Refer net neutrality to Competition Commission

Responses to violation of net-neutrality will highlight our values on non-restrictive practices and free markets.

NEUTRALITY

In just 10 days net-neutrality has become a household word. Neutrality is not a technology idea, it is an ethical idea. It emphasises that access is not unfair, unjust, restricted or monopolised. Protecting neutrality shows the values of a society and the character of business. Neutrality is a non-negotiable to deliver justice and fairness. It is a principle for minimum government.

Almost everyone recognises the absurdity of altering the access, speed or tariff based on the website, service, content or media you consume on internet. It is not only unfair but also unjust, restrictive or monopolistic to do so. Almost everyone would recognise this is just as absurd as your cab wanting to charge you differently to go to work or home, for entertainment or shopping. Almost everyone would be angry if their milkman demanded a different pricing for milk used for tea, for making ice-cream or for milkshake. Would you think it is fair if your bank were to charge you a different fee to pay your phone bills, book air-tickets or to pay for your holiday? Would you think it fair and unrestrictive if your newspaper were to give you zero plans for paid-news? Neutrality is not restricted to a domain, it cuts across domains.

The responses to violation of net-neutrality will highlight our values on fair play, justice, non-restrictive practices and free markets. It will highlight the character of our governments and businesses in not only the digital world but also the physical world.

RESPONDING TO ­VIOLATIONS

Sadly, the reputation of TSPs (telecommunications service providers) after moving from 2G spectrum scam to zero-scam, has taken a huge beating. With it the reputation of the Telecom Regulatory Authority (TRAI) also took a beating.

Citizens responded to the zero-scam with a huge outcry of over 300,000 emails to TRAI and by some reports possibly more than 800,000. The hashtags #netneutrality and #savetheinternet spread virally on social media. Print media wrote many column centimetres and launched campaigns in support of net neutrality. TRPs of news channels shot up as they launched campaigns supporting net neutrality. Clearly, internet users were not pleased with TRAI's failure to protect public interest.

Rahul Khullar, chairman of TRAI, is a 1975 batch Union Territory cadre IAS, who was the private secretary to then Finance Minister Manmohan Singh between 1991 and 1993, before taking up an economist's post in the Manila-based Asian Development Bank. During the NDA regime, he took up various assignments in the Delhi government, and then in May 2004, joined the Union Commerce Ministry as a joint secretary. Khullar is a batch-mate of R. Chandrashekhar, A. Raja's Telecom Secretary during the 2G scam and currently the industry representative as NASSCOM's president. Khullar has reportedly described the citizens' response as a big corporate war between a media house and a telecom operator.

The present telecom minister, Ravi Shankar Prasad (@rsprasad), has already been accused by the Aam Aadmi Party (AAP) of having a conflict of interest with telecom companies. AAP has produced receipts of the minister allegedly receiving retainer fees from Reliance group company Fine Tech Corp Pvt Ltd, between April 2013 and March 2014, when he was a member of the Joint Parliamentary Committee on Telecom. It is surprising that the minister did not recuse himself from the charge of this ministry given his leanings to telecom that are already public knowledge.

Furthermore, instead of referring the matter to the Competition Commission (@CCI_India), the minister took to maximum government by announcing a six-member committee to submit a report on net neutrality by mid May. The minister neither divulged the composition of the committee, the Terms of Reference for the committee, nor offer any immediate response on the part of the government.

Mark Zuckerberg, whose internet.org was among the earliest to violate net neutrality, defended the violation by arguing that net neutrality prevents access of the internet to the most disadvantaged in society. He has avoided pointing out that internet.org offers 38 websites of his choice, not the internet or websites that the disadvantaged would choose themselves to gain advantage from.

Clearly, the government and TSP responses are inadequate and not even the right thing to do. They leave a lot to be desired.

THE WAY FORWARD

The most common reaction is to ask for new laws. Do we really need yet another legislation to deal with neutrality?

The Consumer Protection Act, 1986 (CPA) restricts telecom companies from engaging in unfair and deceptive practices. It prevents falsely representing the 38 websites as the internet or zero plans as free access. It prevents representation that the internet plans have sponsorship of the World Wide Web Foundation or are as per the standards of internet defined by the WWW Foundation. It prevents misleading representations concerning the need for, or the usefulness of, the internet for the disadvantaged. It prevents materially misleading the public concerning the price at which internet is ordinarily sold. It prevents providing false or misleading facts about apps or web services.

