Centre for Internet and Society

September 2015 Bulletin

praskrishna — 2015-11-25T01:55:25Z

We are happy to share with you the ninth issue of the Centre for Internet and Society (CIS) newsletter (September 2015). It has been a significant month for public debates on the digital future of governance, citizenship, and economy in India, led by conversations around the draft National Encryption Policy, the Aadhaar number as a basis for provision of welfare services, the investigation of Google for potential abuse of market dominance by the Competition Commission of India, and the Guidelines for Examination of Computer Related Inventions released by the Indian Patents Office. We were busy engaging with these issues, and more.

The past editions of the newsletter can be accessed at http://cis-india.org/about/newsletters.

Sumandro Chattapadhyay, Research Director

Internet Researchers' Conference (IRC) 2016 - Studying Internet in India
With great excitement, we are announcing the beginning of an annual conference series titled Internet Researchers' Conference (IRC), the first edition of which is to take place in Delhi during February 25-27, 2016 (yet to be confirmed). We invite you to propose sessions for the conference by Sunday, November 15, 2015.

Highlights

CIS sent an Open Letter to Prime Minister Narendra Modi during his US visit, requesting him to urge USA to ratify the Marrakesh Treaty. During the month, NVDA team organized training programmes for the visually impaired at Kullu, Bangalore and Ranchi. Nehaa Chaudhari in a blog post laid out a series of research questions, potentially seeking to apply actor-network theory as a research methodology. Recently, the Indian Patents Office released the Guidelines for Examination of Computer Related Inventions (“2015 Guidelines/ Guidelines”) in an attempt to clarify examination of software related patents in India. Anubha Sinha analysed the 2015 Guidelines. Read on to understand how the new guidelines will potentially lead to an increase in software patenting activity by expanding the scope of patentable subject matter – in negation of the legislative intent of section 3(k) of the Indian Patents Act, 1970. As a part of its content donation initiative, CIS has brought Nadustunna Charithra magazine under CC BY SA licence. CIS-A2K has received 74 issues as of now from the Telugu Jaati foundation. Sunil Abraham’s article titled Hits and Misses with the Draft Encryption Policy was published in The Wire on September 26, 2015. Vidushi Marda in a blog post titled Data Flow in the Unique Identification Scheme of India analysed the data flow within the UID scheme and highlighted the vulnerabilities at each stage. Vanya Rakesh in a blog post titled Human DNA Profiling Bill 2012 v/s 2015 Bill has analysed the Human DNA Profiling Bill introduced in 2012 with the provisions of the 2015 Bill. CIS sought information from ICANN on their revenue streams by sending them a second request under their Documentary Information Disclosure Policy. This request and their response have been described in a blog post by Aditya Garg. CIS has submitted a joint proposal with DataMeet and Oorvani for the Knight News Challenge 2015. We are proposing the development of "an application for users to search for locally-relevant data, discuss missing data, demand data, explore and respond to data demands by others, and start data crowd-sourcing exercises." CIS made its submission on CCWG-Accountability 2nd Draft Proposal on Work Stream 1 Recommendations to ICANN's CCWG-Accountability. Pranesh Prakash, on behalf of CIS, submitted comments to the Department of Telecom Panel’s report on net neutrality via MyGov. Prakash states that the report displays a far better understanding of the underlying issues than the TRAI consultation paper did, and is overall a good effort at balancing the different sides. Shyam Ponappa’s monthly column titled More on Those Dropped Calls was published by Business Standard.

Accessibility and Inclusion

Under a grant from the Hans Foundation we are doing a project on developing text-to-speech software for 15 Indian languages. The progress made so far in the project can be accessed here.

NVDA and eSpeak

Monthly Updates

September 2015 Report (Suman Dogra; September 30, 2015).

Event Reports

Training in the use of eSpeak Hindi with NVDA (Organized by CIS and Lakshay for the Differently Abled; September 29 – 30, 2015; Ranchi). The event was conducted online by Dr. Homiyar over skype, with local support from Mritunjay Kumar and Zainab.
5 day TOT for Training in Use of eSpeak Kannada with NVDA (Organized by CIS, Mithra Jyoti, Enable India and NFB, Bangalore; September 21 – 25, 2015; Bangalore).
eSpeak Training in Hindi Language (Organized by CIS and National Association for the Blind; Kullu; September 3 – 4, 2015).
Training in eSpeak Marathi (Organized by CIS; Atmadepam Society; August 22 – 23, 2015). The report was published in the month of September.

Access to Knowledge

As part of the Access to Knowledge programme we are doing two projects. The first one (Pervasive Technologies) under a grant from the International Development Research Centre (IDRC) is for research on the complex interplay between pervasive technologies and intellectual property to support intellectual property norms that encourage the proliferation and development of such technologies as a social good. The second one (Wikipedia) under a grant from the Wikimedia Foundation is for the growth of Indic language communities and projects by designing community collaborations and partnerships that recruit and cultivate new editors and explore innovative approaches to building projects.

Pervasive Technologies

Blog Entries

Pervasive Technologies: Working Document Series - Research Questions and a Literature Review on the Actor-Network Theory (Nehaa Chaudhari; September 5, 2015).
FAQ: CIS Proposal for Compulsory Licensing of Critical Mobile Technologies (Rohini Lakshané; September 25, 2015).

Other (Copyright and Patent)

Submission

Comments on the Guidelines for Examination of Computer Related Inventions (CRIs) (Anubha Sinha; September 21, 2015).

Blog Entries

Open Letter to PM Modi on Intellectual Property Rights issues on His Visit to the United States of America in September 2015 (Pranesh Prakash and Nehaa Chaudhari; September 23, 2015).

Participation in Events

National Conference: WTO, FTAs and Investment Treaties: Implications for development policy space (Organized by Focus on the Global South, Institute for Studies in Industrial Development (ISID), Madhyam, MSF Access Campaign, National Working Group on Patent Laws and WTO (NWGPL), Public Services International (PSI) – South Asia, South Solidarity Initiative – ActionAid, Third Word Network (TWN), and Forum against FTAs; September 22 – 23, 2015; Institute for Studies in Industrial Development, New Delhi). Nehaa Chaudhari made a presentation on Copyright: Access to Knowledge in Free Trade Agreements?
IPEX 2015 (Organized by Confederation of Indian Industry, APTDC and TDPC; September 25 - 26, 2015; Chennai). Rohini Lakshané attended the event.

Media Coverage

Open letter from CIS to PM Modi on Intellectual Property Rights issues on his Visit to US (Apoorva Mandhani; LiveLaw; September 23, 2015).

Wikipedia

As part of the project grant from the Wikimedia Foundation we have reached out to more than 3500 people across India by organizing more than 100 outreach events and catalysed the release of encyclopaedic and other content under the Creative Commons (CC-BY-3.0) license in four Indian languages (21 books in Telugu, 13 in Odia, 4 volumes of encyclopaedia in Konkani and 6 volumes in Kannada, and 1 book on Odia language history in English).

Blog Entries

CIS brings Nadustunna Charithra magazine under CC BY SA licence (Tanveer Hasan; September 2, 2015).
OCR and OER – update (Subhashish Panigrahi; Open Education Working Group; September 25, 2015).
As Odia Wikipedia turns 13, what happens next? (Subhashish Panigrahi; September 26, 2015). This was originally published on the Wikimedia Blog on August 21. The post was shared on Wikipedia's official Facebook page, and on Twitter handles [1 and 2].
Google's Optical Character Recognition Software Now Works with All South Asian Languages (Subhashish Panigrahi; September 26, 2015).
Wikimedia contributor shares his Linux story (Subhashish Panigrahi; September 27, 2015). This article is part of a series called My Linux Story. To participate and share your Linux story, contact us at: open@opensource.com. Read the original published by Opensource.com on September 3, 2015.

Events Co-organized

Annamaya Library edit-a-thon (Organized by CIS-A2K and Telugu Wikipedia Community; August 6, 2015; Andhra Loyola College; Vijaywada).
International Workshop on Digitization and Archiving (Organized by CIS-A2K and Wikipedia Community; August 19 – 21, 2015). Rahmanuddin Shaik was one of the trainers.

Media Coverage

CIS gave its inputs to the following:

Unable to read Odia on your android device? Don’t fret! (Ruby Nanda; Odisha Sun Times; September 28, 2015).

Openness

The advent of the Internet has radically redefined what it means to be open and collaborative. The Internet itself is built upon open standards and free/libre/open source software. Our work in the Openness programme focuses on open data, especially open government data, open access, open education resources, open knowledge in Indic languages, open media, and open technologies and standards - hardware and software. We approach openness as a cross-cutting principle for knowledge production and distribution, and not as a thing-in-itself.

Open Data

Submission

As one of the general stewards of the process, CIS was invited to take part in the final drafting meeting of the International Open Data Charter held before Con Datos 2015 in Santiago, Chile, but we could not take part in it. Apart from organising two public consultations on the draft Charter in Bengaluru and Delhi, we also submitted our detailed comments on the document. The final version of the Charter document has been launched at the United Nation General Assembly meeting, on September 27.

Free Software

Blog Entry

Software Freedom Pledge (Pranesh Prakash; September 25, 2015).

Internet Governance

As part of its research on privacy and free speech, CIS is engaged with two different projects. The first one (under a grant from Privacy International and International Development Research Centre (IDRC)) is on surveillance and freedom of expression (SAFEGUARDS). The second one (under a grant from MacArthur Foundation) is on studying the restrictions placed on freedom of expression online by the Indian government.

Privacy

Article

Hits and Misses With the Draft Encryption Policy (Sunil Abraham; The Wire; September 26, 2015).

Blog Entries

Data Flow in the Unique Identification Scheme of India (Vidushi Marda; September 3, 2015).
Human DNA Profiling Bill 2012 v/s 2015 Bill (Vanya Rakesh; September 6, 2015).
Open Governance and Privacy in a Post-Snowden World: Webinar (Vanya Rakesh; September 26, 2015).

Participation in Event

The Changing Landscape of ICT Governance and Practice - Convergence and Big Data (Co-organized by Innovation Center for Big Data and Digital Convergence, Yuan Ze University, Taiwan; August 24 – 25, 2015). Sharat Chandra Ram was granted the Young Scholar Award 2015 to attend the Young Scholar Workshop followed by main CPRSouth2015 conference (Communication Policy Research South) conference.

Free Speech and Expression

Submission

CIS Submission on CCWG-Accountability 2nd Draft Proposal on Work Stream 1 Recommendations (Pranesh Prakash; September 13, 2015).

Blog Entries

DIDP Request #11: NETmundial Principles (Aditya Garg; September 14, 2015).
DIDP Request #12: Revenues (Aditya Garg; September 14, 2015).
Peering behind the veil of ICANN’s DIDP (Padmini Baruah; September 21, 2015).

Participation in Event

Asian Regional Consultation on the WSIS+10 Review (Organized by The Internet Democracy Project, Bytes for All, APNIC, the Association for Progressive Communications, ISOC, Global Partners Digital and ICT Watch; September 3 – 5, 2015). Jyoti Panday attended the event.

IGF

The tenth annual IGF meeting will be held in João Pessoa, Brazil, on November 10 - 13, 2015. IGF's MAG has decided to retain the title “Evolution of Internet Governance: Empowering Sustainable Development” as the overarching theme. Sunil Abraham will be a panelist for the following workshops:

Understanding and Mitigating Online Hate Speech and Youth Radicalisation (Organized by Council of Europe, Oxford University, OHCHR, Google and ISOC; November 2015).
Transnational Due Process: A Case Study in Multi-stakeholder Cooperation (Organized by the United Nations; November 2015).

Cyber Security

Event Organized

Bangalore Chapter Meet of DSCI (Co-organized by DSCI and CIS; September 26, 2015). Melissa Hathaway, Commissioner, Global Commission for Internet Governance and Sunil Abraham gave a talk at this event.

Miscellaneous

Sustainable Smart Cities India Conference 2015, Bangalore (Vanya Rakesh; September 21, 2015).

Telecom

CIS is involved in promoting access and accessibility to telecommunications services and resources and has provided inputs to ongoing policy discussions and consultation papers published by TRAI. It has prepared reports on unlicensed spectrum and accessibility of mobile phones for persons with disabilities and also works with the USOF to include funding projects for persons with disabilities in its mandate:

Submission

Comments on the DoT Panel Report via MyGov (Pranesh Prakash; September 26, 2015).

Op-ed

More on those Dropped Calls (Shyam Ponappa; Business Standard; September 2, 2015 and Organizing India Blogspot; September 3, 2015).

Researchers at Work

The Researchers at Work (RAW) programme is an interdisciplinary research initiative driven by contemporary concerns to understand the reconfigurations of social practices and structures through the Internet and digital media technologies, and vice versa. It is interested in producing local and contextual accounts of interactions, negotiations, and resolutions between the Internet, and socio-material and geo-political processes:

Submission

Where's My Data? Submission for Knight News Challenge 2015 (Sumandro Chattapadhyay; September 30, 2015). The text of the proposal was prepared by Nisha Thompson of DataMeet, Meera K of Oorvani, and Sumandro Chattapadhyay.

Blog Entries

The Internet in the Indian Judicial Imagination (Divij Joshi; September 9, 2015).
The Many Lives and Sites of Internet in Bhubaneswar (Sailen Routray; September 21, 2015).

News & Media Coverage

CIS gave its inputs to the following media coverage:

Does this click with you? (Parshathy J. Nath; The Hindu; September 1, 2015).
Government may tieup with global police, Interpol to fight child pornography (Surabhi Agarwal; September 3, 2015).
Hiding behind rules on naming sites it banned, govt reveals fears (Harjeet Inder Singh Sahi; September 3, 2015).
Outrage before sharing (Nikhil Verma; The Hindu; September 9, 2015).
Faking a stand (Shweta T. Nanda; The Week; September 20, 2015).
Some Key Words Are Missing (Arindam Mukherjee; Outlook; September 21, 2015).
Open sesame (The Hindu; September 22, 2015).
India encryption policy draft faces backlash (Moulishree Srivastava; September 22, 2015)
Online outcry forces government to withdraw draft encryption policy (Naina Khedekar; First Post; September 23, 2015).
Encryption policy would have affected emails, operating systems, WiFi (Amrita Madhukalya; DNA; September 23, 2015).
Govt presses 'undo' button on draft encryption policy (Business Standard; September 23; 2015).
Huge outcry forces India to backtrack on social media data proposal (Today; September 24, 2015).
Facebook’s Free Internet Access Program in Developing Countries Provokes Backlash (Newley Purnell and Resty Woro Uniar; The Wall Street Journal; September 24, 2015).
Ahead of hosting Modi, Facebook rebrands internet.org as Free Basics (Business Standard; September 26, 2015).
‘By weakening our security, govt is putting us at risk of espionage’ (S. Raghotham and Mayukh Mukherjee; Asian Age; September 27, 2015).
ভারতে পাঁচশোরও বেশি স্টেশনে ফ্রি ওয়াই-ফাই চালু হবে (BBC; September 28, 2015).
Do you agree with our fee hike? Press 1 to answer Yes; or 2 for Yes (Kieren McCarthy; The Register; September 29, 2015).
Indian PM Narendra Modi’s digital dream gets bad reception (Amanda Hodge; September 29, 2015).
What Bengaluru Thinks of the Big Tech Announcements in Silicon Valley (Maya Sharma; NDTV; September 29, 2015).

About CIS

The Centre for Internet and Society (CIS) is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, digital privacy, and cyber-security. The academic research at CIS seeks to understand the mediation and reconfiguration of social and cultural processes and structures by the internet and digital media technologies.

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Please help us defend consumer / citizen rights on the Internet! Write a cheque in favour of ‘The Centre for Internet and Society’ and mail it to us at No. 194, 2nd ‘C’ Cross, Domlur, 2nd Stage, Bengaluru – 5600 71.

► Request for Collaboration

We invite researchers, practitioners, artists, and theoreticians, both organisationally and as individuals, to engage with us on topics related internet and society, and improve our collective understanding of this field. To discuss such possibilities, please write to Sunil Abraham, Executive Director, at sunil@cis-india.org (for policy research), or Sumandro Chattapadhyay, Research Director, at sumandro@cis-india.org (for academic research), with an indication of the form and the content of the collaboration you might be interested in. To discuss collaborations on Indic language Wikipedia projects, write to Tanveer Hasan, Programme Officer, Access to Knowledge, at tanveer@cis-india.org.

CIS is grateful to its primary donor the Kusuma Trust founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin for its core funding and support for most of its projects. CIS is also grateful to its other donors, Wikimedia Foundation, Ford Foundation, Privacy International, UK, Hans Foundation, MacArthur Foundation, and IDRC for funding its various projects.

For more details visit https://cis-india.org/about/newsletters/september-2015-bulletin

Comments on the DoT Panel Report via MyGov

pranesh — 2015-09-26T10:16:44Z

On behalf of the Centre for Internet and Society, I must commend the Department of Telecom Panel on its report. Overall, it displays a far better understanding of the underlying issues than the TRAI consultation paper did, and is overall a good effort at balancing the different sides. However, some of its most important recommendations are completely off-mark and would be disastrous if accepted by the government.

It is praiseworthy that the panel emphasizes the separation in regulatory terms between the network layer and the service layer. This also means that telecom carriers should be regulated differently from OTT services.

Licensing of Communication OTT Services

The proposal by the DoT panel of a licensing regime for communication OTT services is a terrible idea. It would presumptively hold all licence non-holders to be unlawful, and that should not be the case; as the panel itself notes, apps that lower the cost of communication are a welcome development and should be encouraged by the government and not made presumptively unlawful.

