Centre for Internet and Society

CIS’ Comments to the (Draft) Indian Telecommunication Bill 2022

Abhishek Raj, Divyank Katira, Isha Suri, Shweta Mohandas, and Vipul Kharbanda — 2022-11-22T13:22:24Z

The Department of Telecommunications, Government of India invited comments on the Draft Indian Telecommunication Bill, 2022. The Centre for Internet & Society (CIS) submitted its comments.

Reviewed by Pallavi Bedi

Preliminary

The Centre for Internet and Society (CIS) is a non-profit organization that undertakes interdisciplinary research on the internet and digital technologies from policy and academic perspectives. Through its diverse initiatives, CIS explores, intervenes in, and advances contemporary discourse and practices around the internet, technology, and society in India, and elsewhere. Over the last decade, CIS has worked extensively on policy issues related to telecommunication, internet access, digital inclusion, and so on.

In the past, CIS has responded to various public consultations pertaining to telecommunication such as the Telecom Regulatory Authority of India (TRAI) consultation on 5G Auctions^{^[1]}, TRAI consultation on regulation of over-the-top (OTT) services^{^[2]}, to name a few .

We appreciate the efforts of the Department of Telecommunications (DoT) for having consultation on the “Draft Indian Telecommunication Bill 2022”. We are grateful for the opportunity to put forth our views and comments to the draft bill.

Summary of Recommendations

At the outset, we recommend that in the interest of transparency and accountability, prior to enacting important legislations like the Telecom Bill, the government would be well-advised to conduct an “impact assessment” exercise such as “regulatory impact assessment” and put the report in public as practised in jurisdictions such as the European Union.^{^[3]} We would also recommend the government to disclose responses and submissions that it receives during the process to ensure a transparent and consultative process of policymaking.

We recommend that the scope of the bill should be reconsidered and internet-based services should be removed from the definition of telecommunication services. From this definition read with other clauses of the bill, it appears that the bill tries to licence (or control !) not just telecommunication but all kinds of communication and internet-based services. Putting onerous regulatory requirements on every bit and byte flowing through the internet is unnecessary and regulatory overreach.

The draft bill’s attempt to provide for a non-discriminatory and an affordable Right-of-way (RoW) regime is appreciable. However, the central government has been given an overriding power over the local government which has constitutional powers with regard to permissions in their jurisdiction. The bill must clarify the modalities to ensure coordination between centre, state, and local authorities.

We recommend that clause 46 of the draft bill which significantly dilutes TRAI’s power should be deleted. Moreover, the government must work towards further strengthening TRAI by hiring subject matter experts to ensure that India has a powerful sector regulator which is well prepared to usher in the next wave of innovation.

We recommend that the Bill be inline with the Puttaswamy Judgement, and that of Anuradha Bhasin vs Union of India. The Bill, while paying close attention to the protection of users and duty of the user, fails to uphold rights of the user such as the right to privacy and the freedom of speech and expression.

As per clause 29, the objectives for which Telecommunication Development Fund (TDF) can be utilised is broad and therefore the government would be well-advised to specify that TDF can only be utilised to ensure digital access, adoption and usage for digitally marginalised groups. Furthermore, TDF must be ring fenced and not credited to the Consolidated Fund of India to ensure timely implementation which has thus far remained a significant challenge with the universal funds (USOF) regime.

The bill does not have any provisions upholding the principles of net neutrality. The government must act on TRAI’s recommendations and set up the multistakeholder body to check adherence to net neutrality requirements by incorporating provisions to that effect.

In the interest of transparency and accountability, a clause requiring the government to report (quarterly or annually) vital statistics relating to the functioning and financial aspects of matters contained within the draft legislation. The reporting should also include the number of licences provided, licences revoked, number of blocking and suspension orders passed among others.

Detailed Response

Preamble

No comments

Chapter 1: Short Title, Extent and Commencement

No comments

Chapter 2: Definitions

➔ 2(9): “message” means any sign, signal, writing, image, sound, video, data stream or intelligence or information intended for telecommunication.

Comment: The terms “intelligence” and “data stream” are not clear in the definition and these terms have not been defined elsewhere in the bill. Moreover, the definition of message is broad and may have implications with regard to surveillance and privacy of users, when read with clause 4(8) and clause 24(2)(a).

Recommendation: We recommend that the terms “intelligence” and “data stream” are defined under the bill, in order to reduce chances of excessive surveillance and to maintain the informational privacy of the individual. Additionally the definition could have an expansive list of what could constitute a message in order to prevent mission creep.

➔ 2(18): “telecommunication equipment” means any equipment, appliance, instrument, device, material or apparatus, including customer equipment, that can be or is being used for telecommunication, and includes software integral to such telecommunication equipment;”

Comment: The inclusion of customer equipment in the definition of telecommunication equipment has implications. The definition of the “customer equipment”^{^[4]} as provided in clause 2(5) of the Bill is broad enough to include personal devices such as phones, routers, among others. As per clauses 23 to 26 the Central Government has wide ranging powers with respect to telecommunications equipment and telecommunications networks such as issuing various directions for telecommunications networks and even has the power to take over such networks. As the definitions currently stand, these provisions would automatically become applicable to customer equipment as well which may be a violation of the right to privacy of the citizens of the country.

Moreover, according to 3(2)(c), possession of wireless equipment requires authorization. On reading 3(2)(c) with the definitions of wireless equipment in 2(23) and customer equipment in 2(5), an argument could be framed that the customer equipment could technically also require a licence, and so would the software integral to such equipment. If customer equipment is in fact included in telecom equipment and software integral to it is also included therein, then arguably even Android OS or other OS can be licensable.

Recommendation: Thus, we suggest that the government should remove customer equipment from the definition of telecommunication equipment.

➔ 2(21): “telecommunication services" means service of any description (including broadcasting services, electronic mail, voice mail, voice, video and data communication services, audiotex services, videotex services, fixed and mobile services, internet and broadband services, satellite based communication services, internet based communication services, in-flight and maritime connectivity services, interpersonal communications services, machine to machine communication services, over-the-top (OTT) communication services) which is made available to users by telecommunication, and includes any other service that the Central Government may notify to be telecommunication services;”

Comment: Clause 2(21) expands the scope of “telecommunication services” significantly. The overly-broad definition of “telecommunication services”, and what constitutes a “message”^{^[5]}, brings within its ambit a host of internet services including but not limited to email, instant messaging, social media services, and even payments and e-commerce transactions. Neither the bill, nor the accompanying explanatory note provides a satisfactory rationale for an all-encompassing definition of “telecommunication services”. The explanatory note attached to the bill suggests that legislations in Australia, EU, UK, Singapore, Japan, and USA have been examined while drafting this bill. However, our research^{^[6]} suggests that none of these jurisdictions define “telecommunication services” so expansively and seek to regulate entities offering only internet based services companies through licensing, in particular. It may also be worthwhile to note that TRAI recommended against such an approach and also clarified that there is no issue of financial arbitrage.^{^[7]} However, the bill attempts to bring OTT communication services within the purview of licensing. From this definition read with other clauses of the bill, it appears that the bill tries to licence (or control !) not just telecommunication but all kinds of communication and internet-based services. Putting onerous regulatory requirements on every bit and byte flowing through the internet is unnecessary and regulatory overreach. There can be major implications of expanding the definition of telecommunication services, some of which are listed below:

● The draft bill has stringent provisions on surveillance and shutdowns [clause 23 to clause 28]. These clauses would be naturally applicable to the expanded bucket of telecommunication services. This has serious implications on user’s right to privacy and freedom of expression online. For example, the bill gives the government the power to surveil citizens over apps such as WhatsApp, Telegram, to name a few, and even email. [some of this will be delved into greater detail in the foregoing sections]

● Some of the internet-based services listed in the definition in 2(21) are already regulated under the Information Technology (IT) Act 2000. For example, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 regulates intermediaries, including the significant social media intermediaries (SSMI) such as Facebook and Twitter. Putting an additional regulatory burden on these service layer companies in the form of licensing, as envisaged in clause 3 and clause 4 of the bill would hamper the innovation in the sector. Furthermore, it has been observed that the compliance burden of regulations is higher on small businesses in cases where regulations impose identical requirements on entities regardless of the firm size.^{^[8]} Therefore, inserting such a requirement would have a detrimental impact on innovation because excessive compliance requirements would act as a significant entry barrier for smaller firms.

Moreover, there is significant overlap between various services that are mentioned in the definition of telecommunication services which may lead to significant challenges. As these services are not defined elsewhere in the bill, it leaves scope for ambiguity. The bill makes a mention of “over-the-top (OTT) communication services” without defining it. We argue that making a distinction between communication and non-communication OTT services is superficial and does not take into account today’s realities where categorising applications into different categories is extremely difficult. A majority of the OTT applications such as e-commerce, healthcare, food delivery, payments, and so on, provide integrated communication channels. Disaggregation and making an artificial distinction of such apps into communication (with licensing requirements) and non-communication (without licensing requirements) would result in fragmentation of the internet which is definitely not a desirable outcome.

The “same-service same-rules” argument put forth by Telecommunication Service Providers (TSPs/ telcos) for the regulation of OTT apps which provide communication services [generally referred to as OTT communication services] at par with them is flawed for the reasons elaborated herein below:

● It is well recognized that there are significant differences at the technical and architectural level between TSPs and OTT apps which provide communication services . Regulating OTT apps which provide communication services at par with TSPs just on the basis of functionality without considering the inherent technical and architectural differences between them is a definite recipe for failure.

● Moreover, even at the functional level, OTT communication apps offer several additional features which are not available in the traditional TSP services.^{^[9]} Due to this, establishing functional equivalence between TSP’s services and OTT communication services is not only technically unfeasible but also unnecessary since those apps are better regulated by MEITY.

● Furthermore, TSPs enjoy privileges which OTTs don't. For example, TSPs have exclusive rights to spectrum, right of Way (RoW), numbering resources, to name a few. TSPs have control over underlying broadband infrastructure which OTTs and other internet-based service companies do not have.

As opposed to what has been suggested in the bill i.e, licence all telecommunication services [clause 3(2)(a)] including the internet-based services, it may be prudent to explore alternative approaches to regulate this space. For instance, a “two-layered framework”^{^[10]} for regulatory intervention can be considered. In this two-layered framework, the first layer would be the network layer consisting of the network and infrastructure; and the second layer would be the service layer consisting of applications and services. The services in the second layer can be further refined into the following three categories: (i) services provided over a non-Internet Protocol (IP) based architecture e.g Public Switched Telephone Network (PSTN) voice calls provided over a circuit switched network; (ii) specialised services that are provided over an IP based architecture in a closed network including facility-based services e.g., facilities-based VoLTE calls to PSTN and IPTV; (iii) IP-based/ Internet-based services such as OTTs. The gist^{^[11]} of the framework is:

The network layer may be regulated by way of licensing.

Non-IP Services and Specialised services may be regulated by way of licensing.

Internet-based services should be regulated by instruments other than licensing. Such instruments should preferably be in the form of legislations like the IT Act and its rules thereunder.

While there can be approaches apart from the one described above to regulate internet-based services such as the OTT and those approaches can be discussed and debated, putting licensing requirements for every internet-based service is not the way forward.

Recommendation: We recommend that the scope of the bill should be reconsidered and internet-based services should be removed from the definition of telecommunication services. In the interest of transparency and accountability, prior to enacting such a legislation the government would be well-advised to conduct a “regulatory impact assessment” exercise and put the report in public, as done in jurisdictions such as the European Union.

Chapter 3: Licensing, Registration, Authorization and Assignment

Clause 4. Licensing, Registration Authorization and Assignment

➔ 4(6): “The possession and use of any equipment that blocks telecommunication is prohibited, unless authorised by the Central Government for specific purposes.”

Comment: While assuming jurisdiction over equipment capable of blocking telecommunication via this clause is a welcome step, it is not clear why equipment capable of intercepting telecommunications has been kept out of the scope of this clause. Since unlawful and unauthorised interception of telecommunications is a violation of the fundamental right to privacy of an individual,^{^[12]} it is imperative that the scope of this clause be increased to include interception equipment as well. Furthermore, the latter part of the provision mentions “specific purposes” without adequate checks and balances in place. As such, the specific purposes must be defined exhaustively to ensure that this power is not misused.

➔ 4(7): "Any entity which is granted a licence under sub-clause (2) of clause 3, shall unequivocally identify the person to whom it provides services, through a verifiable mode of identification as may be prescribed."

Comment: All services do not require a verification of the identity of a person. There is a legitimate need to verify a person in the case of financial transactions, however a similar level of scrutiny is not warranted for applications that a person might use once, or applications that do not pose a threat to anyone. For example the need to verify a person through Know Your Customer (KYC) or otherwise for an application to order food, or an application which is meant for communication can be excessive regulation. Furthermore, number based internet communication apps such as Whatsapp require users to sign in through a mobile number, which have already gone through a KYC process. Therefore, dual KYC would be redundant and serve no purpose.

The Supreme Court while looking at the constitutionality of the Aadhaar Act upheld the need for banking and financial institutions to require an individual’s Aadhaar number stating the legitimate aim of preventing money laundering; however, the Court struck down the provision that required any private entity to collect Aadhaar details.^{^[13]} Justice Bhushan held that the collection by private entities violated the right to privacy, by failing the first prong of the test laid down in Puttaswamy, the test of legality.^{^[14]}

Recommendation : Clause 4(7) should be deleted.

➔ 4(8) “The identity of a person sending a message using telecommunication services shall be available to the user receiving such message, in such form as may be prescribed, unless specified otherwise by the Central Government.”

Comment: Although the intent behind this provision may have been to curb the menace of anonymous harassment of users, a blanket requirement to reveal the identity of the sender of a message in every instance may be considered a violation of the right to privacy of the sender. . There are clearly a number of competing rights involved here and the issue needs to be addressed in a more nuanced manner. Additionally there are a number of services such as chat applications providing support for mental health, that allow users to be anonymous in order to remove the concern and stigma around seeking help. A requirement that the user's name be revealed in these applications could hinder the functioning of these services as well as prevent more people from seeking help.

Anonymity was also explained in the Puttaswamy Judgment where it was stated that - “Privacy involves hiding information whereas anonymity involves hiding what makes it personal. An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy.” In his judgement, Justice F. Nariman talks about different aspects of the right to privacy in the Indian context and observes “Informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore recognises that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right”.^{^[15]}

In this backdrop it is perhaps preferable that the issue be addressed through separate guidelines rather than through a blanket direction in the Statute. Recently the Department of Telecom sent a reference to the TRAI for framing a mechanism for using KYC based identification.^{^[16]} It would be advisable if the TRAI in its response also takes into account the competing rights involved in this issue of caller identification and suggests a framework that addresses these concerns as well.

Retaining anonymity on the internet: Individuals may choose to remain anonymous online for a number of reasons. This includes employees expressing opinions about their employers and whistleblowers, people providing anonymous tips to newspapers or law enforcement, people expressing political opinions and criticism that may be subject to persecution, or simply someone saying something that they may be embarrassed about.^{^[17]} In India, in particular, an individual’s caste can be derived from their name, and they may choose to remain anonymous or adopt a pseudonym to escape centuries of stigma and discrimination that their communities have faced. Religious, gender and sexual minorities may also make this choice for similar reasons. The broad definition of telecommunication services in the bill places restrictions on anonymity online and severely degrades an individual’s ability to exercise their fundamental right to freedom of expression.

Right to privacy: The overly broad definition of “telecommunication services” and what constitutes a “message” also brings a number of digital services under the ambit of this bill. This can include email, instant messaging, social media services, and even payments and e-commerce transactions. Mandating identification of individuals as they navigate these services, which they require to go about their daily lives, creates an unprecedented potential for surveillance and abuse of personal information. To evaluate the legal validity of this infringement on privacy, we can utilise the necessity and proportionality tests put forth by the Puttaswamy Judgment. The explanatory note accompanying the bill states that the purpose of this provision is to “prevent cyber frauds”, establishing a legitimate aim for mandating identification. However, it fails to justify whether this is the least intrusive means necessary to achieve the stated aim. Law enforcement agencies have access to a wide variety of metadata, such as IP addresses, already collected by digital services today, which can be used to identify individuals committing cyber crimes. Furthermore, as the internet is a global network, bad actors can evade identification by routing their internet traffic through another country by using services such as Virtual Private Network (VPNs), proxies and onion routing. Well resourced actors can simply hire someone in another country to communicate on their behalf. The infringement upon the right to privacy by this provision is also disproportionate to the objective sought. By mandating storage of personally identifiable information that is not required for the operation of the wide range of services that fall under the ambit of this bill, it allows not only for state surveillance, but also creates the possibility of misuse by criminal actors and hostile states who may gain unlawful access to this information through data breaches. Overall, this provision can easily be circumvented by the bad actors it intends to catch, leaving us with a surveillance mechanism that is ripe for misuse against ordinary, law-abiding citizens.

Misunderstanding how the internet works: This draft bill assumes and propagates a centralised view of the internet. Unlike traditional telecommunication services, which require access to a finite spectrum or other physical infrastructure, the internet allows any individual or organisation to self-host their own communication service. Several organisations and technologically savvy individuals host their own email services, instant messaging services, blogs and social media networks. It is unclear how the licensing provisions in this bill apply to people developing and hosting their own communication equipment.

Recommendation : Clause 4(8) should be deleted.

