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.
You can reach Minister Ravi Shankar Prasad on twitter @rsprasad and by email at [email protected]
. 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.
(Dr Anupam Saraph is a Professor, Future Designer, former governance and IT advisor to Goa’s former Chief Minister Manohar Parrikar and the Global Agenda Councils of the World Economic Forum.