While it is in India's national interest to want to hold VoIP services to account if they do not follow legitimate regulations, it is far better to do this through ex-post regulations rather than an ex-ante licensing scheme.

A licensing scheme would benefit Indian VoIP companies (including services like Hike, which Airtel has invested in) over foreign companies like Viber, or free/open source technologies like WebRTC. The Universal Licence is designed for a world where all the licencees have an operational presence in India. This is not true of communications OTT services. Therefore a licensing regime would unjustly favour some services over others.

Further, VoIP services need not be provided by a company: a person can choose to run XMPP, SIP, or Mumble — all of which are protocol that support VoIP — on their own computers. Will a licensing regime force such individuals' many of whom may not be Indian nationals — to become licence-holders if they facilitate domestic communications within India? The DoT panel report doesn't say. This would also result in a licensing regime unjustly favouring some services over others.

The report also doesn't say how one would distinguish between OTT communication services and OTT application services, when many apps such as personal assistance apps like HelpChat, are centred around communications. It also does not mention what regulatory distinction exists between text communication services and video/voice communication services, or between purely domestic and international video/voice communications. Stating that certain telecom companies are currently earning most of their revenue from domestic voice traffic will not suffice as a regulatory, just as it did not suffice to say that VSNL's international telephony monopoly earned it a lot of money. Regulatory fairness is the important issue and not protecting specific business models. Thus, there is no rational distinction to be drawn. Even if the panel has some regulatory distinction that it has not stated, this is an impossibility to enforce. Much domestic IP traffic is 'round-tripped', with traffic leaving India and coming back in. How would the regulator propose to regulate that?

Will there be a revenue-sharing mechanism, as is currently the case under the Unified Licence? If so, how will it be calculated in case of services like WhatsApp? These questions too find no answer in the report.

Given these numerous objections and unanswered questions, the government would be well-advised not seek to license OTT communications services. Instead, it would be useful for the government to hold public consultations about:

1. What Universal Licence conditions makes sense in the world of IP-based services, and international services?
2. How can we frame ex-post regulations that address legitimate concerns? Is there overlap with provisions of the IT Act such as s.69, s.69B, s.79, and others?
3. How can we ensure that the regulatory burden for telecom players with respect to their being able to provide IP-based services that are equivalent to OTT communication services?

Net neutrality

While the DoT panel reiterates a number of times that the core principles of Net neutrality should be adhered to, it nowhere defines what these core tenets are. We suggest the following definition:

net neutrality is the principle that we should regulate gatekeepers to ensure they do not use their power to unjustly discriminate between similarly situated persons, content or traffic.

The above definition applies to the way the ISPs treat consumers, treat interconnecting networks, as well as the way they treat traffic internally.
We agree with the panel that in that while Net neutrality should find place in a new law, for the time being Net neutrality principles can be enforced through the licence agreement between the DoT and telecom providers.

Traffic Management

It is unclear what precisely the DoT panel means by "application-agnostic" and "application-specific" network management. Different scholars on this issue — such as Barbara van Schewick and Christopher Yoo — mean different things when they use the word "application". Without a definition, it is difficult to say whether the panel's recommendation on that front are sound.
Instead, we suggest the following tests:
Discrimination between classes of traffic for the sake of network management should only be permissible if:

there is an intelligible differentia between the classes which are to be treated differently, and
there is a rational nexus between the differential treatment and the aim of such differentiation, and
the aim sought to be furthered is legitimate, and is related to the security, stability, or efficient functioning of the network, or is a technical limitation outside the control of the ISP, and
the network management practice is the least harmful manner in which to achieve the aim.

As for the provision of enterprise and managed services, which we more broadly term "specialized services", we would recommend:

Provision of specialized services is permitted if and only if it is shown that
The service is available to the user only upon request, and not without their active choice, and
The service cannot be reasonably provided with "best efforts" delivery guarantee that is available over the Internet, and hence requires discriminatory treatment, or
The discriminatory treatment does not unduly harm the provision of the rest of the Internet to other customers.

Lastly, we would recommend that the above regulatory guidlines only be applied against ISPs, and not against public providers of Internet connectivity, such as a library, a school, an airport, a hotel, etc.

Zero-rating

On the contentious issue of zero-rating, a process that involves both ex-ante and ex-post regulation is envisaged to prevent harmful zero-rating, while allowing beneficial zero-rating. Further, the report notes that the supposed altruistic or "public interest" motives of the zero-rating scheme do not matter if they result in harm to competition, distort consumer markets, violate the core tenets of Net neutrality, or unduly benefit an Internet "gatekeeper".

Much of the discussion around zero-rating has been happening around an assumption of common understanding of the phrase. Unfortunately, that is not true. There is no consensus as to whether a "special Facebok pack of 200MB for Rs.20" offered by a telecom company constitutes zero-rating or not. Without a working definition of zero-rating, not much progress can be made.

We propose the following as a definition:

Zero-rating is the practice of not counting (aka "zero-rating") certain traffic towards a subscriber's regular Internet usage.

The zero-rated traffic could be zero-priced or fixed-price; capped or uncapped; subscriber-paid, Internet service-paid, paid for by both, or unpaid; content- or source/destination-based, or agnostic to content or source/destination; automatically provided by the ISP or chosen by the customer.

We believe that zero-rating can be non-discriminatory in nature, and such zero-rating should not be prohibited. Having a system with both ex-ante and ex-post checks is rather heavy-handed regulation, but since the issue is very contentious in India, we believe it might be merited.

We thank you for giving us this opportunity to comment.
Pranesh Prakash, Policy Director at the Centre for Internet and Society

For more details visit https://cis-india.org/telecom/blog/comments-on-dot-panel-report-via-mygov

More On Those Dropped Calls

Shyam Ponappa — 2015-10-06T02:34:24Z

A basic problem is that the cost of spectrum and licences relative to earnings is too high, structurally.

The article originally published in the Business Standard on September 2 was mirrored in Organizing India Blogspot on September 3, 2015.

Will the government's variant of "speak softly and carry a big stick" deliver Digital India in a hurry? Unlikely, because the problem is an overloaded system with a too-spare design, and insufficient cash flows. Increasing call drops are a symptom of inadequate carrying capacity for the demands of traffic, from voice to data in 3G and 4G. These are structural problems, because the system doesn't generate sufficient investible funds; nor are conditions right to develop such investment capacity; nor are the prospects demonstrably healthy. The situation requires the policy changes outlined below, which only the government can bring about, as it has in the past.

A fundamental aspect of the problem is low spectrum availability. India's operators have 12-15 MHz, compared with a global average of 45-50 MHz. Leading countries have even more; for instance, operators in Seoul reportedly have 10 times more spectrum than operators in India. Limiting the spectrum available to operators compels them to invest more to deliver a given level of traffic and quality than if more spectrum were available.

There are other aspects as well:

high charges for licences and for spectrum, 8+4 per cent of (adjusted) revenues in addition to auction payments,
imported equipment paid for with a weak stream of local-currency revenues,
changes in spectrum holdings that require adjustment in equipment after older spectrum assignments lapse and new spectrum has been acquired, and
the burgeoning need for new investments for 3G and 4G services. Embedded in the latter is the additional overload caused by tower shut-downs and the difficulties in getting additional sites, apart from the need for more capital.

Add regulations that hinder spectrum trading and sharing, and we have a sector that is structurally weak and restricted in scope.

As for call drops, operators in developed markets experienced similar capacity pressures when there was very rapid growth in data usage, for instance AT&T in the US and O2 in the UK some years ago. The difference is that they were able to invest rapidly to shore up their networks. By contrast, Indian operators had to invest disproportionately in acquiring spectrum, leaving less capacity for investment in networks. For example, in 2014 operators in China reportedly invested $35 billion in 4G equipment, whereas in India, only $3 billion went into equipment. Most of its $32-billion investment - $29 billion, over 90 per cent - was for spectrum. There has also been the diversionary effect because difficult business conditions in the sector led to profits being invested elsewhere, instead of back into communications infrastructure. The difference in approach and functional capacity is stark: China is moving ahead with building high-speed data capability, while the struggle in India is with dropped calls and simply keeping users connected. The government, therefore, needs to facilitate conditions whereby operators invest substantial amounts every year.

For this to happen, the structure of high charges for spectrum and licences relative to earnings has to change, as do restrictive regulations. The monthly average revenue per user in India at the end of 2014 was of the order of Rs 110-120. Capital expenditure ranged from 13 to 15 per cent of revenues in 2014, rising to 20 per cent in 2015. The latter exceeds the percentage invested in the US - but the revenue in India is about 25 times less than the $50 revenue in America, and the US has had well-developed networks for decades. Meanwhile, the recent spectrum-sharing guidelines that restrict more than enable effective sharing epitomise our dysfunctional regulations.1 It is baffling why the government would issue such retrograde regulation if the goal is digital development, because these guidelines do exactly the opposite of what is needed.

Government versus Private Sector
Meanwhile, there has been an escalating war of words between the government and service providers. The latter are trapped in a vicious circle of heavy investment requirement with low revenue-generation capacity, as explained above. Breaking out of this trap is possible only if the government develops conducive policies, as it did with the path-breaking changes associated with the 1999 New Telecom Policy (NTP-99). The change at that time was from up-front licence fees to revenue-sharing. It fell short because the government's share was too high, and began to work only after 2003, when government charges were reduced. In like manner, the government needs to frame policies applying similar principles to spectrum, and ultimately to network infrastructure, so spectrum and networks become more productive.

Our problems arise from three sources: regulations and government charges, operator behaviour and responses, and public opinion and the perceptions and actions of the judiciary. The government can take the initiative through creating policies that facilitate investment and service delivery. Many changes are purely administrative, such as permitting unrestricted spectrum sharing without additional "conversion" charges, or reducing licence and spectrum charges. Surely the department of telecommunications, the finance ministry, and the prime minister's office understand the logic of higher net present values that accrue from incremental revenues to operators. Conversely, any restriction of revenues or opportunity loss reduces the government's share, resulting in lower net present values. For example, restricting 3G roaming or insisting on payments to convert administered spectrum before it can be shared limit revenues, resulting in opportunity losses.

The government needs to be persuasive while acting decisively, to influence operators and public opinion through well-formulated systematic initiatives. Tighter monitoring of quality, including dropped calls, and related penalties are needed - but balanced with constructive policies. These could cover enabling regulations such as for roaming and secondary spectrum sharing with the government, and in developing a consortium approach for active network sharing initiated by the government with broad private participation, led by a private-sector partner. Other potential areas include enabling, organising, and facilitating broadband through cable networks, and inducting technologies such as TV White Space and satellites.

This is where the rhetoric of leading Team India has to be walked and not just talked, to persuade and lead the sector to collaborate and not undercut institutional development.

For more details visit https://cis-india.org/telecom/blog/business-standard-september-3-2015-shyam-ponappa-more-on-those-dropped-calls

August 2015 Bulletin

praskrishna — 2015-10-27T00:25:02Z

We are happy to share with you the eighth issue of the Centre for Internet and Society (CIS) newsletter (August 2015). The past editions of the newsletter can be accessed at http://cis-india.org/about/newsletters.

Highlights

Researchers at Work programme has published a book titled Digital Activism in Asia Reader exploring in detail digital activism in Asia. The Reader was edited by Nishant Shah, P.P. Sneha, and Sumandro Chattapadhyay with support from Anirudh Sridhar, Denisse Albornoz, and Verena Getahun. The pre-publication drafts of two sections written by Sumandro Chattapadhyay for the third volume (2000-2010) of the Asia Internet History series edited by Prof. Kilnam Chon have been posted for open-review process. As part of the 'Studying Internets in India' series, RAW published blog entries on Governing Speech on the Internet and Mock-Calling - Ironies of Outsourcing and the Aspirations of an Individual. NVDA team conducted a workshop at Jeevan Jyoti School for the Blind, Varanasi from August 26 to 28, 2015. Eighty five students and 13 teachers took part in the training programme. NVDA team had conducted another workshop earlier in Nashik. The workshop was conducted in June. A batch of 17 Special Educators and teachers of the blind attended the workshop. Maggie Huang, Arpita Sengupta and Paavni Anand as part of the Pervasive Technologies project co-authored a research paper that seeks to compare the publicly available information on the websites of music collective management organizations ("CMOs") operating within India, the United States, and the United Kingdom. Amulya Purushothama, Nehaa Chaudhari and Varun Baliga in a blog entry have delved into the question of what the mandate of the Sectoral Innovation Council is, what its activities are, and what vision for IPR development in India has it put forth. An RTI Application has been filed by CIS to attain information on these issues. In a blog post, Amulya Purushothama announced our new MHRD IPR Chair Series and has charted the sequence of events, starting from the establishment of MHRD IPR Chairs, to discussions surrounding their purpose and functioning, to concerns surrounding the lack of information about the IPR Chairs, the first round of RTIs that CIS had filed in regard to this and the responses it solicited. Subhashish Panigrahi interviewed Prateek Pattanaik. Prateek has not just digitized as many as 54 Odia-language poetry dating early 18th century but has also annotated, both poetic and prosaic translation in his blogs "Sri Jagannatha" and "Utkal Sangeet". He has also published a complete book "Kisora chandranana champu" on Odia Wikisource. A recent entrant into the Odia Wikimedia community, Prateek is also the youngest Odia Wikimedian. Rohan George and Elonnai Hickok in a blog post analyzed consent, big data and data protection that examines in detail why the principle of consent is providing us increasingly less of an aegis in protecting our data. Elonnai Hickok, Vipul Kharbanda and Vanya Rakesh on behalf of CIS submitted a clause-by-clause comments on the Human DNA Profiling Bill that was circulated by the Department of Biotechnology on June 9, 2015. Sunil Abraham, Elonnai Hickok and Tarun Krishnakumar co-authored an article titled Security: Privacy, Transparency and Technology. The article was published by Observer Research Foundation, Digital Debates 2015: CyFy Journal Volume 2. Elonnai Hickok in a blog post titled A Review of the Policy Debate around Big Data and Internet of Things has done an analysis as to how regulators and experts across jurisdictions are reacting to Big Data and Internet of Things. The Supreme Court of India has deemed it fit to refer the question of the very existence of a fundamental right to privacy to a Constitution Bench to finally decide the matter, and define the contours of such right if it does exist. Vipul Kharbanda analyses this in a blog entry. Experts and regulators across jurisdictions are examining the impact of Big Data practices on traditional data protection standards and principles. This will be a useful and pertinent exercise for India to undertake as the government and the private and public sectors begin to incorporate and rely on the use of Big Data in decision making processes and organizational operations. Elonnai Hickok has provided an initial evaluation of how Big Data could impact India's current data protection standards. Elonnai Hickok has provided a comparison of Human DNA Profiling Bill 2012 vs. the Human DNA Profiling Bill 2015, CIS's main recommendations vs. the 2015 Bill, Sub-Committee Recommendations vs. the 2015 Bill, and the Expert Committee Recommendations vs. the 2015 Bill. CIS submitted its comments to the non-paper on the UNGA Overall Review of the Implementation of the WSIS outcomes, evaluating the progress made and challenges ahead. In a policy brief, Vipul Kharbanda has analyzed the different laws regulating surveillance at the state and central level in India and calls out ways in which the provisions are unharmonized. The brief then provides recommendations for the harmonization of surveillance law in India. Hardnews interviewed Sunil Abraham about the future of the internet in India. The article was published in their August edition. Shyam Ponappa in an Op-ed published by Business Standard has given an analysis on the reasons of the number of dropped calls on our mobile phones.

Accessibility and Inclusion

Under a grant from the Hans Foundation we are doing a project on developing text-to-speech software for 15 Indian languages. The progress made so far in the project can be accessed here. The project on creating a national resource kit of state-wise laws, policies and programmes on issues relating to persons with disabilities in India got over and the compilation has been printed.

NVDA and eSpeak

Monthly Updates

August 2015 Report (Suman Dogra; July 31, 2015).

Event Reports

Training in eSpeak Marathi (Organized by NVDA team; National Association for the Blind; Nashik; June 22 - 23, 2015). The workshop was held in the month of June but the report got published later in August.
Training in eSpeak Hindi (Organized by NVDA team; Jeevan Jyoti School for the Blind; Varanasi; August 26 - 28, 2015).

Access to Knowledge

Pervasive Technologies

Blog Entries

Methodology: Patent Landscaping in the Indian Mobile Device Market (Rohini Lakshané; November 10, 2014). This blog post published last year has been recently updated.
Comparative Transparency Review of Collective Management Organisations in India, United Kingdom and the United States (Maggie Huang, Arpita Sengupta and Paavni Anand; August 1, 2015).

Other (Copyright and Patent)

Blog Entries

CCI Participation at the Upcoming 3rd International Conference on IPR and Competition (Amulya Purushothama; August 5, 2015). CIS wrote to the Competition Commission of India Chairman on August 5, 2015 about participation at a conference organised by Ericsson and concerns regarding conflict of interest. We also had several other NGOs sign on to the letter.
MHRD IPR Chair Series: Introduction (Amulya Purushothama; August 10, 2015). Aditya Garg assisted in research and writing.
National IPR Policy Series: What Have the Sectoral Innovation Councils Been Doing on IPR (Nehaa Chaudhari and Varun Baliga; August 13, 2015). Amulya Purushothama assisted with research and writing.

