FSMI's Replies to 20 Questions of TRAI on Net Neutrality

Question 1:
Is it too early to establish a regulatory framework for OTT services, since Internet penetration is still evolving, access speeds are generally low and there is limited coverage of high-speed broadband in the country? Or, should some beginning be made now with a regulatory framework that could be adapted to changes in the future? Please comment with justifications.
Response:
A number of organisations had asked the TRAI to call for a consultations on net neutrality and its violations by the telecom operators. Instead, TRAI has come out with a consultation that promises that henceforth, all services - or at least the ones that compete with the telecom companies - is liable to be licensed.

As repeatedly noted by TRAI in its Consultation Paper, the use of online communication applications encourages the use of the Internet and associated services. This not only drives increased data use and therefore increased revenues for telcos but also meets an evident social need.

We believe that the regulatory framework along the lines suggested in the Consultation Paper to deal with 'OTT services' is not appropriate. Not only is the term defined in an extremely broad manner (thereby making any licensing system near impossible to implement), it is likely to severely affect not only the business of these companies but also will affect the usage by Indians of a variety of services that are available online.

There are clearly pressing reasons why TRAI must act to ensure that more and more people have access to Online Content. Over the last few years there have been more and more instances of incumbent telcos putting in place private arrangements that act to threaten the openness of the Internet and the ability of consumers to access the public Internet (an illustrative list of instances of violations are annexed herewith as Annexure - I).

Only about 10% of our population is connected to the Internet in any form and the quantity of people with access to broadband and high speed Internet is still abysmal. We therefore believe that there is a strong case to put in place regulations for expanding the network and protecting the openness of the Internet - in the form of strong protections of the principle of network neutrality.
Question 2:
Should the OTT players offering communication services (voice, messaging and video call services) through applications (resident either in the country or outside) be brought under the licensing regime? Please comment with justifications.
Response:
One of the great things about the Internet is that anyone can develop and provide a new service – the concept of permission less innovation is one of the key principles that has made the Internet what it is today. Licensing would kill this and must be seen as a retrograde step.

Licensing of online communication applications will increase barriers to entry into the market and therefore curtail innovation in the online sector and adversely affect Indian content and service providers. Such a move will also reduce competition in the online space and ensure that users do not have access to diverse applications and services. Any move to implement a licensing regime will only ensure the protection of incumbent companies, kill innovation and make the costs of entry into the business very high.

There are already hundreds of services providing one or another type of online communication – skype and gchat etc. may be the most popular ones, but it will prove practically impossible to license every application or service that allows real time text, audio or video, communication on the Internet. Any licensing framework must also raise the question of what happens to providers who may not be able to apply for licenses (either due to location or otherwise). Licensing any and all communication apps is practically unworkable. It effectively means asking all apps to be checked for whether it needs licensing before allowing them on the internet.
Question 3:
Is the growth of OTT impacting the traditional revenue stream of TSPs? If so, is the increase in data revenues of the TSPs sufficient to compensate for this impact? Please comment with reasons.
Response:
There is no evidence that the Telcos are suffering from a revenue crunch. The Airtle's profits have been more than Rs. 16,000 crore in the last 2 1/2 years. Their data revenue have grown by about 100% last year. There are similar figures for IDEAS, Vodafone etc. The high bids for spectrum also shows the healthy state of the telecom industry.

The TRAI consultation document shows that the revenue from international calling has fallen but has been more than made up by domestic voice and data services. Part of the reason is that international voice calling is still expensive, particularly compared to Indian voice costs. The infrastructure costs need to be quantified and whether the telcos revenues are sufficient or not should be concretised by TRAI before such questions are posed instead of making assumptions of the OTT services impacting TSP revenue. The question is whether the growth of data services is inadequate to pay for the growth of the network today.

Comparing SMS's on the voice networks to equivalent services such as WhatsApp is also misleading. Mobile services were originally designated as value added services, while voice on landlines was considered a basic service. With mobile services being merged into basic services, SMS services also became a part of basic services. The reality is that telecom companies offer SMS service -- what is essentially a data service – as a very high priced service. This high rate also penalises the lower-end users, who use basic 2G services; not the high-end users who have migrated to voice and data services and can use applications such as WhatsApp.

Instead of licensing WhatsApp or similar services, we should examine what the right cost of domestic SMS's today should be.
Question 4:
Should the OTT players pay for use of the TSPs network over and above data charges paid by consumers? If yes, what pricing options can be adopted? Could such options include prices based on bandwidth consumption? Can prices be used as a means of product/service differentiation? Please comment with justifications.
Response:
No. OTT players should not have to pay TSPs to use their networks over and above data charges paid by customers.