CPA also prohibits restrictive trade practice. It prohibits raising the cost for some websites to reach out to the world causing unreasonable costs to consumers to access these sites. It further prohibits plans that would require a consumer to buy, hire or avail of any services as condition precedent to accusing the entire internet. CPA also prohibits manipulation of prices, or conditions of delivery or supply of the internet in such manner as to impose unjustified costs or restrictions on the consumers of internet.

Consumers can file complaints with the consumer court against violating TSPs and ISPs (internet service providers) as they can against anyone violating neutrality in a different space already.

The Competition (Amendment) Act, 2007 prohibits any agreement to produce, supply, distribute, store, acquire or control services, which cause or are likely to cause adverse effect on competition within India. It also prohibits any agreement to produce, supply, distribute, store, sell or price, or trade with a tie-in arrangement, exclusive supply agreement, exclusive distribution agreement, restrict to whom services are sold or from whom services are bought, resale price maintenance if such agreement is likely to cause adverse effect on competition in India. It also prohibits unfair or discrimi ry price or condition in purchase of the internet and its services. It prohibits TSPs and ISPs from using their dominant position as TSPs and ISPs to enter into, or protect, other markets like e-commerce, e-banking or other internet based services.

Instead of forming committees, the government should refer the matter to the Competition Commission to investigate the TSPs and ISPs, if the Commission has not taken suo motu cognisance already.

Under the Prevention of Corruption Act the exercise of influence to favour private interest constitutes an offence. The government should call for investigation by the CAG and CBI of the gross violation of public interest by those who are required to protect it.

ENSURING MINIMUM GOVERNMENT IN DIGITAL INDIA

When net-neutrality was threatened in the United States, President Barack Obama himself took a stand and did all he could to ensure net-neutrality was not compromised.

Violation of net-neutrality is looting India of its entrepreneurship, innovation and digital future. It is excluding India from the internet.

Prime Minister Narendra Modi (@narendramodi and @pmoindia) needs to assert the character of his government by stepping in and referring the matter to the Competition Commission, CAG and CBI. He needs to assert that his government stands for fairness and justice.

The then Prime Minister Manmohan Singh's failing was his silence on matters where his voice mattered the most. If UPA has become synonymous with scams it was because of Dr Singh's silence as the nation watched the loot of the country by private interests.

PM Modi has to show that the NDA is different and not only speaks but acts in public interest. He should immediately reconstitute the TRAI and the Ministry of Telecom and IT to incorporate those who are not burdened with private interests, better still with those who represent and promote public interests. The PM needs to assert that Digital India cannot be a collection of initiatives driving private interests. Digital India has to ensure minimum government and serve the public good. He has risen to many challenges, will he use this to assert fairness and justice?

First published at: http://www.sunday-guardian.com/investigation/refer-net-neutrality-to-competition-commission

Read more...

Net Neutrality: Will Modi act to save the internet in India?

The heart of Net Neutrality debate is simple. It is not the pipe, but that which moves through the pipe, that creates value. Will the 'digitally empowered' Modi government apply its mind to the issue?

In a country where the Prime Minister is using every social media platform to reach out to his people and crying out aloud about his intention to empower every Indian through digital initiatives, his government is working very hard to do everything to kill digital India. Minister Ravi Shankar Prasad’s Ministry of Telecom and the Telecom Regulatory Authority of India (TRAI) has put aside public interest and Prime Minister Narendra Modi’s call for “minimum government” in how people access the internet on the issue of “Net Neutrality”. 

 

The internet is a network of networks linking billions of devices, including all your computers and mobile phones to those of others across the world. However, the TRAI in an amazingly creative initiative, in a consultation paper on Regulatory Framework for Over-the-top (OTT) services released on 27 March 2014, is redefining the internet as over-the-top (OTT) communications, OTT media, e-commerce, internet cloud services, social media and web content. The TRAI, left to itself, plans to slice up these into individual parcels and license and  regulate the internet. This means TRAI and the telecom industry want to favour one kind of content or media over the other on the internet.