Media Coverage

Competition Commission of India chariman's participation in Assocham conference raises conflict of interests (Rema Nagarajan; The Times of India; August 6, 2015).
Assocham event sparks row over conflict of interest by CCI (Dilasha Seth and Deepak Patel; Business Standard; August 6, 2015).

Wikipedia

Blog Entry

Odia Wikisource has a new Wikisourcer, and he is the youngest in the Odia Wikimedia community! (Subhashish Panigrahi; August 21, 2015).

Events Co-organized

Annamaya Library edit-a-thon (Organized by CIS-A2K and Telugu Wikipedia Community; August 6, 2015; Andhra Loyola College; Vijaywada).
International Workshop on Digitization and Archiving (Organized by CIS-A2K and Wikipedia Community; August 19 - 21, 2015). Rahmanuddin Shaik was one of the trainers.

FOSS

Participation in Events

Workshop on digital collaborations in Tamil-language, Tamil Virtual Chennai (Organized by Tamil Virtual University, Anna University Campus, Chennai; August 8 - 9, 2015). Dr. U.B. Pavanaja atttended this event.
Open Innovation, entrepreneurship, and our digital future (Organized by iSpirit; Bangalore; August 13, 2015). Rohini Lakshané attended the event. Rohini wrote a report on this .

Media Coverage

CIS gave its inputs to the following:

Telugu Wikipedia Edit-a-thon at ALC (Eenadu; August 6, 2015)
Telugu Wiki Edit-a-thon in ALC (Eenadu; August 6, 2015)
Rare Telugu religious and historical work preserved at Annamacharya library to come on Wikisource! (The Hans India; August 7, 2015).
ಗ್ರಾಮೀಣ ಪ್ರದೇಶದ ಆರ್ಥಿಕ ಪ್ರಗತಿಯಿಂದ ದೇಶದ ಆರ್ಥಿಕ ಪ್ರಗತಿ ಸಾಧ್ಯವಾಗುತ್ತದೆ. (Mangalorean.com; August 13, 2015).
ವಿಕಿಪಿಡಿಯ ಮುಕ್ತವಾಗಿ ಬಳಸಿ: ಡಾ.ಪವನಜ (Karavali Karnataka; August 14, 2015).
ಬೆಳ್ತಂಗಡಿ:ಎಲ್ಲಾ ಕಾಲಕ್ಕೂ ಲಭ್ಯ ಇರುವ ಸ್ವತಂತ್ರ ಹಾಗೂ ಮುಕ್ತ ವಿಶ್ವಕೋಶ ವಿಕಿಪೀಡಿಯಾ-ಪವನಜ (SahilOnline; August 14, 2015).
Talamaddale on August 23 (Hindu; August 16, 2015).

Internet Governance

Privacy

Article

Security: Privacy, Transparency and Technology (Sunil Abraham, Elonnai Hickok and Tarun Krishnakumar; Observer Research Foundation, Digital Debates 2015: CyFy Journal Volume 2 ; August 19, 2015).

Submission

CIS Comments and Recommendations to the Human DNA Profiling Bill, June 2015 (Elonnai Hickok, Vipul Kharbanda and Vanya Rakesh; August 27, 2015).

Blog Entries

Policy Paper on Surveillance in India (Vipul Kharbanda; August 3, 2015).
Comparison of the Human DNA Profiling Bill 2012 with: CIS recommendations, Sub-Committee Recommendations, Expert Committee Recommendations, and the Human DNA Profiling Bill 2015 (Elonnai Hickok; August 10, 2015).
Right to Privacy in Peril (Vipul Kharbanda; August 13, 2015).
Responsible Data Forum: Discussion on the Risks and Mitigations of releasing Data (Vanya Rakesh; August 26, 2015).
Are we Throwing our Data Protection Regimes under the Bus? (Elonnai Hickok and Rohan George; August 29, 2015).
Supreme Court Order is a Good Start, but is Seeding Necessary? (Elonnai Hickok and Rohan George; August 29, 2015).

Big Data

Blog Entries

Big Data and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 (Elonnai Hickok; August 11, 2015).
A Review of the Policy Debate around Big Data and Internet of Things (Elonnai Hickok; August 17, 2015).

Participation in Event

The Changing Landscape of ICT Governance and Practice - Convergence and Big Data (Co-organized by Innovation Center for Big Data and Digital Convergence, Yuan Ze University, Taiwan; August 24 - 25, 2015). Sharat Chandra Ram was granted the Young Scholar Award 2015 to attend theYoung Scholar Workshop followed by main CPRSouth2015 conference (Communication Policy Research South) conference.

Free Speech and Expression

Submission

CIS submission to the UNGA WSIS+10 Review (Jyoti Panday; August 9, 2015),

Cyber Security

Upcoming Event

Bangalore Chapter Meet of DSCI (Co-organized by DSCI and CIS; September 26, 2015). Melissa Hathaway, Commissioner, Global Commission for Internet Governance and Sunil Abraham will be speaking at this event.

Telecom

Op-ed

Those Dropped Calls (Shyam Ponappa; Business Standard; August 5, 2015 and Organizing India Blogspot; August 6, 2015).

Researchers at Work

Books

Digital Activism in Asia Reader (edited by Nishant Shah, P.P. Sneha, and Sumandro Chattapadhyay, with support from Anirudh Sridhar, Denisse Albornoz, and Verena Getahun; August 8, 2015).

Books Chapters

Civil Society Organisations and Internet Governance in Asia - Open Review (Sumandro Chattapadhyay; Asia Internet History Vol. 3, edited by Prof. Kilnam Chon). Comments are invited.
Civil Society Organisations and Internet Governance in India - Open Review (Sumandro Chattapadhyay; Asia Internet History Vol. 3, edited by Prof. Kilnam Chon). Comments are invited.

Accepted Paper Abstract

Studying the Emerging Database State in India: Notes for Critical Data Studies (Sumandro Chattapadhyay; August 2, 2015). The paper has been provisionally accepted.

Blog Entries

Mock-Calling - Ironies of Outsourcing and the Aspirations of an Individual (Sreedeep; August 6, 2015).
Governing Speech on the Internet: From the Free Marketplace Policy to a Controlled 'Public Sphere' (Smarika Kumar; August 28, 2015).

News & Media Coverage

CIS gave its inputs to the following media coverage:

Why the DNA Bill is open to misuse: Sunil Abraham (Kanika Datta; Business Standard; August 1, 2015)
Porn ban: People will soon learn to circumvent ISPs and govt orders, expert says (Karthikeyan Hemalatha; The Times of India; August 2, 2015).
Indian government orders ISPs to block 857 porn websites (John Ribeiro; IDG News and PC World; August 2, 2015)
India blocks access to 857 porn sites (BBC; August 3, 2015).
India launches crackdown on online porn (James Crabtree; Financial Times; August 3, 2015).
Proxies and VPNs: Why govt can't ban porn websites? (Siladitya Ray; August 3, 2015; Hindustan Times)
Nanny state rules porn bad for you (Anahita Mukherji; The Times of India; August 4, 2015).
Ban on pornography temporary, says government (Business Standard; August 4, 2015)
Porn block in India sparks outrage (Australian; August 5, 2015).
Indian Porn Ban is Partially Lifted But Sites Remain Blocked (Sean Mclain; Wall Street Journal; August 5, 2015)
Genetic Profiling: Is it all in the DNA? (Ullekh N.P.; The Open Magazine; August 7, 2015)
India partially lifts Porn Ban? (Nazhat Khan; DESI blitz; August 7, 2015)
Net Neutrality: India is a Key Battleground (Abeer Kapoor; Hardnews; August 10, 2015)
Stats from 2014 reveal horror of scrapped section 66A of IT Act (Aloke Tikku; Hindustan Times; August 20, 2015).
The seedy underbelly of revenge porn (Sandhya Soman; The Times of India; August 23, 2015).
The new tattler in town (P. Anima; Hindu Businessline; August 28, 2015).

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Those Dropped Calls

Shyam Ponappa — 2015-09-04T14:59:22Z

And what could be done to fix them...Why do we have so many dropped calls on our mobile phones? Operators say it's because of the closure and shortage of cell towers, and too little spectrum.

The Op-ed was first published in the Business Standard on August 5 and mirrored in Organizing India Blogspot on August 6, 2015.

Public opinion is conflicted, wanting better services at low prices, fearful of the hazard of more towers, while also wanting operators to pay dearly for spectrum through auctions. The government asserts there's enough spectrum and operators need only to invest and deliver. Can these be resolved to get better services?

There are several elements in this situation relating to technology, to the regulatory aspects of administration (policies and regulations), or to management aspects (structure, organisation and processes). Understanding these and managing them will be crucial in devising solutions.

First, an overview from a lay perspective. An operator runs a number of "cell towers" connected together, as well as to other operators' towers (mobile networks) and fixed networks. A cell tower in its simple form - for one operator, covering one cell/area - comprises a base transceiver station (radio), antenna (mast), and other equipment. Radios need spectrum for wireless communication between towers, and subscribers linked to towers.

Apart from spectrum and licensing costs, the number of towers in an area drives the capital and operating costs, materials and energy used, and the environmental impact. As each tower covers a number of subscribers and spectrum is used for wireless connections, more subscribers need more spectrum. So, a given set of towers provides greater traffic-carrying capacity if there is more spectrum. Conversely, less spectrum requires more towers and equipment, which means higher costs and environmental impact. In other words, for a given frequency range (spectrum band) and set of towers and subscribers, a small set of broader bands can carry more traffic than can a large set of narrower bands.[1]

Calls get dropped or blocked if there is too little spectrum for the number of subscribers, because the calls exceed the spectrum's carrying capacity. Users get good reception if they are near towers, but if other towers are too close, interference from signals from those towers can reduce the capacity of available spectrum, and reception may also be noisy. A weak connection with a distant tower results in poor reception. Distance cuts both ways: a short distance from tower-to-user yields a good connection (strong signal), but other towers must be far enough to avoid interference (i.e., have weak signals for the user). For 900 MHz with a mast height of 10 metres, this tradeoff results in distances between towers of under 100 metres in Delhi because of the scarcity of spectrum, compared with 200 metres in Istanbul, 300 metres in Munich, or 350 metres in Berlin.[2]

An additional benefit of more spectrum is that peak-hour capacity increases, so that more traffic can be carried without calls being dropped or blocked over the same network configuration. Our problem is that we have many operators with narrow, non-contiguous slivers of spectrum. This further reduces the efficiency of the available spectrum.

A reduction of towers because of closure on account of public pressure or for environmental reasons creates genuine problems, but simply adding towers is only a partial solution, as it doesn't remedy the shortage of spectrum. One reason is interference resulting in the reduced capacity of available spectrum - because cells in our urban centres are less than 100 metres apart, much less than in other countries, because sufficient commercial spectrum hasn't been made available. Therefore, more towers alone will cause spectrum to be used less efficiently, but won't reduce dropped calls arising from insufficient, fragmented spectrum. Also, adding towers is expensive, and is detrimental to the environment.

Operators deal with scarce spectrum by deploying more base stations per unit area, and also by using advanced technologies such as adaptive multi-rate codecs and synthesised frequency-hopping. In 2008, Indian operators were among the few worldwide to adopt such techniques, while having the smallest outdoor sites and heaviest traffic densities per MHz.[3] This results in higher costs relative to revenues.

Contrast with China

Comparing the approaches taken by China and India, there's little doubt of the need for a change in our approach. China provided operators with low-priced spectrum to scale up and drive economic growth, among other forms of support. Despite foreign holdings, it hasn't imposed substantial fees. India brought in more operators than other markets, didn't provide as much commercial spectrum, fragmented what it had, and priced it out of sight. Consequently, substantial spectrum is idle with the government, while large operators with very little spectrum and the legacy of underdeveloped fixed networks have over 100 million customers each, with high voice and growing data usage. This situation is likely to worsen as more spectrum holdings come up for renewal.

Efficient data transmission requires even broader bands. The charts below show how capacity increases per MHz with broader bands, and the bandwidth in terms of megabits per second (Mbps) needed for services.

Capacity Increases with Broader Bands

Possible solutions

One possibility is to adopt policies and regulations that facilitate spectral efficiency, e.g., allowing roaming and spectrum trading. This wouldn't mitigate the problem of excessive capital expenditure on spectrum auctions that exceeds investment in networks (according to an industry estimate), but would probably improve spectrum utilisation.

Another is to share all spectrum through pooling, allowing common-carrier access on payment to Radio Access Networks including spectrum. If charged only a reasonable revenue share with incentives such as reductions for rural services, there is likely to be explosive growth in broadband delivery with an increase in government revenue, if the organisation and coordination is done right. The government needs to bring together operators and other stakeholders, including the Ministries of Communications & Information Technology and of Information & Broadcasting, and with expert help, work out how to organise and deliver the promise of Digital India.

[1]. An assessment of spectrum management policy in India, 2008; p 10: http://www.aegis-systems.co.uk

[2]. For GSM, there is a 50 per cent increase in the capacity per MHz using two channels of 12 MHz each instead of two channels of 6 MHz each. Ibid., 15.

[3]. Ibid.,28.

For more details visit https://cis-india.org/telecom/blog/organizing-india-blogspot-august-6-2015-shyam-ponappa-those-dropped-calls

July 2015 Bulletin

praskrishna — 2015-11-21T16:23:52Z

Our newsletter for the month of July is below:

We are happy to share with you the seventh issue of the Centre for Internet and Society (CIS) newsletter (July 2015). The past editions of the newsletter can be accessed at http://cis-india.org/about/newsletters.

Highlights

NVDA team conducted a training at SIES College, Sion, Mumbai. Thirty-four delegates attended the training programme. A training workshop was held at Anne Jane Askwith Higher Secondary School for the Visually Impaired, Palayamkottai, Tirunelveli by NVDA team. Sixteen delegates participated in this. Konkani Wikipedia is the second Wikimedia project after Odia Wikisource that has gone live out of incubation. The project stayed in the incubation for nine long years and the community has gone through a long debate to have a Wikipedia of their own. Subhashish Panigrahi has blogged on this highlighting the three Konkani Wikimedians. The 30^th Session of the WIPO Standing Committee on Copyrights and Related Rights was held in Geneva from June 29 to July 3. Nehaa Chaudhari prepared a statement about the negotiations on the Proposed Treaty for Broadcasting Organisations. Sumandro Chattapadhyay wrote an article in the Hindustan Times about India’s “Digital India” initiative to develop communication infrastructure, government information systems, and general capacity to digitise public life in India. CIS published the first draft of its analysis on technology business incubators ("TBI") in India. The report prepared by Sunil Abraham, Vidushi Marda, Udbhav Tiwari and Anumeha Karnatak looks at operating procedures, success stories and lessons that can be learnt from TBIs in India. Pranesh Prakash did a brief analysis about the Department of Telecommunications Panel Report on Net Neutrality. CIS has participated in the Expert Committee for DNA Profiling constituted by the Department of Biotechnology in 2012 for the purpose of deliberating on and finalizing the draft Human DNA Profiling Bill and appreciates this opportunity. CIS has prepared a dissent note to the Expert Committee on DNA Profiling. In the last few decades, all major common law jurisdictions have decriminalised non-procreative sex – oral and anal sex (sodomy) – to allow private, consensual, and non-commercial homosexual intercourse. Bhairav Acharya brought out the developments from across the world in a blog entry. As part of its project on mapping cyber security actors in South Asia and South East Asia, CIS conducted interviews with a Tibetan security researcher and information activist and Shantanu Ghosh, Managing Director, Symantec Product Operations, India. CIS, the Observer Research Foundation, the Internet Policy Observatory, the Centre for Global Communication Studies and the Annenberg School for Communication, University of Pennsylvania had organized a conference in April in New Delhi. The findings have been condensed in a report titled “Effective research, policy formulation, and the development of regulatory frameworks in South Asia”. Pranesh Prakash in a research paper titled Regulatory Perspectives on Net Neutrality gives an overview on why India needs to put in place net neutrality regulations, and the form that those regulations must take to avoid being over-regulation. Rakshanda Deka undertook an analysis on the anti-spam laws in different jurisdictions. This analysis is a part of a larger attempt at formulating a model anti-spam law for India by analysing the existing spam laws across the world. As part of the 'Studying Internets in India' series, RAW has published blog entries on WhatsApp and the Creation of a Transnational Sociality; Users and the Internet; Effective Activism: The Internet, Social Media, and Hierarchical Activism in New Delhi; Studying the Internet Discourse in India through the Prism of Human Rights; and 'Originality,' 'Authenticity,' and 'Experimentation': Understanding Tagore’s Music on YouTube. The National Optic Fibre Network, a part of the Government's Digital India Initiative, has been in the news since the recent Expert Committee Report. Aditya Garg in a blog entry examined the accountability of the funding of the project.

Accessibility and Inclusion

Under a grant from the Hans Foundation we are doing two projects. The first project is on creating a national resource kit of state-wise laws, policies and programmes on issues relating to persons with disabilities in India. CIS in partnership with CLPR (Centre for Law and Policy Research) compiled the National Compendium of Policies, Programmes and Schemes for Persons with Disabilities (29 states and 6 union territories). The publication has been finalised and is being printed. The draft chapters and the quarterly reports can be accessed on the project page. The second project is on developing text-to-speech software for 15 Indian languages. The progress made so far in the project can be accessed here.

NVDA and eSpeak

Monthly Updates

July 2015 Report (Suman Dogra; July 31, 2015).