Clause 5. Spectrum Management

➔ 5(2)(b): “administrative process for governmental functions or purposes in view of public interest or necessity as provided in Schedule 1; or”

Comment: Even though the draft bill seeks to provide an explicit statutory framework and predictability for spectrum management policy in India, it appears that for the large part it would be relying on spectrum auctions for assignment of spectrum. While the bill provides for administrative allocation of spectrum for governmental functions or purposes in view of public interest or necessity as provided in Schedule 1, the explanatory note provided for the draft bill indicates auction to be the predominant method for spectrum assignment. Even though the explanatory memorandum cannot be used for legal interpretation, it can be used to indicate that for the foreseeable future the government intends to allocate spectrum predominantly through auctions. While it can be argued that an auction based regime ensures transparency, it also creates significant barriers to entry for smaller operators. It is also pertinent to mention that in the seven auctions held since 2010, the government has successfully sold 100 percent of the auction only once. Relying solely on auctions since 2010 has led to unsold spectrum, lost revenue, and deferring of the rural digital ecosystem.^{^[18]} Therefore, auctions should be supplemented with “administrative allocation” and other innovative approaches to ensure that affordable broadband connectivity does not remain within the remit of a few. For instance, Canada has initiated a consultation on a non-competitive local licensing framework in the 3900-3980 MHz Band and Portions of the 26, 28 and 38 GHz Bands, and one of its objectives is to facilitate broadband connectivity in rural areas.^{^[19]} Therefore, we would like to recommend the DoT to explore other forms of spectrum assignment and not rely solely on auctions to ensure efficient utilisation of available spectrum and to also ensure affordable access to hitherto underserved regions.

Moreover, the bill does not provide clarity with regard to unlicensed spectrum for public Wi-Fi, and assignment of shared spectrum for satcom services.^{^[20]} Spectrum allocation for satcom becomes all the more important as the draft bill seems to give a preference to auction for spectrum assignment, while the global practice on spectrum assignment for satcom has been administrative allocation.

Furthermore, clause 5(2)(b) read with Schedule 1 suggests that BSNL and MTNL can acquire spectrum through an administrative process in view of public interest or necessity. However, we would like to submit that spectrum assignment to BSNL and MTNL may no longer serve the public interest and it only protects a very small interest group. For context, BSNL and MTNL have a combined market share of only 9.83%, as per TRAI subscription data of Aug 31, 2022.^{^[21]} For such a small subscriber share, it cannot be argued that these PSUs serve a public interest. The government can easily migrate these subscribers to the other three telcos. Moreover, this also provides the PSUs with an unfair advantage over its competitors and distorts the level playing field, thereby creating competition concerns in the market.

➔ 5(8): “The Central Government may, to promote optimal use of the available spectrum assign a particular part of a spectrum that has already been assigned to an entity (“primary assignee”), to one or more additional entity/ entities (“secondary assignees”), where such secondary assignment does not cause harmful interference in the use of the relevant part of the spectrum by the primary assignee, subject to the terms and conditions as may be prescribed.”

Comment: “Secondary assignment” of spectrum and the shift from “right to exclusive use” to “right to protection from interference”, as envisaged in 5(8) is a progressive move towards efficient utilisation of spectrum.

CIS, in its past submission^{^[22]} to the TRAI had highlighted the merits of a “use-or-share” approach in spectrum. The chasm that exists between expensive exclusive spectrum licensing and the licence-exempt ecosystem can be bridged by enshrining “use-it-or-share-it” provisions in spectrum licences. As such, ‘use-it-or-share-it’ rules enable the regulator to grant secondary access to licensed or governmental spectrum that is unused or underutilised.^{^[23]} ‘Use-it-or-share-it’ rules expand the productive use of spectrum without risking harmful interference or undermining the deployment plans of primary licensees. Clauses such as 5(8) enable “use-or-share” provisions are a step in the right direction.

➔ 5(9): “The Central Government, after providing a reasonable opportunity of being heard to the assignee concerned, if it determines that spectrum that has been assigned, has remained unutilized for insufficient reasons for a prescribed period, may terminate such assignment, or a part of such assignment, or prescribe further terms and conditions relating to spectrum utilization.”

Comment: There is lack of coherence between 5(8) and 5(9) when read together. 5(8) and 5(9) should be put as sub-clauses under a parent clause to ensure clarity.

We believe that the provision must be articulated clearly to state that licensees would first be given an opportunity to share spectrum and in cases where the entity fails to do so within a reasonable amount of time, the spectrum licence would be cancelled to prevent wilful spectrum hoarding. The Independent Communications Authority of South Africa (ICASA) in the 2nd Information Memorandum has expressed similar provisions with clarity. While, we feel five years may be an unnecessarily long timeframe for the government to enact spectrum sharing provisions, the language put forth by ICASA captures the essence of our argument:

“11.6.2 In cases where the spectrum is not fully utilised by the licensee within 5 years of issuance of the Radio Frequency Spectrum Licences, the Authority will initiate the process for the Licensee:

11.6.2.1 to share unused spectrum in all areas to ECNS licensees who may, inter alia, combine licensed spectrum in any innovative combinations in order to address local and rural connectivity in some municipalities including by entrepreneurial SMMEs;

11.6.2.2 to surrender the radio frequency spectrum licence or portion of the unused assigned spectrum in accordance with Radio Frequency Spectrum Regulations, 2015”

Recommendation: Clause 5(8) and 5(9) must be brought under one clause and it must be clarified that licence holders would lose their licence in case they fail to successfully incorporate spectrum sharing.

Clause 7. Breach of Terms and Conditions

➔ 7(1): “In case of breach of any of the terms and conditions of licence, registration, authorization or assignment granted under this Act, the Central Government may, after providing an opportunity of being heard to the party concerned, do any one or more of the following: ……”

Comment: Usually the consequences of breach are specifically illustrated in the licence. Listing the consequences of breach in the statute itself may lead to lack of clarity unless the terms of licence are also referenced. It could also be argued by a defaulting licensee that the powers listed in clause 7(1) are exhaustive and the Central Government cannot add any other conditions for breach of the conditions of the licence as in the licence agreement and any such conditions not specified in clause 7(1) are void and ultra vires the Statute.

Recommendation: In order to avoid such a situation, the clause should clearly state whether the powers listed in clause 7(1) are in addition to the terms and conditions that may be specified in the licence.

Chapter 4: Right of Way for Telecommunication Infrastructure

Comment: The draft bill attempts to provide for a non-discriminatory and an affordable Right-of-way regime, which is appreciable. However, the provision suggests that the central government has an overriding power over the local government. Provided that the Constitution of India defines certain powers which reside with the local authority in terms of providing permissions in the local areas, it is unclear from the bill on how the coordination between various authorities will take place. We recommend that there needs to be a mechanism that ensures coordination between centre, state, and local authorities.

❖ 14(3) : “In the event the person under sub-clause (1) does not provide the right of way requested, and the Central Government determines that it is necessary to do so in the public interest, it may, either by itself or through any other authority designated by the Central Government for this purpose, proceed to acquire the right of way for enabling the facility provider to establish, operate, maintain such telecommunication infrastructure, in the manner as may be prescribed.”

Comment: The right of the Central Government to acquire the right of way should be in lieu of adequate and appropriate compensation to be paid to the property owner. This requirement should be clearly mentioned in sub-clause (3). The clause as it currently stands only mentions the Central Government’s right to acquire but contains no mention of said acquisition being in lieu of adequate and proportionate compensation.

Chapter 5. Restructuring, Defaults in Payment and Insolvency

➔ 19(1): “Any licensee or registered entity may undertake any merger, demerger or acquisition, or other forms of restructuring, subject to provisions of applicable law, after providing notice to the Central Government of the same.”

Comment: Sub-clause (1) only requires that the Central Government be given a notice in case of merger, demerger, acquisition or restructuring of the licensee. Although sub-clause (2) requires that the successor entity shall comply with all the terms and conditions of the licence, considering the strategic nature of the telecommunications sector^{^[24]} it would be advisable to change the requirement of notice to a requirement of permission from the Central Government for restructuring the business rather than a mere notice requirement. In order for this requirement to not be a hindrance to the growth of the industry there could be a provision for deemed approval if the approval is not granted within a particular period of time.^{^[25]}

Recommendation: Any merger in the sector must be approved by the DoT. In order to ensure that this does not lead to unnecessary delays, a deemed approval route may be considered.

Chapter 6: Standards, Public Safety and National Security

❖ 24(2): “On the occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central or a State Government, may, if satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence, for reasons to be recorded in writing, by order:

(a) direct that any message or class of messages, to or from any person or class of persons, or relating to any particular subject, brought for transmission by, or transmitted or received by any telecommunication services or telecommunication network, shall not be transmitted, or shall be intercepted or detained or disclosed to the officer mentioned in such order; or

(b) direct that communications or class of communications to or from any person or class of persons, or relating to any particular subject, transmitted or received by any telecommunication network shall be suspended”.

Comment: The pre-conditions for interception contained in the Bill are similar to those contained in the Telegraph Act, 1885, i.e. “occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central or a State Government, may, if satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence”. Although more stringent, these conditions are different from those contained in the Information Technology Act, 2000 which does not contain the added safeguard of there being a “public emergency or in the interest of public safety”.^{^[26]} With consumers spending more and more time on the internet and using internet based technologies and applications for communications, there is significant regulatory overlap between the Telecommunications Bill and the Information Technology Act, 2000. It is therefore advisable that the interception and blocking provisions under both the legislations should be aligned and standardised.

The judgement in the Puttaswamy case provides some guidance to assess the limits and scope of the constitutional right to privacy in the form of the three prong test. The test requires the existence of a law, a legitimate state interest and the restriction (to privacy) should be ‘proportionate'. The order to intercept, detain, disclose or suspend a communication made between private individuals, acts as a violation of privacy and to ensure that this does not provide extensive grounds to surveil people, the three prong test especially the grounds of proportionality combined with the necessity provision are essential to ensure that this provision is not used disproportionately.

More recently in Anuradha Bhasin vs Union Of India the Supreme Court stated “A public emergency usually would involve different stages and the authorities are required to have regards to the stage, before the power can be utilised under the aforesaid rules. The appropriate balancing of the factors differs, when considering the stages of emergency and accordingly, the authorities are required to triangulate the necessity of imposition of such restriction after satisfying the proportionality requirement.” The court while passing the judgement also stated “The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed.”^{^[27]} The judgement while examining the duration of the suspension mentioned that any order which suspends the internet must adhere to the principle of proportionality and must not extend beyond necessary duration.

Recommendation: There is a need to look at the implications of such an order enabling blocking or suspension of services post the Puttaswamy judgement where informational privacy, and dignity were considered as some of the aspects of privacy. While this clause uses the test of necessity and expediency, we suggest that along with these two the clause also introduce the three prong test laid out in Puttaswamy I. In addition to this since this legislation has been drafted subsequent to the Anuradha Bhasin judgement the provisions of the legislation must be in conformity with the same in order to avoid confusion and reduce litigation.

Chapter 7: Telecommunication Development Fund

➔ Clause 29: “The sums of money received towards the Telecommunication Development Fund under clause 27, shall first be credited to the Consolidated Fund of India, which shall be appropriated by the Central Government, in accordance with law made by the Parliament, to the Telecommunication Development Fund from time to time for being utilised to meet any or all of the following objectives:

(a) support universal service through promoting access to and delivery of telecommunication services in underserved rural, remote and urban areas;

(b) research and development of new telecommunication services, technologies, and products;

(d) support pilot projects, consultancy assistance and advisory support towards provision of universal service under sub-clause (a) of this clause; and

(e) support introduction of new telecommunication services, technologies, and products.”

Comment: Clause 27 of the draft bill proposes to rename the Universal Service Obligation Fund (USOF) to Telecommunication Development Fund (TDF) and expand its scope to include underserved urban areas in addition to rural and remote areas. This has been done, ostensibly to expand the scope of current USOF to include within its ambit underserved urban areas, research and development, and skill development, among others.^{^[28]} While there is a need to spend the vast amount of unspent balance within the USOF, and spending it on skill development, investments in innovative low cost-technology that enables affordable broadband connectivity for all is important, the manner in which the TDF is currently defined is loose and vague. In order to ensure that the fund is spent to include digitally marginalised groups only, the purpose for which the TDF can be used needs to have an “exact” and “specific definition”. The purpose should be narrowly defined to include only those activities that have the potential to mitigate and bridge the many digital divides that exist in our country because in its absence TDF may be misused to subsidise urban middle class users as opposed to originally intended beneficiaries - the hitherto marginalised sections of the society.

Furthermore, the Bill suggests that the money received towards the TDF shall first be credited to the Consolidated Fund of India, which shall be appropriated by the Central Government, in accordance with law made by the Parliament. This is a relic of the erstwhile USOF policy funds, and allocations are made on a demand and review basis. One of the reasons that India has an unspent balance of nearly INR 50,000 crore in USOF is owing to a delay in its implementation due to bureaucratic delays since all credits to this fund require parliamentary approvals.^{^[29]} In order to ensure that funds received through USOF/TDF are utilised efficiently, the government must ring fence these funds and ensure that they are only spent on the objectives envisaged under the TDF. Furthermore, funds collected for this purpose must not be credited to the Consolidated Fund of India since requiring additional approvals delays implementation of the fund. For instance, the rural road fund is ring fenced which has ensured smoother flow of funds.^{^[30]} Moreover, auction proceeds, and other levies on the sector such as service tax and GST are already credited to the Consolidated Fund of India, therefore the government can afford to ring fence funds collected for universal service as opposed to crediting them to the Consolidated Fund of India.

Recommendation: The objectives for which the TDF can be utilised is vague and too broad and therefore the government would be well-advised to specify that TDF can only be utilised to ensure digital access, adoption and usage for digitally marginalised groups. This would go a long way in ensuring that the funds are not misspent on providing subsidies to users that may not be in need for such a subsidy. Furthermore, TDF must be ring fenced and not credited to the Consolidated Fund of India to ensure timely implementation.

Chapter 9: Protection of users

➔ Clause 34 : “In the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence, no user shall furnish any false particulars, suppress any material information or impersonate another person while establishing identity for availing telecommunication services.”

Comment: The intent behind this provision appears to be to prevent misrepresentation or identity and the giving of false information for availing telecom services. Whilst it is understandable that there may be privacy issues involved in the matter of revealing one’s identity for availing telecommunications services, the requirement to provide correct identity documents is a well established and accepted norm in the industry today which is manifest in the KYC requirements that have to be fulfilled by every customer. Therefore there is no need to qualify the obligation to provide true and accurate documents with the phrase “in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence”.

Chapter 10: Miscellaneous

➔ Clause 46: Amendment to Act 24 of 1997

Comment: Clause 46 of the Bill significantly dilutes the power of TRAI and effectively renders the Regulator to the role of the government’s rubber stamp through proposed amendments to clause 11^{^[31]} of the TRAI Act. Section 11 of the TRAI Act as it currently stands requires DoT to solicit recommendations from TRAI on issues pertaining to licensing, new services, and spectrum management, where the powers vest with the government. However, if the Bill becomes a law, this would not be mandatory on the government’s part. It may or may not seek the Regulator’s recommendations, thus eroding the transparency which was built in the process of policymaking. Consequently, as per the current Bill, the government will effectively be the licensor, operator, and the Regulator. Since the government owns BSNL/MTNL (a telecom operator) the role of an independent regulator assumes even more significance. Even without the proposed amendments, the Indian regulator has been largely ineffective since it lacks significant functional autonomy including negligible penalisation powers, limited role in its hiring decisions, and lack of financial autonomy since it needs DoT’s approvals for its budget.^{^[32]} Even in its present form, TRAI has lesser power as compared to many regulators across the globe. For instance Federal Communications Commission (FCC) of the USA, Ofcom of the UK, and regulators in Pakistan, Bangladesh, and Sri Lanka have powers over spectrum and licensing, while TRAI has only recommendatory powers.^{^[33]} With the advent of 5G, the lines between telecom and digital services are likely to blur even more and in order to ensure that we are able to exploit the vast potential this new wave of innovations could unleash, it is important to have skilled policymakers well-versed with technology at the helm of affairs. Amidst this backdrop, it is important to invest in enhancing TRAI’s competence by hiring subject matter experts, and ensuring that TRAI functions as an independent and transparent regulator.

Furthermore, the bill empowers the government to set up an alternate dispute resolution mechanism effectively making the role of Telecom Disputes Settlement and Appellate Tribunal (TDSAT) redundant. Currently, TDSAT is the first body which looks into any dispute between two (i) telecom operators, (ii) telecom operators and the government, and (iii) between operators, the government and as well as the regulator. Only once the TDSAT has passed orders on such disputes can they be appealed in the Supreme Court. Therefore, clauses diluting the power of TRAI must be deleted. The government must also clarify what it means by an alternate dispute resolution mechanism, and the role it envisages for TDSAT.

Lastly, TRAI process is consultative by design providing various stakeholders with an opportunity to participate in the policymaking process. However, the proposed bill does not have any provisions mandating the DoT to hold transparent stakeholder consultations.

Recommendation: Clause 46 of the proposed bill should be deleted. Furthermore, the government must work towards further strengthening TRAI by hiring subject matter experts and further empowering TRAI by giving it penalising powers. Also, TRAI must be responsible for conducting spectrum audits and ensuring that licensees are adhering to licensing conditions.

➔ 46(k): “Provided further that the Authority may direct a licensee or class of licensees to abstain from predatory pricing that is harmful to the overall health of the telecommunication sector, competition, long term development and fair market mechanism” shall be inserted.”