 

The internet industry has grown because it has remained agnostic to the media and content consumed by its customers across the network. This unique property of the internet was first described by Prof Tim Wu as net-neutrality. Net-neutrality enabled a symbiotic relationship between those who produced content and media with those who merely transmitted it. Had the internet chosen to be parasitic to content and media creators by censoring, throttling or restricting the media or content transmitted through it, it would not have grown to the extent it has today. 

 

To consider content and media creators as customers is confusing the Business Model. Content and media creators cannot be customers of internet service providers (ISPs) and telecommunications service providers (TSPs). Rather, they ought to be partners who help them grow the internet.

 

The Business Models

 

Telecommunications service providers or TSPs and internet service providers- ISPs offer access to internet to those who pay them subscriptions. At different costs, subscribers can gain faster access to any media or content on the internet. Suscription plans provide you choice to access “unlimited” content or media or restricted by a volume per month. However, your choice of speed already restricts the maximum volume you may consume per day.

 

For those of us who have low budgets, there is a plan of slower speeds and restricted volume. For those who needed the speed or larger volumes, there are pricier plans. For many of us, internet has become a way of life, and we have different plans from different service providers to match the needs to access internet across our multiple devices from laptops to mobile phones. For many, who barely use internet, affordable access at cybercafes or on mobile phones is all that is needed.

 

The internet access has penetrated across India slowly but steadily as it brought value to those of us who consume it. The value has come from the content and media that various devices connected to networks on the internet have to offer. This value has been the nectar that attracted us to the internet. It is not the pipe but that which moves through the pipe that creates value. Just as access to anyone you wish to speak to being at the other end of the phone and not the phone line that creates value. 

 

Just as your use of Gmail brings business to Google, or your posting videos brings revenues to YouTube or your profiles on social media sites earns them revenues, the content and media on internet created by developers of various websites creates revenues for the TSPs and ISPs. Those who created this value have therefore, caused the internet to grow. If the number of websites on the internet is caused to shrink to a few dozen or even a few thousand, the internet will lose almost all of its value. 

 

The business model of ISPs and TSPs offers the value of internet to us by creating and delivering net-neutral access to the internet. To ensure revenues beyond the costs, they can either offer internet access to the few, who pay huge subscription costs or offer the value proposition to the many, who pay small or nominal costs. Those creative and entrepreneurial ISPs and TSPs, who want to build the internet and increase the market pie, might even consider offering free hosting of content or media much the same way as Gmail offers free email. Those subscribing to access the internet would more than adequately compensate their costs for this.

What happens when ISP’s and TSP’s fail to recognise their customer, what value they offer them, or what is their business model itself? What happens when the ISPs and TSPs fail to recognise the content and media creators as their partners to grow the internet?  Such ISPs and TSPs, who either are misadvised or have become greedy, will kill the goose that lays golden eggs, by providing access to a few websites rather than to the internet as a whole. The offering of internet.org or Airtel Zero in India is exactly like this. They promise free access to sites of their choosing under the guise of digital inclusion. 

What they are doing is killing the internet, site by site and ensuring the digital exclusion of India from the internet. They are ensuring that the websites they exclude will no longer be able to reach out to their audiences in India or in fact anywhere across the world.  They are ensuring that the goose that laid golden eggs for them as well as the rest of the economy is destroyed in one stroke.

The Law and Public Interest

It is strange that Minister Ravi Shankar Prasad, a distinguished lawyer himself, has missed to see the ISP’s and TSPs violating the provisions of the Monopolies and Restrictive Trade Practices Act, 1969 (MRTP) and the Consumer Protection Act, 1986 (CPA).

 

Restrictive trade practice under Section 2(1)(nn) of the MRTP means any trade practice, which requires a consumer to buy, hire or avail of any services as a condition precedent for buying, hiring or availing of other goods or services. Any requirement to make any payment to any TSP, ISP or any other intermediary in order to allow your website to become accessible to all on the internet on equal terms constitutes restrictive trade practice. Any requirement to make any payment to any TSP, ISP or any other intermediary in order to view any website of your choice on equal terms is also restrictive trade practice.

