Are the DoTs Recommendations on Net Neutrality Merely Lip Service to the Principle?

Newsclick interviewed Prabir Purkayastha, Chairperson of Society for Knowledge Commons, on the recommendations on Net Neutrality by a committee of the Department of Telecom, Govt. of India. Prabir says that though there are positive elements in DoT report - for instance the focus on user rights - the DoT has failed to take a consumer centric position on two of the most crucial issues viz. Zero rating plans and the regulation of Over the Top Communication Services. On both these issues, the DoT has taken positions that in fact go against the analysis that the DoT itself provides in its report. The report is also short on particulars when it comes to the crucial issue of how regulations concerning net neutrality should be crafted. Prabir points out that historically licensing in telecommunication services has always been and should continue to be based on the technology used to provide the service rather than on the function of the service. This concept has been forgotten in the DoTs report. 

Rishab Bailey - Hello and welcome to Newsclick. The Department of Telecommunication (DoT) of the govt of India last week released the report, a series of recommendations on the issue of Net Neutrality. The recommendations which were arrived that after process of consultation with both Industry and civil society groups, presents rather mix bag of recommendations as far as the Net Neutrality is concerned. To discuss the report and the recommendations, we join by Prabir Purkayastha, editor of Newsclick and Chairperson of the Society for Knowledge Commons. 

Now the reports states that the DoT has vocally decided that the core principle of Net Neutrality must be adhered to. What are these core principles and what will this means for the average consumer? 

Prabir -  Well, the core principles should be that you don't block traffic which is legal which is what they have said, that you do not slow traffic of certain sites and you do not speed up traffic from certain sites. So no preferential treatment or no discrimination which is the underlying principle of Net Neutrality. Now while they give lip service to that, the question arises that the application of that we need to see and there DoT unfortunately, and this example is Zero rating services, which if you accept these as principle, then you should have also said, zero rating service violate Net Neutrality. That it doesn't say and in fact suggests the TRAI should deal with this issue and not this report. So I think between the promise of the principles, which is what it supports and what it finally arrives at, there is a huge difference. 

Rishab - The DoT has stated that while it could in theory, license all internet applications. It believes that there need to license only communication applications due to the possibility of the regulatory arbitrage. It then goes on to say that only domestic VoIP calls need to be regulated due to the pricing arbitrage possible viz regular telephony or voice service providers. Do you agree with this logic and doesn't this essentially violate the principles of Net Neutrality? In that, the recommendation now means that domestic VoIP can be legitimately regulated or throttled and so on and so for differentiated by an ISP, while the other types of internet traffic cannot. 

Prabir - Let us take a step back on that. The first is the confusion that the TRAI's consultation paper has raised, which had essentially said that everything offered on the internet is a service which can be considered as a communication service and can be licensed. Whether they accept this premise or not, DoT's report says that only those compete with the existing communication services should be or can be brought under regulation. So I think we have to give a little bit of; shall we say credit or discount, that at least they have left all other web services outside the orbit of regulation for now. Whether it should or shouldn't be is an another issue, I am not getting into that. The second part of it is the VoIP issue. Now till now we have actually licensed in communication, the method technically used for communication, rather than the functionality of the service. So when we talk about services, you have voice service, you have data services, you could also have also other services, like sms is a service which was lumped in voice services and put on the whats called the basic services. It was not put as a value added services as it thought of initially. So you get all these services which are not based on functions but which are based on technology, the principle under which it is being delivered. The voice been called the circuit switching that you get between the person who is calling and the person who is called, actually a physical circuit put together. However way it is put together is a different matter. And then you get the data services whats called data packets which have send, assemble and reassemble. You reassemble when you receive it. So this data packets on data services. Now it does not really discriminate as a data service, which you do not discriminate, whether it is voice, whether it is image or whether it is a simple data. 

Rishab - The DoT has stated that violate could license all internet applications. It believes that there need only license communication applications due to the possibility of regulatory arbitrage. This is a significant change from what TRAI has previously recommended. So do you agree with this?

Prabir - I think this is very, at least make lot of sense, that you only talk about regulating those services, which are in direct competition with the existing license holder's services so that also subset of the communication services. And other what was being described by the TRAI as Over The Top services and not communication services or not competing with any existing communication services, they should be kept outside the pale of regulations. So that makes at least logical sense because otherwise the whole idea of trying to license all services and websites is an absolutely the bogus one. I think the whole idea about - I think there are 175 Billion active websites- it doesn't make sense. 

Rishab - Wouldn't you have a similar problem when trying to define what communication applications are using. More, more convergence on internet in fact the report itself states that platforms that Youtube and Facebook are not communication applications when they quite clearly can be used even for your real time communication. So isn't this delineation of services is false?

