Feedback on TRAI CP on Regulatory Mechanism for OTT Communication Services & Selective Banning of OTTs

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Feedback on TRAI CP on Regulatory Mechanism for OTT Communication Services & Selective Banning of OTTs

Sudipto

@Sudipto

October 3, 2023

Public Policy

Nasscom submitted feedback on the recent Consultation Paper titled “Regulatory Mechanism for Over-The-Top (OTT) Communication Services, and Selective Banning of OTT Services”. The premise of the CP, is the back reference from the Department of Telecommunications (DOT) in 2022 where DOT had requested TRAI to:

1. Reconsider the ‘Recommendations on Regulatory Framework for Over-The-Top (OTT) Communications Services’ of 2020 (2020 Recommendations); and

2. Suggest a suitable regulatory mechanism for OTTs, including the issues relating to ‘selective banning of OTT services’ based on the 26^th report of the Parliament’s Standing Committee on Communication and Information Technology on ‘Suspension of Telecom Services/ Internet and its impact’ of December 2021.

Follow are our main recommendations to TRAI. For detailed recommendations, please see the attachment.

Disproportionate regulatory burden should not be imposed on OTTs as it can impede the virtuous cycle OTTs have contributed to in the data economy. Further, this can hamper consumer’s right to choose, raise cost of service, create entry barriers and scuttle innovation in the OTT market. The government should explore options to reduce some of the regulatory burden on the heavily regulated TSPs under the licensing framework. This would promote ease of doing business and the data economy of the country.

A market driven and organic collaborative framework already exists in India between TSPs and OTTs. Any regulatory framework/intervention for revenue sharing model like network usage fee between TSPs and OTTs should be avoided as it could violate the principles of net-neutrality, distort competition and can negatively impact the diversity of products, prices, and performance.

Attempting to contain all OTT services, digital services, and apps in a single definition cannot account for technological changes & will be too broad for any regulatory purpose. Therefore, ‘OTT services’ should not be defined.

OTT application can have multiple functionalities that are inextricably interlinked. Any attempt to delineate any of these features would be artificial and could lead to market fragmentation. Thus, there is no need for any classification of OTT services.

Certain obligations (as listed by TRAI in the consultation paper) vis-à-vis OTT providers are applicable only to telecom service providers (TSPs) because only TSPs own exclusive rights to use public assets like – spectrum, numbering resources, right of way and critical infrastructure. Whereas OTTs merely operate on the network layer of TSPs, and they are both technologically and functionally different from TSPs. Hence, the said comparison of obligations is not merited.

OTTs are regulated in the country under various laws – for example, Information Technology Act, 2000 (IT Act) and the Digital Personal Data Protection Act, 2023 (DPDPA), Competition Act, 2002and the Consumer Protection Act, 2019.

ISSUES RELATED TO SELECTIVE BANNING OF OTT SERVICES

Selective blocking of OTT services at the application-level (by OTT service provider or TSPs) does not appear to be practicable nor technically feasible.

The IT Act & Rules already contain comprehensive provisions to address security concerns, including blocking of information in emergency situations. The recently legislated DPDPA has provisions of blocking in the interests of public. There does not appear to be a case of additional regulatory framework for selective banning of OTT services under the current framework or any future law.
Selective banning of OTT services or platforms even for a specific period is likely to be counterproductive for consumers, small and medium scale business both in urban and rural sector who are dependent on these OTT services.

For further details on the above feedback, please write to sudipto@nasscom.in and vertika@nasscom.in with a copy to policy@nasscom.in.

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Sudipto