As explained previously, there is no evidence to show that TSPs revenues are being drastically affected due to the business of OTT players. In fact, TSPs revenues are increasing and are estimated to continue to skyrocket in the coming few years – largely on the back of increased data revenues. And these data revenues are being fuelled by what TRAI and telcos are calling as OTT services.

Such proposals are merely attempts to ensure that TSPs can gain super profits through multiplying their revenue sources.

Ensuring payment by OTT players to TSPs would increase regulatory compliance costs for all players in the online market thereby creating barriers to entry and inhibiting competition in the online ecosystem.

There is no basis for TRAI to attempt to regulate what users are doing using the Internet (in other words, there is no logic towards differentiating between different data packets based on content).

Pricing should not be a method of differentiating between products and services online. The Internet is what it is today due to the fact that all content is equally accessible and further due to the seamless interconnection between services and applications. Differential pricing for different content would completely destroy the Internet as we know it.

If it is argued that Telecos are not receiving enough revenue for investing in additional infrastructure required for OTT services, we would urge that other options to ensure adequate revenues for TSPs that can be explored. For instance, TRAI can regulate the interconnection rates between external networks that connect to the Indian networks. All Internet companies use their home networks to connect to their Indian consumers, as their servers are located in their home jurisdiction. Higher delivery charges from other networks would help in creating extra revenue for the Indian network operator or helping to locate their services in India.
Question 5:
Do you agree that imbalances exist in the regulatory environment in the operation of OTT players? If so, what should be the framework to address these issues? How can the prevailing laws and regulations be applied to OTT players (who operate in the virtual world) and compliance enforced? What could be the impact on the economy? Please comment with justifications.
Response:
It is unclear why TRAI is treating the services provided by telecom providers on par with those provided by OTT players. Telecom players carry data packets or voice – and do so irrespective of the content thereof. Given the two provide vastly different services – there is clearly a different regulatory regime for each.

That said, it is important to note that any service or application available on the Internet in India already needs to comply with Indian laws including under the Information Technology Act, the Indian Penal Code etc.

Given that all over the top players will provide services through a telecom player, the government will clearly have access to the necessary communication data from over the top players, should it be required. The Government or security agencies are also free to utilize existing law such as under the Criminal Procedure Code and relevant court procedures to require information and documents pertaining to an investigation to be produced.

Licensing of OTT players is not the way to try and ensure compliance with Indian laws. Such a move would only act to curtail innovation and affect user experience on the Internet.
Question 6:
How should the security concerns be addressed with regard to OTT players providing communication services? What security conditions such as maintaining data records, logs etc. need to be mandated for such OTT players? And, how can compliance with these conditions be ensured if the applications of such OTT players reside outside the country? Please comment with justifications.
Response:
As mentioned previously, any service or application available on the Internet in India already needs to comply with Indian laws including under the Information Technology Act, the Indian Penal Code etc. Licensing of OTT players by TRAI is not the way to to ensure compliance with Indian laws. In effect, it will be almost impossible to differentiate between different kinds of services and which ones need to be licensed.

There is no need for a specific regulatory regime to be brought in with regard to OTT players. Given that all OTT players must necessarily provide their services using a telecom network, the Government of India can legitimately access communications through these points. The Government may call for records of telecom companies, seek information from them about data and can intercept and monitor traffic per provisions of the Information Technology Act. In the premises, there is no requirement for any additional steps to be taken.

TRAI's concern is also that telecom players need to invest in order to meet security compliances. If the argument for bringing in all Internet (OTT services) under a licensing regime is an economic one, there should be data to show that telecos are losing money. Given that they have healthy growth of revenue, the economic argument does not hold. In any case, the cost of meeting security considerations is a very small fraction of telcos total investments and cannot be an argument for introducing licensing of all applications and services on the Internet because of it.

It may also be noted that addressing multifarious and unnamed security concerns in the context of the Internet is not specifically under the mandate of TRAI.
Question 7:
How should the OTT players offering app services ensure security, safety and privacy of the consumer? How should they ensure protection of consumer interest? Please comment with justifications.
Response:
All Indian laws such as those relating to privacy, consumer protection etc. are applicable to online services and applications accessible in India.

While there is clearly a need to update privacy legislation in India, this falls outside the mandate of TRAI, particularly given that the Government of India is presently seized of a Privacy Bill.

