By Jyoti Pawar, Partner, Economic Laws Practice

The advent of the internet, coupled with free, equal and unfettered access to it, has revolutionised innovation, communication, education and awareness; mobilised people and economies; and facilitated growth like never before.

As people experienced the power of the internet, the concept of “net-work neutrality” gained momentum. Net neutrality is widely understood to mean a network design paradigm that facilitates impartial, unrestricted movement of data irrespective of content, website, application, platform, device, designation, or source. Equal access to the internet is the fundamental principle of net neutrality and anything that is perceived to even remotely threaten this is bound to result in a public outcry. Thus, it is no surprise that the Telecom Regulatory Authority of India’s (TRAI) consultation paper, “Regulatory Framework for Over-the-top (OTT) Services”, released in March 2015, has received an incredible response from the public. We truly appreciate TRAI’s efforts to initiate this consultation paper.

There has been a meteoric rise in OTT services in the past few years. Services like WhatsApp, ChatOn and Skype have quickly replaced traditional time division multiplexing-based services like SMS, MMS and voice calls. The demographic reach of OTT services is, however, limited to select subscriber groups, primarily in urban areas.

A global comparison shows that internet penetration stands at 87 per cent in the US, 46 per cent in China and 43 per cent in Vietnam, as compared to a mere 18 per cent in India. Even within India, the “digital divide” or the access to the internet between the haves and have-nots in urban and rural areas presents a very dismal picture. OTT services are not regulated anywhere in the world. Therefore, it is surprising that in India, where the internet is still at a nascent stage, the regulation of OTT services has gained so much importance. In the larger scheme of things, are we losing sight of the critical concerns surrounding the internet industry?

There are challenges that need to be overcome, like bridging the digital divide, strengthening network security, providing congestion-free networks and affordability to consumers, addressing the issue of scarcity and high cost of spectrum, etc. An exponential rise in internet and data usage is expected in the near future. With the advent of the internet of things and M2M technology, the inevitable issue of data security assumes prominence. Given the future of technology, is India equipped to handle national and consumer security and ensure the privacy of customer data?  Unfortunately, the answer is in the negative. India is still striving to implement its privacy bill. Our existing regulations on data security, cybercrime, data hacking, cloud security, storing, monitoring, analysis and processing of data located in remote servers, etc. are inadequate. Should we not channelise our efforts towards addressing these issues rather than on regulating OTT services and risking the growth of data and internet penetration in an uncertain, evolving and nascent market?

Historically, market forces have determined the entry and exit of new players, ensuring competitive prices and services, customer choice and healthy competition. At the global level, content providers and internet service providers (ISPs) have had arrangements that were best suited to their subscribers and business interests. Any regulation on the issue of net neutrality may have an unintended impact on the millions of users in India who aspire to be a part of the connected world. India’s issues related to the internet are unique and therefore, we must evolve unique solutions. Our expectations and aspirations related to the internet cannot be the same as those of any other country. What India needs today is a neutral ground where ISPs and telecom service providers as well as content providers can coexist.

Across the world, it is not uncommon for industries to adopt a pricing policy that is most efficient for them and their customers. Therefore, one wonders why pricing is so controversial and frowned upon when it comes to the internet industry.  The overarching principles of equal access within the same bandwidth, basic minimum quality of service and speed (irrespective of the service availed of), transparent and ethical practices, and affordable costs for end-consumers should be maintained while deciding pricing norms and related policies.

We cannot underestimate the importance of the potential security concerns that could arise with the growth of the internet. It is heartening to know that the Department of Telecommunications has formed an independent panel on net neutrality and we hope that they address the concerns that have been raised while ensuring a beneficial coexistence for all internet players.