Event Reports

The training programmes were held in June and the reports were published in July:

Tamil Computing with NVDA Training Workshop (Organized by NVDA team: Anne Jane Ask with Higher Secondary School for the Visually Impaired, Palayamkottai, Tirunelveli; June 3 – 7, 2015).
Training in eSpeak Marathi (Organized by NVDA team; SIES College, Sion, Mumbai; June 28, 2015).

Access to Knowledge

Submission / Comment

Statement by the Centre for Internet and Society on the Broadcast Treaty at SCCR 30 (Nehaa Chaudhari; July 2, 2015).

Wikipedia

Blog Entries

Reading Devanagari Script based sites like Konkani Wikipedia in Kannada Script (Dr. U.B. Pavanaja; July 13, 2015).
Konkani Wikipedia Goes Live After 'Nine Years' of Incubation (Subhashish Panigrahi; July 18, 2015).

Events Co-organized

Christ University Undergraduate Programme (Organized by CIS-A2K; Bangalore; July 1 - 8, 2015). Students were initiated into the Wikimedia activities with hands on sessions of typing on Wikisource. Faculty of the Christ University helped the A2K team in deciding on the texts that were to be typed. These texts will provide much needed impetus for Wikisource related activities in Indian Languages. Wikipedia Education Programme at Christ University received support from Ravishankar.A of the Tamil Wikimedia community and Sayant Mahato from Sanskrit Wikimedia community.
Aloysius College (Organized by CIS-A2K; Mangalore; July 1 – 4, 2015). Tulu and Kannada Wikipedia workshops were conducted in St. Aloysis College, Mangalore. Tulu Wikipedia is in Incubator and a small community is growing in Mangalore. Pavanaja U.B. and Rahmanuddin Shaik participated in this events.
Media Wiki Train the Trainer Program (Organized by CIS-A2K; Bangalore; June 24 – 27, 2015): A four-day long train-the-trainer program aimed at building leadership among technical contributors to Indic language Wikimedians in the areas of bugs, bots--Pywikipedia and Auto Wiki Browser, various MediaWiki tools, and translations. Ravishankar A. from Wikimedia India, MediaWiki developers Pavithra H., Yogesh Omshivaprakash H.L. and Harsh Kothari, and Tamil Wikimedian Dineshkumar Ponnusamy provided support for the event.

Participation in Events

Wikimania 2015 (Organized by Wikimedia Foundation; Mexico City; July 15 - 19, 2015): A whole day was dedicated for evaluation of strategies and activities by various major stakeholders of the Wikimedia movement. Community members who lead major activities, Wikimedia chapters, affiliate organizations and Wikimedia Foundation itself took part in the discussions. There were several group activities, exchange of ideas focused on project and community level outreach and other activities, tools and techniques, and best practices. Subhashish Panigrahi participated in this event and gave a talk on How to do Guerrilla GLAM. Subhashish Panigrahi was a panelist along with Rohini Lakshané in the session “Edit-a-thons for Bridging the Gender Gap on Wikimedia: A Panel Discussion”. An Indic Meet-up was also organized. Wikimedians from India, Bangladesh and Nepal representing various language communities, Wikimedia India, Wikimedia Bangladesh, Wikimedia Nepal, and Access to Knowledge (CIS-A2K) gathered to discuss about various challenges, cross-community collaborative projects, organizing larger events, and strategies to grow the Wikimedia movement in South Asia.
Classical Languages in the Digital Era Conference (Organized by Central Institute of Indian Languages, Mysore; July 17, 2015) Tanveer Hasan participated in this conference aimed at discussing about the future of Indian classical languages in the digital era.

Media Coverage

Not many contributors for Kannada-centric Wiki page (The Times of India, July 5, 2015)
Upload More Kannada Articles on Wikipedia (Indian Express, July 5, 2015)
Kannada Wikipedia Workshop in Mangaluru (Udayavani; July 5, 2015)
Kannada Wikipedia Workshop in Mangaluru (Prajavani; July 5, 2015)

Staff Movement

Tito Dutta, Luis Gomes and Abhinav Garule have joined the CIS-A2K team as Programme Associates from March this year. Tito is working for internal documentation and resource building, and Luis and Abhinav are implementing the Konkani and Marathi work plan respectively along with community liaison.

Internet Governance

Free Speech and Expression

Blog Entries

Regulatory Perspectives on Net Neutrality (Pranesh Prakash; July 8, 2015). Vidushi Marda and Tarun Krishnakumar assisted Pranesh Prakash in this.
Free Speech Policy in India: Community, Custom, Censorship, and the Future of Internet Regulation (Bhairav Acharya; July 13, 2015).
Net Neutrality and the Law of Common Carriage (Bhairav Acharya; July 14, 2015).
Freedom of Expression in a Digital Age (Geetha Hariharan and Jyoti Panday; July 14, 2015). CIS, the Observer Research Foundation, the Internet Policy Observatory, the Centre for Global Communication Studies and the Annenberg School for Communication, University of Pennsylvania organized this conference on April 21, 2015 in New Delhi. Elonnai Hickok edited the report.
Clearing Misconceptions: What the DoT Panel Report on Net Neutrality Says (and Doesn't) (Pranesh Prakash; July 21, 2015).
Role of Intermediaries in Countering Online Abuse (Jyoti Panday; July 31, 2015). This got published as two blog entries in the NALSAR Law Tech Blog. Part 1 can be accessed here and Part 2 here.

Event Co-organized

A Public Discussion on Criminal Defamation in India (Organized by CIS, the Network of Women in Media, India; and Media Watch; Bangalore; July 29, 2015). The event was a public discussion about the continued criminalisation of defamation in India.

Participation in Event

Roundtable discussion on WHOIS (Organized by Department of Electronics & Information Technology (DeitY), Govt. of India; July 28, 2015; New Delhi). Sunil Abraham and Vidushi Marda participated in the discussion remotely. Aditya Garg attended in person.

Privacy

Blog Entries

Anti-Spam Laws in Different Jurisdictions: A Comparative Analysis (Rakshanda Deka; July 2, 2015).
A Dissent Note to the Expert Committee for DNA Profiling (Elonnai Hickok; July 17, 2015). Click for DNA Bill Functions, DNA List of Offences, and CIS Note on DNA Bill. A modified version was published by Citizen Matters Bangalore on July 28.
Privacy, Autonomy, and Sexual Choice: The Common Law Recognition of Homosexuality (Bhairav Acharya; July 18, 2015).
Aadhaar Number vs the Social Security Number (Elonnai Hickok; July 21, 2015).

Participation in Event

7th Best Practices Meet 2015 (Organized by Data Security Council of India; Bangalore; July 9 – 10, 2015). Sunil Abraham was a panelist in the session "Architecting Security for transformation to Digital India". Elonnai Hickok was a panelist in the session "Steering privacy in the age of extreme innovation technology & business models."

Cyber Security

Videos

Cyber Security Series Part 23 (Purba Sarkar; July 13, 2015). CIS interviews a Tibetan security researcher and information activist.
Cyber Security Series Part 24 (Purba Sarkar; July 15, 2015). CIS interviews Shantanu Ghosh, Managing Director, Symantec Product Operations, India, as part of the Cybersecurity Series.

Miscellaneous

Article

Iron out contradictions in the Digital India programme (Sumandro Chattapadhyay; Hindustan Times; July 28, 2015).

Research Paper

First draft of Technology Business Incubators: An Indian Perspective and Implementation Guidance Report (Sunil Abraham, Vidushi Marda, Udbhav Tiwari and Anumeha Karnatak; July 25, 2015).

Telecom

Op-ed

The Centrality of Cash Flows (Shyam Ponappa; Business Standard; July 1, 2015 and Organizing India Blogspot; July 2, 2015).

Blog Entry

Funding of National Optic Fibre Network (NOFN) - Who's Accountable? (Aditya Garg; July 17, 2015).

Researchers at Work

Blog Entries

WhatsApp and the Creation of a Transnational Sociality (Maitrayee Deka; July 1, 2015).
Users and the Internet (Purbasha Auddy; July 10, 2015).
Effective Activism: The Internet, Social Media, and Hierarchical Activism in New Delhi (Sarah McKeever; July 16, 2015).
Studying the Internet Discourse in India through the Prism of Human Rights (Deva Prasad M.; July 22, 2015).
'Originality,' 'Authenticity,' and 'Experimentation': Understanding Tagore’s Music on YouTube) (Ipsita Sengupta; July 27, 2015).

News & Media Coverage

CIS gave its inputs to the following media coverage:

'IRCTC’s Aadhaar play can violate SC order and derail National Security' (Shubhra Rishi; CIO.IN; July 1, 2015).
The Digital Divide: pros and cons of Modi's latest big initiative (Suhas Munshi; July 2, 2015).
Corporate push to Modi’s Rs.4.5-billion digital dream (Rakesh Kumar; The Statesman; July 13, 2015).
Criminal Defamation: The Urgent Cause That has United Rahul Gandhi, Arvind Kejriwal and Subramanian Swamy (Betwa Sharma; Huffington Post; July 15, 2015).
Five Nations, One Future? (Bjorn Ludtke, Ellen Lee, Jaideep Sen, Gwendolyn Ledger, David Nicholson, and Jesko Johannsen; Voestalpine; July 18, 2015).
The scariest bill in Parliament is getting no attention – here’s what you need to know about it (Nayantara Narayanan; Scroll.in; July 24, 2015)
Regulation, misuse concerns still dog DNA profiling bill (Nikita Mehta; Livemint; July 29, 2015)

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Funding of National Optic Fibre Network (NOFN) - Who's Accountable?

Aditya Garg — 2015-07-17T15:19:51Z

The National Optic Fibre Network, a part of the Government's Digital India Initiative, has been in the news since the recent Expert Committee Report. In this Blog, the author examines the Accountability of the funding of the project.

The National Optic Fibre Network (NOFN) is a project launched by the Government under their 'Digital India' initiative. Implementation of the project is being undertaken by Bharat Broadband Nigam Limited (BBNL), a Special Purpose Vehicle (SPV) created for the project. ^{^[1]} The project, launched in 2011, has seen multiple delays. The recent Expert Committee report on the project has now set an end-date for December 2016. It has also proposed an increase in the funding from 20,000 crore to 72,000 crore approximately. This is greater than a threefold increase.^{^[2]} The Universal Service Obligation Fund (USOF) provides all the funding for the implementation of the project under an agreement between them and BBNL. ^{^[3]} The close relationship between the two entities through their parent entity, however, can lead to a lax oversight of the entire process.

Universal Service Obligation Fund

USOF, established in 2002, provides effective subsidies to ensure telegraph services are provided to everyone across India, especially in the rural and remote areas. It is headed by the USOF Administrator who reports to the Secretary, Department of Telecommunications (DoT). ^{^[4]} Funds come from the Universal Service Levy (USL) of 5% charged from all the telecom operators on their Adjusted Gross Revenue (AGR) which are then deposited into the Consolidated Fund of India, and require prior parliamentary approval to be dispatched.^{^[5]} The USOF works through a bidding process, where funds are given to the enterprise quoting the lowest bid. However, the funds for NOFN were made an exception to this process since BBNL was the sole party involved in the implementation having being specifically created for it.^{^[6]}

Agreement to Transfer Funds between USOF and BBNL

The agreement^{^[7]} between USOF and BBNL provided for USOF to cover all the expenses of BBNL undertaken while working on NOFN project. It empowered USOF, amongst other things, to:

Revoke the Agreement in Public Interest within 5 years from signing; and to re-new the agreement or not to re-new it

Enforce Operating and Technical Condition upon BBNL while implementing the NOFN project

Have the Right to Inspect, Test and Monitor the enforcement of such Conditions so imposed

Conflict of Interest between both parties

The Administrator of USOF functions as an attached office to the Ministry of Dot, and is required to report to them,^{^[8]} while BBNL is an SPV established under the DoT^{^[9]} and has an Memorandum of Understanding ^{^[10]} with them. Since the parent entity of both the parties is the same, there is a definite conflict of interest. An analysis of USOF's largest and most ambitious program for mobile provisioning in rural areas showed slow progress due to^{^[11]}:

Lack of Accountability arising from the relationship between the Government owned incumbent and the USOF Administrator

No proper evaluation of USOF

Non-ring fencing of the fund

Poor quality project management

Lack of Review Mechanism with effective power

Similarly in NOFN, if no effective review mechanism is evolved to check the progress of the timeline and implementation of the projects, it may prove ineffective.^{^[12]} 3rd party review mechanisms have been suggested as an alternative to USOF mechanisms to ensure neutrality and efficiency^{^[13]} since the the agreement gives USOF the Right to 'Inspect, Test and Monitor', but there is no effective Review Mechanism available with the USOF to actually undertake the task. The ones available would also be working under the DoT and hence operate under a conflict of interest which may be misused to disburse funds even though they are not being used efficiently or in a timely fashion.

Other Funding Options - Private Actors and State Govts.

The Expert Committee also looked into two other funding options. Bringing Private Actors on Board in implementation of Phase II of the Project was the first.^{^[14]} This has been criticized as being unfair to Public Enterprises since they have been allotted the 'hard' areas while the Private Actors will get the 'soft' ones. ^{^[15]} The abysmal record of Private Actors in Rural Areas has also been mentioned as a factor against them.^{^[16]}

The second suggestion is to bring in State Governments. Andhra Pradesh has already decided to opt for its own SPV to implement NOFN while Kerala and Tamil Nadu are considering it.^{^[17]} The problems with having multiple implementing bodies are:

Transferring Funds to multiple bodies

Having to track their work separately

Lack of accountability for work done by them individually

Since a criticism of the current implementation mechanism has been based on the fact that 3 PSUs (BSNL, RailTel and PowerGrid) have been involved, having multiple SPVs would only add to the woes.^{^[18]}

The project, having been delayed multiple times, is now set for a December-2017 end. The funding for it has also been tripled. Hence, when we see that the funds are being given away so easily to BBNL and without any effective procedure to maintain the efficacy of the work done, it raises questions on the accountability of the Government regarding the fund which has been collected through revenue from all telecom operators (via USL). Therefore, a more open mechanism has to be ensured to reduce chances of bias towards BBNL by USOF, both having the same parent entity leading to conflict of interest between the two. This should be the focus right now, rather than introducing new funding options.

^{^[1]} 'Objectives, About BBNL' http://www.bbnl.nic.in/content/page/objectives.php accessed 2 July 2015.

^{^[2]} Yuthika Bhargava, 'National Opic Fibre Network - Revamp on Cards' (The Hindu, 30 May 2015) http://www.thehindu.com/business/Industry/national-optical-fibre-network-revamp-on-cards/article7261346.ece accessed 2 July 2015.

^{^[3]} 'Agreement For Support from USO Fund For Creation, Operation and Maintenance of the National Optical Fibre Network (NOFN) for Provision of Broadband Connectivity to the Panchayats to be executed by Bharat Broadband Network Limited (BBNL) Under Universal Services Obligation Fund, The Indian Telegraph (Amendment) Rules, 2012' http://www.usof.gov.in/usof-cms/GagendaPdf/NOFN_Agreement.pdf accessed 2 July 2015.

^{^[4]} 'About USOF' http://www.usof.gov.in/usof-cms/usof_home_contd.htm accessed 2 July 2015.

^{^[5]} 'USOF Brochure' http://www.usof.gov.in/usof-cms/USOF-Brochure.pdf accessed 2 July 2015.

^{^[6]} 'Indian Telegraph (Amendment of 2012) Rules, 1951' http://usof.gov.in/usof-cms/ActsRules/Indian%20Telegraph%20Rules%202012.PDF accessed 3 July 2015.

^{^[7]} 'Agreement For Support from USO Fund For Creation, Operation and Maintenance of the National Optical Fibre Network (NOFN) for Provision of Broadband Connectivity to the Panchayats to be executed by Bharat Broadband Network Limited (BBNL) Under Universal Services Obligation Fund, The Indian Telegraph (Amendment) Rules, 2012' http://www.usof.gov.in/usof-cms/GagendaPdf/NOFN_Agreement.pdf accessed 5 July 2015.

^{^[8]} 'Constitution, Powers and Functions of the Office of Universal Service Fund Administrator' http://www.usof.gov.in/usof-cms/usofsub/Constitution,%20Powers%20and%20Functions%20of%20the%20Office%20of%20Universal%20Service%20Fund%20Administrator.pdf accessed 6 July 2015.

^{^[9]} 'Company Profile' http://www.bbnl.nic.in/content/page/company-profile.php accessed 5 July 2015.

^{^[10]} 'Memorandum of Understanding 2015-16 with Department of Telecommunication' http://www.bbnl.nic.in/upload/uploadfiles/files/BBNL_Signed_Copy%20of%20MoU%202015-16.pdf accessed 6 July 2015.

^{^[11]} Rekha Jain & G. Raghuram, 'Role of Universal Service Obligation Fund in Rural Telecom Services: Lessons from the Indian Experience' http://www.iimahd.ernet.in/assets/snippets/workingpaperpdf/2009-06-03Jain.pdf accessed 2 July 2015.

^{^[12]} Ibid

^{^[13]} Ibid

^{^[14]} Mansi Taneja, 'Govt decides to rope in private players for NOFN project' (Business Standard, 15 January 2015) http://www.business-standard.com/article/economy-policy/govt-decides-to-rope-in-private-players-for-nofn-project-115011401190_1.html accessed 1 July 2015.

^{^[15]} Prabir Purkayastha, 'National Optical Fibre Network Project And the Expert Committee Report' (Peoples Democracy, No. 25, Vol. XXXIX, 28 June 2015).