Further, implementing any licensing system (or indeed failing to adequately protect the principle of network neutrality) may/will likely involve ISPs having to constantly conduct deep packet inspection so as to determine the content of data travelling over its networks - thereby leading to additional privacy concerns for users. "In particular, the use of DPI generates privacy concerns, as data about a users' behavior on the Internet (which will often include sensitive data) is monitored and used for various purposes, such as traffic management or advertising."[1] The ITU also recognizes that "At the moment, the most important technology for traffic management is deep packet inspection (DPI). DPI equipment inspects the content of packets travelling over an IP network to identify the application or protocol that is in use, which is done by examining the source and destination IP address, the packet payload and the port number of the packet. DPI has become widely deployed because it allows for a relatively fine-grained discrimination among the applications running on an IP network, which allows an ISP to manage traffic at the level of the individual subscriber."[2]

It may be noted that this was one of the main reasons for the Netherlands to pass net neutrality regulation after it emerged various telecom companies such as KPN[3] and Vodafone[4] were indulging in deep packet inspection for the purpose of blocking user access to specific services (such as VoIP).
Question 8:
In what manner can the proposals for a regulatory framework for OTTs in India draw from those of ETNO, referred to in para 4.23 or the best practices summarised in para 4.29? And, what practices should be proscribed by regulatory fiat? Please comment with justifications.
Response:
The ETNO proposals suffer from serious problems. It's proposal to have a QOS for senders based on payments would need changing the existing network protocols, apart from being a violation of net neutrality. We therefore oppose all such proposals.

While in general we do not agree with the ETNO proposals, we would like to point out that there are serious issues with the existing interconnection charges between various ISP's which penalise the smaller players. This is because the ITU no longer decides on interconnection charges between various players, as it earlier did. As a consequence, the interconnection charges are decided by private negotiations between players. The big network players have formed a cartel and imposed a regime by which big players do not pay each other, but all the small players have to pay in order to interconnect to the big players. By this, the interconnection costs today are being carried exclusively by the small network operators.

The problem of companies such as Google and Facebook generating heavy traffic could be addressed not by trying to license such operators but through interconnection charges by which sending network could be made to pay. These companies are on their home networks and use their networks to send data packets to other networks. Otherwise, we have a system by which only the small networks today pay – the internet operates on a receiver network pays principle.

Given that most traffic originates today from the bigger networks to smaller networks, a receiving party pays principle adversely effects to global south.

TRAI can take two steps to correct this. One is impose charges for all networks that connect to the Indian one such that some of the costs of network expansion, interconnections, etc., are passed on to the networks that originate a large amount of traffic. The second is to ask the GoI to take up the issue of network interconnection charges in the ITU.
Question 9:
What are your views on net-neutrality in the Indian context? How should the various principles discussed in para 5.47 be dealt with? Please comment with justifications.
Response:
Our current Internet is, generally speaking, built on the principle of paying Internet service providers a subscription fee for freedom to go wherever you want on the Internet. Users do not pay more for accessing one website in preference to another, and all content is equally accessible. It also allows anybody to connect to the Internet and offer applications or websites to anybody on the Internet. This is the space that would be lost if we allow discrimination – violations of net neutrality - on the Internet.

This ensures a diversity of online applications and services i.e. the presence of competition in the online world, protects emerging and smaller players in the online market place and ensures improvement of Internet infrastructure as well as equitable access to technical development. Maintaining an 'open Internet' is vital to consumers and innovators and TRAI must therefore step in to put in place strong network neutrality regulation.

The idea is that a public information network must treat all content, sites and platforms equally. This allows the network to carry every form of information and support every kind of application.[5]

Internet Services Providers (ISP's) are licensed to provide data services - they transmit data packets generated by the users, or more precisely, users' computers. What is in the data packets is treated as content - video, audio, text or pure data -- and generally not subject to telecom regulations. That is why we do not need a license to create a website, provide a service through the internet or provide an app for use on computers, tablets or mobile phones. These are not regarded as telecom services but as content.
Net neutrality laws prevent users from being restricted to certain specific content determined by commercial agreements between content providers and access providers. Such agreements restrict consumer choice, competition and plurality in the online space.
The possibility of making private arrangements for speeding up or throttling traffic by an access provider acts as a disincentive towards expansion of infrastructure and creation of more bandwidth for users. It is in the access provider’s interest to limit the total bandwidth available so as to create an artificial scarcity of bandwidth and extort higher price – extracting monopoly rents by virtue of the scarcity of the resource. Not only does this affect the customer – who may end up paying higher rates for lower speeds and lower quality of service, but it can also result in anti-competitive practices in the market. In fact, research demonstrates that it is actually more efficient to upscale capacity than put in place of so-called traffic management measures that violate network neutrality. [6]
Packages for specific content or a limited Internet are sold as "Internet packages" - which is clearly a case of misleading consumers. The use of packages called Internet.org is an obvious example.
The principle protects smaller content providers who will not be able to pay access providers to have their content delivered on high-speed lanes or to the limited Internet platforms. This is particularly important in the case of a developing country like India - where the amount of content created domestically is still very low, and must compete with content provided by more established foreign players.
Without net neutrality, those who pay control what we see and what is shared online. Without net neutrality there will be an Internet for the rich and an Internet for the poor.
The principle is an anti discriminating principle and prevents the emergence and consolidation of vertical monopolies in the Internet economy - a cartelisation of big telcos teaming up with big Internet monopolies.
Some Traffic management practices are a violation of privacy rights. "In particular, the use of DPI seems to generate prima facie privacy concerns, as data about a users' behavior on the Internet (which will often include sensitive data) is monitored and used for various purposes, such as traffic management or advertising."[7]
At the root of the issue of net neutrality is the issue of how the Internet is viewed – is it seen as a public utility (much like say, electricity) or as a club good (like say cable television). Given the numerous benefits of the Internet – towards development, promoting social and economic justice, information dispersal and transparency, it could be argued that the Internet must be treated as a public utility. It could be seen as being essential for a full exercise of one’s citizenship rights – in particular given the plans of the Government of India to ensure multiple channels of service delivery over the Internet.