 

Unfair trade practice as defined in 36A of the MRTP and 2(r) of THE CPA. Unfair trade practices include: 

★ false representations that the services are of a particular standard, quality or grade; 

★ representations that services have performance, characteristics, uses or benefits which such services do not have; 

★ representations that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have; 

★ false or misleading representations concerning the need for, or the usefulness of, any goods or services; 

★ materially misleading the public concerning the price at which services, have been or are, ordinarily sold or provided, permitting the sale or supply of goods intended to be used while knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods; 

★ refusing to sell the goods or to make them available for sale or to provide any service, if such refusal is intended to raise, the cost of those or other similar goods or services. 

 

Making representations of “free” or “zero” internet plans when providing a boutique of websites are unfair trade practice. So is providing a few websites while creating misleading representations of providing internet access or about the utility of the free plans is also unfair trade practice. Display of “internet” in the domain name (internet.org, for example) when the organisation neither owns nor administers the internet is unfair trade practice. Offering websites knowing they are not the internet or slicing up the internet based on content or media, knowing that such does not comply with the standards placed by the World Wide Web (WWW) Foundation or the founder of the WWW, Tim Berners Lee, is also unfair trade practice. Refusing to sell the full internet knowing well that such refusal will raise the cost of internet packages is unfair trade practice.

Section 2(1)(g) of the CPA provides that, “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be maintained by or under any law for the time being in force or has been under taken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

Promising the internet and delivering a few sites is deficiency. Claiming net-neutrality and providing differential pricing, speed or access to different websites is deficiency.

Telecom service providers in India and now the TRAI with them are in violation of fair trade practices. 

 

Public interest would be protected, as per the Monopolies and Restrictive Trade Practices Act, 1969, if the ability of the public as purchasers, consumers or users of the internet is protected. Public interest would be protected when no unfair terms of supply or schemes that prevent or restrict competition are allowed. Public interest is protected when it is impossible for private interests, either alone or in combination with any other such persons, to control any part of the market for internet based goods or services.

 

What should be done?

 

The government should be slapping the MRTP and Consumers Act on both TRAI and those TSPs and ISPs indulging in monopolistic or unfair trade practices. It should be reconstituting the TRAI and the Ministry of Telecom to incorporate those who are not burdened with private interests, better still with those who promote public interests. It should initiate an audit by the Comptroller and Auditor General (CAG) and an inquiry by Central Bureau of Investigation (CBI) into the serious compromise of public interests by the regulator who should have upheld the public interest. 

 

As consumers of the internet, you should file a consumer complaint with the District Consumer Forums in your district. State in your complaint what service you consume from your service provider. Use the description above to identify and specify the unfair trade practice, a restrictive trade practice and the deficiency in service provided by your TSP/ISP. If you would like to ensure fair practice of being able to access any website on the internet on equal terms or to be able to make your website be visible to anyone in the world without any restriction, it is time for you to stand up to the unfair trade practices of the TSPs and ISPs.

 

When net-neutrality was threatened in the US, President Obama himself took a stand and did all he could to ensure net-neutrality was not compromised. 

 

You can reach Minister Ravi Shankar Prasad on twitter @rsprasad and by email at ravis@sansad.nic.in. If you are moved to report to the Prime Minister, his twitter handle is @narendramodi and @pmoindia. Help the Prime Minister to protect his dream of digital India.

First published: http://www.moneylife.in/article/net-neutrality-will-modi-act-to-save-the-internet-in-india/41198.html

Read more...

Maximum government, death of digital if TRAI has its way

Just as the internet spread across the world at its own developmental rate, it is important to allow it to spread across India at its own developmental rate.

The internet is a network of networks linking billions of devices, including all your computers and mobile phones to those of others across the world. Tim Berners Lee, the man who invented the worldwide web believes that the value of the internet is in the ability of anyone to communicate with anyone using any media and any content.

