<div>The narrative on net neutrality and Over the Top (OTT) services has captured the imagination of a wide segment of India’s population, so much so that a consultation paper on ‘Regulatory Framework for OTT Services’ issued by TRAI on 27 March 2015 received over a million responses and comments from people. The recommendations of TRAI on this subject matter are expected soon. </div><div> </div><div>In a related development, a committee comprising of various stakeholders (like application providers, telecom service providers, civil society and multi - stakeholder advisory groups), constituted by the Department of Telecommunication (DoT) on 19 January 2015, to examine the issue of net neutrality, recently submitted its report in mid July 2015. It is expected that DoT will now take into consideration the DoT Committee report as well as the TRAI recommendation (as and when they are released) in formulating the policy on OTT services and net neutrality. </div><div> </div><div>The DoT Committee report seems to have acknowledged in letter the need for net neutrality. The concept of net neutrality, at its core, implies absence of any discrimination, by the telecom operators, against or in favour of, inter alia, any internet content(s) or application service(s). The report is noteworthy for suggesting that innovation in content and application services is as critical as the need to have a robust telecom infrastructure. </div><div>The DoT Committee recognized certain reasons which make traffic management necessary by telecom operators (such as in case of prioritising emergency services, to maintain security and integrity of network etc.). While blocking or throttling of online contents, applications and services for purely commercial reasons is unacceptable, it would only be reasonable to ensure that the telecom operators have sufficient flexibility to work towards providing robust and efficient network infrastructure and management. It is a known fact that the telecom operators across the world resort to internet traffic prioritisation in order to efficiently manage the network. </div><div> </div><div>What is critical is that these traffic management methods should not be used to derive undue advantage without justification inter alia adversely impacting the users’ internet freedom. The DoT Committee has therefore, recommended that only application agnostic management controls be permitted. The report supports the concerns of safeguarding the users’ right to access lawful content on the internet without the telecom operator having the ability to discriminate and recommends that OTT application services and OTT communication services dealing with messaging should not be interfered with. The DoT Committee has observed that the present regulatory framework does not adequately address the issue of net neutrality and till such framework is in place, a clause may be included in the license agreements to the effect that the telecom operators will adhere to the principles of net neutrality that are specified by DoT from time to time. In this regard one feels that the telecom operators would only help their cause by being transparent about their respective network management policies.</div><div> </div><div>The observation that not all zero rating plans are against net neutrality is interesting. The differential treatment for managed services to enterprise customers has also received a positive nod. According to the DoT Committee’s recommendation, each tariff plan (including zero rating) should be filed with TRAI for review before it is launched. This seems to be essentially intended to afford the telecom players a reasonable operational and commercial leeway after having been evaluated on the touchstone of the tangible benefits to the end users and its potential to contribute towards achieving greater internet penetration in the country, without compromising on the quality of the telecom services.</div><div> </div><div>The DoT Committee has recommended that domestic calls communication by telecom operators and OTT communication services may be treated similarly from a regulatory perspective. The nature of similarity and intricacies may be finally decided through public consultation and TRAI recommendation. However, in case of OTT VoIP international calling services, a liberal approach is recommended to be adopted. This recommendation to regulate only OTT calls (and not all OTT applications), seems to be a considered move, to bring about some semblance of accountability while also addressing the issue raised by the telecom operators of providing a level playing field for domestic telephony. It is unclear as of now whether the final regulations would also entail some fee implications for the OTT players.</div><div> </div><div>The views and recommendations of the DoT Committee are pragmatic and have been released after lot of deliberation and research. Many feel that this report is a harbinger of the much awaited regulations to govern OTT players although the haze around the exact scope and extent thereof would only clear up once the regulator comes out with the relevant policy guidelines. One feels that the proposed regulations to govern OTTs should be ‘soft’, aimed only at overcoming absolutely essential issues of quality of service, interception and monitoring in order to enhance customer experience. The objective should be to ensure that while the innovative spirit of OTT players is encouraged, telecom players should be adequately incentivized to invest in and enhance the existing telecom infrastructure. </div><div> </div><div>Given the clamour surrounding the issue, DoT should utilise this opportunity to move towards a regime which is technology neutral in the true sense of the word, keeping in mind the needs of all the stakeholders. A possible compromise could lie in creating a regime that encourages a fair revenue share amongst the relevant players of the internet ecosystem. Needless to say, DoT has an arduous task of striking a delicate balance between the needs of all the stakeholders viz., keep the telecom players adequately incentivised, ensuring innovative spirit of the content and application providers are intact and the larger social goal, of greater internet accessibility to the people, is achieved.</div><div> </div><div><em>The authors are Abhilekh Verma, Partner, Khaitan & Co. and Harsh Walia, Associate Partner, Khaitan & Co. </em></div><div><em>Disclaimer - The views of the authors are personal, and should not be considered as those of the firm</em></div><div> </div>
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