The argument is that it is better to have free/cheap access to a limited selection of content than no access at all. This argument is particularly prevalent regarding ‘zero rating agreements’ such as Facebook's Internet.org project. However, it must be kept in mind that this provision of free access is not to the Internet, but to a limited array of services and content. This will create a cartel between telcos and big Internet monopolies and freeze others, particularly small palyers out of the market.

In this context it may also be noted that 6 countries have banned zero rating deals in view of their affect on competition and plurality of media on the Internet. These include Canada[8], Chile[9], the Netherlands[10], Slovenia[11] and Norway[12].

Given the numerous benefits of an open Internet and having seen the need to ensure a competitive and free online space – numerous countries have put in place laws to maintain network neutrality.

In India, in general violations of the principle of network neutrality are of three types:
Throttling: traffic management practices are commonly used by access providers in India, though often these are discriminatory, arbitrary and at any rate, lack transparency.
Agreements between content providers and access providers for preferential access to specific content (cheaper access, exemption from data caps etc): there are numerous examples of tie-ups between content providers and access providers whereby certain content is provided at reduced rates or is not counted towards data cap limits by the access provider to the user.
A general lack of transparency in so far as services of access providers are concerned, as illustrated by the numerous instances of service providers offering specific content / service as ‘Internet’ access.
(See Annexure - I for an indicative list of violations of the principle.)

The most commonly seen violation appears to be of ISPs seeking payments from content providers for:
providing higher speeds to specific services / throttling other services;
permitting differentiated data plans for users (for instance company x may offer an ISP a certain sum of money to ensure that data caps do not apply to its content). Zero rating agreements are also increasing in popularity as seen by the launch of services such as Internet.org and Airtel Zero. These ensure a customer is provided free access to a limited array of services of content (as opposed to the Internet itself).
In this context it is also worthwhile referring to the TRAI Consultation Paper dated December 2006, on "Review of Internet Services" where dealing specifically with the issue of Net Neutrality in paragraph 3.6. , TRAI specifically recognises the importance of the principle of net neutrality (to preserve competition in the online marketplace). The authority notes the various violations of this principle reported in the context of the United States and therefore concludes that anti-competitive practices as seen in the US market may also be seen in India "as Internet access providers may use their market power to discriminate against competing applications and/or contents".

Given the ol>various violations of the principle of network neutrality seen in India (an indicative list of which is annexed herewith as Annexure - I), we believe that at the minimum, TRAI must put in place regulation that ensures:
A prohibition on discrimination of data packets except in specific, strictly construed and narrowly defined circumstances (possible exceptions could be for emergency services and for genuine traffic management and security / network management reasons - though the scope of these exceptions must clearly defined).
Specifically however, no blocking by TSPs and ISPs on specific forms of internet traffic, services and applications must be permitted.
No slowing or "throttling" internet speeds by TSPs and ISPs on specific forms of internet traffic, services and applications.
No limiting of number of web sites offered under any plan.
No preferential treatment of services and platforms by TSPs and ISPs.
A prohibition on deep packet inspection (for the purpose of applying discriminatory traffic management practices);
Provisions mandating greater transparency in the provision of services to a user and preventing false advertising;
Prohibition against any measures taken by a service provider to limit use of any specific hardware / end point devices.
Mandating minimum quality of service.
 
Question 10:
What forms of discrimination or traffic management practices are reasonable and consistent with a pragmatic approach?
Response:
Implementation of traffic management practices should, generally speaking, be in the form of an exception as any such practices violate the principles of network neutrality and can lead to unethical practices being followed by service providers. As a general rule no discrimination should be permitted on the Internet.