Comment: The Bill through clause 46 (k) empowers the TRAI to decide on ‘predatory pricing’, which falls within the remit of the Competition Commission of India (CCI) which could potentially create jurisdictional overlaps between the two regulators. Even in the past, there has been friction between the two regulators on whether TRAI has jurisdiction to decide on matters relating to competition and predatory pricing in telecom tariffs.^{^[34]} In Competition Commission of India v. Bharti Airtel Limited & Ors^{^[35]}, Supreme Court of India rejected the contention by the incumbent dominant operators (IDOs) that TRAI, as the sectoral regulator, had exclusive jurisdiction to rule on competition-related aspects in the industry. It ruled that if TRAI had determined that the IDOs had formed a cartel or colluded to block Jio’s entry, the CCI then would have jurisdiction to decide whether the IDOs’ actions had an appreciable adverse effect on competition. While TRAI’s powers of sanction were limited by the TRAI Act, the CCI had the power to prescribe and enforce structural remedies to promote genuine competition in the telecom sector. The court prescribed comity between TRAI and the CCI in the discharge of their roles.^{^[36]} Over time, the telecom sector has evolved from being a rudimentary voice service to being a complex data-centric converged service, and even though overlapping jurisdictions cannot be completely wished away,^{^[37]} there is a need for clearly defined roles for various ministries and regulators. And there will also be a need to adopt a consultative approach towards policymaking through inter-departmental consultations, an area that India has thus far been lacking in. As evidenced by the International Telecommunication Union’s (ITU) Global ICT Regulatory Outlook 2020, which ranks India at 94 (out of a total of 193) countries in terms of the maturity and collaborative approach shown by telecom regulatory bodies, lower than countries such as Japan, Singapore, Korea, Pakistan, Kenya, and Nigeria.^{^[38]}

Therefore, inserting such a provision may create more chaos and regulatory uncertainty. It is advisable that the government ensures there are no jurisdictional issues between the two regulators by clearly defining the role of TRAI and inserting provisions to facilitate inter regulatory consultation mechanism.

➔ Clause 48: “If the person committing an offence under this Act is a company, the employee(s) who at the time the offence was committed, was responsible to the company for the conduct of the business relating to the offence, shall be liable to be proceeded against and punished accordingly.”

Comment: While there is a need to ensure that offenders and violators of provisions under this Act are provided with penalties, there is a need to look at ways to ensure that the fear of penalties does not stifle innovation. This legislation intends to bring into its ambit a number of new stakeholders who might not be able to comply with all the requirements due to the inexperience, which could lead to inadvertent offences and violations. The current wording of clause 48, does not make any distinction between offences that were done with prior knowledge and malafide intentions and those done without knowledge of its commission.

Recommendation: We suggest that the Act keeps the wordings in line with similar legislations such as the draft Personal Data Protection Bill 2019. The revised text could have a proviso that reads as “Nothing contained in sub-clause (1) shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.”

Keeping in mind the existing burden of work both on the executive and the judiciary, and the time sensitive nature of the provisions of the Bill there is a need to look at different, swift, and inexpensive strategies. One possible way could be through Informal Guidances, similar to Security and Exchange Board of India (SEBI)’s Informal Guidance Scheme, which enables regulated entities to approach the Authority for non-binding advice on the position of law.^{^[39]} As there will be a number of new players that will be under the Bill, it would be useful for entities to get guidance. Another possible step could be to use Undertakings, where the regulator enforces the errant party to seek contractual undertakings to take certain remedial steps.^{^[40]}

➔ Clause 51: “Notwithstanding anything contained in any law for the time being in force, where the Central Government, a State Government or a Government of a Union Territory is satisfied that any information, document or record in possession or control of any licensee, registered entity or assignee relating to any telecommunication services, telecommunication network, telecommunication infrastructure or use of spectrum, availed of by any entity or consumer or subscriber is necessary to be furnished in relation to any pending or apprehended civil or criminal proceedings, an officer, specially authorised in writing by such Government in this behalf, shall direct such licensee, registered entity or assignee to furnish such information, document or record to him and the licensee, registered entity or assignee shall comply with the direction of such officer.”

Comment: The requirement to provide information or document even for “pending or apprehended civil or criminal proceedings” is too wide and could be misutilised, specially given the fact that there is no judicial authority making the determination that the information or document is required for such proceedings. Even in clause 91 of the Cr.P.C. , the requirement to provide documents or information is only for existing investigations, inquiries, trials or proceedings. Therefore the requirement to provide information, document or record for apprehended civil proceedings should be deleted.

Additional Comments

➔ Comment: The bill fails to incorporate net neutrality requirements

Technological convergence and vertical integration within the sector make adherence to net neutrality critical to keep discrimination and anti-competitive conduct in check. While extant TRAI regulations, forbid TSPs from discriminating on the basis of content, sender or receiver, protocols or user equipment based on prior arrangements, by slowing down one application or providing fast lanes to another. However, there is lack of clarity on how adherence to net-neutrality principles is currently being monitored. In 2020, TRAI had recommended setting up a Multistakeholder body for monitoring adherence to net neutrality by licensees.^{^[41]} However, the draft bill fails to codify net neutrality requirements and as such non-discriminatory treatment of traffic does not find a mention in the bill or the explanatory note accompanying it.

Recommendation: The government must act on TRAI’s recommendations and set up the multistakeholder body to check adherence to net neutrality requirements by incorporating provisions to that effect.

➔ Comment: There is no provision in the bill that requires the government to report vital statistics and other information relating to the sector. We understand that both TRAI and DoT have taken efforts in publishing those statistics through DoT dashboard and reports such as the annual report, performance indicator reports, and subscriber reports. But, putting reporting requirements in the statute would be better.

Recommendation: In the interest of transparency and accountability, a clause requiring the government to report (quarterly or annually) vital statistics relating to the functioning and financial aspects of matters contained within the draft legislation. The reporting should also include the number of licences provided, licences revoked, number of blocking and suspension orders passed among others.

^{^[1]} “Response to TRAI consultation on Auction of Spectrum in frequency bands identified for IMT/5G”, Centre for Internet and Society, accessed 10 November 2022,https://cis-india.org/telecom/blog/response-to-trai-consultation-auction-of-spectrum-in-frequency-bands-identified-for-imt-5g

^{^[2]} “Response to TRAI Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services”,Centre for Internet and Society, accessed 10 November 2022, https://cis-india.org/internet-governance/blog/response-to-trai-consultation-paper-on-regulatory-framework-for-over-the-top-ott-communication-services

^{^[3]} “Impact Assessments”, European Commission, accessed 10 November 2022,<https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/impact-assessments_en#:~:text=Impact%20assessments%20examine%20whether%20there,support%20the%20decision%2Dmaking%20process.>

^{^[4]} Clause 2(5) defines customer equipment as follows: “ “customer equipment” means equipment deployed on the premises of a person, other than the equipment of the licensee or registered entity, to originate, route or terminate telecommunication, or equipment used by such person for accessing telecommunication services;”

^{^[5]} As defined in clause 2(9) of the draft bill.

^{^[6]} Japan: "Telecommunications service" means intermediating communications of others through the use of telecommunications facilities, or any other acts of providing telecommunications facilities for the use of communications by others; Singapore: “telecommunication service” means any service for telecommunications but excludes any broadcasting service; UK: “electronic communications service” means a service of any of the types specified in subsection (2A) provided by means of an electronic communications network, except so far as it is a content service. Those types of service are— (a)an internet access service; (b)a number-based interpersonal communications service; and (c)any other service consisting in, or having as its principal feature, the conveyance of signals, such as a transmission service used for machine-to-machine services or for broadcasting.

^{^[7]} Muntazir Abbas, “Regulating OTT players complicated: Trai”, The Economic Times, 30 January 2020,<https://economictimes.indiatimes.com/industry/telecom/telecom-policy/regulating-ott-players-complicated-trai/articleshow/73759307.cms?from=mdr >

^{^[8]} Justin Douglas and Amy Land Pejoska, Regulation and Small Business, <https://treasury.gov.au/sites/default/files/2019-03/p2017-t213722-Roundup_Sml_bus_regulation-final.pdf>

^{^[9]} See, for instance, “Features, Whatsapp (2020), <https://www.whatsapp.com/features>; “Signal

Messenger Features”, Signal (2020)

^{^[10]} CIS has recommended this “two layered framework” in its previous submissions to TRAI.

^{^[11]} “Response to TRAI Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services”,Centre for Internet and Society.

^{^[12]} “Internet Privacy in India”,Centre for Internet and Society, accessed 10 November 2022,https://cis-india.org/telecom/knowledge-repository-on-internet-access/internet-privacy-in-india

^{^[13]}Justice K. Puttaswamy and Others v. Union of India and Others 1 SCC 1 (2019)

^{^[14]}“Judgement in Plain English Constitutionality of Aadhaar Act”, “Supreme Court Observer, accessed 10 November 20222,https://www.scobserver.in/reports/constitutionality-of-aadhaar-justice-k-s-puttaswamy-union-of-india-judgment-in-plain-english/

^{^[15]} “Right to Encrypt : Subset of Right to Privacy?”, SFLC, accessed 10 November 20222,https://sflc.in/right-encrypt-subset-right-privacy

^{^[16]} PTI, “Trai to moot mechanism for KYC-based caller name display”,The Economic Times, 20 May 2022,https://economictimes.indiatimes.com/industry/telecom/telecom-news/trai-to-moot-mechanism-for-kyc-based-caller-name-display/articleshow/91695117.cms?from=mdr

^{^[17]} Palme, Jacob, and Mikael Berglund. "Anonymity on the Internet.” <https://people.dsv.su.se/~jpalme/society/anonymity.pdf >

^{^[18]} Rajat Kathuria, Isha Suri “Why spectrum needs a change in approach”, Indian Express, 20 October 2022, https://indianexpress.com/article/opinion/columns/why-spectrum-needs-a-change-in-approach-8235997/

^{^[19]} Consultation on a Non-Competitive Local Licensing Framework, Including Spectrum in the 3900-3980 MHz Band and Portions of the 26, 28 and 38 GHz Bands - Spectrum management and telecommunications

^{^[20]} Aneesh Phadnis“Extant rules choke growth, telecom bill needs review: Broadband India Forum”, Business Standard, 23 September2022<https://www.business-standard.com/article/companies/extant-rules-choke-growth-telecom-bill-needs-review-broadband-india-forum-122092301265_1.html >

^{^[21]} Highlights of Telecom Subscription Data as on 31st August, 2022, TRAI, accessed 10 November 2022, https://www.trai.gov.in/sites/default/files/PR_No.67of2022.pdf

^{^[22]} “Response to TRAI consultation on Auction of Spectrum in frequency bands identified for IMT/5G”, Centre for Internet and Society.

^{^[23]} Calabrese, M. (2021). Use it or Share It: A New Default Policy for Spectrum Management. Available at SSRN 3762098. <https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3762098_code2826029.pdf?abstractid=3762098&mirid=1 >

^{^[24]} “Guidelines for Implementation of New Public Sector Enterprises (PSEI Policy for CPSEs in Non-Strategic Sector' regarding”, “Government of India Ministry of Finance Department of Public EnterPrises, 10 November 2022, https://dpe.gov.in/sites/default/files/DPE_OM_DTD_13.12.21_Guidelines_on_New_PSE_Policy_0.pdf, Economic Survey 2021-2022, India Budget, accessed 10 November 2022, <https://www.indiabudget.gov.in/economicsurvey/ebook_es2022/index.html#p=86 >

^{^[25]} A similar approach has been taken in the new Occupational Safety, Health and Working Conditions Code, 2020 for registration of establishments under clause 3(3) of the Code.

^{^[26]} Sections 69 and 69A of the Information Technology Act, 2000.

^{^[27]} Anuradha Bhasin vs Union Of India, 3 SCC 637 (2020)

^{^[28]} Explanatory Note to the draft Indian Telecommunication Bill, 2022, Pg. 14.

^{^[29]}“USOF Scheme for Aspirational Districts in 5 states”, “Drishti IAS”, accessed 10 November 2022, https://www.drishtiias.com/daily-updates/daily-news-analysis/usof-scheme-for-aspirational-districts-in-5-states

^{^[30]}“What BharatNet can learn from the rural-roads scheme: involve states, local bodies, private sector” “ Centre for Internet and Society, accessed 10 November 2022, https://cis-india.org/telecom/blog/what-bharatnet-can-learn-from-the-rural-roads-scheme-involve-states-local-bodies-private-sector

^{^[31]} Functions of Authority, clause 11, TRAI Act, 1997.

^{^[32]} Pratap Vikram Singh, “Trai, try again: India’s toothless telecom regulator fights for more powers”, Aug 31, 2021, The Ken, <https://the-ken.com/story/trai-try-again-indias-toothless-telecom-regulator-fights-for-more-powers/>

^{^[33]} Ibid.

^{^[34]} “PTI” “Have power to settle competitive tariff issues: TRAI to CCI”, Aug 7, 2017, The Economic Times, https://economictimes.indiatimes.com/news/economy/policy/have-power-to-settle-competitive-tariff-issues-trai-to-cci/articleshow/59959144.cms?from=mdr

^{^[35]} CIVIL APPEAL NO(S). 11843 OF 2018

^{^[36]} Ibid at Para 90

^{^[37]} “Market Study on the Telecom Sector”, Jan 22, 2021, Competition Commission of India

^{^[38]} Global ICT Regulatory Outlook 2020 - Pointing the way forward to collaborative regulation (2020), ITU, https://www.itu.int/dms_pub/itu-d/opb/pref/D-PREF-BB.REG_OUT01-2020-PDF-E.pdf

^{^[39]}Informal Guidance Scheme of SEBI: Understanding the Concept and Analyzing the Guidance Provided by SEBI, Vijay Kumar Singh https://www.researchgate.net/publication/228226352_Informal_Guidance_Scheme_of_SEBI_Understanding_the_Concept_and_Analyzing_the_Guidance_Provided_by_SEBI>

^{^[40]} We have made similar recommendations to the Personal Data Protection Bill 2019, on the offences and penalties under the Bill. The comments can be viewed here: <https://cis-india.org/accessibility/blog/cis-general-comments-to-the-pdp-bill-2019>

^{^[41]}Recommendations On Traffic Management Practices (TMPs) and MultiStakeholder Body for Net Neutrality, TRAI, accessed 10 November 2022, https://www.trai.gov.in/sites/default/files/Recommendations_22092020_0.pdf

The comments were drafted by Abhishek Raj, Divyank Katira, Isha Suri, Shweta Mohandas and Vipul Kharbanda, and reviewed by Pallavi Bedi. Click to download the submission here

For more details visit https://cis-india.org/telecom/blog/cis-comments-to-draft-indian-telecom-bill-2022

CIS Submission to TRAI Consultation on Proliferation of Broadband through Public WiFi Networks

Sunil Abraham, Sharath Chandra Ram, Vidushi Marda, and Thejaswi Melarkode — 2016-10-02T06:16:46Z

The Centre for Internet and Society (“CIS”) is grateful for the opportunity to comment on this Consultation Paper (“Paper”). The comments were prepared by Sunil Abraham, Sharath Chandra Ram, Vidushi Marda, and Thejaswi Melarkode. Special thanks to Shyam Ponappa and Arjun Venkatraman for their inputs and feedback.

Preliminary Comments

Even in the early to mid-seventies, many Indians who wanted to own a radio receiver were expected to get a license from the government. If not then they were in violation of the law and there was nothing the government could do to enforce policies for their benefit. The deregulation of radio ownership has been key to its unfettered adoption and popularity today. Similarly, Wi-Fi, a radio transceiver must be deregulated further to bridge India's digital divide.

Before addressing specific questions posed by the Paper, we would like to make the following observations:

The Paper considers only commercial models for the provision of public Wi-Fi networks. This is a problematic assumption as it ignores the potential of not-for-profit models that involve grassroots communities, academia and civil society.
The Paper is infused with a vision and philosophy that is reminiscent of a colonial, license raj, centralized, top-down, command and control based, state monopoly paradigm. This is diametrically opposed to the foundational ethos of the Internet.
The Paper assumes that more regulation is required in order to ensure mass adoption of public Wi-Fi. In fact, the exact opposite is true - the rapid proliferation of broadband through public Wi-Fi networks will only be accomplished by aggressive deregulation.
The technological architecture being advanced by the Paper signals support of governance cum surveillance projects such as Aadhaar aka UID, India Stack, UPI and related projects which only undermine cyber-security and interferes with healthy competitive market dynamics between commercial and non-commercial actors. Again this is diametrically opposed to the foundational ethos of the Internet and a modern democratic information society.

Q1. Are there any regulatory issues, licensing restrictions or other factors that are hampering the growth of public Wi-Fi services in the country?

The most pressing issue which is hampering the growth of public Wi-Fi services in the country is that of over regulation. Under the current regulatory framework, public Wi-Fi is subject to licensing requirements, data retention, and Know-Your-Customer ("KYC") policies. The next issue is paucity of spectrum. So far the approach has been to assign exclusive property rights to certain frequencies and also raise billions of US Dollars through spectrum auctions based on the Supreme Court's understanding of spectrum as a national resource. Given the advancements in transceiver technologies, such as cognitive radios, it is possible for us to transcend the grid-lock of property rights and embrace paradigms like shared and unlicensed spectrum. Innovative technologies and neutral allocation of unlicensed spectrum will result in the growth of public and community wireless networks including those built on the Wi-Fi standard.

Q2. What regulatory/licensing or policy measures are required to encourage the deployment of commercial models for ubiquitous city-wide Wi-Fi networks as well as expansion of Wi-Fi networks in remote or rural areas?

The regulatory approach should be to deregulate the radio transceiver as much as possible so as to encourage innovation with lower barriers for participation.

The question falsely assumes that only commercial players can provide public Wi-Fi, Para 1.9 of the Paper only identifies scenarios where Unified License (UL) holders can take advantage of unlicensed spectrum to provide public Wi-Fi services. It fails to recognize that civil society, academia, and grassroots communities can also bring about ubiquitous city-wide Wi-Fi networks and expansion to remote and rural areas. For example, Village Telco and mesh networks are community-driven Wi-Fi models that are allowing a large number of individuals to gain access to Internet services using a public spirited or peer-to-peer philosophy.^{^[1]}

In terms of regulatory measures, CIS would recommend minimal and proportionate regulation, i.e. the regulation of entities involved in the provision of public Wi-Fi networks based on their capacity to harm the public interest and/or individual rights. By this we mean that only public Wi-Fi networks that have a large number of users (say, more than 5,000 individual users) should be subject to any regulation. Small-scale public Wi-Fi network providers, like public Wi-Fi networks in small villages or apartment complexes, should be left to self-regulation. Regulatory burdens which serve no purpose only deter these providers from providing such services at all.