Prabir - Let us go to the next one then. Is this delineation does make sense but at least to talk about not regulating others, whole world, I think at least is a doning of some good sense. It is true that there has been global discussions on whether services which are equivalent to other communication services, how should you deal with them, So I would agree that there at least some ground for discussions. Trying to regulate the whole internet doesn't have any sense. So I think to come out from that mad house which TRAI has made us enter. At least this is a positive issue. The question that you are raising, that can we really talk about also parsing the internet services into what is a communication services, what is not, is feasible. I think you are absolutely right that, the whole idea of the internet is that you have actually transmission of data packets. What this data packets do at two ends is not what the internet all about. Therefore trying to get into what kind of packets are going, essentially what it would constitute looking at, is it a voice over internet service, is it something else. So I think that itself is a problematic exercise and also it looks that what I would say is that the whole issue of regulation differently. Regulation till now has been technology specific one. You use a certain technology and then you license that. So in voice, it is a circuit switching, that you actually build a circuit between the receiver and the sender and that's how the circuit was established, thats the service. In the case of internet, what it works is a data services and it didn't really differentiate what kind of data it is using. So this whole idea of trying to create separate domain, in which you actually see what service it is doing, what is actually being done, all these are I think very problematic one. And it also against the grain of technology. In the long term, this is not viable because what is a Voice over Internet Protocol is built into any conferencing facility today and therefore how do you distinguish between a service provider-A, like Skype and any other conference service provider, there are n number of them. So this is entering into very uncertain territory. And long term, technically it doesn't make sense. So I would have said this straight forward; data service, voice service is all that you really need to do and unless there is an argument that the voice service is being pushed on in terms of revenue, this is the only argument that is being made, there is no evidence to show that the voice service is not actually making money. Infact they are making money. The telecom service providers has very good revenue situation and data services are booming. The revenue is also booming. 

Rishab - The report does in fact specifically states that the companies are making more than enough, revenue is growing 10% per annum despite the fact the so called substitution of voice by data, which actually takes me to my next question, which is that the report holds that only domestic VoIP need to be regulated due to the pricing arbitrage possible via incumbent telecom service providers. Now don't you think that this is violated the principle of Net Neutrality, in that the recommendation means that domestic VoIP can be legitimately differentiated from other types of traffic. And doesn't this impractically to rather absurd situation which is that international VoIP become free and that is something that is far more costly when you talk about the voice calls on via where domestic, domestic rates for calling are very very cheap. So substitution is likely to be far less when it is coming to domestic services. 

Prabir - I think Net Neutrality would not make the distinction between whether the packet is voice, data, something else; certainly not international or domestic. So in a fundamental sense, your Net Neutrality is violated by trying to talk about different kinds of data packets. So thats the first given. The second is, it is irrational to argue that local VoIP should be licensed, while international traffic should not be. It seems to be more pandering to middle class sentiments because you know that you would try to do it for long distance. You will get really a huge number of people being unhappy and you also know that those people are not going to make this voice calls. So I think that is sort of being expedient rather than anything else. The third is more fundamental problem. The telecom service providers, who have licenses whats call the Unified Access Service license, those people already have a provision for internet telephony. So when you talk about VoIP, it is really internet telephony. So they had the license to provide internet telephony in India, which they have not done. This is that amendment to the license made in 2006. So nine years after the license included the internet telephony, they did not offer a particular service. Now their voice services are to be compared to what is essentially different kind of service, which they hold the license and they did not actually implemented the license. So I think it's a huge issue that should they be penalised for not fulfilling the license terms and condition or should they be protected? And if there is a regulatory arbitrage; let us take for granted there is a regulatory arbitrage, then what is the arbitrage between? The internet telephony which they hold license and did not offer or between voice and VoIP? So I think it is interesting that the DoT has missed this element, that existing service providers have a license for internet telephony, which they are not extending as a service to the consumers and therefore they are actually short charging the consumer. 

Rishab -  You just did mention the issue of 'gate keeping' . Now the report actually speaks specifically about gatekeeping should not be permitted either by content providers or by service providers, telecom service providers. So how keeping that view that DoT finally dealt with the issue of Zero rating and will project like Internet.org or Airtel Zero, which you have heard so much about. will they be actually permitted hence forth?  

Prabir - Well, this is the strange part of the report. If you look at the content of the report, what it says on all this counts, it makes goody goody noises. It says Internet.org, it will be gatekeeping function by content providers, that's not good. It goes on said as you said that it should not be done by anybody, it should not be done by telecom ISP or by content providers and then it goes on to say let us refer this tariff plans including the zero rating plans to TRAI and we will not make the final principles on this which is complete cop out. Having said all that they did,  not to talk about Zero rating being a violation of A  - Net Neutrality, B-acting as gatekeepers, which DoT report itself says is not good, I think it is completely non-sense because if you say all those things, then you would follow it through, which they didn't. So I think that this report finally does not go beyond what TRAI really wanted. It was very clear. TRAI did it though in a very shoddy uphold, drafted the report, its main issue is really with zero rating and basically VoIP services. And on both these, DoT report is very similar to what TRAI is looking forward. 

Rishab - DoT itself has positioned this report as a win for Net Neutrality, as it listening to consumer and so on and so forth. Do you believe that there are any positive to take from that report then? 

Prabir - I will say there are still some positives. At least it says Net Neutrality as a principle is to be upheld. TRAI report you don't find any such things. In fact TRAI report said we don't know Net Neutrality how important it is for India. So it had laid completely open that should there be any Net Neutrality at all or not. At least this moved the debate that yes, Net Neutrality is good, now let us talk about what Net Neutrality is and what violates Net Neutrality. Thats a positive element. By limiting the scope of what regulation could be applied that is I think another positive. There are some other things it is talked about regarding privacy and other issue which I would say are positives. But on the substance issue of which controversy in the country on Net Neutrality, which is really the Zero rating plans on tariff order, this VoIP issues. On both these, unfortunately not gone any further than TRAI. 

DISCLAIMER: Please note that transcripts for Newsclick are typed from a recording of the program. Newsclick cannot guarantee their complete accuracy.