^{^[16]} Ibid

^{^[17]} Mansi Taneja, 'National Optic fibre network: Govt to rope in state govts' (Business Standard, 29 May 2015) http://www.business-standard.com/article/economy-policy/national-optic-fibre-network-govt-to-rope-in-state-govts-115052900050_1.html accessed 4 July 2015.

^{^[18]} 'Trai: Optical fibre network project caught in red tape' (The Financial Express, 18 April 2015) http://www.financialexpress.com/article/economy/trai-optical-fibre-network-project-caught-in-red-tape/64699/ accessed 2 July 2015.

For more details visit https://cis-india.org/telecom/blog/funding-of-national-optic-fibre-network-who-is-accountable

Regulatory Perspectives on Net Neutrality

pranesh — 2015-07-18T02:46:30Z

In this paper Pranesh Prakash gives an overview on why India needs to put in place net neutrality regulations, and the form that those regulations must take to avoid being over-regulation.

With assistance by Vidushi Marda (Programme Officer, Centre for Internet and Society) and Tarun Krishnakumar (Research Volunteer, Centre for Internet and Society). I would like to specially thank Vishal Misra, Steve Song, Rudolf van der Berg, Helani Galpaya, A.B. Beliappa, Amba Kak, and Sunil Abraham for extended discussions, helpful suggestions and criticisms. However, this paper is not representative of their views, which are varied.

Today, we no longer live in a world of "roti, kapda, makaan", but in the world of "roti, kapda, makaan aur broadband". ^{^[1]} This is recognized by the National Telecom Policy IV.1.2, which states the need to "recognise telecom, including broadband connectivity as a basic necessity like education and health and work towards 'Right to Broadband'."^{^[2]} According to the IAMAI, as of October 2014, India had 278 million internet users. ^{^[3]} Of these, the majority access Internet through their mobile phones, and the WEF estimates only 3 in 100 have broadband on their mobiles.^{^[4]} Thus, the bulk of our population is without broadband. Telecom regulation and net neutrality has a very important role in enabling this vision of Internet as a basic human need that we should aim to fulfil.

1. Why should we regulate the telecom sector?

All ICT regulation should be aimed at achieving five goals: achieving universal, affordable access; ^{^[5]} ensuring and sustaining effective competition in an efficient market and avoiding market failures; protecting against consumer harms; ensuring maximum utility of the network by ensuring interconnection; and addressing state needs (taxation, security, etc.). Generally, all these goals go hand in hand, however some tensions may arise. For instance, universal access may not be provided by the market because the costs of doing so in certain rural or remote areas may outweigh the immediate monetary benefits private corporations could receive in terms of profits from those customers. In such cases, to further the goal of universal access, schemes such as universal service obligation funds are put in place, while ensuring that such schemes either do not impact competition or very minimally impact it.

It is clear that to maximise societal benefit, effective regulation of the ICT sector is a requirement, which otherwise, due to the ability of dominant players to abuse network effect to their advantage, is inherently prone towards monopolies. For instance, in the absence of regulation, a dominant player would charge far less for intra-network calls than inter-network calls, making customers shift to the dominant network. This kind of harm to competition should be regulated by the ICT regulator. However, it is equally true that over-regulation is as undesirable as under-regulation, since over-regulation harms innovation - whether in the form of innovative technologies or innovative business models. The huge spurt of growth globally of the telecom sector since the 1980s has resulted not merely from advancements in technology, but in large part from the de-monopolisation and deregulation of the telecom sector.^{^[6]} Similarly, the Internet has largely flourished under very limited technology-specific regulation. For instance, while interconnection between different telecom networks is heavily regulated in the domestic telecom sector, interconnection between the different autonomous systems (ASes) that make up the Internet is completely unregulated, thereby allowing for non-transparent pricing and opaque transactions. Given this context, we must ensure we do not over-regulate, lest we kill innovation.

2. Why should we regulate Net Neutrality? And whom should we regulate?

We wouldn't need to regulate Net Neutrality if ISPs were not "gatekeepers" for last-mile access. "Gatekeeping" occurs when a single company establishes itself as an exclusive route to reach a large number of people and businesses or, in network terms, nodes. It is not possible for Internet services to reach the customers of the telecom network without passing through the telecom network. The situation is very different in the middle-mile and for backhaul. Even though anti-competitive terms may exist in the middle-mile, especially given the opacity of terms in "transit agreements", a packet is usually able to travel through multiple routes if one route is too expensive (even if that is not the shortest network path, and is thus inefficient in a way). However, this multiplicity of routes is not possible in the last mile.

This leaves last mile telecom operators (ISPs) in a position to unfairly discriminate between different Internet services or destinations or applications, while harming consumer choice. This is why we believe that promoting the five goals mentioned above would require regulation of last-mile telecom operators to prevent unjust discrimination against end-users and content providers.

Thus, net neutrality is the principle that we should regulate gatekeepers to ensure they do not use their power to unjustly discriminate between similarly situated persons, content or traffic.

3. How should we regulate Net Neutrality?

3.1. What concerns does Net Neutrality raise? What harms does it entail?

Discriminatory practices at the level of access to the Internet raises the following set of concerns:

1. Freedom of speech and expression, freedom of association, freedom of assembly, and privacy.

2. Harm to effective competition

a. This includes competition amongst ISPs as well as competition amongst content providers.

b. Under-regulation here may cause harm to innovation at the content provider level, including through erecting barriers to entry.

c. Over-regulation here may cause harm to innovation in terms of ISP business models.

3. Harm to consumers

a. Under-regulation here may harm consumer choice and the right to freedom of speech, expression, and communication.

b. Over-regulation on this ground may cause harm to innovation at the level of networking technologies and be detrimental to consumers in the long run.

4. Harm to "openness" and interconnectedness of the Internet, including diversity (of access, of content, etc.)

a. Exceptions for specialized services should be limited to preserve the open and interconnectedness of the Internet and of the World Wide Web.

It might help to think about Net Neutrality as primarily being about two overlapping sets of regulatory issues: preferential treatment of particular Internet-based services (in essence: content- or source-/destination-based discrimination, i.e., discrimination on basis of 'whose traffic it is'), or discriminatory treatment of applications or protocols (which would include examples like throttling of BitTorrent traffic, high overage fees upon breaching Internet data caps on mobile phones, etc., i.e., discrimination on the basis of 'what kind of traffic it is').

Situations where the negative or positive discrimination happens on the basis of particular content or address should be regulated through the use of competition principles, while negative or positive discrimination at the level of specific class of content, protocols, associated ports, and other such sender-/receiver-agnostic features, should be regulated through regulation of network management techniques . The former deals with instances where the question of "in whose favour is there discrimination" may be asked, while the latter deals with the question "in favour of what is there discrimination".

In order to do this, a regulator like TRAI can use both hard regulation - price ceilings, data cap floors, transparency mandates, preventing specific anti-competitive practices, etc. - as well as soft regulation - incentives and disincentives.

3.1.1 Net Neutrality and human rights

Any discussion on the need for net neutrality impugns the human rights of a number of different stakeholders. Users, subscribers, telecom operators and ISPs all possess distinct and overlapping rights that are to be weighed against each other before the scope, nature and form of regulatory intervention are finalised. The freedom of speech, right to privacy and right to carry on trade raise some of the most pertinent questions in this regard.

For example, to properly consider issues surrounding the practice of paid content-specific zero-rating from a human rights point of view, one must seek to balance the rights of content providers to widely disseminate their 'speech' to the largest audiences against the rights of consumers to have access to a diverse variety of different, conflicting and contrasting ideas.

This commitment to a veritable marketplace or free-market of ideas has formed the touchstone of freedom of speech law in jurisdictions across the world as well as finding mention in pronouncements of the Indian Supreme Court. Particular reference is to be made to the dissent of Mathew, J. inBennett Coleman v. Union of India^{^[7]} and of the majority Sakal Papers v. Union of India^{^[8]} which rejected the approach.

Further, the practice of deep-packet inspection, which is sometimes used in the process of network management, raises privacy concerns as it seeks to go beyond what is "public" information in the header of an IP packet, necessary for routing, to analysing non-public information. ^{^[9]}

3.2 What conditions and factors may change these concerns and the regulatory model we should adopt?

While the principles relating to Net Neutrality remain the same in all countries (i.e., trying to prevent gatekeepers from unjustly exploiting their position), the severity of the problem varies depending on competition in the market, on the technologies, and on many other factors. One way to measure fair or stable allocation of the surplus created by a network - or a network-of-networks like the Internet - is by treating it as a convex cooperation game and thereupon calculating that game's Shapley value:^{^[10]} in the case of the Internet, this would be a game involving content ISPs, transit ISPs, and eyeball (i.e., last-mile) ISPs. The Shapley value changes depending on the number of competitors there are in the market: thus, the fair/stable allocation when there's vibrant competition in the market is different from the fair/stable allocation in a market without such competition. That goes to show that a desirable approach when an ISP tries to unjustly enrich itself by charging other network-participants may well be to increase competition, rather than directly regulating the last-mile ISP. Further, it shows that in a market with vibrant last-mile competition, the capacity of the last-mile ISP to unjustly are far diminished.

In countries which are remote and have little international bandwidth, the need to conserve that bandwidth is high. ISPs can regulate that by either increasing prices of Internet connections for all, or by imposing usage restrictions (such as throttling) on either heavy users or bandwidth-hogging protocols. If the amount of international bandwidth is higher, the need and desire on part of ISPs to indulge in such usage restrictions decreases. Thus, the need to regulate is far higher in the latter case, than in the former case.

The above paragraphs show that both the need for regulation and also the form that the regulation should take depend on a variety of conditions that aren't immediately apparent.

Thus, the framework that the regulator sets out to tackle issues relating to Net Neutrality are most important, whereas the specific rules may need to change depending on changes in conditions. These conditions include:

● last-mile market

○ switching costs between equivalent service providers

○ availability of an open-access last-mile

○ availability of a "public option" neutral ISP

○ increase or decrease in the competition, both in wired and mobile ISPs.

● interconnection market

○ availability of well-functioning peering exchanges

○ availability of low-cost transit

● technology and available bandwidth

○ spectrum efficiency

○ total amount of international bandwidth and local network bandwidth

● conflicting interests of ISPs

○ do the ISPs have other business interests other than providing Internet connectivity? (telephony, entertainment, etc.)

3.3 How should we deal with anti-competitive practices?

Anti-competitive practices in the telecom sector can take many forms: Abuse of dominance, exclusion of access to specific services, customer lock-in, predatory pricing, tying of services, cross-subsidization, etc., are a few of them. In some cases the anti-competitive practice targets other telecom providers, while in others it targets content providers. In the both cases, it is important to ensure that ensure that telecom subscribers have a competitive choice between effectively substitutable telecom providers and an ability to seamlessly switch between providers.

3.3.1 Lowering Switching Costs

TRAI has tackled many of these issues head on, especially in the mobile telephony space, while competitive market pressures have helped too:

● Contractual or transactional lock-in. The easiest way to prevent shifting from one network to another is by contractually mandating a lock-in period, or by requiring special equipment (interoperability) to connect to one's network. In India, this is not practised in the telecom sector, with the exception of competing technologies like CDMA and GSM. Non-contractual lock-ins, for instance by offering discounts for purchasing longer-term packages, are not inherently anti-competitive unless that results in predatory pricing or constitutes an abuse of market dominance. In India, switching from one mobile provider to another, though initiated 15 years into the telecom revolution, is in most cases now almost as easy as buying a new SIM card.^{^[11]} TRAI may consider proactive regulation against contractual lock-in.

● Number of competitors. Even if switching from one network to another is easy, it is not useful unless there are other equivalent options to switch to. In the telecom market, coverage is a very important factor in judging equivalence. Given that last mile connectivity is extremely expensive to provide, the coverage of different networks are very different, and this is even more true when one considers wired connectivity, which is difficult to lay in densely-populated urban and semi-urban areas and unprofitable in sparsely-populated areas. The best way to increase the number of competitors is to make it easier for competitors to exist. Some ways of doing this would be through enabling spectrum-sharing, lowering right-of-way rents, allowing post-auction spectrum trading, and promoting open-access last-mile fibre carriers and to thereby encourage competition on the basis of price and service and not exclusive access to infrastructure.

● Interconnection and mandatory carriage. The biggest advantage a dominant telecom player has is exclusive access to its customer base. Since in the telecom market, no telco wants to not connect to customers of another telco, they do not outright ban other networks. However, dominant players can charge high prices from other networks, thereby discriminating against smaller networks. In the early 2000s, Airtel-to-Airtel calls were much cheaper than Airtel-to-Spice calls. However, things have significantly changed since then. TRAI has, since the 2000s, heavily regulated interconnection and imposed price controls on interconnection ("termination") charges.^{^[12]} Thus, now, generally, inter-network calls are priced similarly to intra-network calls. And if you want cheaper Airtel-to-Airtel calls, you can buy a special (unbundled) pack that enables an Airtel customer to take advantage of the fact that her friends are also on the same network, and benefits Airtel since they do not in such cases have to pay termination charges. Recently, TRAI has even made the interconnection rates zero in three cases: landline-to-landline, landline-to-cellular, and cellular-to-landline, in a bid to decrease landline call rates, and incentivise them, allowing a very low per call interconnection charges of 14 paise for cellular-to-cellular connections. ^{^[13]}

○ With regard to Net Neutrality, we must have a rule that no termination charges or carriage charges may be levied by any ISP upon any Internet service. No Internet service may be discriminated against with regard to carriage conditions or speeds or any other quality of service metric. In essence all negative discrimination should be prohibited. This means that Airtel cannot forcibly charge WhatsApp or any other OTT (which essentially form a different "layer") money for the "privilege" of being able to reach Airtel customers, nor may Airtel slow down WhatsApp traffic and thus try to force WhatsApp to pay. There is a duty on telecom providers to carry any legitimate traffic ("common carriage"), not a privilege. It is important to note that consumer-facing TSPs get paid by other interconnecting Internet networks in the form of transit charges (or the TSP's costs are defrayed through peering). There shouldn't be any separate charge on the basis of content (different layer from the carriage) rather than network (same layer as the carriage). This principle is especially important for startups, and which are often at the receiving end of such discriminatory practices.

● Number Portability. One other factor that prevents users from shifting between one network and another is the fact that they have to change an important aspect of their identity: their phone number (this doesn't apply to Internet over DSL, cable, etc.). At least in the mobile space, TRAI has for several years tried to mandate seamless mobile number portability. The same is being tried by the European Commission in the EU. ^{^[14]} While intra-circle mobile number portability exists in India - and TRAI is pushing for inter-circle mobile number portability as well^{^[15]} - this is nowhere as seamless as it should be.

● Multi-SIM phones. The Indian market is filled with phones that can accommodate multiple SIM cards, enabling customers to shift seamlessly between multiple networks. This is true not just in India, but most developing countries with extremely price-sensitive customers. Theoretically, switching costs would approach zero if in a market with full coverage by n telecom players every subscriber had a phone with n SIM slots with low-cost SIM cards being available.

The situation in the telecom sector with respect to the above provides a stark contrast to the situation in the USA, and to the situation in the DTH market. In the USA, phones get sold at discounts with multi-month or multi-year contracts, and contractual lock-ins are a large problem. Keeping each of the above factors in mind, the Indian mobile telecom space is far more competitive than the US mobile telecom space.

Further, in the Indian DTH market, given that there is transactional lock-in (set-top boxes aren't interoperable in practice, though are mandated to be so by law^{^[16]}), there are fewer choices in the market; further, the equivalent of multi-SIM phones don't exist with respect to set-top boxes. Further, while there are must-carry rules with respect to carriage, they can be of three types: 1) must mandatorily provide access to particular channels^{^[17]} (positive obligation, usually for government channels); 2) prevented from not providing particular channels (negative obligation, to prevent anti-competitive behaviour and political censorship); and 3) must mandatorily offer access to at least a set number of channels (positive obligation for ensuring market diversity). ^{^[18]} Currently, only (1) is in force, since despite attempts by TRAI to ensure (3) as well.^{^[19]}

If the shifting costs are low and transparency in terms of network practice is reported in a standard manner and well-publicised, then that significantly weakens the "gatekeeper effect", which as we saw earlier, is the reason why we wish to introduce Net Neutrality regulation. This consequently means, as explained above in section 3.2, that despite the same Net Neutrality principles applying in all markets and countries, the precise form that the Net Neutrality regulations take in a telecom market with low switching costs would be different from the form that such regulations would take in a market with high switching costs.

3.3.2 Anti-competitive Practices

Some potential anti-competitive practices, which are closely linked, are cross-subsidization, tying (anti-competitive bundling) of multiple services, and vertical price squeeze. All three of these are especial concerns now, with the increased diversification of traditional telecom companies, and with the entry into telecom (like with DTH) of companies that create content. Hence, if Airtel cross-subsidizes the Hike chat application that it recently acquired, ^{^[20]} or if Reliance Infocomm requires customers to buy a subscription to an offering from Reliance Big Entertainment, or if Reliance Infocomm meters traffic from another Reliance Big Entertainment differently from that from Saavn, all those would be violative of the principle of non-discrimination by gatekeepers. This same analysis can be applied to all unpaid deals and non-commercial deals, including schemes such as Internet.org and Wikipedia Zero, which will be covered later in the section on zero-rating.