Regulation must be technology-neutral, and should focus on the entities using these technologies who are capable of unlocking good or causing harm. This neutrality should be reflected in the name of the policy: "community-networking policy" and not "community Wi-Fi policy". The necessary changes must also be incorporated in the Paper and the draft policy to make this clear. The current definition of Wi-Fi is closely coupled with certain frequencies, and public wireless networks should be promoted regardless of technology and specific frequency bands.

In cases where private data services, (such as mobile telephony/ other private application specific data infrastructures) which may have been granted permission to deploy on an open-unlicensed or delicensed part of the spectrum, experience interference from a Public Wi-Fi setup. On the same frequency band, we call for the Public Wi-Fi to be given priority. This will prevent spectrum squatting.

Q3. What measures are required to encourage interoperability between the Wi-Fi networks of different service providers, both within the country and internationally?

This is a requirement for elite parts of society only but not a deal breaker for the provision of public Wi-Fi in India. There are a variety of existing market-based approaches. The further deregulation of Wi-Fi will result in the rise of public, community and non-commercial players which in turn will lead to further innovation and competition when it comes to interoperability across disparate Wi-Fi networks and providers.

Q4. What measures are required to encourage interoperability between cellular and Wi-Fi networks?

No measures are required. Millions of consumers in India already are able to interoperate between cellular networks and their home and office networks as they are in charge of the authentication or they have left these networks open. The reason they are unable to operate more easily with other networks is due to data retention, and KYC policies. Even in countries with much more challenging national security concerns, the data retention and KYC policies are not so strict. We are paying a terrible price in terms of broadband adoption because of our flawed approach to surveillance and cyber security. The answer here lies in deregulation of existing requirements, especially for community based organisations, NGOs, research institutions, educational institutions, galleries, museums, archives and public libraries. This will address the needs of those who cannot pay and are vulnerable. For those who can pay - commercial actors will innovate and provide the high-quality interoperability that they seek - this will not require any action on the part of the government.

Q5. Apart from frequency bands already recommended by TRAI to DoT, are there additional bands which need to be de-licensed in order to expedite the penetration of broadband using Wi-Fi technology? Please provide international examples, if any, in support of your answer.

In a 2012 policy brief on unlicensed spectrum^{^[2]}, CIS recommended the changes, listed below [in italics]. Since then, more modern approaches may have emerged which merit revisiting this question. These advances also merit delicensing bands more aggressively as the proprietary approach becomes more and more dated. This approach should also be technology neutral and must find a balance between proprietary, unlicensed, and shared spectrum.^{^[3]}

Frequencies in the 6, 11, 18, 23, 24, 60, 70, and 80 GHz bands, to facilitate replicating examples like Webpass (USA) which has radios capable of delivering up to 2Gbps both upstream and downstream.^{^[4]}
Frequencies in the 5.15 GHz-5.35 GHz bands, as well as 5.725-5.775 GHz bands are unlicensed for indoor use only. These bands should be unlicensed for outdoor use as well in order to facilitate the creation of wider wireless communication networks and the use of innovative technologies.
There should be more unlicensed spectrum in the 2.4 GHz range, beyond what is already unlicensed, for the expansion of wireless communication networks.
The 1800-1890 MHz band, which is earmarked for the operations of low power cordless communication in India, should be unlicensed in line with international practices. Many bands for this use have already been unlicensed in Europe and the United States. ^{^[5]}
50 Mhz in the 700Mhz - 900Mhz band, earmarked for broadcast should be made available to better utilize available spectrum, almost 100Mhz is currently unused in most parts of the country.

Q6. Are there any challenges being faced in the login/authentication procedure for access to Wi-Fi hotspots? In what ways can the process be simplified to provide frictionless access to public Wi-Fi hotspots, for domestic users as well as foreign tourists?

The challenge here is that of over regulation and the belief that elaborate KYC requirements will solve problems of national security. What these requirements achieve is a lot of inconvenience for the general population while criminals are able to evade detection through fake IDs, burner phones, etc. as KYC requirements only create barriers without security payoffs. The fact that jurisdictions such as the UK, and other countries in Europe allow for purchase of SIM cards without KYC norms goes to show that there are effective ways of gathering intelligence that do not involve a KYC regime.

In terms of authentication, a healthy ecosystem will allow for both anonymous access to Wi-Fi hotspots as well as access through authentication.

There is a need for deregulation in order to allow anonymous access. For access through authentication, some providers may wish to have light KYC norms whereas others may choose to have rigorous KYC norms that are integrated with Aadhaar, India Stack, etc. The decision should ultimately be taken by the provider and thus deregulation is the key. The most frictionless model is the unauthenticated model that allows anonymous access, followed by a light KYC regime, and the model with the most friction is that with intensive KYC requirements.

The existing customer log-in procedure requirements that have been laid down by the Department of Telecommunications (DoT), Ministry of Communications, Government of India, which necessitate a user to provide a photo ID or to avail a one-time password (OTP) through SMS should be done away with for two reasons. First, it does not allow for a user to access the public Wi-Fi network without authentication and this leads to a loss of anonymity over that network when the user accesses any Internet-based services. Secondly, it assumes that all people will have access to mobile phones/smartphones. So far as the Indian scenario is concerned, this is certainly not the case in many households where only the head of the family, who is more often than not a male member, has access to such devices. Many individuals also use much simpler devices which may not be able to receive OTPs (see Raspberry Pi models, for example). Such a requirement would, in effect, deprive a large number of individuals from accessing public Wi-Fi services and would defeat the purpose of even setting up such networks.

Q7. Are there any challenges being faced in making payments for access to Wi-Fi hotspots? Please elaborate and suggest a payment arrangement which will offer frictionless and secured payment for the access of Wi-Fi services.

This question is backed by three assumptions. First, it assumes that only commercial provision of Wi-Fi is possible. Second, it assumes that "a (singular) payment arrangement" is the preferred approach. Third, it assumes that it is possible for regulators to predict the most appropriate business / technological model for payments online. This is best left to competition between commercial and noncommercial players in the market. The existing regulations from the RBI and laws that govern electronic transactions are sufficient. No specific regulations are required for access to Wi-Fi hotspots.

Q8. Is there a need to adopt a hub-based model along the lines suggested by the WBA, where a central third party AAA (Authentication, Authorization and Accounting) hub will facilitate interconnection, authentication and payments? Who should own and control the hub? Should the hub operator be subject to any regulations to ensure service standards, data protection, etc.?

"A central third party AAA (Authentication, Authorization and Accounting) hub" is antithetical to the foundational ethos of the Internet. Any attempt to foist that on Indian citizens will lead to a slowing down of wireless broadband adoption. From a cyber-security perspective this can only lead to large-scale and irreversible disasters and on the contrary policy measures should be taken to prevent centralization. For Indian cyberspace to be a resilient and free market, competition amongst both commercial and noncommercial players must be enabled for Authentication, Authorization and Accounting.

Q9. Is there a need for ISPs/ the proposed hub operator to adopt the Unified Payment Interface (UPI) or other similar payment platforms for easy subscription of Wi-Fi access? Who should own and control such payment platforms? Please give full details in support of your answer.

As we submitted in response to the earlier question: "a central third party AAA (Authentication, Authorization and Accounting) hub" is antithetical to the foundational ethos of the Internet. Aadhaar aka UID, India Stack and the Unified Payment Interface (UPI) are similar state sanctioned monopolies that only increase fragility and interfere with the functioning of markets. Also this question assumes that citizens will have to pay for access to WiFi. Therefore, we recommend that the government does not regulate payments beyond the existing measures in Banking Law.

Q10. Is it feasible to have an architecture wherein a common grid can be created through which any small entity can become a data service provider and able to share its available data to any consumer or user?

The government or the regulator should not be making recommendations on technical architectures. All that is required to the lift all limits on reselling or sharing data via law.

Q11. What regulatory/licensing measures are required to develop such architecture? Is this a right time to allow such reselling of data to ensure affordable data tariff to public, ensure ubiquitous presence of Wi-Fi Network and allow innovation in the market?

CIS would ask for forbearance in this regard, as anything else will be a case of over regulation.

Q12. What measures are required to promote hosting of data of community interest at local level to reduce cost of data to the consumers?

There are two measures that can be taken. The first is to change the public procurement policy to promote openness in the form of free and open source software, open standards, open content, open access, open educational resources and open data.

The second is to use public funds to shape the market and create publicly licensed material, or material available under exceptions and limitations of copyright law. To promote hosting data of community interest at a local level, public funds must be used to create intellectual property that can be freely licensed to the public. India already has a progressive copyright law, and the exceptions available under it should be seeded by the government through public funding. These exceptions include the statutory exception of copyright cess/ levy to broadband bills, exceptions for the disabled, libraries and archives and also education.

Q13. Any other issue related to the matter of Consultation.

Figure 2.2 of the Paper depicts Wi-Fi Monetization Pyramid based on Cisco's Wi-Fi Opportunity Pyramid.[2] As pointed out earlier, this ignores the possibility of non-commercial models. To quote Bruce Schneier, "surveillance is the business model of the Internet" ^{^[6]} and this business model is one that should not be encouraged. The pyramid only allows for a for-profit model and it is inherently based on needless surveillance of users. While monetization may be one of the main incentives, it is by no means the only way to sustain such public Wi-Fi networks and for this reason, CIS recommends that such a depiction be discarded.

The balancing of this monetization pyramid is one of the requirements to put in place an effective public Wi-Fi network structure. Another issue arises with respect to the definition of Wi-Fi. Currently, spectrum is limited to the 2.4 GHz or the 5 GHz bands but this has been expanded upon to encompass the LTE (4G) Core during the GSMA, Wireless Broadband Alliance and Wi-Fi Alliance 3GPP following the Mobile World Congress in 2013. Such a set-up would allow for frequency hopping between bands and to prevent (or allow) this, the definition of Wi-Fi in the context of public Wi-Fi networks must be clarified.

^{^[1]} See Centre for Internet and Society, Unlicensed Spectrum Brief for the Government of India, June 2012; Available at http://cis-india.org/telecom/unlicensed-spectrum-brief.pdf

^{^[2]} Supra note 1.

^{^[3]} Example of shared spectrum being advanced in the US: " Specifically, the FCC adopted rules for CBRS, opening 150 MHz of spectrum in the 3550-3700 MHz band for commercial use. A Spectrum Access System (SAS), which is now in the process of being hammered out at the FCC with prospective coordinators, will make it possible to share spectrum where it hasn't been done before ." See, Monica Alleven, "Google, Intel, Nokia and more partner to advance U.S. 3.5 GHz CBRS", Fierce Wireless, (February 18, 2016) available at http://www.fiercewireless.com/tech/google-intel-nokia-and-more-partner-to-advance-u-s-3-5-ghz-cbrs .

^{^[4]} " Webpass buildings have radios capable of delivering up to 2Gbps both upstream and downstream… Anything beyond 5,000 meters will still work but you lose bandwidth… Webpass radios operate in many different frequencies, including the unlicensed 2.4GHz and 5GHz bands used by Wi-Fi, Barr said. Webpass also uses the 6, 11, 18, 23, 24, 60, 70, and 80GHz bands. These include a mix of licensed and unlicensed frequencies…" See, Jon Brodkin, "500 Mbps broadband for $55 a month offered by wireless ISP", arsTECHNICA, (June 18, 2015), available at: http://arstechnica.com/information-technology/2015/06/500mbps-broadband-for-55-a-month-offered-by-wireless-isp/

^{^[5]} Supra note 1, at 17.

^{^[6]} See Bruce Schneier, 'Stalker economy' here to stay, CNN, (Nov. 26, 2013, 17:53 GMT), available at http://edition.cnn.com/2013/11/20/opinion/schneier-stalker-economy/index.html

For more details visit https://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks

CIS Submission to TRAI Consultation on Free Data

pranesh — 2016-07-01T16:04:27Z

The Telecom Regulatory Authority of India (TRAI) held a consultation on Free Data, for which CIS sent in the following comments.

The Telecom Regulatory Authority of India (TRAI) asked for public comments on free data. Below are the comments that CIS submitted to the four questions that it posed.

Question 1
Is there a need to have TSP agnostic platform to provide free data or suitable reimbursement to users, without violating the principles of Differential Pricing for Data laid down in TRAI Regulation? Please suggest the most suitable model to achieve the objective.

Is There a Need for Free Data?

No, there is no need for free data, just as there is no need for telephony or Internet. However, making provisions for free data would increase the amount of innovation in the Internet and telecom sector, and there is a good probability that it would lead to faster adoption of the Internet, and thus be beneficial in terms of commerce, freedom of expression, freedom of association, and many other ways.

Thus the question that a telecom regulator should ask is not whether there is a need for TSP agnostic platforms, but whether such platforms are harmful for competition, for consumers, and for innovation. The telecom regulator ought not undertake regulation unless there is evidence to show that harm has been caused or that harm is likely to be caused. In short, TRAI should not follow the precautionary principle, since the telecom and Internet sectors are greatly divergent from environmental protection: the burden of proof for showing that something ought to be prohibited ought to be on those calling for prohibition.

Goal: Regulating Gatekeeping

TRAI wouldn’t need to regulate price discrimination or Net neutrality if ISPs were not “gatekeepers” for last-mile access. “Gatekeeping” occurs when a single entity 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 their end customers without passing through ISPs (generally telecom networks). 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 generally not possible in the last mile.¹ 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.

However, the aim of regulation by TRAI cannot be to prevent gatekeeping, since that is not possible as long as there are a limited number of ISPs. For instance, even by the very act of charging money for access to the Internet, ISPs are guilty of “gatekeeping” since they are controlling who can and cannot access an Internet service that way. Instead, the aim of regulation by TRAI should be to “regulate gatekeepers to ensure they do not use their gatekeeping power to unjustly discriminate between similarly situated persons, content or traffic”, as we proposed in our submission to TRAI (on OTTs) last year.

Models for Free Data

There are multiple models possible for free data, none of which TRAI should prohibit unless it would enable OTTs to abuse their gatekeeping powers.

Government Incentives For Non-Differentiated Free Data

The government may opt to require all ISPs to provide free Internet to all at a minimum QoS in exchange for exemption from paying part of their USO contributions, or the government may pay ISPs for such access using their USO contributions.

TRAI should recommend to DoT that it set up a committee to study the feasibility of this model.

ISP subsidies

ISP subsidies of Internet access only make economic sense for the ISP under the following ‘Goldilocks’ condition is met: the experience with the subsidised service is ‘good enough’ for the consumers to want to continue to use such services, but ‘bad enough’ for a large number of them to want to move to unsubsidised, paid access.

Providing free Internet to all at a low speed.
1. This naturally discriminates against services and applications such as video streaming, but does not technically bar access to them.
Providing free access to the Internet with other restrictions on quality that aren’t discriminatory with respect to content, services, or applications.

Rewards model

A TSP-agnostic rewards platform will only come within the scope of TRAI regulation if the platform has some form of agreement with the TSPs, even if it is collectively. If the rewards platform doesn’t have any agreement with any TSP, then TRAI does not have the power to regulate it. However, if the rewards platform has an agreement with any TSP, it is unclear whether it would be allowed under the Differential Data Tariff Regulation, since the clause 3(2) read with paragraph 30 of the Explanatory Memorandum might disallow such an agreement.

Assuming for the sake of argument that platforms with such agreements are not disallowed, such platforms can engage in either post-purchase credits or pre-purchase credits, or both. In other words, it could be a situation where a person has to purchase a data pack, engage in some activity relating to the platform (answer surveys, use particular apps, etc.) and thereupon get credit of some form transferred to one’s SIM, or it could be a situation where even without purchasing a data pack, a consumer can earn credits and thereupon use those credits towards data.

The former kind of rewards platform is not as useful when it comes to encouraging people to use the Internet, since only those who already see worth in using in the Internet (and can afford it) will purchase a data pack in the first place. The second form, on the other hand is quite useful, and could be encouraged. However, this second model is not as easily workable, economically, for fixed line connections, since there is a higher initial investment involved.

Recharge API

A recharge API could be fashioned in one of two ways: (1) via the operating system on the phone, allowing a TSP or third parties (whether OTTs or other intermediaries) to transfer credit to the SIM card on the phone which have been bought wholesale. Another model could be that of all TSPs providing a recharge API for the use of third parties. Only the second model is likely to result in a “toll-free” experience since in the first model, like in the case of a rewards platform that requires up-front purchase of data packs, there has to be a investment made first before that amount is recouped. This is likely to hamper the utility of such a model.

Further, in the first case, TRAI would probably not have the powers to regulate such transactions, as there would be no need for any involvement by the TSP. If anti-competitive agreements or abuse of dominant position seems to be taking place, it would be up to the Competition Commission of India to investigate.

However, the second model would have to be overseen by TRAI to ensure that the recharge APIs don’t impose additional costs on OTTs, or unduly harm competition and innovation. For instance, there ought to be an open specification for such an API, which all the TSPs should use in order to reduce the costs on OTTs. Further, there should be no exclusivity, and no preferential treatment provided for the TSPs sister concerns or partners.

“0.example” sites

Other forms of free data, for instance by TSPs choosing not to charge for low-bandwidth traffic should be allowed, as long as it is not discriminatory, nor does it impose increased barriers to entry for OTTs. For instance, if a website self-certifies that it is low-bandwidth and optimized for Internet-enabled feature phones and uses 0.example.tld to signal this (just as wap.* were used in for WAP sites and m.* are used for mobile-optimized versions of many sites), then there is no reason why TSPs should be prohibited from not charging for the data consumed by such websites, as long as the TSP does so uniformly without discrimination. In such cases, the TSP is not harming competition, harming consumers, nor abusing its gatekeeping powers.