In exceptional cases, telecom companies should seek the permission of TRAI or other competent government agency through public hearing to carry out “traffic management” to ensure transparency in the entire process.

In the event any traffic management principles are indeed required, the onus must be on the service provider to justify the need to carry out the specific practice. Further, it should be kept in mind that such steps shouldn’t interfere with the access, affordability and quality of the services.

In any event, traffic management must not be used for commercial reasons or applied arbitrarily (i.e. inconsistently across services and applications). There must be serious network security related concerns that should necessitate the implementation of such practices.
What should or can be permitted? Please comment with justifications.
Response:
While it is not possible to list each and every possible traffic management practice – each must be seen in context and a determination made as to the necessity of implementing such a practice for network security and functionality reasons vs. the costs to users (in the form of restricting consumer choice etc). Traffic management must be restricted to cases of fighting spam, denial of service attacks, preventing computer viruses and the like rather than differentiating between services or applications on the Internet, particularly for commercial or business reasons.

TRAI must look to ensure that competition is protected in the online economy and at the very least it must ensure that traffic management principles are not applied arbitrarily to a an application / service or a type of service / application. Therefore all traffic or network management must be reasonable, proportionate and must be used only if tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the Internet access service. No degradation or restriction of specific services should be allowed except in limited circumstances as previously mentioned.

The comments of the EU Council of Ministers Committee on Net Neutrality is instructive in this regard where they mention “exceptions to this principle should be considered with great circumspection and need to be justified by overriding public interests”.[13] In this context, and given this consultation relates largely to online communication applications and services, it is also relevant to note that BEREC has opined that blocking VoIP over a mobile network is unlikely to be legitimate from a congestion management perspective. Although the bandwidth required for a VoIP call is roughly 25-30% greater than required for a traditional circuit switched call, and so some capacity is necessary to accommodate VoIP calls, BEREC considered that this use takes up only a small fraction of capacity on the network and so is unlikely to result in a level of congestion that would require traffic management.[14]
Question 11:
Should the TSPs be mandated to publish various traffic management techniques used for different OTT applications? Is this a sufficient condition to ensure transparency and a fair regulatory regime?
Response:
As noted by the BEREC in its Guidelines on Net Neutrality and Transparency: Best practices and recommended approaches,[15] "transparency regarding net neutrality is a key pre-condition of the end users’ ability to choose the quality of the service that best fits their needs and also should reduce the asymmetry of information existing between providers and end users, fostering proactive behaviour by Internet Service Providers (ISPs)…At the same time, we underline that transparency alone is probably not sufficient to achieve net neutrality, since other factors also have to be taken into account…".

A fully effective transparency policy should fulfill all of the following characteristics: accessibility, understandability, meaningfulness, comparability and accuracy.

In addition to traffic management practices, TSPs must also disclose performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings. TSPs must disclose all promotional rates, all fees and/or surcharges, and all data caps or data allowances. They must provide specific notification to consumers that a "network practice" is likely to significantly affect their use of the service.
Question 12:
How should the conducive and balanced environment be created such that TSPs are able to invest in network infrastructure and CAPs are able to innovate and grow? Who should bear the network upgradation costs? Please comment with justifications.
Response:
It has been recognized (ITU included) that net neutrality regulation acts as an incentive for TSPs to invest in infrastructure rather than violate net neutrality and raise extra money from the Internet service providers.

In this context it is also worthwhile noting that all major TSPs in India make large profits and therefore certainly have the ability to invest in infrastructure. Given that revenues are only expected to increase (including on account of increased data usage) there is no reason for TSPs not to invest in infrastructure growth.

For instance, in just the last two and a half years, Airtel has earned Rs 141,545 crore in revenues, and Rs 16,211 crore in profit. This is as against estimated investments of Rs 140,000 crore over a 20 year period. Even if we compute a small increase in the quantum of profits, the profits alone will be many times that required for the investments to upgrade the infrastructure. If the revenues for Airtel are calculated extrapolated over a twenty year period, it can be seen that the return is more than sufficient to enable a profitable business.[16]
Question 13:
Should TSPs be allowed to implement non-price based discrimination of services? If so, under what circumstances are such practices acceptable? What restrictions, if any, need to be placed so that such measures are not abused? What measures should be adopted to ensure transparency to consumers? Please comment with justifications.
Response:
Discrimination of services in any form is detrimental for the growth of the telecom and online industry and there should be no general circumstances for a telecom operator to do so. Given the diverse nature of the Internet, telecom operators should not be allowed to determine what type of service should get more priority. Transparency alone will not bring about a fair regime for users, and it is crucial that TSPs be prohibited from discriminating between services.

