TRAI released the Consultation Paper on Regulatory Framework for Over-The-Top (OTT) communication Services (hereinafter ‘Consultation Paper’) on 12.11.18. The Consultation Paper seeks to understand whether there is a regulatory imbalance with respect to OTT communication services and services offered by Telecom Service Providers (TSPs). TRAI sought public comments on the Consultation Paper by 07.01.2019. The date for submission of counter comments is 21.01.2019. A brief analysis of the Consultation Paper along with NASSCOM’s response is given below.
- The scope of the Consultation Paper is limited to regulatory issues and economic concerns pertaining to such OTT services which can be regarded same as or similar to the services provided by TSPs.
- The Consultation Paper clarifies that the present consultation is not meant to revisit earlier regulations and recommendations which relate to other issues.
- The Consultation Paper seeks to mainly discuss:
- the implications of OTT services which are same as or similar to those offered by TSPs,
- the relationship between TSPs and OTT players, whether any change is required in the existing regulatory regime and the manner in which such changes (if any) should be implemented.
- The Consultation Paper invites comments on 9 specific questions.
The main question which the Consultation Paper seeks to address is whether OTT services and those offered by TSPs are same or similar. The question has implications for other concerns raised in the Consultation Paper such as whether there is a non-level playing field between OTT providers and Internet Platforms and Services, and consequently, whether there is a need to address the regulatory arbitrage between TSPs and Internet Platforms and Services.
NASSCOM has highlighted that technical differences along with the difference in services by Internet Platforms and Services, and those offered by TSPs make it difficult to classify services by Internet Platforms and Services as being same as or similar to services by TSPs. We have stressed that TSPs and OTT service providers are fundamentally distinct. TSPs provide the ‘network layer’ or the physical infrastructure to deliver data, whereas, Internet Platforms and Services operate the ‘service layer’ or the application operating over the internet.
TRAI has sought comments on the similarity of services based on whether communication forms a substantial or ancillary part of a service offered by Internet Platforms and Services. NASSCOM’s view is that with the internet at the centre of everything, communication has become essential to the functioning of any Internet Platform. Therefore, it is wrong to classify a service offered by an Internet Platform as similar to the service provided by a TSP based on the aspect of communication.
NASSCOM answered the question of whether regulatory imbalance is impacting investment into infrastructure in the telecom sector in the negative; there are numerous instances that telecom operators have in fact made huge investments in telecom infrastructure. Therefore, the question of investment in telecom infrastructure is best left to market forces.
On the question of interoperability between the services provided by Internet Platforms and Services and those offered by TSPs, NASSCOM’s response is that any requirement of interoperability should be left to market forces. Also, as there are negligible switching costs for consumers who want to use competing Internet Platform communication services, there is no need for mandating interoperability between Internet Platform communication services.
NASSCOM has highlighted that existing regulations under the Indian Telegraph Rules, 1955 and the terms of Unified Licences operated by TSPs already provide for lawful interception of messages transmitted on the TSPs’ network via Internet Platform applications. Therefore, there is no need of additional regulations to provide for lawful interception of OTT communication in national interest.
NASSCOM has submitted that imposing any obligation on Internet Platform communication service providers for providing emergency services might not be appropriate. The reason for this is that the last mile (broadband, wireless or fixed line) access to user is the enabler for any emergency service and this is not under the control of the Internet Platform communication service providers.
The response submitted by NASSCOM is attached.