OTT-agnostic free data

If a TSP decides not to charge for specific forms of traffic (for example, video, or for locally-peered traffic) regardless of the Internet service from which that traffic emanates, as as long as it does so with the end customer’s consent, then there is no question of the TSP harming competition, harming consumers, nor abusing its gatekeeping powers. There is no reason such schemes should be prohibited by TRAI unless they distort markets and harm innovation.

Unified marketplace

One other way to do what is proposed as the “recharge API” model is 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.

Question 2

Whether such platforms need to be regulated by the TRAI or market be allowed to develop these platforms?

In many cases, TRAI would have no powers over such platforms, so the question of TRAI regulating does not arise. In all other cases, TRAI can allow the market to develop such platforms, and then see if any of them violates the Discriminatory Data Tariffs Regualation. For government-incentivised schemes that are proposed above, TRAI should take proactive measure in getting their feasibility evaluated.

Question 3

Whether free data or suitable reimbursement to users should be limited to mobile data users only or could it be extended through technical means to subscribers of fixed line broadband or leased line?

Spectrum is naturally a scarce resource, though technological advances (as dictated by Cooper’s Law) and more efficient management of spectrum make it less so. However, we have seen that fixed-line broadband has more or less stagnated for the past many years, while mobile access has increased. So the market distortionary power of fixed-line providers is far less than that of mobile providers. However, competition is far less in fixed-line Internet access services, while it is far higher in mobile Internet access. Switching costs in fixed-line Internet access services are also far higher than in mobile services. Given these differences, the regulation with regard to price discrimination might justifiably be different.

All in all, for this particular issue, it is unclear why different rules should apply to mobile users and fixed line users.

Question 4

Any other issue related to the matter of Consultation.

None.

In India’s mobile telecom sector, according to a Nielsen study, an estimated 15% of mobile users are multi-SIM users, meaning the “gatekeeping” effect is significantly reduced in both directions: Internet services can reach them via multiple ISPs, and conversely they can reach Internet services via multiple ISPs. See Nielsen, ‘Telecom Transitions: Tracking the Multi-SIM Phenomena in India’, http://www.nielsen.com/in/en/insights/reports/2015/telecom-transitions-tracking-the-multi-sim-phenomena-in-india.html↩

For more details visit https://cis-india.org/internet-governance/blog/cis-submission-trai-consultation-free-data

CIS Submission to TRAI Consultation Note on Model for Nation-wide Interoperable and Scalable Public Wi-Fi Networks

2016-12-12T13:59:00Z

This submission presents responses by the CIS on the Consultation Note on Model for Nation-wide Interoperable and Scalable Public Wi-Fi Networks published by the TRAI on November 15, 2016. Our analysis of the solution proposed in the Note, in brief, is that there is no need of a solution for non-existing interoperability problem for authentication and payment services for accessing public Wi-Fi networks. The proposed solution in this Note only adds to over-regulation in this sector, and does not incentivise new investment in the sector, but only establishes UIDAI and NPCI as the monopoly service providers for authentication and payment services.

The comments were authored by Japreet Grewal, Pranesh Prakash, Sharath Chandra, Sumandro Chattapadhyay, Sunil Abraham, and Udbhav Tiwari, with expert comments from Amelia Andersdotter.

1. Preliminary

1.1. This submission presents responses by the Centre for Internet and Society (“CIS”) [1] on the Consultation Note on Model for Nation-wide Interoperable and Scalable Public Wi-Fi Networks (“the Note”) published by the Telecom Regulatory Authority of India (“TRAI”) on November 15, 2016 [2].

1.2. The CIS welcomes the effort undertaken by TRAI to map regulatory and other barriers to deployment of public Wi-Fi in India. We especially appreciate that TRAI has recognised [3] two key barriers to provision of public Wi-Fi networks identified and highlighted in our earlier response to the Consultation Paper on Proliferation of Broadband through Public WiFi [4]: 1) over regulation (including, licensing requirements, data retention, and Know Your Customer policy), and 2) paucity of spectrum [5].

2. General Responses

2.1. Before responding to the specific questions posed by the Note, we would like to make the following observations.

2.2. There is no need of a solution for non-existing interoperability problem for authentication and payment services for accessing public Wi-Fi networks. The proposed solution in this Note only adds to over-regulation in this sector. The proposed solution does not incentivise new investment in the sector, but only establishes UIDAI and NPCI as the monopoly service providers for authentication and payment services.

2.3. As the TRAI has consulted widely with industry and other stakeholders before it settled on the list of priority issues contained in Section C.6 of the Note, we are surprised to find that this Note aims to address only the problem of lack of “seamless interoperable payment system for Wi-Fi networks” (Section C.6.d. Of the Note), and does not discuss and propose solutions for any other key barriers identified by the Note.

2.4. The Note fails to clarify the “interoperability” problem in the payment system for usage of public Wi-Fi networks that it is attempting to solve. The Note identifies that lack of “single standard” for “authentication and payment mechanisms” for accessing public Wi-Fi networks as a key impediment to provide scalable and interoperable public Wi-Fi networks across the country [6]. By conceptualising the problem in this manner, TRAI has bundled together two completely different concerns - authentication and payment - into one and this is at the root of the problems emanating from the proposed solution in this Note.

2.5. Lack of standard process for authentication is created by over-regulation via Know Your Customer (“KYC”) policies, and selection of eKYC service provided by UIDAI as the only acceptable authentication mechanism for all users of public Wi-Fi networks across India, creating further economic and legal challenges for smaller would-be providers of public Wi-Fi networks as they assess their liabilities and start-up costs. Additionally, since this would amount to making UID/Aadhaar enrolment mandatory for any user of public wi-fi networks, it seems to create a contradiction with previously communicated policy from the UIDAI and the Government that no such obligation should arise. Supreme Court has also mandated over successive Orders that enrolment for UID/Aadhaar number should remain optional for the citizens and residents.

2.6. As was observed by the respondents to the TRAI Consultation concluded earlier this year, there is no interoperability problem that needs to be solved regarding payments for accessing public Wi-Fi networks. Payment services continue to be evolved and payment aggregator services provided by existing companies may be expected to resolve many of the outstanding issues of service proliferation in the upcoming years, at least in the absence of additional mandatory technical measures imposed by the government. Bundling of payment with authentication will only undermine the already existing independent market for payment aggregators, and further enforce mandatoriness of UID/Aadhaar number.

2.7. Further, the payment mechanism proposed would seem to worsen difficulties for tourists and foreigners in accessing public Wi-Fi in India, as well adds an additional layer of authentication in a system already identified (even in the Note itself) to be overburdened by regulations regarding KYC and data retention. Section C.6.b of the Note highlights the problems faced by foreigners and tourists when the authentication mechanism is premised upon use of One Time Password (OTP) that requires a functioning local mobile phone number. It contradicts itself later by proposing an authentication method that requires the user to not only download an application onto their mobile/desktop device, but also to enrol for UID/Aadhaar number and/or to use their existing UID/Aadhaar number. Instead of reducing the existing barriers to provision of and access to public Wi-Fi, which the Note is supposed to achieve, it creates significant new barriers.

2.8. The technological architecture advanced by the Note upholds support of governance and surveillance projects that, in addition to being costly in their implementation and thereby slowing down the objective of getting India connected, are also of questionable value to the security of the Indian polity. UID, UPI, and related projects risk undermining cyber-security through their reliance on centralised architectures and interfere with healthy competitive market dynamics between commercial and non-commercial actors.

2.9. The Note continues to only consider and enable commercial models for the provision of public Wi-Fi networks. We have identified this as a problematic assumption in our last submission [7]. It is most crucial that TRAI does not ignore and fail to promote and facilitate the possibility of not-for-profit models that involve grassroot communities, academia, and civil society.

2.10. Last but not the least, the term “Wi-Fi” refers to a particular technology for establishing wireless local area networks. Further, the term is a trademark of the Wi-Fi Alliance [8]. It is this not a neutral term, and it must not be used as a general and universal synonym for wireless local area networks. We recommend that TRAI may consider using a technology-neutral term, say “public wireless services” or “public networking services”, to describe the sector. Following the terminology used in the Note, we have decided to continue using the term “Wi-Fi” in this response. This does not reflect our agreement about the appropriateness of this term. Important: The recommendation for technology-neutral regulation also comes with the qualification that safeguards like regulations on Listen Before Talk and Cycle Time are required to prevent technologies like LTE-U from squatting on spectrum and interfering with connections based on other standards.

3. Specific Responses

Q1. Is the architecture suggested in the consultation note for creating unified authentication and payment infrastructure will enable nationwide standard for authentication and payment interoperability?

3.1. No. The proposed infrastructure is likely to be costly for a large number of actors to implement and undermine some of the ongoing innovation in the Indian digital payment services industry. Rather than being helpful, it risks introducing additional requirements on an industry that TRAI has already identified as facing a number of large challenges.

3.2. There is no need for a unified architecture that provides nationwide standard for authentication and payment interoperability. It does not offer any incentive towards provision of public Wi-Fi networks. Neither is there an interoperability problem at the physical or data link layers that has been pointed out, nor is government mandated interoperability required at the payment or ID layer since there are private entities that provide such interoperability (like, payment aggregators). Additionally, we believe it is inappropriate that the TRAI is trying to predict the most suitable business/technological model for digital payments to be used for accessing commercial Wi-Fi networks. India has a booming online payments industry, and it must be allowed to evolve in an enabling regulatory environment that allow for competition and ensures responsible practices.

3.3. The Note identifies several structural impediments to expansion of public Wi-Fi networks in India, namely paucity of backhaul connectivity infrastructure (Section C.6.a), Inadequate associated infrastructure to offer carrier grade Wi-Fi network (Section C.6.c), dependency of authentication mechanism on pre-existing (Indian) mobile phone connection (Section C.6.b), and limited availability of spectrum to be used for public Wi-Fi networks (Section C.6.e). All these are crucial concerns and none of them have been addressed by the architecture suggested in the Note.

Q2. Would you like to suggest any alternate model?

3.4. Yes. The model proposed in the Note is likely to exclude several types of potential users (say, foreigners and tourists), and impose a single authentication and payment service provider for accessing public Wi-Fi networks, which may undermine both competition and security in the market for these services.

3.5. Internationally, there are cities and regions (say, the city of Barcelona and the Catalonia region in Spain) where public Wi-Fi networks have been provided in a pervasive and efficient manner by taking a light regulatory approach that enables opportunities for potential providers to set up their own infrastructures and additionally have access to backhaul. Further, reducing legal requirements on authentication should be considered in place of government mandated technical architectures for authentication and payment. In particular, allowing for anonymous access to Public Wi-Fi or wireless connectivity would reduce both the administrative and the technical burden on potential providers at the hyper-local level, especially for providers whose main activity it is not, and cannot be, to provide internet services (say, event venues, malls, and shops).

3.6. The CIS suggests the following steps towards conceptualising an “alternative model”:

remove existing regulatory disincentives,
urgently explore policies to promote deployment of wired infrastructures in general, and to enable a larger range of actors, including local authorities, to invest in and deploy local infrastructures by reducing licensing requirements in particular,
examine spectrum requirements for provision of public Wi-Fi, and
provide incentives, such as allowing telecom service providers to share backhaul traffic over public Wi-Fi, and ways for telecom service providers to lower their costs if they also make Internet access available for free.

Q3. Can Public Wi-Fi access providers resell capacity and bandwidth to retail users? Is “light touch regulation” using methods such as “registration” instead of “licensing” preferred for them?

3.7. CIS holds that capacity and bandwidth are neither comparable to tangible goods nor to digital currency. They are a utility, and the provider of the utility has to accept that their customers use the utility in the way they see fit, even if that use entails sharing said capacity and bandwidth with downstream private persons or customers. Wi-Fi capabilities are currently a built-in standardised feature of all consumer routers. Any individual, community, or store with access to an internet connection and a consumer router could become a public Wi-Fi access provider at no additional cost to themselves, furthering the goals of the Indian government in its Digital India strategy to ensure public and universal access to the internet.

3.8. In order to exploit the opportunities awarded by a large amount of entities in the Indian society potentially becoming Public Wi-Fi providers, TRAI should require neither registration nor licensing of these actors. Imposing administrative burdens on potential public Wi-Fi access providers creates legal uncertainty and will cause a lot of actors, who may otherwise contribute to the goals of Digital India, not to do so. This is particularly true for community organisers and citizens, who may not have access to legal assistance and therefore may avoid contributing to the goals of the government.

3.9. Light touch regulation when it comes to both granting license to public Wi-Fi access providers as well as authentication of retail users, however, are needed not only as an exceptional practice for such instances but as a general practice in case of entities offering public Wi-Fi services, either commercially or otherwise. Further, additional laxity in administrative responsibilities is needed to incentivise provision of free, that is non-commercial, public Wi-Fi networks.

Q4. What should be the regulatory guidelines on “unbundling” Wi-Fi at access and backhaul level?

3.10. The Note refers to unbundling of activities related to provision of Wi-Fi but it does not define the term. It is neither explained which specific activities at access and backhaul levels must be considered for unbundling.

3.11. While unbundling should clearly be allowed and any regulatory hurdles to unbundling should be removed, any such decision must be taken with a focus on urgently addressing the stagnated growth in landline and backhaul, as identified in Section C.6.a of the Note. Relying only on spectrum intensive infrastructures, such as mobile base stations, for providing connectivity, creates a heavy regulatory burden for the TRAI, while simultaneously not ensuring optimal connectivity for business and private users. The CIS is concerned that the focus of the Note on standardising a government-mediated authentication and payment mechanism detracts attention from this urgent obstacle to the fulfillment of the Digital India plans of accelerated provision of broadband highways, universal access, and public, especially free, access to internet services.

3.12. From the example of European telecommunications legislations, implementation of policy measures to ensure that vertical integration between infrastructure (say, cables, switches, and hubs) providers and service (say, providing a subscriber with a household modem or a SIM card) providers in the telecommunications sector does not become a barrier to new market entrants has yielded much success in countries that have pursued it, like Sweden and Great Britain.

3.13. Further, there should be no default assumption of bundling by the TRAI. In particular, the TRAI should consider reviewing all regulations that may cause bundling to occur when this is not necessary, and put in place in a monitoring mechanism for ensuring that bundled practises (especially in electronic networks, base station infrastructures, backhaul and similar) do not cause competitive problems or raise market entry barriers [9]. In most EU countries, especially where the corporate structure of incumbent(s) is not highly vertically integrated, interconnection requirements for electronic network providers of wired networks in the backhaul or backbone (effectively price regulated interconnection), and a conscious effort to ensure that new market players can enter the field, have ensured a competitive telecommunications environment. TRAI may consider reviewing the European regulation on local loop unbundling (1999) and discussions on functional separation (especially by the British regulatory authority Ofcom), within an Indian context.

Q5. Whether reselling of bandwidth should be allowed to venue owners such as shop keepers through Wi-Fi at premise? In such a scenario please suggest the mechanism for security compliance.

3.14. Yes. Venue owners should be allowed to provide public Wi-Fi service both on a commercial and non-commercial basis.

3.15. It is not clear from the Note and the question what type of security concerns the TRAI is seeking to address. In terms of payment security, the payment industry already has a large range of verification and testing mechanisms. The CIS objects to the mandatory introduction of the proposed payment system so as to ensure greater security for Wi-Fi access providers and the users.

3.16. As far as hardware-related security issues are concerned, it is again unclear why consumer equipment compliant with existing Wi-Fi standards would not be sufficiently secure in the Indian context. Wi-Fi has proven to be a sturdy technical standard, its adoption is high in multiple jurisdictions around the world, and it also enjoys great technical stability. Similar security assessments could easily be made for alternative wireless technologies, such as WiMaX.

3.17. The CIS foresees problems is in the allocation of risk and liability by law. The already existing legal obligation to verify the identity of each user, for instance, is likely to introduce a large administrative burden on potential Public Wi-Fi providers, which may lead to such potential providers abstaining from entering the market. Should the identification requirement be removed, however, other concerns pertaining to legal obligations may arise. These include liability for user activities on the web or on the internet (cf. copyright infringement, libel, hate speech). We propose a “safe harbour” mechanism in these cases, limiting the liability of the potential public Wi-Fi provider.

Q6. What should be the guidelines regarding sharing of costs and revenue across all entities in the public Wi-Fi value chain? Is regulatory intervention required or it should be left to forbearance and individual contracting?

3.18. The market segments identified by the TRAI in Section F.18 of the Note should normally all be competitive markets themselves, and so do not require regulatory assistance in sharing of costs and revenues. The more elaborate the requirements imposed on each actor of each market segment identified by the TRAI in Section F.18, the more costly the roll-out of public Wi-Fi is going to be for the market actors. Such a cost is not avoided by price regulation.

3.19. The TRAI may instead consider introducing public funding for backhaul roll-out in remote areas, where the market is unlikely to engage in such roll-out on its own. Presently, some Indian states (such as Karnataka) are committing to public funding for wireless access in remote areas. The Union Government can assist such endeavours.

Endnotes

[1] See: http://cis-india.org/.

[2] See: http://trai.gov.in/Content/ConDis/20801_0.aspx.

[3] See Section C.6 of the Note.

[4] See: http://trai.gov.in/Content/ConDis/20782_0.aspx.

[5] See: http://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks.

[6] See Section E.11. of the Note.

[7] See: http://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks.

[8] See: https://www.wi-fi.org/.

[9] See: Monitoring bundled products in the telecommunications sector is also recommended by the OECD: http://oecdinsights.org/2015/06/22/triple-and-quadruple-play-bundles-of-communication-services-towards-all-in-one-packages/.