While we have general rules such as sections 3 and 4 of the Competition Act, we do not currently have specific rules prohibiting these or other anti-competitive practices, and we need Net Neutrality regulation that clearly prohibit such anti-competitive practices so that the telecom regulator can take action for non-compliance . We cannot leave these specific policy prescriptions unstated, even if they are provided for in section 3 of the Competition Act. These concerns are especial concerns in the telecom sector, and the telecom regulator or arbitrator should have the power to directly deal with these, instead of each case going to the Competition Commission of India. This should not affect the jurisdiction of the CCI to investigate and adjudicate such matters, but should ensure that TRAI both has suo motu powers, and that the mechanism to complain is made simple (unlike the current scenario, where some individual complainants may fall in the cracks between TRAI and TDSAT).

3.3.3 Zero-rating

Since a large part of the net neutrality debate in India involves zero-rating practices, we deal with that in some length. Zero-rating is the practice of not counting (aka "zero-rating") certain traffic towards a subscriber's regular Internet usage. The zero-rated traffic could be zero-priced or fixed-price; capped or uncapped; subscriber-paid, Internet service-paid, paid for by both, or unpaid; content- or source/destination-based, or agnostic to content or source/destination; automatically provided by the ISP or chosen by the customer . The motivations for zero-rating may also be varied, as we shall see below. Further, depending on the circumstances, zero-rating could be competitive or anti-competitive. All forms of zero-rating result in some form of discrimination, but not all zero-rating is harmful, nor does all zero-rating need to be prohibited.

While, as explained in the section on interconnection and carriage above, negative discrimination at the network level should be prohibited, that leaves open the question of positive discrimination. It follows from section 3.1 that the right frame of analysis of this question is harm to competition, since the main harm zero-rating is, as we shall see below, about discriminating between different content providers, and not discrimination at the level of protocols, etc.

Whether one should allow for any form of positive discrimination at the network level or not depends on whether positive discrimination of (X) has an automatic and unfair negative impact on all (~X). That, in turn, depends on whether (~X) is being subject to unfair competition. As Wikipedia notes, "unfair competition means that the gains of some participants are conditional on the losses of others, when the gains are made in ways which are illegitimate or unjust." Thus, positive discrimination that has a negative impact on effective competition shall not be permitted, since in such cases it is equivalent to negative discrimination ("zero-sum game") . Positive discrimination that does not have a negative impact on effective competition may be permitted, especially since it results in increased access and increases consumer benefit, as long as the harm to openness and diversity is minimized .

While considering this, one should keep in mind the fact that startups were, 10-15 years ago, at a huge disadvantage with regard to wholesale data purchase. The marketplaces for data centres and for content delivery networks (which speed up delivery of content by being located closer, in network terms, to multiple last-mile ISPs) were nowhere near as mature as they are today, and the prices were high. There was a much higher barrier to startup entry than there is today, due to the prices and due to larger companies being able to rely on economies of scale to get cheaper rates. Was that unfair? No. There is no evidence of anti-competitive practices, nor of startups complaining about such practices. Therefore, that was fair competition, despite specific input costs that were arguably needed (though not essential) for startups to compete being priced far beyond their capacity to pay.

Today the marketplace is very different, with a variety of offerings. CDNs such as Cloudflare, which were once the preserve of rich companies, even have free offerings, thus substantially lowering barriers for startups that want faster access to customers across the globe.

Is a CDN an essential cost for a startup? No. But in an environment where speed matters and customers use or don't use a service depending on speed; and where the startup's larger competitors are all using CDNs, a startup more or less has to. Thankfully, given the cheap access to CDNs these days, that cost is not too high for a startup to bear. If the CDN market was not competitive enough, would a hypothetical global regulator have been justified in outright banning the use of CDNs to 'level' the playing field? No, because the hypothetical global regulator instead had the option to (and would have been justified in) regulating the market to ensure greater competition.

A regulator should not prohibit an act that does not negatively impact access, competition, consumer benefit, nor openness (including diversity), since that would be over-regulation and would harm innovation.

3.3.3.1 Motivations for Zero-Rating

3.3.3.1.1 Corporate Social Responsibility / Incentivizing Customers to Move Up Value Chain

There exist multiple instances where there is no commercial transaction between the OTT involved and the telecom carrier, in which zero-priced zero-rating of specific Internet content happens. We know that there is no commercial transaction either through written policy (Wikipedia Zero) or through public statements (Internet.org, a bouquet of sites). In such cases, the telecom provider would either be providing such services out of a sense of public interest, given the social value of those services, or would be providing such services out of self-interest, to showcase the value of particular Internet set the same time.

The apprehended risk is that of such a scheme creating a "walled garden", where users would be exposed only to those services which are free since the search and discovery costs of non-free Internet (i.e., any site outside the "walled garden") would be rather high. This risk, while real, is rather slim given the fact that the economic incentives for those customers who have the ability to pay for "Internet packs" but currently do not find a compelling reason to do so, or out of both a sense of public interest and self-interest of the telecom providers works against this.

In such non-commercial zero-priced zero-rating, a telecom provider would only make money if and only if subscribers start paying for sites outside of the walled garden. If subscribers are happy in the walled garden, the telecom provider starts losing money, and hence has a strong motivation to stop that scheme. If on the other hand, enough subscribers start becoming paying customers to offset the cost of providing the zero-priced zero-rated service(s) and make it profitable, that shows that despite the availability of zero-priced options a number of customers will opt for paid access to the open Internet and the open Web, and the overall harms of such zero-priced zero-rating would be minimal. Hence, the telecom providers have an incentive to keep the costs of Internet data packs low, thus encouraging customers who otherwise wouldn't pay for the Internet to become paying customers.

There is the potential of consumer harm when users seek to access a site outside of the walled garden, and find to their dismay that they have been charged for the Internet at a hefty rate, and their prepaid balance has greatly decreased. This is an issue that TRAI is currently appraised of, and a suitable solution would need to be found to protect consumers against such harm.

All in all, given that the commercial interests of the telecom providers align with the healthy practice of non-discrimination, this form of limited positive discrimination is not harmful in the long run, particularly because it is not indefinitely sustainable for a large number of sites. Hence, it may not be useful to ban this form of zero-priced zero-rating of services as long as they aren't exclusive, or otherwise anti-competitive (a vertical price-squeeze, for instance), and the harm to consumers is prohibited and the harm to openness/diversity is minimized.

3.3.3.1.2 Passing on ISP Savings / Incentivizing Customers to Lower ISP's Cost

Suppose, for instance, an OTT uses a CDN located, in network distance terms, near an eyeball ISP. In this case, the ISP has to probably pay less than it would have to had the same data been located in a data centre located further away, given that it would have fewer interconnection-related charges.

Hence the monetary costs of providing access to different Web destinations are not equal for the ISP. This cost can be varied either by the OTT (by it locating the data closer to the ISP - through a CDN, by co-locating where the ISP is also present, or by connecting to an Internet Exchange Point which the ISP is also connected to - or by it directly "peering" with the ISP) or by the ISP (by engaging in "transparent proxying" in which case the ISP creates caches at the ISP level of specific content (usually by caching non-encrypted data the ISP's customers request) and serves the cached content when a user requests a site, rather than serving the actual site). None of the practices so far mentioned are discriminatory from the customer's perspective with regard either to price or to prioritization, though all of them enable faster speeds to specific content. Hence none of the above-mentioned practices are considered even by the most ardent Net Neutrality advocates to be violations of that principle. ^{^[21]} However, if an ISP zero-rates the content to either pass on its savings to the customer^{^[22]} or to incentivize the customer to access services that cost the ISP less in terms of interconnection costs, that creates a form of price discrimination for the customer, despite it benefiting the consumer.

The essential economic problem is that the cost to the ISP is variable, but the cost to the customer is fixed. Importantly, this problem is exacerbated in India where web hosting prices are high, transit prices are high, peering levels are low, and Internet Exchange Points (IXPs) are not functioning well. ^{^[23]} These conditions create network inefficiencies in terms of hosting of content further away from Indian networks in terms of network distance, and thus harms consumers as well as local ISPs. In order to set this right, zero-rating of this sort may be permitted as it acts as an incentive towards fixing the market fundamentals. However, once the market fundamentals are fixed, such zero-rating may be prohibited.

This example shows that the desirability or otherwise of discriminatory practices depends fully on the conditions present in the market, including in terms of interconnection costs.

3.3.3.1.3 Unbundling Internet into Services ("Special Packs")

Since at least early 2014, mobile operators have been marketing special zero-rating "packs". These packs, if purchased by the customer, allow capped or in some instances uncapped, zero-rating of a service such as WhatsApp or Facebook, meaning traffic to/from that service will not be counted against their regular Internet usage.

For a rational customer, purchasing such a pack only makes sense in one of two circumstances:

● The person has Internet connectivity on her Internet-capable phone, but has not purchased an "Internet data pack" since she doesn't find the Internet valuable. Instead, she has heard about "WhatsApp", has friends who are on it, and wishes to use that to reduce her SMS costs (and thereby eat into the carriage provider's ability to charge separately for SMSes). She chooses to buy a WhatsApp pack for around ₹25 a month instead of paying ₹95 for an all-inclusive Internet data pack.

● The person has Internet connectivity on her Internet-capable phone, and has purchased an "Internet data pack". However, that data pack is capped and she has to decide between using WhatsApp and surfing web sites. She is on multiple WhatsApp groups and her WhatsApp traffic eats up 65% of her data cap. She thus has to choose between the two, since she doesn't want to buy two Internet data packs (each costing around ₹95 for a month). She chooses to buy a WhatsApp pack for ₹25 a month, paying a cumulative total of ₹120 instead of ₹190 which she would have had to had she bought two Internet data packs. In this situation, "unbundling" is happening, and this benefits the consumer. Such unbundling harms the openness and integrity of the Internet.

If users did not find value in the "special" data packs, and there is no market demand for such products, they will cease to be offered. Thus, assuming a telco's decision to offer such packs is purely customer-demand driven - and not due to deals it has struck with service providers - if Orkut is popular, telcos would be interested in offering Orkut packs and if Facebook is popular, they would be interested in offering a Facebook pack. Thus, clearly, there is nothing anti-competitive about such customer-paid zero-rating packs, whereas they clearly enhance consumer benefit. Would this increase the popularity of Orkut or Facebook? Potentially yes. But to prohibit this would be like prohibiting a supermarket from selectively (and non-collusively) offering discounts on popular products. Would that make already popular products even more popular? Potentially, yes. But that would not be seen as a harm to competition but would be seen as fair competition. This contravenes the "openness" of the Internet (i.e., the integral interconnected diversity that an open network like the Internet embodies) as an independent regulatory goal. The Internet, being a single gateway to a mind-boggling variety of services, allows for a diverse "long tail", which would lose out if the Internet was seen solely as a gateway to popular apps, sites, and content. However, given that this is a choice exercised freely by the consumer, such packs should not be prohibited, as that would be a case of over-regulation.

The one exception to the above analysis of competition, needless to say, is if that these special packs aren't purely customer-demand driven and are the product of special deals between an OTT and the telco. In that case, we need to ensure it isn't anti-competitive by following the prescriptions of the next section.

3.3.3.1.4 Earning Additional Revenues from Content Providers

With offerings like Airtel Zero, we have a situation where OTT companies are offering to pay for wholesale data access used by their customers, and make accessing their specific site or app free for the customer. From the customer's perspective, this is similar to a toll-free number or a pre-paid envelope or free-to-air TV channel being offered on a particular network.

However, from the network perspective, these are very different. Even if a customer-company pays Airtel for the toll-free number, that number is accessible and toll-free across all networks since the call terminates on Airtel networks and Airtel pays the connecting network back the termination charge from the fee they are paid by the customer-company. This cannot happen in case of the Internet, since the "call" terminates outside of the reach of the ISP being paid for zero-rating by the OTT company; hence unless specific measures are taken, zero-rating has to be network-specific.

The comparison to free-to-air channels is also instructive, since in 2010 TRAI made recommendations that consumers should have the choice of accessing free-to-air channels à-la-carte, without being tied up to a bouquet.^{^[24]} This would, in essence, allow a subscriber to purchase a set-top box, and without paying a regular subscription fee watch free-to-air channels. ^{^[25]} However, similar to toll-free numbers, these free-to-air channels are free-to-air on all MSO's set-top boxes, unlike the proposed Airtel Zero scheme under which access to a site like Flipkart would be free for customers on Airtel's network alone.

Hence, these comparisons, while useful in helping think through the regulatory and competition issues, should not be used as instructive exact analogies, since they aren't fully comparable situations.

3.3.3.1.5 Market Options for OTT-Paid Zero-Rating

As noted above, a competitive marketplace already exists for wholesale data purchase at the level of "content ISPs" (including CDNs), which sell wholesale data to content providers (OTTs). This market is at present completely unregulated. The deals that exist are treated as commercial secrets. It is almost certain that large OTTs get better rates than small startups due to economies of scale.

However, at the eyeball ISP level, it is a single-sided market with ISPs competing to gain customers in the form of end-users. With a scheme like "Airtel Zero", this would get converted into a double-sided market, with a gatekeeper without whom neither side can reach the other being in the middle creating a two-sided toll. This situation is ripe for market abuse: this situation allows the gatekeeper to hinder access to those OTTs that don't pay the requisite toll or to provide preferential access to those who pay, apart from providing an ISP the opportunity to "double-dip".

One way to fix this is to prevent ISPs from establishing a double-sided market. The other way would be to create a highly-regulated market where the gatekeeping powers of the ISP are diminished, and the ISP's ability to leverage its exclusive access over its customers are curtailed. A comparison may be drawn here to the rules that are often set by standard-setting bodies where patents are involved: given that these patents are essential inputs, access to them must be allowed through fair, reasonable, and non-discriminatory licences. Access to the Internet and common carriers like telecom networks, being even more important (since alternatives exist to particular standards, but not to the Internet itself), must be placed at an even higher pedestal and thus even stricter regulation to ensure fair competition.

A marketplace of this sort would impose some regulatory burdens on TRAI and place burdens on innovations by the ISPs, but a regulated marketplace harms ISP innovation less than not allowing a market at all.

At a minimum, such a marketplace must ensure non-exclusivity, non-discrimination, and transparency. Thus, at a minimum, a telecom provider cannot discriminate between any OTTs who want similar access to zero-rating. Further, a telecom provider cannot prevent any OTT from zero-rating with any other telecom provider. To ensure that telecom providers are actually following this stipulation, transparency is needed, as a minimum.

Transparency can take one of two forms: transparency to the regulator alone and transparency to the public. Transparency to the regulator alone would enable OTTs and ISPs to keep the terms of their commercial transactions secret from their competitors, but enable the regulator, upon request, to ensure that this doesn't lead to anti-competitive practices. This model would increase the burden on the regulator, but would be more palatable to OTTs and ISPs, and more comparable to the wholesale data market where the terms of such agreements are strictly-guarded commercial secrets. On the other hand, requiring transparency to the public would reduce the burden on the regulator, despite coming at a cost of secrecy of commercial terms, and is far more preferable.

Beyond transparency, a regulation could take the form of insisting on standard rates and terms for all OTT players, with differential usage tiers if need be, to ensure that access is truly non-discriminatory. This is how the market is structured on the retail side.

Since there are transaction costs in individually approaching each telecom provider for such zero-rating, the market would greatly benefit from a single marketplace where OTTs can come and enter into agreements with multiple telecom providers.

Even in this model, telecom networks will be charging based not only on the fact of the number of customers they have, but on the basis of them having exclusive routing to those customers. Further, even under the standard-rates based single-market model, a particular zero-rated site may be accessible for free from one network, but not across all networks: unlike the situation with a toll-free number in which no such distinction exists.

To resolve this, the regulator may propose that if an OTT wishes to engage in paid zero-rating, it will need to do so across all networks, since if it doesn't there is risk of providing an unfair advantage to one network over another and increasing the gatekeeper effect rather than decreasing it.

However, all forms of competitive Internet service-paid zero-priced zero-rating, even when they don't harm competition, innovation amongst content providers, or consumers, will necessarily harm openness and diversity of the Internet. For instance, while richer companies with a strong presence in India may pay to zero-rate traffic for their Indian customers, decentralized technologies such as XMPP and WebRTC, having no central company behind them, would not, leading to customers preferring proprietary networks and solutions to such open technologies, which in turn, thanks to the network effect, leads to a vicious cycle. These harms to openness and diversity have to be weighed against the benefit in terms of increase in access when deciding whether to allow for competitive OTT-paid zero-priced zero-rating, as such competition doesn't exist in a truly level playing field . Further, it must be kept in mind that there are forms of zero-priced zero-rating that decrease the harm to openness / diversity, or completely remove that harm altogether: that there are other options available must be acknowledged by the regulator when considering the benefit to access from competitive OTT-paid zero-priced zero-rating.

3.3.3.1.6 Other options for zero-rating

There are other models of zero-priced zero-rating that either minimize the harm is that of ensuring free Internet access for every person. This can take the form of:^{^[26]}

● A mandatorily "leaky" 'walled garden':

○ The first-degree of all hyperlinks from the zero-rated OTT service are also free.

○ The zero-rated OTT service provider has to mandatorily provide free access to the whole of the World Wide Web to all its customers during specified hours.

○ The zero-rated OTT service provider has to mandatorily provide free access to the whole of the World Wide Web to all its customers based on amount on usage of the OTT service.^{^[27]}

● Zero-rating of all Web traffic

○ In exchange for viewing of advertisements

○ In exchange for using a particular Web browser

○ At low speeds on 3G, or on 2G.