The use of traffic management practices and any discrimination of services must also be strictly on an exceptional basis - for clearly defined reasons relating to network functionality and security.
Question 14:
Is there a justification for allowing differential pricing for data access and OTT communication services? If so, what changes need to be brought about in the present tariff and regulatory framework for telecommunication services in the country? Please comment with justifications.
Response:
There is no justification for differential pricing between data and OTT services. All OTT services are essentially data services and therefore the attempted differentiation by TRAI is completely incorrect. Such attempts to differentiate would involve Deep Packet Inspection and potential for invasions of privacy.

Customers should not be differentially charged on the basis of the type of Internet services they are accessing.
Question 15:
Should OTT communication service players be treated as Bulk User of Telecom Services (BuTS)? How should the framework be structured to prevent any discrimination and protect stakeholder interest? Please comment with justification.
Response:
No basis for this differentiation. See arguments re licensing.
Question 16:
What framework should be adopted to encourage India- specific OTT apps? Please comment with justifications.
Response:
TRAI needs to put in place strong principles to protect network neutrality to ensure that India specific content and applications are created. Failure to do so would only lead to existing (foreign) players continue to enhance their already sizeable market shares as they will be able to enter into commercial agreements with telcos to ensure their services are provided at a priority.

An example is the case of zero rating by various applications and services. Zero rating of Facebook for instance ensures that users are driven to this particular application at the cost of its competitors.

Putting in place strong net neutrality regulation will ensure that India continues to have a diverse app economy where entry barriers are minimal and entrepreneurs can launch their product without having to worry about discriminatory treatment from the telecom operators.

As mentioned previously putting in place a licensing framework would only increase the barriers to entry to the online market – which is due to its very nature prone to monopolization (due to things like the network effect, the bundling effect etc).
Question 17:
If the OTT communication service players are to be licensed, should they be categorised as ASP or CSP? If so, what should be the framework? Please comment with justifications.
Response:
OTT communication players must not be licensed for the reasons mentioned previously. Requiring licensing of online services and mobile apps under the current telecom framework in India will have enormous negative consequences. The impossibly onerous burdens imposed by such licensing would results in many such globally developed services and apps not being launched in India - and our own startup efforts to develop local versions of such apps being killed in their early stages. The net results would be decreased consumer benefit and a massive slowdown in innovation due to the regulatory cost of doing business becoming very high.
Question 18:
Is there a need to regulate subscription charges for OTT communication services? Please comment with justifications.
Response:
Again, this is akin to licensing and the arguments against such a practice are same. See –- for this.
Question 19:
What steps should be taken by the Government for regulation of non-communication OTT players? Please comment with justifications.
Response:
There is no need to put in place a licensing regime to implement Indian laws in the context of the Internet or indeed take any regulatory measures to specifically regulate communication or non-communication OTT service providers on the Internet.

That said, India does need to ensure that strong privacy protections etc. are put in place. This must be done through the route of legislation and the Government of India (not TRAI) must take up these issues at the earliest.
Question 20:
Are there any other issues that have a bearing on the subject discussed?
Response:
None
Annexure - I: Indicative List of Violations of the Principle of Net Neutrality in India
Provision of faster speeds for specific services / exemptions from data caps or fair usage policies / throttling of certain services and content: Agreements that allow users access only to specific content: There are numerous instances of service providers providing specific packages that enable access to only limited parts of the Internet – for instance only Facebook or Youtube or that enable cheaper access to specific content.
 