For more details visit https://cis-india.org/telecom/blog/cis-submission-trai-note-on-interoperable-scalable-public-wifi

CIS Comments on TRAI Consultation Paper on Promoting Local Telecom Equipment Manufacturing

sinha — 2017-11-26T02:56:15Z

The Centre for Internet & Society (CIS) sent comments to the TRAI Consultation Paper on promoting telecom equipment manufacturing. CIS submission drew primarily from the research done in the Pervasive Technologies project.

Read TRAI's Consultation Paper on Promoting Local Telecom Equipment Manufacturing

Preliminary

This submission presents comments by the Centre for Internet and Society, India ("CIS") on the Consultation Paper on Promoting Local Telecom Equipment Manufacturing dated 18.09. 2017, released by the Telecom Regulatory Authority of India (TRAI), under Department of Telecom, Ministry of Communications and Information Technologies (“the TRAI Consultation Paper”).
We commend TRAI for its efforts at seeking inputs from various stakeholders on this important and timely issue and are thankful for the opportunity to put forth our views.
We have addressed questions 3 and 5 of the TRAI Consultation Paper. Question numbers referred to in our submission correspond to those in the TRAI Consultation Paper.
Further, the Department of Industrial Planning and Promotion (DIPP) invited comments on SEPs and their availability on FRAND terms on 01. 03. 2016.[1] CIS submitted a detailed response to the consultation, and our present submission will draw significantly from our earlier response[2], as well as new empirical research concluded in the since the time of the consultation.

About CIS

CIS[3] is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. Our areas of focus include IP rights, openness, internet governance, telecommunication reform, free speech, intermediary liability, digital privacy, cyber-security, and accessibility for persons with diverse abilities.
We strive to maximise public benefit, useful innovation, vibrant competition and consumer welfare. This submission is consistent with our commitment to the domestic goals (as enumerated in Make in India and Digital India), and the protection of India's national interest at the international level.

Submission on the Issues for Resolution

“Q.3 Are the existing patent laws in India sufficient to address the issues of local manufacturers? If No, then suggest the measures to be adopted and amendments that need to be incorporated for supporting the local telecom manufacturing industry.”

We submit that amendments to the Patents Act, 1970 may not be preferred, presently. It may be noted that there have been no judgments concluded by Indian courts on disputes relating to licensing of SEPs, yet. Justice Bakhru’s landmark order in Telefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India (2016) provided valuable clarity on the issue of conflict between remedies under Patents Act, 1970 and Competition Act, 1970. As various other matters are yet to be conclusively decided, and given the complex legal questions involved around the interpretation of Patents Act, 1970 and Competition Act, 2002, and constitutional issues around the jurisdiction of regulators and the power of judicial review of the courts, we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.

However, to support the local telecom manufacturing industry the Government of India may adopt and implement the following measures:

Develop Model Guidelines to improve the working of Indian Standard Setting Organisations (SSOs): Given the increasing complexity and time-consuming nature of SEP litigation in India, there is a tangible threat of the abuse of the FRAND process, it might be useful for the government to make suggestions on the working of Indian SSOs. The functioning of Indian SSOs has not been satisfactory and it is suggested that the government develop Model Guidelines that may be adopted by Indian SSOs, taking into account India specific requirements. The India specific requirements include a large and exponentially growing mobile device market which has made it possible for manufacturers, patent owners and implementers alike to achieve financial gains even with a low margin. We believe that this measure will also enable the fulfillment of the objectives of the Make in India and Digital India initiatives.

We recommend that various stakeholders, including IP holders, potential licensees and users of IP, civil society organizations, academics, and, government bodies, including the Indian Patent Office, the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.

In our opinion, the Model Guidelines may cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.
Initiate the formation of a patent pool of critical mobile technologies and cap royalty payments: In light of the observed inadequacies in the IPR policies of various SSOs in India, as well the spate of ongoing patent infringement lawsuits around mobile technologies, we recommend that the government intervene in the setting of royalties and FRAND terms by setting up a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty. Further, patent pools should be required to offer FRAND licenses on the same terms to both members and nonmembers of the pool.

Our motivations for this proposal are manifold. In our opinion, it is nearly impossible for potential licensees to avoid inadvertent patent infringement. As a part of our research on technical standards applicable to mobile phones sold in India, we have found nearly 322 standards so far.[4] It is submitted that carrying out patent searches for all the standards would be extremely expensive for potential licensees. Further, even if such searches were to be carried out, different patent owners, SSOs and potential licensees disagree on valuation, essentiality, enforceability, validity, and coverage of patents. In addition, some patent owners are non-practising entities and may not be members of SSOs. The patents held by them are not likely to be disclosed. More importantly, homegrown manufacturers that have no patents to leverage and may be new entrants in the market would be especially disadvantaged by such a scenario. Budget phone manufacturers, standing to incur losses either as a result of heavy licensing fees, or, potential litigation, may close down. Alternatively, they may pass on their losses to consumers, driving the now affordable phones out of their financial reach. With the objectives of Make in India and Digital India in sight, it is essential that Indian consumers continue to have access to devices within their purchasing power.

Further, how did we arrive at a cap of 5 percent? The rationale for this figure is the royalty cap imposed by India in the early 1990s. As part of regulating foreign technology agreements, the (former) Department of Industrial Development (later merged with DIPP) capped royalty rates in the early 1990s. Payment of royalties was capped at either a lump sum payment of $2 million, or, 5 percent on the royalty rates charged for domestic sale, and, 8 percent for export of goods pertaining to “high priority industries”.[5] Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government. While the early 1990s (specifically, 1991) was too early for the mobile device manufacturing industry to be listed among high priority industries, the public announcement by the government covered computer software, consumer electronics, and electrical and electronic appliances for home use. The cap on royalty rates was lifted by the DIPP in 2009.[6] It is submitted in the case of mobile device technology, we are witnessing a situation similar to that of the 1990s. In this sphere, most of the patent holders are multinational corporations which results in large royalty amounts leaving India. At the same time, litigation over patent infringement in India has limited the manufacture and sale of mobile devices of homegrown brands. While SEP litigation in India is indeed comparable to international SEP litigation on broader issues raised, specifically competition law concerns, but differs crucially where the parties are concerned. International SEP litigation is largely between multinational corporations with substantial patent portfolios, capable of engaging in long drawn out litigations, or engaging in other strategies including setting off against each other’s patent portfolios. Dynamics in the Indian market differ – with a larger SEP holder litigating against smaller manufacturers, many of whom are indigenous, homegrown.

In June, 2013, we had recommended to the erstwhile Hon’ble Minister for Human Resource Development[7] that a patent pool of essential technologies be established, with the compulsory licensing mechanism. Subsequently, in February, 2015, we reiterated this request to the Hon’ble Prime Minister.[8] We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license.[9] As we have stated in our request to the Hon’ble Prime Minister, we believe that such a pool would “possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anticompetitive practices.”[10] We believe that such a measure will not be in breach of our international obligations under the TRIPS Agreement.
Increase transparency in the patent system by making patentees comply with the law: The Patents Act, 1970 requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year.[11] Form 27 under section 146(2) of the Act lists the details necessary to be disclosed for compliance of the requirement of “working”. A jurisprudential analysis reveals the rationale and objective behind this mandatory requirement. Undeniably, the scheme of the Indian patent regime makes it amply clear that “working” is a very important requirement, and the public as well as competitors have a right to access this information in a timely manner, without undue hurdles. Indeed, as the decision[12] in Natco Pharma v. Bayer Corporation[13] reveals, the disclosures in Form 27 were crucial to determining the imposition of a compulsory license on the patentee. Thus, broadly, Form 27 disclosures can critically enable willing licensees to access patent “working” information in a timely manner.

However, there has been little compliance of this requirement by the patentees, despite the Indian Patent Office (IPO) reiterating the importance of compliance through the issuance of multiple public notices[14] (suo motu and in response to a public interest litigation filed in 2011[15]), and, reminding the patentees that noncompliance is punishable with a heavy fine.[16] Findings of research submitted by one of the parties[17] in the writ of the 2011 public interest litigation Shamnad Basheer v. Union of India and others[18] reveal as follows. First, a large number of Form 27s are unavailable for download from the website of the IPO. This possibly indicates that the forms have either not been filed by the patentees with the IPO, or have not been uploaded (yet) by the IPO. Second, a large number of filings in the telecom sector remain incomplete.

In 2015, CIS queried the IPO website for Form 27s of mobile device patents to arrive at a similar conclusion. We obtained 4,916 valid Form 27s, corresponding to 3,126 mobile device patents from public online records. These represented only 20.1% of all Forms 27 that should have been filed and corresponded to only 72.5% of all mobile device patents for which Forms 27 should have been filed. Forms 27 were missing for almost all patentees, and even among Forms 27 that were obtained, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Indian Patent Rules.[19]

Further, in our study, we observed that patentees adopted drastically different positions regarding the definition of patent working, some arguing that importation of products into India or licensing of Indian suppliers constituted working, while others even went so far as to argue that the granting of a worldwide license to a non-Indian firm constituted working in India. Several significant patentees claimed that they or their patent portfolios were simply too large to enable the provision of information relating to individual patents, and instead provided gross revenue and product sale figures, together with historical anecdotes about their long histories in India.

The Indian government has made little or no effort to monitor or police compliance with Form 27 filings, undoubtedly leading to significant non-compliance. We also propose the alteration of the Form 27 template[20] to include more disclosures.[21] Presently, patentees are required to declare number of licensees and sub-licensees. We specifically propose that the format of Form 27 filings be modified to include patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.
Require royalty rates to be decided on the basis of the Smallest Saleable Patent Practicing Component: Most modern telecommunication and IT devices are complex with numerous technologies working in tandem. Different studies indicate that the number of patents in the US applicable to smartphones is between 200,000 and 250,000.[22] A comprehensive patent landscape of mobile device technologies conducted by CIS reveals that nearly 4,000 patents are applicable to mobile phones sold in India.[23] It is thus extremely difficult to quantify the exact extent of interaction and interdependence between technologies in any device, in such a way that the exact contribution of the patented technology to the entire device can be determined. Thus, we submit that royalty rates for SEPs should be based on the smallest saleable patent practising component, and not on the net price of the downstream product.

The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al[24] have found that the cost of a 4G baseband chip costs up to $20 including royalties in a hypothetical $400 phone sold in the US. One of the litigating parties in the ongoing patent infringement lawsuits in India has stated that one of the reasons for preferring to leverage its patents as downstream as possible in the value chain is that it will earn the company more royalties.[25] In instances where patent exhaustion occurs much earlier in the value chain, such as in the case of the company’s cross-licenses with Qualcomm (another company that owns patents to chip technologies), the company does not try to obtain royalties from the selling prices of devices for the cross-licensed technologies. It is submitted that such market practices could be detrimental to the government’s objectives such as providing a mobile handset to every Indian by 2020 as a part of the Digital India programme.[26] It is also worth noting in this context that the mobile device is the first and only medium of access to the Internet and telecom services for a large number of Indians, and, consequently, the only gateway to access to knowledge, information and critical services, including banking.[27]

“Q.5 Please suggest a dispute resolution mechanism for determination of royalty distribution on FRAND (Fair Reasonable and Non Discriminatory) basis.”

The licensing of SEPs on FRAND terms requires the parties to negotiate “reasonable” royalty rates in good faith, and apply the terms uniformly to all willing licensees. It is our submission that if the parties cannot agree to FRAND terms, they may enter into binding arbitration. Further, if all efforts fail, there exist remedies under the Patents Act and the Competition Act, 2002 to address the issues.

Section 115 of the Patents Act empowers the court to appoint an independent scientific adviser “to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose.”[28] Such an independent adviser may inform the court on the technical nuances of the matter.

Further, under the Patents Act, pending the decision of infringement proceedings the Court may provide interim relief, if the plaintiff proves first, a prima facie case of infringement; second, that the balance of convenience tilts in plaintiff’s favour; and, third, that if an injunction is not granted the plaintiff shall suffer irreparable damage. However, it is our suggestion that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation. First, in our opinion, injunctions may prove to be a deterrent to arrive at a FRAND commitment, in particular, egregiously harming the willing licensee. Second, especially in the Indian scenario, where litigating parties operate in vastly different price segments (thereby targeting consumers with different purchasing power), it is difficult to establish that “irreparable damage” has been caused to the patent owner on account of infringement. Third, we note the approach of the European Court of Justice, which prohibited the patent holder from enforcing an injunction provided a willing licensee makes an offer for the price it wishes to pay to use a patent under the condition that it deposited an amount in the bank as a security for the patent holder.[29] Fourth, we also note the approach of the Federal Trade Commission in the USA, which only authorizes patent holders to seek injunctive relief against potential licensees who have either stated that they will not license a patent on any terms, or refuse to enter into a license agreement on terms that have been set in the final ruling of a court or arbitrator.[30] Further, as Contreras (2015)[31] observes, that the precise boundaries of what constitutes as an unwilling licensee remains to be seen. We observe a similar ambiguity in Indian jurisprudence, and accordingly submit that courts should carefully examine the conduct of the licensee to injunct them from the alleged infringement.

Concluding Remarks

We are thankful to TRAI for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these comments with the TRAI; and, supplement these with further submissions if necessary. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India.

[1] Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms, available at https://cis-india.org/a2k/blogs/discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms (last accessed November 13, 2017)

[2] Anubha Sinha, Nehaa Chaudhari and Rohini Lakshane, “CIS’ Comments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms” (April 23, 2016); available at https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms

[3] www.cis-india.org

[4] Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing (last accessed 13 November, 2017).

[5] Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at http://www.businessstandard.com/article/economypolicy/newsonroyaltypaymentbringscheerinnewyear11001 0400044_1.html (last accessed 13 November, 2017).

[6] See Sanjana Govil, Putting a Lid on Royalty Outflows How the RBI Can Help Reduce India’s IP Costs , available at http://cisindia.org/a2k/blogs/lidonroyaltyoutflows (last accessed 13 November, 2017) for a discussion on the introduction of royalty caps in the early 1990s, and its success in reducing the flow of money out of India.

[7] Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low cost Access Devices through Compulsory

Licenses, available at http://cisindia.org/a2k/blogs/letterforestablishmentofpatentpoolforlowcostaccessdevices (last accessed 13 November, 2017).

[8] See Rohini Lakshané, Open Letter to PM Modi, available at http://cisindia.org/a2k/blogs/openlettertoprimeministermodi (last accessed 13 November, 2017) for further details of CIS’ proposal.

[9] Rohini Lakshané, FAQ: CIS’ proposal to form a patent pool of critical mobile technology, September 2015, available at http://cisindia.org/a2k/blogs/faqcisproposalforcompulsorylicensingofcriticalmobiletechnologies (last accessed 13 November, 2017).

[10] Id.

[11] Section 146(2) of the Patents Act, 1970.

[12] Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at http://spicyip.com/2013/02/patentofficefinallytakesform27s.html (last accessed 13 November, 2017).

[13] Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at http://www.ipab.tn.nic.in/0452013.htm (last accessed 13 November, 2017).

[14] Intellectual Property India, Public Notice, available at

http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf ((last accessed 13 November, 2017) and Intellectual Property India, Public Notice, available at http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf (last accessed 13 November, 2017).

[15] Supra note 11.

[16] Id.

[17] See research findings available at http://spicyip.com/wpcontent/uploads/2015/05/FORM27WP1Rcopy.pdf (last accessed 13 November, 2017).

[18] In the High Court of Delhi, W.P.(C) 5590/2015. This litigation is currently ongoing. See, illustratively, Mathews P. George, Patent Working in India: Delhi HC issues notice in Shamnad Basheer v. Union of India & Ors. – I , available at http://spicyip.com/2015/09/patentworkinginindiadelhihcissuesnoticeinshamnadbasheervunionofindiaorsi.html (last accessed 13 November, 2017).

[19] Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3004283

[20] Form 27, The Patents Act, available at http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20%20html/Forms/Form27.pdf (last accessed November 13, 10`7).

[21] However, we came across some complaints raised by patentees and industry observers regarding the structure of the Form 27 requirement - namely, patents covering complex, multi-component products that embody dozens of technical standards and thousands of patents are not necessarily amenable to the individual-level data requested by Form 27. See Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3004283

[22] Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. at 2015 ; See also, for e.g.,

RPX Corporation, Amendment No. 3 to Form Sl,11 Apr. 2011, at 59, available at http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm (last accessed 22 April, 2016), quoting “Based on our research, we believe there are more than 250,000 active patents relevant to today’s

smartphones…” .; See further Steve Lohr, Apple Samsung Case Shows Smartphone as Legal Magnet, New York Times, 25 Aug. 2012, available at http://www.nytimes.com/2012/08/26/technology/applesamsungcaseshowssmartphoneaslawsuitmagnet.html (last accessed November13, 2017).

[23] Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486 (last accessed 13 November, 2017).

[24] Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The SmartphoneRoyalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/TheSmartphoneRoyaltyStackArmstrongMuellerSyrett.pdf (last accessed 13 November, 2017)

[25] Florian Mueller, Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at http://www.fosspatents.com/2014/01/ericssonexplainedpubliclywhyits.Html (last accessed 13 November, 2017).

[26] Romit Guha and Anandita Singh Masinkotia, PM Modi’s Digital India Project:Government to Ensure that Every Indian has a Smartphone by 2019, available at http://articles.economictimes.indiatimes.com/20140825/news/53205445_1_digitalindiaindiatodayfinancialservices (last accessed 13 November, 2017).

[27] Nehaa Chaudhari, Standard Essential Patents on Low Cost Mobile Phones in India: A Case to Strengthen Competition Regulation? available at http://www.manupatra.co.in/newsline/articles/Upload/08483340C1B94BA4B6A9D6B6494391B8.pdf (last accessed 13 November, 2017).