3.3.3.2. What kinds of zero-rating are good

The majority of the forms of zero-rating covered in this section are content or source/destination-based zero-rating. Only some of the options covered in the "other options for zero-rating" section cover content-agnostic zero-rating models. Content-agnostic zero-rating models are not harmful, while content-based zero-rating models always harm, though to varying degrees, the openness of the Internet / diversity of OTTs, and to varying degrees increase access to Internet-based services. Accordingly, here is an hierarchy of desirability of zero-priced zero-rating, from most desirable to most harmful:

1. Content- & source/destination-agnostic zero-priced zero-rating.^{^[28]}

2. Content- & source/destination-based non-zero-priced zero-rating, without any commercial deals, chosen freely & paid for by users. ^{^[29]}

3. Content- & source/destination-based zero-priced zero-rating, without any commercial deals, with full transparency. ^{^[30]}

4. Content- & source/destination-based zero-priced zero-rating, on the basis of commercial deal with partial zero-priced access to all content, with non-discriminatory access to the same deal by all with full transparency.^{^[31]}

5. Content- & source/destination-based zero-priced zero-rating, on the basis of a non-commercial deal, without any benefits monetary or otherwise, flowing directly or indirectly from the provider of the zero-rated content to the ISP, with full transparency. ^{^[32]}

6. Content- & source-destination-based zero-priced zero-rating, across all telecom networks, with standard pricing, non-discriminatory access, and full transparency.

7. Content- & source-destination-based zero-priced zero-rating, with standard pricing, non-discriminatory access, and full transparency.

8. Content- & source-destination-based zero-priced zero-rating, with non-discriminatory access, and full transparency.

9. Content- & source-destination-based zero-priced zero-rating, with non-discriminatory access, and transparency to the regulator.

10. Content- & source-destination-based zero-priced zero-rating, without any regulatory framework in place.

3.3.4 Cartels and Oligopoly

While cartels and oligopolies may have an impact on Net Neutrality, they are not problems that any set of anti-discrimination rules imposed on gatekeepers can fix. Further, cartels and oligopolies don't directly enhance the ability of gatekeepers to unjustly discriminate if there are firm rules against negative discrimination and price ceilings and floors on data caps are present for data plans. Given this, TRAI should recommend that this issue be investigated and the Competition Commission of India should take this issue up.

3.4 Reasonable Network Management Principles

Reasonable network management has to be allowed to enable the ISPs to manage performance and costs on their network. However, ISPs may not indulge in acts that are harmful to consumers in the name of reasonable network management. Below are a set of guidelines for when discrimination against classes of traffic in the name of network management are justified.

● Discrimination between classes of traffic for the sake of network management should only be permissible if:

○ there is an intelligible differentia between the classes which are to be treated differently, and

○ there is a rational nexus between the differential treatment and the aim of such differentiation, and

○ the aim sought to be furthered is legitimate, and is related to the security, stability, or efficient functioning of the network, or is a technical limitation outside the control of the ISP^{^[33]}, and

○ the network management practice is the least harmful manner in which to achieve the aim.

● Provision of specialized services (i.e., "fast lanes") is permitted if and only if it is shown that

○ The service is available to the user only upon request, and not without their active choice, and

○ The service cannot be reasonably provided with "best efforts" delivery guarantee that is available over the Internet, and hence requires discriminatory treatment, or

○ The discriminatory treatment does not unduly harm the provision of the rest of the Internet to other customers.

These principles are only applicable at the level of ISPs, and not on access gateways for institutions that may in some cases be run by ISPs (such as a university network, free municipal WiFi, at a work place, etc.), which are not to be regulated as common carriers.

These principles may be applied on a case-by-case basis by a regulator, either suo motu or upon complaint by customers.

^{^[1]} Report of the Special Rapporteur on the Promotion and Protection of the right to freedom of opinion and expression, (19 May 2011), http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.

^{^[2]} Available at http://www.trai.gov.in/WriteReadData/userfiles/file/NTP%202012.pdf.

^{^[3]} IAMAI, India to Cross 300 million internet users by Dec 14, (19 November, 2014), http://www.iamai.in/PRelease_detail.aspx?nid=3498&NMonth=11&NYear=2014.

^{^[4]} World Economic Forum, The Global Information Technology Report 2015, http://www3.weforum.org/docs/WEF_Global_IT_Report_2015.pdf.

^{^[5]} http://www.ictregulationtoolkit.org/4.1#s4.1.1

^{^[6]} See R.U.S. Prasad, The Impact of Policy and Regulatory Decisions on Telecom Growth in India (July 2008), http://web.stanford.edu/group/siepr/cgi-bin/siepr/?q=system/files/shared/pubs/papers/pdf/SCID361.pdf.

^{^[7]} 1973 AIR 106

^{^[8]} 1962 AIR 305

^{^[9]} "When ISPs go beyond their traditional use of IP headers to route packets, privacy risks begin to emerge." Alissa Cooper, How deep must DPI be to incur privacy risk? http://www.alissacooper.com/2010/01/25/how-deep-must-dpi-be-to-incur-privacy-risk/

^{^[10]} Richard T.B. Ma & Vishal Misra, The Public Option: A Non-Regulatory Alternative to Network Neutrality, http://dna-pubs.cs.columbia.edu/citation/paperfile/200/netneutrality.pdf

^{^[11]} Mobile number portability was launched in India on January 20, 2011 in the Haryana circle. See http://indiatoday.intoday.in/story/pm-launches-nationwide-mobile-number-portability/1/127176.html . Accessed on April 24, 2015.

^{^[12]} For a comprehensive list of all TRAI interconnection regulations & subsequent amendments, see http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[13]} See Telecommunication Interconnection Usage Charges (Eleventh Amendment) Regulations, 2015 (1 of 2015), available at http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[14]} Article 30 of the Universal Service Directive, Directive 2002/22/EC.

^{^[15]} See Telecommunication Mobile Number Portability (Sixth Amendment) Regulations, 2015 (3 of 2015), available at http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[16]} The Telecommunication (Broadcasting and Cable) Services (Seventh) (The Direct to Home Services) Tariff Order, 2015 (2 of 2015).

^{^[17]} Section 8, Cable Television Networks Act, 1995.

^{^[18]} TRAI writes new rules for Cable TV, Channels, Consumers, REAL TIME NEWS, (August 11, 2014), http://rtn.asia/rtn/233/1220_trai-writes-new-rules-cable-tv-channels-consumers.

^{^[19]} An initial requirement for all multi system operators to have a minimum capacity of 500 channels was revoked by the TDSAT in 2012. For more details, see http://www.televisionpost.com/cable/msos-not-required-to-have-500-channel-headends-tdsat/.

^{^[20]} Aparna Ghosh, Bharti SoftBank Invests $14 million in Hike, LIVE MINT, (April 2, 2014), http://www.livemint.com/Companies/nI38YwQL2eBgE6j93lRChM/Bharti-SoftBank-invests-14-million-in-mobile-messaging-app.html.

^{^[21]} Mike Masnick, Can We Kill This Ridiculous Shill-Spread Myth That CDNs Violate Net Neutrality? They Don't, https://www.techdirt.com/articles/20140812/04314528184/can-we-kill-this-ridiculous-shill-spread-myth-that-cdns-violate-net-neutrality-they-dont.shtml.

^{^[22]} Mathew Carley, What is Hayai's stance on "Net Neutrality"?, https://www.hayai.in/faq/hayais-stance-net-neutrality?c=mgc20150419

^{^[23]} Helani Galpaya & Shazna Zuhyle, South Asian Broadband Service Quality: Diagnosing the Bottlenecks, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1979928

^{^[24]} DTH players told to offer pay channels on la carte basis, HINDU BUSINESS LINE (July 22, 2010), http://www.thehindubusinessline.com/todays-paper/dth-players-told-to-offer-pay-channels-on-la-carte-basis/article999298.ece.

^{^[25]} The Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff Order, 2010.

^{^[26]} These suggestions were provided by Helani Galpaya and Sunil Abraham, based in some cases on existing practices.

^{^[27]} This is what is being followed by the Jana Loyalty Program: http://www.betaboston.com/news/2015/05/06/with-a-new-loyalty-program-mobile-app-marketplace-jana-pushes-deeper-into-the-developing-world/

^{^[28]} Example: free Internet access at low speeds, with data caps.

^{^[29]} Example: special "packs" for specific services like WhatsApp.

^{^[30]} Example: zero-rating of all locally-peered settlement-free traffic.

^{^[31]} Example: "leaky" walled gardens, such as the Jana Loyalty Program that provide limited access to all of the Web alongside access to the zero-rated content.

^{^[32]} Example: Wikipedia Zero.

^{^[33]} A CGNAT would be an instance of such a technology that poses network limitations.

For more details visit https://cis-india.org/internet-governance/blog/regulatory-perspectives-on-net-neutrality

The Centrality of Cash Flows

Shyam Ponappa — 2015-08-25T16:27:22Z

Greece's experience tells us that cash flows are crucial to economic outcomes. No matter how far-reaching the vision, ambition, and slogans, the effects of cash flows are profound and inevitable.

The article was originally published by Business Standard on July 1 and also mirrored in Organizing India Blogspot on July 2.

Many of our politicians and bureaucrats and a large proportion of the public seem oblivious to how cash flows affect our political economy. This apparent absence of understanding (or flouting of fundamentals by opportunists who understand them but act in their own interests) shows up in many ways among all political parties in their approach to the basics: the provision and pricing of essential services such as security and law-and-order, electricity, broadband communications, transport, water, sanitation, and waste disposal. Without an understanding and acceptance of how essential cash flows are for providing these services, we can't realistically aspire to better living conditions. No matter how well or wealthy you may be, you still have to pick your way gingerly through the mess and the stench of your environs when you step out.

Cash flows are at the crux of the problems our governments face at the Centre and states, and that society is up against. They include all the legacy issues mentioned above of the inadequate infrastructure services that we endure, and extend even to problems such as the defence services pensions. While the National Democratic Alliance is not blameless, there are egregious instances among other political parties, such as the Aam Aadmi Party's (AAP's) actions on waste management and electricity supply in Delhi. The essential sticking points have been delayed (obstructed) cash flows, whether in paying sanitation workers or electricity distributors. These instances are mentioned only as indicative examples, as their processes hark back to the habitual practice of governments at the Centre and the states of delaying payments, whether it is fertiliser subsidies to manufacturers (a central government "habit" for decades), or setting realistic tariffs and making prompt payments to electricity distribution companies, as in the case of state governments running Delhi. Various parties - the Congress until 2014 and the AAP thereafter - have themselves been victims of the structural constraints of electricity generation plants with antiquated, inefficient equipment, as in the old coal-based plant at Badarpur, or efficient, modern plants using gas caught in an upward price spiral with domestic gas not being available, such as at Bawana.

In the communications sector,constrained cash flows limit services. One rough estimate is that cumulative charges for spectrum amount to about Rs 1.8 lakh-crore ($30 billion), roughly equal to the total amount invested in networks and equipment. In other words, operators could have invested double the amount in networks and equipment if it had not been paid in government charges. Operators had to take on significant debt for prior payments, thereby hampering their ability to invest in extending and upgrading their networks.The operators' financial constraints constitute one major reason that a market hungry for data services is starved. (Another major reason is the technology constraint of narrow, noncontiguous bands of spectrum, but that is another tale).

The situation in electricity supply is much worse, because of the high and still growing level of stressed assets of the state electricity boards. Press reports estimate that as much as Rs 53,000 crore may possibly become non-performing assets (NPAs) by the end of September.

There is a view that stressed assets and NPAs need not be a problem, because they can be readily sold to new owners who could reorganise the undertakings, which could succeed or go out of business if they fail. While this is theoretically possible, in practice, this is quite difficult and impractical to carry out, especially in hard times. Banks typically are not equipped to take over a number of non-performing businesses and run them until they can dispose of them. Secondly, considering the problems of being profitable in bad times combined with generating cash for operations in downbeat markets, it is unlikely that there will be acceptable buyers willing to pay reasonable prices for loss-making assets.

One difficulty in addressing such issues is that the basic concepts - of cash flows, of numbers from operations in the profit-and-loss statement in tightly coupled lockstep with the balance sheet, which leads to the cash flow statement, require a level of effort to understand that many are unwilling to put in. Cash flows are measurements of flow, whereas profit-and-loss and balance-sheet items are accumulated over specified periods such as a month or quarter, i.e., statements of stock,with no easily discernable relationship to actual cash movements in those periods. There are additional complexities in delving deeper, e.g., in considering the similarities with the flow of liquids. As cash flows are in some ways comparable to liquid flows, there is research from the perspectives of fluid dynamics that requires an understanding of more complex mathematics, physics, or engineering. For those interested in exploring these aspects, further readings are suggested here.

Put intuitively, the key is in setting up and/or taking corrective action to facilitate smooth flows, with the recognition that disruptions create turbulence. Smooth flows are laminar, as the layers or lamina of fluid move easily without mixing (see diagram). Once turbulence sets in, it takes time and often additional effort (resources) to revert to smooth flows, because the obstacles have to be removed or worked around, and the vortices and eddies created by disruptions have to be stabilised and smoothed out.

For more details visit https://cis-india.org/telecom/blog/business-standard-op-ed-july-2-2015-shyam-ponappa-centrality-of-cash-flows

Unfettering Stranded Capacity

Shyam Ponappa — 2015-07-11T16:00:11Z

Government can't control market forces, but can and must fix regulatory issues. First, the good news: the government does appear to be making serious efforts to tackle stranded capacity and stalled projects, as in the instances below. Such issues need to be resolved because of their effect on future investment and employment. Now, the bad news: one part is that some problems need solutions which are fraught with political risk.

The article was published in the Business Standard on June 3, 2015 mirrored in Organizing India Blogspot on June 4, 2015.

We want reforms, but don't want to pay for them. For instance, coal-based power needs additional investment to lower emissions. While beneficial, it will not be popular. Worse, sometimes even the path to resolution may not be clear, yet new ways have to be found, because business-as-usual along the paths taken is unsustainable going forward. This becomes evident in considering issues such as electricity distribution, where states have key responsibility and authority for some of what needs to be done. Concerning spectrum and coal allocation, there's widespread mistrust about operators getting something for nothing, sort of an East-India-Company syndrome, despite user benefits from lower rates and better services if there is appropriate regulation. We'll have to get over this mindset to stop doing ourselves in. This holds regardless of which party rules and at what level - the Centre, state or local government - or what their philosophy might be: rightist, leftist, something in between, or simply pragmatist.

The most prominent category of stranded capacity is where capital has been invested, but the capacity is unusable for some reason. Examples abound in infrastructure, in manufacturing, and in residential and commercial development, as detailed in the Economic Survey. But there are other categories of stranded capacity which are more difficult to address, because they are in the nature of opportunity costs rather than invested capital. They deserve equal attention because an opportunity loss, or benefit foregone from paths not taken, can result in as much detriment as from a stalled investment. But before we get into examples of opportunity costs, consider the more straightforward case of investments in power generation that are infructuous.

Stranded Power Generation

An estimated Rs 60,000 crore is unproductive in stranded power generation projects which stopped operating because fuel was unavailable. About a quarter of this relates to 31 gas-based plants of over 14,300 MW, nearly 60 per cent of the total gas-based capacity of 24,150 MW. Another 23 per cent or 5,500 MW is operating at below the 30 per cent plant load factor required to just cover costs. The government has devised a scheme using the Power System Development Fund to import liquefied natural gas to run some of these projects at 30 per cent capacity. Operators must compete through reverse-bids with a fixed tariff of Rs 5.50 per unit. The lowest bidders win PSDF support, which will be paid to distributors. There is a ceiling of Rs 3,500 crore to gas-based projects, and plants aggregating 8,000 MW had submitted bids by early May.[1]

Regarding electricity distribution, press reports suggest that states buy only 20-30 per cent of their requirement at the prevailing low spot rates in the last three months,ranging from Rs 2.56 to Rs 2.82 per unit. This is because of the distributors' committed power purchase agreements as well as their weaker finances. In some cases as in Delhi, some old plants incur highoperating costs, and power from clean, gas-based plants costs more.[2]

Another serious problem is that of "regulatory assets" in Delhi. This euphemism covers under-recoveries because tariffs were set too low for years in response to popular demand. There was a crisis last year when NTPC refused to supply power until the distributors paid their dues, while the state owed the distributors Rs 20,000 crore. The problem is ongoing; meanwhile, the regulator has increased tariffs, but not enough to recover past losses. While a number of states have begun transmission and distribution reforms,[3] it's already evident with rising generation that unless financial and distribution capacity are built on sound principles, electricity supply cannot stabilise for users. We must grasp the nettle of a disciplined, responsible approach.

On a broader front, the government has been coordinating meetings between government officials, banks, and the RBI, seeking to resolve problems affecting some Rs 3.51-lakh crore in stressed projects in steel, cement, power and transport.

Opportunity Losses (or The Road Not Taken)

The regulations on radio frequency spectrum show how administrative rules can deprive us of readily available benefits. The most glaring example is the prevention of roaming using 3G spectrum. The resource was available, and was allocated to operators for various locations, but their roaming agreements were disallowed. This doesn't help us, whether from the perspective of government's increased share of revenues from greater usage, or the denial of user benefits from a better service offering. Instead, this approach constrains capacity by an arbitrary rule. Such issues need to be reviewed and rationalised to unfetter latent capacity towards attaining Digital India.