To the Telecom Regulatory Authority of India (TRAI), the internet is over-the-top (OTT) communications, OTT media, e-commerce, internet cloud services, social media and web content. To the TRAI, you can slice up these into individual parcels and licence and regulate them, while still having an alive, vibrant and valuable internet. According to TRAI, doing so would be in the public interest, and an example of "minimum government". If they were to have their way they will slice up the internet by content and look at ways they can licence and regulate it. In a consultation paper on Regulatory Framework for Over-the-top (OTT) services released on 27 March 2014, the TRAI, a body responsible to uphold public interest, argues that overwhelming content is burdening the private telecom service providers (TSP), who provide you access to the internet on your mobile phone. TRAI also argues that OTT applications and services are not subject to the same licensing that the TSPs are subject to.

PROTECTING PRIVATE INTERESTS

This strange love for the TSPs makes one wonder who the TRAI serves. No TSP provides access to the internet out of charity. If the recent spectrum auctions are any indication, TSPs continue to see huge value in remaining in the business as TSPs. No TSP provides internet access without having subscribers pay for plans that are carefully tailored to make money for the TSP. In fact, if the revenue graphs are any indication, TSP revenues through the internet have been rapidly growing over the last several quarters.

Comparing OTT applications and services with TSP licensing is much the same as saying teachers and colleges should have the same business mode. Or theatres and actors or even movie producers should have the same business model and licensing. 

The internet has become the nervous system of the global economy. If you censor, throttle or restrict signals passing through your body, it will malfunction, be diseased and die. If you censor, throttle or restrict signals passing through the internet, it will cause malfunction, disease and death of the global economy.

The burdens and costs of each business model are different as are the rewards. To impose the same licensing and regulatory requirements and costs across different business models is absurd, if not foolish. You do not feed humans with fertilizer and spray pesticides on them. You do not license plants to photosynthesise and grow, or regulate their plantations. You cannot impose the same restrictions on actors or musicians that you do on theatres.

The growth of each of these businesses and the industries they are a part of has been driven by their business models. It has also been enhanced or restricted by the ability or failure to forge symbiotic relationships between different business models that do not impose censorship, throttle or restrict each other.

VALUE OF INTERNET

The internet industry has grown precisely because it has remained agnostic to the media and content transported across the network. This unique property of the internet was first described by Prof Tim Wu as "net neutrality". This enabled a symbiotic relationship between those who produced content and media with those who merely transmitted it. Had the internet chosen to censor, throttle or restrict the media or content transmitted through it, it would not have grown to the reach it has today. Had the content and media providers restricted their content or media transmissions through only a chosen few TSPs or ISPs, the internet would not have grown to what it is today. It would not have impacted the global economy in the phenomenal ways it has.

The internet has become the nervous system of the global economy. If you censor, throttle or restrict signals passing through your body, it will malfunction, be diseased and die. If you censor, throttle or restrict signals passing through the internet, it will cause malfunction, disease and death of the global economy.

Spreading the benefits of the internet to rural India is often used to justify providing a collection of websites "free". Proponents of this approach forget that they are not providing the internet. They are providing a few websites of their choosing and interests. If you recognise that the internet is a nervous system, this is a defective nervous system, one that is censored, throttled and restricted, and therefore will cause malfunction, disease and death of the economy it claims to enable.

Just as the internet spread across the world at its own developmental rate, it is important to allow it to spread across the country at its own developmental rate. The infrastructure is of no use with the value stripped away. It is important to provide and protect the value, not the infrastructure without the value. It is important for the TRAI and the government to ensure public interest, not private interests.

PUBLIC INTEREST, MINIMUM GOVERNMENT BURIED?

Instead of asking what public interest needs to be protected and how, the TRAI consultation paper asks how to regulate that which should be left alone.

Prime Minister Narendra Modi promised minimum government and digital access to all. The TRAI paper foretells a picture of maximum government and the death of the digital. It fails in protecting public interest as also the interests of the telecom industry while attempting to protect the interests of the TSPs by slicing the internet into parts and attempting to regulate and license it. Perhaps Prime Minister Modi will himself step in to ensure the vision he promised to the country is not destroyed by TRAI.

The consultation paper asks for your comments to be emailed to TRAI by 24 April and counter comments by 8 May to advqos@trai.gov.in. I wonder why they never ask what public interest needs to be protected. Do ask them that, if you care about the internet as your nervous system in a global economy.

First published at: http://www.sunday-guardian.com/investigation/maximum-government-death-of-digital-if-trai-has-its-way

Read more...