Bharti Airtel offered preferential (fast) Internet access for people watching the Indian Premier League on Youtube in early 2010. Airtel’s customers could use an upgraded speed of 2 Mbps to view the cricket tournament on Youtube’s IPL channel. This offer of faster speeds was not applicable to any other content accessed by the customer.[17] Google however denies any agreement with Airtel for provision of such preferential services.
It appears that various other service providers have also made similar offers. BSNL is reported to have offered to double the bandwidth speed to facilitate watching the IPL on youtube. It is however unclear if the increased speed would apply solely to youtube or to other websites as well.[18]
In June 2013, RCOM partnered with partnered STAR Sports to offer unlimited live streaming of the ongoing ICC Champions Trophy 2013 tournament on STAR Sports mobile site to its subscribers.[19]
Reports indicate that some ISPs (such as Airtel and BSNL) throttle certain P2P applications during peak usage times.[20] It is reported that in the first quarter of 2011, Bharti Airtel throttled 8 per cent of the BitTorrent traffic on its network. The percentage slowly increased throughout the year, increasing to 33 percent in early 2012. BSNL has reportedly blocked 9 percent of its Bittorrent traffic in 2011 and YouBroadband blocked over 50 per cent in 2009.[21]
Numerous service providers, notably Airtel, have instituted Fair Use Policies that throttle Internet speeds (by significant amounts) once a predetermined data cap is reached. It is argued that by controlling access speeds, they will limit the amount of data that users have access to (and consequently the type of services or websites the users can access).[22] Further, these Fair Usage policies may not apply to specific services or websites - as in the case of Airtel’s Fair Use Policy - which does not apply to BigFlix powered Airtel Movies (where a user will therefore have access to unlimited movies on this one service). Similarly, Vodafone offers a music streaming service which offers unlimited music downloads, once subscribed[23] and it appears MTS India offers a similar package for its movie services.[24] Hathway Cable has started a movie service called Broadband Movies which is exempted from its Fair Usage Policy.[25] Certain ISPs are also reported to have entered agreements to exempt specific Internet TV sites from their Fair Use Policies.[26]
Tata Docomo entered into agreements to have special Youtube, Apalya Mobile TV (live TV streaming services) and Saavn (an online music streaming service) plans[27] as well as agreements with WhatsApp for unlimited use of its services.[28]
Similarly Times Internet’s video on demand service BoxTV has tied up with Spectranet Broadband to offer free subscriptions, operator billing and improved data limits for Spectranet’s fibre customers. "Spectranet is essentially encouraging customers to use BoxTV by providing free dedicated Internet usage data to stream movies on the service."[29]
Airtel charging pre paid mobile users more for access to VoIP services such as Skype and Viber.[30]
Tata Docomo has put in place pay per site plans that charge customers depending on which websites they visit.[31]
MTS has reportedly offered packages where its customers can browse certain selected websites for free (such as Yahoo India, Yahoo Mail, Wikipedia, Makemytrip, shopping.indiatimes.com and Cricinfo.com.).[32]
Content providers (such as Whatsapp[33], Google[34], Facebook[35], Twitter[36] and Wikipedia[37]), trying to push for acquiring mobile usage of their services, are tying up with telecom operators, where, sometimes, users get unlimited bandwidth for that service[38] or are given access only to those specific services / websites.
Google has reportedly entered into a deal with Airtel wherein all Google services were available for free to Airtel’s Internet subscribers.[39] Facebook has a similar deal with Reliance Comunications[40] as does WhatsApp.[41]
Airtel has also entered into deals with Facebook to allow its services for free in 9 regional languages.[42] Uninor has announced deals with Facebook and WhatsApp to offer these services at specially discounted rates.[43] Vodafone has an agreement with Twitter where its users get free access to the site.[44] Twitter has similar agreements with Reliance and Airtel.[45] Wikipedia has partnered with Aircel to offer free access.[46]
In April 2013, RCOM and Twitter entered into an agreement[47] where Reliance’s customers could get free Twitter access for 90 days.
In June 2013, Airtel partnered with Google to launch Free Zone service that will offer Airtel subscribers with free access to Google services such as Google Search, feature phone friendly version of Gmail and Google Plus.[48]
Airtel has announced plans to provide free Internet services to consumers for a limited period, which will allow users access to specific websites / content / services such as Facebook, Youtube, Snapdeal, Makemytrip and Twitter. Airtel will then offer specific content based plans once the free period expires (for instance, per day usage of Facebook at INR 1).[49]