Another instance is that of limitations imposed on spectrum sharing which have nothing to do with technology. The reason exclusive spectrum allocations were introduced years ago was to prevent radio frequency interference. Now, imposing arbitrary limitations on spectrum usage results in denying ourselves available capacity. More radical and complex alternatives like pooling spectrum and facilities, and common carrier access for certain services, deserve consideration for exactly the same reasons: increased productivity and benefits from investments already made. Otherwise, it is like stranded capacity in stalled projects.

The same issues apply to the auction of mineral rights for core industries in domestic manufacturing. Any ingenuous fascination with free-market principles in allocating resources that overlook the fundamental requirements of a strong manufacturing base in a large country, or that don't comprehend the realpolitik of how free-market dogma is selectively argued, will leave us farther behind on the road to prosperity.

For more details visit https://cis-india.org/telecom/blog/organizing-india-blogspot-shyam-ponappa-june-4-2015-unfettering-stranded-capacity

5G Technologies Workshop by IEEE

rohini — 2015-08-29T14:10:03Z

The workshop was organized by IEEE Communications Society, Bangalore Chapter, at Bangalore on May 22 and 23, 2015. Rohini Lakshané attended the workshop.

Download the programme schedule

For more details visit https://cis-india.org/telecom/news/5-g-technologies-workshop

TRAI and the Disclosure of Personal Information

Nehaa Chaudhari and Vidushi Marda — 2015-05-10T09:16:28Z

The Telecom Regulatory Authority of India (TRAI), in March 2015 invited comments on its Consultation Paper for the regulation of over-the-top (OTT) services. In an unprecedented wave of public participation, TRAI received over a million e-mails in support of net neutrality.

This note sets out the law in relation to the unauthorized disclosure of personal information. Many thanks to Bhairav Acharya for his inputs on this.

Subsequently, on April 27, 2015, TRAI made all responses received by it public, including personal information like email addresses along with any information contained in email signatures, which invariably include a phone number or address. While disclosure of names was needed to ensure transparency in the consultation process, disclosure of personal information gave rise to criticism and questions around the legality of such disclosure.

This note sets out the law in relation to the unauthorized disclosure of personal information:
Section 43A of the IT Act provides for subordinate legislation to govern the manner in which sensitive personal data is collected and processed. The governance of personal information is dealt with under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“2011 Rules”). The 2011 Rules are made to give effect to Section 43A of the IT Act.

TRAI is a body corporate as per Section 3(2) of the TRAI Act. Hence, TRAI’s collection, storage, and disclosure of personal information is governed by the 2011 Rules. Rule 5(8) requires personal information collected to be held securely. TRAIs publishing of email addresses is a violation of Rule 5(8).

Rule 4 of the 2011 rules requires a body corporate to have a privacy policy. On its website, TRAI publishes a Privacy Policy. However, the Policy speaks of information gathered from the TRAI- Website. Even the wording on the Home Page of the TRAI website (that links to these policies) says “Website Policies”. It is unclear therefore, whether the Privacy Policy applies ONLY to the collection of information over the TRAI- Website or whether the Privacy Policy applies to TRAI overall.

Either way there is an argument to be made. TRAI has failed to draft and publicize a privacy policy for the personal information it collects directly. Without prejudice to the above, if the privacy policy on the TRAI website governs this collection of email addresses, then its unauthorized disclosure is a contravention of its own Privacy Policy, specifically paragraph 2.

Since the IT Act does not enact a specific penalty for contravention of section 43A in respect of personal information, TRAI’s unauthorized disclosure will be penalized through the residuary penalty contained in section 45 of the IT Act.

Hence TRAI is liable under Section 45 of the IT Act read with Rules 4 and 5(8) of the 2011 Rules. Section 45 provides a “residuary penalty”; for those provisions under the IT Act or Rules for whose contravention no other penalty has been prescribed. For this contravention, TRAI would have to pay a compensation of 25,000/- to the affected persons or a penalty of 25,000/- rupees.

TRAI may argue that it disclosed that personal information would be disclosed/published. However, the Call for Comments Press Release says that Comments will be published. Email addresses are not comments, and therefore TRAI did not issue a prior disclaimer for the publication of this personal information – hence the disclosure of e-mail addresses is still a violation.

The remedy for violation of Section 43A of the IT Act is the Adjudicating Authority appointed under Section 46(1), which requires a person not below the rank of Director in the appropriate government to receive complaints. Since TRAI is a body corporate as per the Act, it is unclear as to who the adjudicating officer in the present case should be; and is the matter of a separate research question.

The Appellate authority is the Cyber Appellate Tribunal constituted under Section 48 of the IT Act . It is not known if the tribunal has been constituted, and if it has; it is unknown whether it is staffed.

In the absence of clarity with regard to statutory authorities, a citizen whose personal information has been disclosed by TRAI without authorization may file a writ petition in the Delhi High Court under Article 226, or in the Supreme Court under Article 32 for issue of a writ of mandamus or prohibition, for appointment of the first adjudicating officer and also for issuance of directions in lieu of such an officer.

For more details visit https://cis-india.org/telecom/blog/trai-and-the-disclosure-of-personal-information

Stranded Capacities & Greater Expectations

Shyam Ponappa — 2015-06-22T01:56:34Z

India's infrastructure is in a shambles because of stranded capacities that don't connect with unmet needs. Every aspect of infrastructure, such as electricity or broadband for communications, needs to be designed and executed to flow through from end to end.

The post was published in Organizing India Blogspot on May 8, 2015. It was earlier published on May 6 in the Business Standard.

The remarkable change in expectations from last May that the National Democratic Alliance (NDA) government achieved appears to be giving way to closer scrutiny based on actual performance. Meanwhile, the wait for significant economic reforms is excruciating.

A couple of indicators of uneasiness: foreign institutional investors (FIIs) have turned watchful, with investments in equity and debt slowing after sustained inflows. (See Chart 1).

Also, while some leading businessmen have been saying everything is on track, industry credit growth is slowing relentlessly, as is to be expected when demand is muted, infrastructure is dysfunctional and credit is expensive. (See Chart 2).

The flurry of claims, accusations, rebuttals and counter-claims about earlier growth rates dwell on reclaiming the past, with little evidence of seeking clues to generate momentum and confidence. This may be attributable partly to the curse of our times: a penchant for headline-grabbing or headline-making. There is scarce interest in less flamboyant, fact-based presentation - whether it is politicians, TV and print media, or the audience, the general public. This may also be partly attributable to inept communication, a malady that seems to plague this regime despite its vaunted communication skills as much as it did the United Progressive Alliance (UPA) before it. Perhaps the Web can be better used to not only organise and coordinate within and across ministries, but also to disclose information while building convergence and confidence.

Consider some points that stand out from the clamour. One is that insufficient attention is directed towards cohesive policies, processes and institutions. On the face of it, there do appear to be several efforts at policy reform, for instance, in land and labour legislation, as well as in judicial reforms. There are critiques, however, suggesting that these stand-alone efforts suffer from insufficient resource allocation and ineffective implementation. The implication is that there is an absence of overarching vision and flowing from that, a lack of direction and integration.

Are constructive alternatives possible?

Last week's observations by former NDA minister Arun Shourie highlighted this apparent lack of vision, and how the government seemed to be dealing with the many problems like pieces of a jigsaw puzzle without an appreciation of the big picture. For example, the government's actions relating to coal and spectrum auctions are merely in line with court orders. There is no apparent effort to develop constructive alternatives in the public interest.

From a societal perspective, surely the government, the courts and the public need to ask: for whose benefit and at what cost? For instance, how are upfront government revenues from auctions beneficial to the public if they result in non-delivery or a slowdown of requisite services, compared with much larger collections over time from enterprises that deliver services after criteria-based allocations?

Note: revenue sharing can also be transparent. For transparent allocations, one alternative is to draw up technical and financial shortlists with integrity, followed by a lottery (with equal integrity). Another possibility is merit-based, open criteria judged by individuals with understanding and integrity - as was done to affect a breakthrough for land acquisition for the Calcutta Metro in 1982 and for part of the Bengaluru Metro in 2006. Both were achieved effectively without controversy by officials (or, to use the customary pejorative, "bureaucrats") entrusted with the responsibility. These individuals could be consulted.

Cohesive Leadership

An elephant in the room is the NDA's socially divisive stance. If the goal is high achievement, the need for convergent effort from our diverse, vast population is a no-brainer. Strong leadership resulting in cohesive effort is essential. The misgivings created so far must be addressed and reversed. If not attempted now, it will be a tremendous opportunity squandered.

There will be, of course, many impediments to achieving convergent efforts. And the dissonant legacy structures - such as realigning the judiciary and executive to constructive engagement, a constructive welfare net in place of Mahatma Gandhi National Rural Employment Guarantee Act, formulating truly beneficial policies for our needs instead of aping detrimental auction models - will be difficult to replace.

It is likely that we will continue in our shambolic ways, depriving ourselves of the gains of organisation and productivity. Yet there is the tantalising possibility of great gains if we were to have the right leadership, and if we could ourselves rise to the occasion.

Infrastructure

Another elephant in the room is our atrocious infrastructure. Successive governments and all parties have foundered on this. Empty talk of "second-round" reforms and so on betray a complete lack of understanding of the elements of essential, enabling infrastructure. At the most basic level, electricity, communications, transport and logistics, water and sewerage/waste disposal are fundamental requirements for productive living. These must be the relentless focus of end-to-end delivery systems.

The reforms in power and communications since 1991 were encapsulated sub-processes, as in Chart 3. Each of the boxes is a complex process in itself, and each has its position in the process flow as shown. Electricity reforms relate to fuel, generation, transmission, distribution and cash collection. Unless all steps in the chain are completed, we will be left with stranded capacities in one or more of these "boxes", like stranded generation plants, as we have been so far.

For broadband communications, the areas are the access, aggregation and the core or backbone networks. The most difficult are the last-mile links in access networks. Elements like the National Optical Fibre Network (NOFN) backbone are stranded unless they are connected with aggregation networks that lead to last-mile access, which could be a wireless, cable, telephone wire, or an electricity link. The system must be designed in its entirety to deliver.

What began the information technology services revolution was facilitating every link in the chain from one end to the other, with permissions, incentives and tax cuts, even if it was only a "thin pipe", 64 kbps link that bypassed initial hurdles for a start. The government could consider variants that could work for each infrastructure sector.

For more details visit https://cis-india.org/telecom/blog/business-standard-op-ed-may-6-2015-shyam-ponappa-stranded-capacities-and-greater-expectations

Response to TRAI Consultation Paper on Regulatory Framework for Over-the-Top (OTT) Services

pranesh — 2015-05-09T11:27:15Z

The Centre for Internet and Society (CIS) sent a joint response to the TRAI Consultation Paper on Regulatory Framework for Over-the-top (OTT) Services with scholars from Indian Institute of Management, Ahmedabad. The response was sent on March 27, 2015.

Executive Summary

The principle objective of net neutrality is that “all the Internet traffic has to be treated equally without any discrimination”; but this has had different interpretations over varied contexts. While the discourse in India has often treated net neutrality as a singular policy construct, we break down net neutrality to its various components. We then individually contextualise each component to the unique characteristics of the Indian telecommunications industry such as dependence on wireless internet access, the fragmented and non-contiguous distribution of spectrum, high competition between TEL-SPs and low digital literacy. The evolving nature of markets and networks are also considered while taking into account various public policy perspectives.

In this submission, we also argue for the need to introduce reasonable regulatory parity between functionally equivalent communications services provided by OTT-SPs and TEL-SPs. We compare the regulations for OTT-SPs under the Information Technology Act 2000 (as amended) with the regulations for TEL-SPs under the Telegraph Act 1885 (as amended), the license agreements (UL, UASL, ISP-L) and TRAI Regulations. Based on an analysis of the current laws and regulations, we suggest how TRAI needs to intervene to create this regulatory parity (for example in areas such as privacy, spam/UCC, interception etc.).

Through the above analysis, we recommend an overall regulatory framework that should be adopted by the Government. The framework takes a nuanced approach to various components of net neutrality, contextualised to India, and also attempts to bring reasonable regulatory parity. Instead of compartmentalising TEL-SPs and OTT-SPs as two distinct actors, the recommended framework considers a two-layered approach which recognises that there is an overlap between TEL-SPs and OTT-SPs. The first layer comprises of network and infrastructure (collectively called the network layer) and the second layer comprises of services and applications (collectively called the service layer).

The framework further divides the service layer into “Non-IP Services”, “Specialised Services” and “Internet Based Services”. The concept of “Specialised Services”, which is borrowed from the European Union, refers to traditional services that have migrated to an IP architecture such as facilities-based VoIP calls to PSTN and IPTV, and are either logically distinct from the Internet or have special needs which the “best efforts” delivery of the general Internet cannot satisfy. This concept helps in applying different evaluation criteria to functionally equivalent “Non-IP Services”, “Specialised Services” and “Internet Based Services”. In the framework, “Specialised Services” are also recognised as an exception to net neutrality. The concept of “Specialised Services” also helps to create an incentive for continued investment in underlying infrastructure by TEL-SPs.

This framework has helped us to bring a more balanced approach from the perspective of both TEL-SPs and OTT-SPs, while also taking into account technological convergence. It has also helped us to bring a more nuanced approach to various issues comprising net neutrality such as zero rating, paid prioritisation etc. We have considered best practices from different international regimes and the pros and cons during implementation in order to determine the exceptions and boundaries of net neutrality that should be adopted in India.

Download the full text of the Response

For more details visit https://cis-india.org/telecom/blog/joint-response-to-trai-consultation-paper-on-regulatory-framework-for-over-the-top-services

Net neutrality: Trai receives over 2 lakh mails

praskrishna — 2015-05-08T02:11:15Z

The idea of an open internet can bring together not just worried netizens but politicians of all hues.

The article by Sandhya Soman and Jayanta Deka was published in the Times of India on April 14, 2015. Pranesh Prakash gave his inputs.

On a day when the Telecom Regulatory Authority of India got more than 2 lakh emails by Monday afternoon from Indian netizens annoyed by possible efforts to make internet an unequal space, AAP chief Arvind Kejriwal and DMK leader MK Stalin also defended net neutrality.

While Kejriwal tweeted that "India MUST debate #NetNeutrality. I support #Saveinternet campaign www.savetheinternet.in", Stalin in his statement said that any move to allow telecom companies to give preferential access to websites would go against the concept of equality.

Telecom minister Ravishankar Prasad, meanwhile, told media that a special DoT panel will come out with its report on net neutrality in May.

The latest fight for net neutrality — the idea that all traffic is treated equally by internet service providers — gained momentum after Trai put up a consultation paper on the topic asking users to give their views before April 24. The paper was in response to demands from telecom companies seeking to splice up internet into various packages so they could charge users based on what websites and services they were using. The companies' specific grouse is against services like Skype, Whatsapp and Viber, which they claim are eating into their profits.

"Net neutrality is about ensuring that ISPs don't end up harming universal access, effective competition and consumer benefit," says Pranesh Prakash, policy director, Centre for Internet and Society. This means that what Airtel was trying to do in December by preventing its customers from accessing WhatsApp, Skype and Viber without paying extra shouldn't be permitted, Prakash says.

One of the worst case scenarios could be the murder of innovation, says Srinivasan Ramani, 'director, National Centre for Software Technology (now, part of C-DAC).

"New ways of doing things are disruptive — Voice over Internet Protocol demonstrated how inexpensive voice calls could be. Video calls over the internet demonstrate what the old telephone technology could not do in a cost-effective manner, can now be done with ease," Ramani says. If ISPs get greater control over the internet they may end up killing the golden goose, he says.

Neutrality of the internet is essential to a wide variety of users, from bloggers, entrepreneurs and to students. "A non-neutral internet is like offering a separate driving lane to people who own a Ferrari, Mercedes or any other luxury vehicle," says Harsh Agrawal, a professional blogger atshoutmeloud.com. He is clear that he can't pay telecom operators to offer better speeds to his blog. "But what if one of my competitors can afford to pay for preferential treatment for his website? It could be a huge loss to me," Agrawal says.

E-commerce startup-founder Catherine Dohling has the same fear. "We want our website to be accessed by anyone who is interested in our products and this should not be governed by which telecom provider a person buys data from," says Dohling, co-founder of TheNorthEastStore.com.

Activists like Lobsang Tseten, who relies on digital media to reach out to people, fear that if there is no net neutrality, it could mean that a huge chunk of the NGO's grassroots base could be taken away unless users pay. "This is a very underhand way of stopping people from accessing certain websites and products," says Tseten, Asia regional coordinator of International Tibet Network.

With many biggies like Flipkart considering Airtel's Zero plan, which aims to offer free consumer browsing for such companies that sign up with the telco, start-up enthusiasts are also troubled. "An internet that is non-neutral would be a huge set-back for people like me who want to create a tech start-up. We would have to factor in a good sum of money for tie-ups with ISPs," says Rahul Kumar, an IIT-Kanpur student.

However, some activists say that some nuances of what is net neutrality are getting lost as the campaign gathers steam. On Monday, several angry netizens tweeted about uninstalling Flipkart's app and actively working to get it down voted. "What we need are regulations that ensure access, competition and benefit consumers instead of proposing specific outcomes or solutions," says Prakash.

For more details visit https://cis-india.org/internet-governance/news/the-times-of-india-april-14-2015-sandhya-soman-and-jayanta-deka-net-neutrality-trai-receives-over-two-lakh-mails