulations rather than try to converge them. She also said that the purpose of TRAI’s consultation remains unclear. “What are we trying to address?” she averred. Choudhury said that sectoral regulations ensure regulation of broadcasters (and OTT) so gaps can be addressed via harmonisation between rules. She added that no one has the capacity to manage such complex issues.
- She highlighted the fact that it is “difficult to digest” regulation of telcos and cloud services on equal footing. She said that cloud services fall under the ambit of the IT Act, 2000 so they are not unregulated.
Distinction between carriage and content: Choudhury elaborated carriage and content complement each other. “There is an argument given that telcos invest a lot to provide infrastructure on which the content providers have a free ride,” she said, adding that the need for data centres, CDNs, submarine cables, and other infrastructure, is met by entities which include OTT or content providers. She said that a comparison of costs revealed that 70 percent of it is borne by others and only 30 percent is borne by telecom operators.
Possibility for turf wars: “It is a good idea theoretically but it is difficult. We have different departments— MIB (Ministry of Information and Broadcasting) has already written to TRAI expressing their concerns about this paper. Will MeitY or MIB want to give their power to someone else? There are turf wars between departments, would we want that?” Choudhury cautioned.
No merging of functions: “Convergence is a technological construct. It is not that underlying functions have somehow merged because everything has become digital. For example, calling somebody on the phone is not the same thing as broadcasting something, getting financial markets online does not mean that financial services and telecom services have merged, and therefore there is some kind of reason to have a converged regulator,” Mahesh Uppal said, adding that an attempt to merge and include them under telecoms would be a “gross travesty”. He warned that convergence will lead to regulation of areas by people who are not competent, specialised and focused enough to deal with these issues.
Need for convergence: “It is true that I can provide broadcasting with my telecom infrastructure. It is also true that a broadcaster can provide some kind of telecom service because the infrastructure can be used to provide services that were traditionally not associated with that infrastructure. It doesn’t mean that the telecom regulator must regulate broadcasting. It does mean that the broadcasting part of telecom services needs to be regulated by a broadcast regulator,” Uppal explained.
Addressing issues around ‘same service, same rules’: “I will not hesitate to say that same service, same rules is regulatory fiction. It’s absolutely ridiculous to even argue this position, because if that was the case, you would not have competition regulation,” Uppal said. He elaborated that the need for competition law stems from the fact that entities providing the same service are not governed by the same rules if one of them has market power. “The idea that the same service should be regulated in the same way is a crude idea.” Uppal said. He clarified that new regulations are not needed for OTT (over-the-top) services but existing conditions that apply to telecom operators are just too strict. “They are too restrictive and need to change,” he recommended.
Are broadcasting and online streaming similar: “..there are at least three differences— (i) discovery is totally different in OTT and broadcasting, (ii) repeatability is there in OTT (iii) sachet pricing in OTT which is not possible or offered in broadcast services,” one of the attendees explained.
Primer on TRAI’s consultation paper
The paper issued by the Telecom Regulatory Authority of India (TRAI) deals with the issue of “convergence”, where it explores the idea of a converged regulator and regulation, 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”.
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