[28] Section 115 of the Patents Act, 1970.

[29] Huawei Technologies Co. Ltd v. ZTE Corp. and ZTE Deutschland , Judgment of the Court (Fifth Chamber) of 16 July 2015 in GmbH C170/13.

[30] Third Party United States Fed. Trade Commission’s Statement on the Public Interest, In re Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof, U.S. Int’l Trade Comm’n, Inv. No. 337TA745 (Jun. 6, 2012).

[31] Jorge L. Contreras, A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens , 80 Antitrust Law Journal 39 (2015), available at h ttp://ssrn.com/abstract=2374983 or http://dx.doi.org/10.2139/ssrn.2374983 (last accessed 13 November, 2017).

For more details visit https://cis-india.org/telecom/blog/cis-comments-on-promoting-local-telecom-equipment-manufacturing

CIS anniversary

praskrishna — 2013-05-06T07:28:07Z

The Centre for Internet and Society will celebrate five years of its existence with an exhibition showcasing its works and accomplishments.

This was published in Hindu Business Line on May 5, 2013

The exhibition will be held concurrently at both Bangalore and Delhi offices from May 20 to 24, 2013, said a press release.

“To promote transparency, we're getting the general public to be our auditors by throwing open our account books and contracts which show how we have spent the Rs 8.3 crore received from our donors.”

The exhibition will also see artists like Kiran Subbaiah, Tara Kelton, Navin Thomas, Abhishek Hazra, among others exhibiting their works, as well as lectures.

For more details visit https://cis-india.org/news/the-hindu-business-line-may-5-2013-cis-anniversary

China Club instead of Bombay Club?

Shyam Ponappa — 2012-05-10T10:35:05Z

Emulate China's coordinated policies for strategic sectors, and we'll rely less on commodity exports, says Shyam Ponappa in his article in the Business Standard on May 13, 2010.

With the momentum of the past few years, India’s potential for growth is enormous, despite the chaotic loose linkages. In sectors like power and telecommunications, this translates to demand far outstripping capacity. Some contend that domestic inability to build capacity — i.e., being able to actually pull it off, as against the perpetual potential — will conscribe not only these sectors, but also limit overall growth. So the argument goes, e.g., let China build India’s power plants, because we need the power and don’t have capacity/they do it cheaper.

Comparative advantage notwithstanding, this reasoning is fallacious given the realities of national interests and self-interest. To understand why, consider the naïveté of the underlying assumptions — about “rational man”, that capitalism is fair, capital is immobile, surplus value accrues to countries and not to companies, or that the pursuit of self-interest maximises societal benefits.

Our quandary is aggravated by our inability so far to orchestrate supportive policies for even a level playing field. Ironically, one need only consider India’s approach to IT and IT-enabled services (ITeS) in the initial growth years to realise this. India’s policies in IT and ITeS, while far from perfect — in fact, sneaked through by stealth, as in the preferential 64 kbps communications lifeline, and the tax breaks for software service exporters — provided the foundations for transforming IT and then ITeS/BPO/KPO (Business Process and Knowledge Process Outsourcing).

These sectors also benefited from a controlled exchange rate, as the Reserve Bank of India (RBI) managed a steady depreciation during those years. But they did not have another vital ingredient of coordinated policies as did the Asian tigers: low borrowing rates (see the diagram)

This is one reason why, for instance, India’s machine tool manufacturers or shipbuilders have not matched the growth of knowledge-based services. The former need inexpensive, long-term capital for production and marketing, as well as for continuous innovation, upgrade and scale.

Why labour arbitrage and not products

This is also one reason why we lack product orientation, because product design, development and marketing require the support of easy access to cheap capital for a long period. Labour arbitrage needs little capital. Therefore, we have been better mercenaries than producers of products, compared with the chaebols (Samsung, Hyundai) or keiretsu (Mitsubishi, Dai-Ichi/Mizuho). There are, of course, many additional reasons: their education, training, work practices, our policies against large corporations, etc.

With growth in domestic markets across a broad range — telecom equipment, engineering goods, power — there are domestic manufacturing initiatives, such as L&T and Bharat Forge in power generation joining Bhel, or Tejas Networks in optical switching. But for the transformational changes we have witnessed in IT, we need coordinated industrial policies that support domestic manufacturing, because that’s the competition. Unthinking acceptance of “open markets” without heed to how others — including developed economies — cosseted and built their manufacturing capacity will ensure that India stays a raw materials and commodities exporter, while importing trains, aircraft, machine tools, and equipment for power generation, telecommunications and defence.

Integrated policies work

Ideally, supportive policies comprise a coordinated range, such as state and central taxes, favoured locations with good infrastructure — energy, transport and communications, subsidised land, favourable exchange and interest rates, preferred access to domestic markets, and barriers to unfair competition, like import tariffs not below the WTO floor, and safeguard duties. Without this orchestration, the victors are companies and countries that have understood these principles, and have these systems in place. (This applies equally to farm products.)

Many are apprehensive that what works elsewhere will not work in India because of malpractices, as seen in recurring scams. There is every need for systems with integrity, and for enforcement with penalties. But just as corruption in government or civil society does not do away with the need for either, misuse does not negate the need for incentives. It would be self-damaging to lose the opportunity to try and get our act together simply because of apprehensions of corruption and/or incompetence. That would be like not subsidising food for the poor; it’s a different matter that we need better methods to prevent gross misappropriation.

The consequence of heedless, ad hoc muddling through instead of orchestrated strategies is that manufactured imports will dominate our markets, while domestic manufacturing is fragmented, hamstrung or absent. Having said that, consider India’s needs in electricity or communications — telecom, Internet and broadcasting — and it is apparent that crafting policies is not simple. So many conflicting images, some based on facts, others, mere impressions, which are often more important than facts. What should policy-makers do for our needs on such a massive scale with growing shortfalls?

Emulate China

The short answer: learn from China. In the power sector, Chinese suppliers have the following advantages:

Low-cost access to capital.
An exchange rate advantage (10-30 per cent).
No sales tax and octroi, aggregating to about 11 per cent.
Zero customs duty on equipment for large plants (China imposes a 30 per cent import duty)

Corrective action discussed for years has not resulted in concrete steps. The power ministry, citing supposed user benefits, opposes the planning commission’s recommendation of a safeguard duty. This is as shortsighted as “free electricity” that undercuts investments in power.

In telecommunications, consider Huawei, with revenues of over $20 billion, nurtured for 20 years with the People’s Liberation Army (PLA) as an R&D partner and guaranteed customer, vis-à-vis, say, Tejas Networks from Bangalore, with no government support.

Our policies need to focus on our long-term interests with strategic intent and execution, as in other countries, balancing costs with the benefits of domestic capabilities. These sectors need government procurement support, not criteria that disqualify Indian companies in strategic sectors like power and communications. They also need interim methods for Chinese companies to contribute while upgrading our skills and processes. Our aim needs to be a level playing field.

Read the original article in the Business Standard

For more details visit https://cis-india.org/telecom/blog/China-club-Bombay-club

Changing Our Game

Shyam Ponappa — 2012-09-06T11:14:42Z

Adopting 'co-ordination models' like the Stag Hunt could reduce contention and improve outcomes.

Shyam Ponappa's column was originally published in the Business Standard on September 5, 2012 and also posted in Organizing India blogspot.

Consider the handling of irregularities in spectrum allocation and in coal mining rights. Instead of swiftly ring-fencing problem areas where there are allegations of culpability supported by prima facie evidence, then striving for good policies going forward, the ruling coalition and the Opposition are in a war of attrition. What began with the United Progressive Alliance’s turning a blind eye to the spectrum awards has turned into the Bharatiya Janata Party’s heedless flailing to tear down their opponents. Meanwhile, the confusion created by the pronouncements of the Comptroller and Auditor General and previously of the Telecom Regulatory Authority of India has vitiated conditions for constructive reform. Any solution that fails a populist screen is likely to be guillotined in the streets.

Contention versus co-operation

There seems to be quite a contrast between our manifest contentiousness and our apparent friendliness. From our chaotic ways in traffic to dealing with each other and with our surroundings more generally, often, self-centred, short-term opportunism appears to override our better nature. As evidenced in the coalgate stand-off in Parliament, or our inability to establish adequate infrastructure, this cuts across all levels of individuals and groups. The irony is that no one gains, except the perpetrators and supporters of rip-offs and stand-offs. They, too, gain only in the short run, unless they’re not caught out. In the long run, everyone is worse off except the rogues who get away.

How did we get to this self-destructive state, and how might we get out? Insights from game theory could provide some perspective. One stark fact is that our interactions are predominately driven by self-interest that leads to contention, on the lines of a Prisoner’s Dilemma, [1] instead of a co-operative group- or common-interest model like the Stag Hunt.[2]

The two models are described briefly below. For those who want to skip the description, read on after the next two paragraphs.

Prisoner’s Dilemma

Two men attempting a burglary with a weapon, A and B, are caught, with insufficient incriminating evidence for the burglary. They are questioned separately and not allowed to communicate. If both deny the burglary, they escape a 10-year sentence and will be imprisoned for two years for possession of a weapon. A is told separately that if B pleads guilty and A does not, B will get a reduced sentence of four years, while A will get 10. So A has an incentive to confess and get four years, too. A is also told that if he confesses, he can go free, while B gets 10 years. Therefore, the logical choice for A is to confess. The same logic applies to B. So, both confess and get four years, instead of both denying and getting only two years. The logical trap is that acting in one’s self-interest without communication and co-operation leads to a worse position.

Stag Hunt

A group of hunters agree to wait for a stag in their assigned positions. If one sees a hare and shoots at it, the stag takes flight and the group loses out. The group and individuals gain most if individuals stick with their commitment and get the big prize. However, individuals may be tempted to defect by a less risky, smaller pay-off like a hare.

Logical trap: Self-interest leads to contention and lowest equilibrium

In zero-sum games like cricket, tennis or football, where the total pay-off is the same no matter who wins, one participant gains at the expense of another. In most real-world encounters, however, players can improve their outcomes by co-operation and co-ordination. In other words, many everyday situations can be likened to non-zero-sum games, where one party’s win is not necessarily another’s loss. If individuals (or teams/groups) pursue their self-interest without co-operating and co-ordinating with other players, the pattern is like the Prisoner’s Dilemma, and a logical trap leads to a position of lowest equilibrium (the Nash Equilibrium). This position results from each player/group making the best decision that he/she/they can while taking into account the decisions of the others, and no one can act independently without worsening their position.

Co-ordinating better outcomes

By contrast, if players can (a) co-operate and (b) decide through effective co-ordination, everyone gains. Examples are centrally sponsored projects executed in Opposition-run states – for highways or power, for example – or the backing of political parties for India’s 123 Agreement with America on nuclear co-operation.

Can we escape a logical trap and contention by adopting models that elicit co-operation and co-ordination? Game theory suggests that models based on trust and co-ordination like the Stag Hunt work for a big prize (the stag). The question is whether it is possible to move to a co-ordination model and, if so, how to do it. While there are no simple fixes, the University of Vienna’s evolutionary game theory models hold out some promise through providing insights into how patterns of co-operation can spread in populations.[3]

There’s also the long, slow haul of structured education and training in collaborative problem solving. The techniques that need incorporation in our curricula from junior school through higher education, vocational training, and at work, are co-operative problem solving as an approach, and project management as a method. The latter starts with a clear definition of goals and objectives, followed by standard operating procedures covering the gamut of the logic of process flow for tasks, setting milestones/sub-objectives, critical paths, and individual and group responsibilities on timelines.

A second aspect where governments have to step in is institutional design — boldly initiating systems and processes after eliciting convergence in each sector from all stakeholders on sound plans in the public interest. Driven by goal-directed project management, this requires systematic action braving populist pressure and distractions.

These initiatives would significantly improve India’s ability to act in the public interest.

[1].http://bit.ly/Q6IeVp
[2].“The Stag Hunt and the Evolution of Social Structure”, Brian Skyrms, http://bit.ly/TlNJnC
[3].VirtualLabs, Christoph Hauert: http://bit.ly/90W392

For more details visit https://cis-india.org/telecom/organizing-india-blogspot-in-shyam-ponappa-sep-5-2012-changing-our-game

Change is coming, thanks to the mobile

radha — 2011-04-02T15:09:50Z

An article by NT Balanarayan in the DNA on August 27th,'09

Bangalore: A simple mobile can do much more than all your friends or send you cricket alerts, this is not me saying it, this is what a bunch of mobile enthusiasts organised under the banner of different societies are trying to say with the upcoming unconference Mobile tech for Social Change.

The event which will be held in unconference style - read: casual atmosphere - will try to focus on mobile technology and applications which can help not just connect human beings, but also improve their lives. The event is being organised by Centre for Internet Society (CIS) in collaboration with Women's Learning Partnership, Mobile Monday Bangalore and MobileActive.org and will be held on September 1.

Sunil Abraham, executive director of CIS says that the event will bring together two groups of people and provide them a platform to interact and work on ideas.

"On one side, there are the NGOs and social entrepreneurs and on the other side there are the people who develop technology for mobile phones, the geeks and the hackers etc. So if this event works out like expected, there may be a mailing list in the future so that these people can keep in touch and help develop mobile technology that will help uplift the lives of people," he says.

So how important are mobile phones as a technology? According to Abraham, it might be the easiest way for an Indian to access the internet. "There are around 400 million mobile users in India against 80 million people who have occasional access to the internet. The mobile users end up using internet technology a lot in India through GRPS, EDGE and at times indirectly through SMS gateway. This platform however, needs more work so that much more can be provided to mobile users," he says.

The Mobile Monday initiative headed by Kesav Reddy, will be helping CIS to organise the event. "We are expecting not just NGOs and developers, but also, researchers, donors, intermediary organisations and mobile operators; all in all we are expecting 100-200 participants," he says.

For more details visit https://cis-india.org/news/change-is-coming-thanks-to-the-mobile

Centre- or State-Driven Development?

Shyam Ponappa — 2014-02-12T16:47:43Z

Federalism requires a strong Centre as well as strong states, and effective organisation and coordination -- which can be facilitated by using the Internet.

Shyam Ponappa's article was published in the Business Standard on February 5, 2014, and in Observer India Blogspot on February 7, 2014.

There are opposing views on the merits of centrally driven development compared with states developing on their own approach. At one level, some corporate leaders as well as politicians and members of civil society exhort states to compete for capital investment. This debate extends beyond states going their own way, to community-level local government, as in the Aam Aadmi Party's (AAP's) "Swaraj" through mohalla sabhas (town-hall meetings or open assemblies) for local government.

Basic Weakness: Lack of Organization & Coordination

While the benefits of community-led initiatives for local issues are indisputable, advocates emphasising decentralisation perhaps overlook some fundamental aspects of our reality. These are the extent of the inadequacies in our infrastructure networks, our organisational set-up, and in our ability to achieve effective coordination. Years ago, when Swaran Singh was food and agriculture minister in 1964, he reportedly said that one of our basic weaknesses was "lack of adequate administrative coordination and absence of a unified set-up at different levels" and that it should be "possible to achieve more rapid and lasting progress through a comprehensive and integrated approach than through uncoordinated and isolated efforts of different agencies and organisations operating at different levels…." [1] He couldn't have been more right, even today.

Result: Poor Infrastructure

The lack of unified organisation and effective coordination has a direct bearing on infrastructure. This is what people really need, no matter what else they might want. Take the current focus in Delhi on water and electricity. To these two, we must add roads, transport and communications as elements of essential first-order infrastructure services. People everywhere in the country need these services. Likewise, their second-order service needs include healthcare, education and finance. All these services are subject to network economics, and no local community can be self-sufficient without integration with external linkages. At the appropriate levels ("centres") of city, region, state and country (for example, for national highways or communications networks), these services need "centrally" organised supply and coordinated distribution for effective and efficient delivery. Aside from problems related to corruption, it is in ignoring organisation and coordination, or in handling them ineptly, that our governments fail. Centrally driven development is not just an option we fail at, mostly; it is an absolute necessity to empower ourselves, and until we get it right, we will be hamstrung by this deficiency.

Oblivious to Sewerage & Sanitation

As an aside, another major failure in not appreciating the systems required for basic infrastructure is in ignoring the linkage of water supply with sewerage and sanitation, historically and even now. Sewerage is concomitant with water supply; having water entails having to deal with sewage. Water and sanitation systems need significant "central" design - in the sense of overarching integrated systems at the appropriate level - with expert inputs in system development and implementation. This is usually not feasible at the local-community level alone. Ignoring this results in open sewage, polluted water bodies, unhygienic conditions and stinking surroundings. In this context, while building new smart cities is good, the dire need is to upgrade the systems in our existing cities, towns and villages, so that we live better. Such steps may not grab the headlines, but this is the stuff of our lives.

Virtual Mohalla Sabhas (Townhall Meetings)

Next, consider the approach to community participation in local government. There is certainly considerable potential for community participation, but not through methods like the "janata darbar" open assembly last month by the AAP in Delhi, or the Nationalist Congress Party's limited online interaction sessions. Doing so effectively and with efficiency is likely to require well-designed and deployed processes using Web-based technologies and methods, rather than, by way of example, the AAP's approach of live mohalla sabhas. Press reports suggest the AAP plans 2,700 mohalla sabhas in Delhi, the idea being that government representatives will attend these open assemblies, where issues will be discussed and resolved.[2] This seems like it would be very difficult, if not impossible, to achieve in practice. Instead, if the proponents of these ideas adopted the approach of online town-hall meetings or virtual mohalla sabhas, governments could design and implement Internet-based systems using asynchronous communications - eliciting inputs and recommendations from domain experts and discussion by citizens for decision making by authorised functionaries. Such systems could also allow for realistic project time frames and ensure follow-ups on water and sanitation, electricity, transport, health, education, or whatever else. If political parties, especially the experienced administrators and engineers/MBAs supporting these parties, bend their minds to these tasks, we are likely to have better systems with more impressive results on the ground.