Uninor, the Indian wing of Norway's Telenor, charges 50 paise for an hour of usage of Facebook, while pricing a day's Whatsapp use for Re 1.34[50]
There are various examples of Zero rating – all of which are uncompetitive and breach the principle of net neutrality. The most egregious are Facebook’s Internet.org project where Facebook has tied up with Reliance Communications to provide a limited array of about 30 websites/services for free, and Airtel’s ‘Airtel Zero’ which similarly provides free access to a limited array of content (based on which content providers pay Airtel to do so).
[1] Angela Daly, ‘The Legality of Deep Packet Inspection’ (June 2010), 8 cf http://www.itu.int/IT-UD/treg/Events/Seminars/GSR/GSR12/documents/GSR12_...
[2] Net Neutrality: a regulatory perspective, GSR 2012 discussion paper , International Telecommunication Union.
[3] http://blogs.wsj.com/tech-europe/2011/05/12/kpn-admits-to-using-deep-pac...
[4] http://www.nu.nl/internet/2498984/vodafone-blokkeert-diensten.html
[5] Wu, T (2003) ‘Network Neutrality, broadband discrimination’, 2 Journal on Telecommunications and High-Tech Law 141.
[6] It may be noted that even the Canadian traffic management practice regulations specify that such practices cannot be at the cost of investment in infrastructure and capacity building.
[7] Angela Daly, ‘The Legality of Deep Packet Inspection’ (June 2010), 8 cf http://www.itu.int/ITU-D/treg/Events/Seminars/GSR/GSR12/documents/GSR12_...
[8] http://news.gc.ca/web/article-en.do?nid=926529
[9] https://gigaom.com/2014/05/28/in-chile-mobile-carriers-can-no-longer-off...
[10] https://gigaom.com/2015/01/27/dutch-and-slovenian-regulators-nail-carrie...
[11] https://gigaom.com/2015/01/27/dutch-and-slovenian-regulators-nail-carrie...
[12] https://gigaom.com/2014/11/18/pro-net-neutrality-norway-advises-carriers...
[13] Declaration of the Committee of Ministers on network neutrality ,Council of Europe
[14]See BEREC, ‘Differentiation Practices and related competition issues in the scope of Net Neutrality’, BoR (12) 31, 29 May 2012, 49, cf. Net Neutrality: a regulatory perspective, GSR 2012 discussion paper , International Telecommunication Union.
[15] BEREC Guidelines on Net Neutrality and Transparency: Best practices and recommended approaches, BoR (11) 44, October 2011,
[16] http://www.medianama.com/2014/12/223-a-response-to-airtels-statement-jus...
[17] https://gigaom.com/2010/03/25/youtube-caught-in-net-neutrality-flap-in-i...
[18] http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/article743...
[19] http://www.medianama.com/2013/07/223-wikipedia-partners-aircel-to-offer-... and http://www.medianama.com/2013/06/223-rcom-star-sports-live-streaming/
[20] https://broadbandforum.co/threads/airtel-violates-net-neutrality-again-w... and https://campusdiaries.com/stories/how-indian-isps-are-already-fighting-n...
[21] http://www.thehindu.com/sci-tech/technology/internet/isps-slam-brakes-on...
[22] http://www.medianama.com/2009/03/223-airtel-to-moderate-user-broadband-s...
[23] http://www.medianama.com/2014/06/223-india-net-neutrality/
[24] http://www.medianama.com/2014/08/223-mts-movies/
[25] http://www.medianama.com/2014/07/223-hathaway-eros-now/
[26] https://broadbandforum.co/threads/airtel-violates-net-neutrality-again-w...
[27] http://www.medianama.com/2014/07/223-tata-docomo-youtube/ and http://articles.economictimes.indiatimes.com/2014-07-07/news/51133653_1_...
[28] http://www.medianama.com/2013/12/223-tata-docomo-whatsapp/
[29] http://www.medianama.com/2014/01/223-boxtv-carrier-billing-for-spectrane...
[30] http://blogs.economictimes.indiatimes.com/et-citings/airtel-shouldnt-cha...
[31] http://www.medianama.com/2013/12/223-tata-docomo-whatsapp/ and http://www.tatadocomo.com/pps-tariff-plans.aspx
[32] http://www.medianama.com/2010/04/223-mts-mblaze-net-neutrality-mobile-in...
[33] http://www.medianama.com/2014/05/223-whatsapp-airtel-50m-india/
[34] http://www.medianama.com/2013/06/223-airtel-partners-google-to-offer-fre...
[35] http://www.medianama.com/2012/10/223-facebook-starts-offering-free-talkt...
[36] http://www.medianama.com/2013/07/223-twitter-vodafone-india/
[37] http://www.medianama.com/2011/10/223-size-zero-wikipedia-looks-to-telcos...
[38] http://www.medianama.com/2014/06/223-india-net-neutrality/
[39] http://www.medianama.com/2014/03/223-de-coding-indian-intellectual-prope...
[40] http://www.medianama.com/2014/01/223-airtel-facebook-free-hindi/
[41] http://www.medianama.com/2013/12/223-tata-docomo-whatsapp/
[42] http://www.medianama.com/2014/01/223-airtel-facebook-free-hindi/
[43] http://www.medianama.com/2014/03/223-uninor-facebook-whatsapp/
[44] http://www.medianama.com/2013/07/223-twitter-vodafone-india/
[45] http://www.medianama.com/2013/07/223-twitter-vodafone-india/
[46] http://www.medianama.com/2013/07/223-wikipedia-partners-aircel-to-offer-...
[47] http://www.medianama.com/2013/04/223-reliance-free-twitter-access
[48] http://www.medianama.com/2013/07/223-wikipedia-partners-aircel-to-offer-... and http://www.medianama.com/2013/06/223-airtel-partners-google-to-offer-fre...
[49] http://timesofindia.indiatimes.com/tech/tech-news/Airtel-to-woo-data-use...
[50] http://timesofindia.indiatimes.com/tech/tech-news/Airtel-to-woo-data-use...