For instance, take garbage clearing. This might well improve if ward committees oversaw the work of sanitation workers, as mentioned here [3]; but the prerequisite is a system-wide design in place with processes that work, as suggested in this broad critique. [4] These services need overarching system design and implementation far beyond the scope of any mohalla sabha, except at the local deployment level.

Internet-Based Systems & Procedures

Many political parties use Internet technology for fund-raising and membership mobilisation. It should be feasible for them to consider extending this to governance - although this will be quite a stretch in terms of their understanding and adopting the principles of organisation, logical processes and systems when compared with the relatively simple tasks of membership drives and fund-raising. But this is how our politics and governance need to evolve. We need systematic processes using the Internet. This could facilitate and channel discussions to explore and define objectives, generate and evaluate alternatives, make trade-offs, order priorities, and arrive at actionable decisions implemented over an extended period, with sound project management methodologies and tools. There's off-the-shelf software available, such as Microsoft's TownHall and others like OnlineTownHalls and MindMixer. Perhaps there's scope for systems developed specifically for our purposes. What's needed is to adopt this systems approach, regardless of the software.

[1]. Lack of coordination", Swaran Singh, 1964, The Hindu: http://www.thehindu.com/todays-paper/tp-miscellaneous/this-day-that-age-dated-february-4-1964/article5651028.ece

[2]. http://indianexpress.com/article/cities/delhi/aap-plans-2-700-mohalla-sabhas-in-city/99/

[3]. http://m.ibnlive.com/blogs/vivianfernandes/1878/64973/can-aam-aadmi-partys-mohalla-sabhas-work.html

[4].http://www.ndtv.com/article/opinion/op-ed-the-problem-with-aap-s-mohalla-sabhas-467074

For more details visit https://cis-india.org/telecom/blog/organizing-india-blogspot-shyam-ponappa-centre-or-state-driven-development

Celebrating 5 Years of CIS

praskrishna — 2014-02-25T09:15:58Z

The Centre for Internet & Society (CIS) is celebrating 5 years of its existence with an exhibition showcasing its activities and accomplishments. The exhibition will be held at its offices in Bangalore and Delhi from May 20 to 23, 2013.

Download all the posters exhibited during the recent exhibition here.

As a move to promote transparency, CIS is inviting the general public to be its auditors by throwing open its account books and contracts which show how it has spent the Rs. 13.13 crores received from its donors. The four-day event will see renowned artists like Kiran Subbaiah, Tara Kelton, Navin Thomas and Abhishek Hazra featuring their work and also giving live demonstrations.

Agenda

Open exhibition on all the 4 days from 10.00 a.m. to 8.00 p.m., in Bangalore and Delhi. The evening programmes will be held in Bangalore. Dinner will be served right afterwards.

Evening Programmes

May 20, 2013

18.00 19.00	Why did I buy a set-top box?: What we know, don't know and need to know about Digitalisation — A Talk by Vibodh Parthasarathi Why are we being asked to install set-top boxes? How will this change what we want, and pay for, on TV? Grappling with these questions, the talk will evaluate the rationale of the digital migration in cable currently underway, and the less talked about digital migration being planned for the public broadcaster. These scarcely debated and often contentious issues form the core of a recent Country Report on the Media in India, anchored by the speaker. The India Country Report, the first inter-sectoral and policy oriented study of our electronic media landscape, finds the ongoing digitalisation of cable, the infusion of digital tools in the press and the proposed digital switchover of the public broadcaster, posing varied challenges not only to journalism but to public interest at large. This report is part of a global initiative, Mapping Digital Media, examining opportunities and risks amidst the transitions to a digital media ecology across 50 countries. Video
19.00 19.30	Film Screening on Cyber Cafes of Rural India by Video Volunteers Video Volunteers in partnership with CIS have been documenting the cyber cafes of rural India. Kamini Menon and Christy Raj will do the screening of seven 2-minute films: Cyber Cafe Trends Slowly Changing in Imphal by Achungmei Kamei (Manipur) Transgender Interaction with Cyber Cafes by Christy Raj (Karnataka) Cyber Cafes Prevail Over Mobile Phones in Nagaland by Meribeni Kikon (Nagaland) Mobile Technology Threatens Cyber Cafes in HP by Avdhesh Negi (Himachal Pradesh) Cyber Cafe Visit - A Day's Journey by Saroj Paraste (Madhya Pradesh) The Challenges of Establishing Cyber Cafes by Rohini Pawar (Maharashtra) The Community Service Centre - Myth or Reality? by Neeru Rathod (Gujarat) Video
19.30 20.00	Hindustani Classical Performance by Aditya Dipankar
20.00	Dinner
RSVP: Bernadette Längle (bernadette@cis-india.org), Ph: +91 80 4092 6283 Prasad Krishna (prasad@cis-india.org).

May 21, 2013

18.00 19.00	Screening of Sabaka A young elephant trainer in India vows revenge against the cult that killed his family. He seeks help from the local Maharajah who refuses, and he sets out alone to battle the enemy... Sabaka is a 1954 film produced and directed by Frank Ferrin starring Boris Karloff, Reginald Denny, June Foray, et.al.
19.00 20.00	Slouching towards Tlön: An Encyclopedia for the 2nd century of Indian cinema — A Talk by Lawrence Liang Ashish Rajadhyaksha and Paul Willemen’s Encyclopedia of Indian cinema (1994) marked an important moment for the study of Indian film history. In the two decades since its publication we have seen a rise in the academic community working on Indian film history along with the rise of various new archival initiatives online. Materials that were hitherto unavailable have also made their way into the public domain via the efforts of film historians, cinephiles and other enthusiasts. It is perhaps fitting to think about what a collaborative encyclopedia of Indian cinema for the 21st century may look like. Using Rajadhayksha and Willemen’s Encyclopedia as a base, Lawrence has been working on an online version that incorporates moving images, photographs and archival materials and his presentation will open up questions of how one thinks of an online encyclopedia as well as larger conceptual questions of the relationship between the encyclopedias, the internet and moving image archives. Video
20.00	Dinner
RSVP: Bernadette Längle (bernadette@cis-india.org), Ph: +91 80 4092 6283, Prasad Krishna (prasad@cis-india.org).

May 22, 2013

Cybersecurity, Privacy and Surveillance

18.00 18.30	“The Indian Surveillance State”— A Talk by Maria Xynou The Central Monitoring System confirms that, starting from last month ‘Big Brother’ is a reality in India. But how do authorities get the tech to spy on us? Maria has started investigating surveillance technology companies operating in India. So far, 76 companies have been detected which are producing and selling different types of surveillance gear to Indian law enforcement agencies. Join us to see India´s first investigation of who is aiding our watchers! Video
18.30 19.00	Why Privacy and How? A Talk by Bernadette Langle "But I have nothing to hide!" That's what most people think. Are you sure? What about all the services you use for free, don't you think the service provider has to spend money on that, and that he needs to earn it somehow? Bernadette will show some alternatives and also how easy it can be, to put your messages in a virtual private envelope as you use to do with messages on paper. Video
19.00 19.45	Cyber Security Preview — Presentation by Laird Brown and Purba Sarkar CIS in cooperation with Citizen Lab, Munk School of Global Affairs at the University of Toronto, is developing a film project on cyber security in India from a civil society perspective. Laird will show the preview of the project. The preview will include an overview of the project along with a video footage from the first series of interviews. Video
19.45 20.00	Faking of Fingerprints: A Presentation by Bernadette Langle Bernadette will give a brief presentation on how easy it is to fake a fingerprint. Afterwards you can get hands-on. Fake a fingerprint yourself and take it with you to your home. Video Video
20.00	Dinner
RSVP: Bernadette Längle (bernadette@cis-india.org), Ph: +91 80 4092 6283, Prasad Krishna (prasad@cis-india.org).

May 23, 2013

Kannada Language and IT

18.00 18.15	Kannada in Modern Era: A Guest Talk by Dr. Chandrashekhara Kambara Dr. Chandrashekhara will be the chief guest for this session and will give a guest lecture. Video
18.15 19.30	From Palm Leaf to Tablet – Journey of Kannada: A Talk by Dr. U.B. Pavanaja Kannada language which has a history of 2000 years and quite rich in literature started on palm leaves. Kannada advanced with modern times adopting the marvels of Information Technology. This is accomplished by successfully implementing Kannada in various facets of IT. It is being used everywhere from data driven applications to websites to hand held devices like tablets. These aspects will be brought out during the talk. Summary in Kannada: ತಾಳೆಗರಿಯಿಂದ ಟ್ಯಾಬ್ಲೆಟ್ ತನಕ ಕನ್ನಡದ ಪಯಣ ಸುಮಾರು ಎರಡು ಸಾವಿರ ವರ್ಷಗಳ ಭವ್ಯ ಇತಿಹಾಸವಿರುವ ಕನ್ನಡ ಸಾಹಿತ್ಯದ ಉಗಮ ತಾಳೆಗರಿಗಳ ಮೇಲೆ ಆಯಿತು. ಕನ್ನಡ ಭಾಷೆಯು ಆಧುನಿಕ ಮಾಹಿತಿ ತಂತ್ರಜ್ಞಾನದ ಅದ್ಭುತ ಕೊಡುಗೆಗಳನ್ನು ತನ್ನದಾಗಿಸಿಕೊಂಡು ಬೆಳೆಯಿತು. ಮಾಹಿತಿ ತಂತ್ರಜ್ಞಾನದ ಎಲ್ಲ ಅಂಗಗಳಲ್ಲಿ ಕನ್ನಡವನ್ನು ಅಳವಡಿಸಿ ಬಳಸಿಕೊಳ್ಳುವುದರ ಮೂಲಕ ಇದು ಸಾಧ್ಯವಾಯಿತು. ಆನ್ವಯಿಕ ತಂತ್ರಾಂಶವಿರಲಿ, ಪ್ರತಿಸ್ಪಂದನಾತ್ಮಕ ಜಾಲತಾಣವಿರಲಿ, ಕೈಯಲ್ಲಿ ಹಿಡಿದು ಕೆಲಸ ಮಾಡುವ ಟ್ಯಾಬ್ಲೆಟ್ ಇರಲಿ –ಎಲ್ಲ ಕಡೆ ಕನ್ನಡದ ಬಳಕೆ ಆಗುತ್ತಿದೆ. ಈ ಎಲ್ಲ ವಿಷಯಗಳ ಕಡೆ ಒಂದು ಪಕ್ಷಿನೋಟವನ್ನು ಈ ಭಾಷಣದಲ್ಲಿ ನೀಡಲಾಗುವುದು. Video
19.30 20.00	Carnatic Music Performance by Nirmita Narasimhan Video
20.00	Dinner
RSVP: Bernadette Längle (bernadette@cis-india.org), Ph: +91 80 4092 6283 Prasad Krishna (prasad@cis-india.org).

About the Speakers

Vibodh Parthasarathi	Vibodh Parthasarathi works with the Centre for Culture and Media Governance, Jamia Millia Islamia, New Delhi. He is also a Board Member at the Centre for Internet and Society, Bangalore. He maintains a multidisciplinary interest in media and development policy, business history of creative industries, and governance of media infrastructure. At the Centre for Culture, Media & Governance, Jamia Millia Islamia, New Delhi, his ongoing research addresses media policy literacy, the TV news industry and the digital switchover in India. He is the co-editor of the critically acclaimed tri-series on Communication Process (Sage).
Lawrence Liang	Lawrence Liang is the Chairman of the Board at the Centre for Internet and Society. He is a graduate of the National Law School. He subsequently pursued his Masters degree in Law and Development at Warwick, on a Chevening Scholarship. His key areas of interest are law, technology and culture, the politics of copyright and he has been working closely with Sarai, New Delhi on a joint research project Intellectual Property and the Knowledge/Culture Commons. A keen follower of the open source movement in software, Lawrence has been working on ways of translating the open source ideas into the cultural domain. He has written extensively on these issues and is the author of The Public is Watching: Sex, Laws and Videotape and A Guide to Open Content Licenses. Lawrence has taught at NLS, the Asian College of Journalism, NALSAR, etc., and is currently working on a Ph.D. on the idea of cinematic justice at Jawaharlal Nehru University.
Maria Xynou	Maria Xynou is a Policy Associate on the Privacy Project at the CIS. She has previously interned with Privacy International and with the Parliament of Greece. Maria holds a Master of Science in Security Studies from the University College London (UCL).
Bernadette Langle	Bernadette Längle recently graduated in social and cultural anthropology, philosophy and computer science. She is also a so-called hacktivist together with one of the oldest hacker associations of the world, the Chaos Computer Club, having a lot of influence in German politics. As one of the core-team organizer of Chaos Communication Congress in Germany she also has a lot of experience in organizing events.
Laird Brown	Laird Brown is a strategic planner and writer. His core competencies are brand analysis, public relations, and resource management. Laird has worked at the United Nations in New York; high-tech ventures in North America, Europe, and India; and, is a guest speaker at ICT conferences internationally. He is currently working on a film project for CIS on cyber security in India with Purba Sarkar.
Purba Sarkar	Purba Sarkar is an associate producer with the cyber security film project. She holds a Bachelor in Technology degree from West Bengal University of Technology. Purba worked as a strategic advisor in the field of SAP Retail for 4 years before joining CIS in January, 2013.
Dr.Chandrashekhara Kambara	Dr. Chandrashekhara Kambara is a prominent poet, playwriter, folklorist, film director in Kannada language. He is also the founder-vice-chancellor of Kannada University in Hampi. He is known for his effective usage of North Karnataka dialect of Kannada language in his plays and poems and is often compared with D.R. Bendre. He has been conferred with many prestigious awards including the Jnanpith Award (the highest literary honour conferred in India) in 2011 for the year 2010, the Sahitya Akademi Award, the Padma Shri by Government of India, Kabir Samman, Kalidas Samman and Pampa Award. After his retirement, Kambara was nominated Member of Karnataka Legislative Council, to which he made significant contributions through his interventions.
Dr. U.B. Pavanaja	Dr U B Pavanaja holds a Master’s degree from Mysore University and Ph.D. from Mumbai University. He was a scientist at the Bhabha Atomic Research Centre, Mumbai, for about 15 years. He has done advanced research in Taiwan. He resigned from BARC in 1997 and dedicated himself fully for the cause of Computer and Indian languages. He has to his credit many firsts, viz., first Kannada website, first Kannada online magazine, first Indian language (Kannada) website to receive Golden Web Award, first Indian language (Kannada) editor for Palm OS, first Indian language (Kannada) editor for WinCE device (HP Jornado 720), first Indian language version (Kannada) of universally popular Logo (programming language for children) software, etc. His Kannada logo won the Manthan Award for the year 2006. He was a member of the technical advisory committee setup by the Govt. of Karnataka for Standardization of Kannada on Computers (2000). He is also a member of the Kannada Software Committee of Govt. of Karnataka (2008-current).

The Artists

Kiran Subbaiah	Kiran Subbaiah studied sculpture at Santiniketan, MSU Baroda and the RCA London. He was an artist in residence at the Rijksakademie Amsterdam where he worked on art that incorporated informatics and electro-mechanics. He is also known for making videos using custom-built tools that enable him to perform multi-person film-making tasks single-handed. His art is shown extensively in India and abroad. Subbaiah is based in Bangalore and is represented by the Chatterjee and Lal gallery in Mumbai. Kiran will present the Spectator, a robot that can sense the presence of human beings around it. It tries to appreciate them as works of art.
Tara Kelton	Tara Kelton is an artist and designer. She has been living in Brooklyn, USA and Bangalore, India for the last three years. She received her MFA from the Yale School of Art in 2009. Kelton’s video, print, and web-based works investigate moments in which technology alters our perception of the physical world. Kelton has taught at the Srishti School of Art, Design, and Technology and has recently exhibited her work at Vox Populi (USA), Franklin Street Works (USA), GALLERYSKE (Bangalore) and the India Design Forum (Mumbai). Tara will present Trace, a surveillance camera feed drawn in real-time by anonymous online workers.
Navin Thomas	Navin Thomas is a multimedia artist and a professional scrap market junkie, he spends a good quality of his precious time looking for obscure cultural misfits... after destroying most of himself in the 90's, he now spends his time restoring your mother's brother’s tin space toys and other unusual situations.
Abhishek Hazra	Abhishek Hazra approaches his art with a particular emphasis on the study of the historiography of science. He uses videos and prints that often integrate textual fragments drawn from real and fictional scenarios. He has previously exhibited and performed at Science Gallery, Dublin, HEART Herning Museum of Contemporary Art, Denmark, Astrup Fearnley Museum of Modern Art, Oslo, Casino Luxembourg Forum d’art Contemporain, Experiment Marathon Reykjavik, Reykjavik Art Museum and Kunstmuseum Bern. Abhishek was most recently an artist in residence at SymbioticA, the Centre for Excellence in Biological Arts, University of Western Australia, Perth. It was first performed as part of Beam Me Up, curated by Reinhard Storz and Gitanjali Dang, which was acknowledged by Pro Helvetia, New Delhi and German Book Office, New Delhi. Abhishek will be presenting #cloudrumble56 (attempted to re-animate sections of the Indian parliamentary archives — specifically, the transcripts of the scientist M.N. Saha's (1893-1956) interventions — through a performance that was transmitted only through live tweets on Twitter).
Aditya Dipankar	Aditya Dipankar started fiddling with music at the age of 4 when he started learning the tabla and then went on to play it for a long time. Years later, he discovered his strong inclination towards singing. Now, under the noble guidance of Pandit Vijay Sardeshmukh (Senior disciple of Pandit Kumar Gandharva), he is trying to understand the simplicity and spontaneity in the rich tradition of Hindustani classical music.
Nirmita Narasimhan	Nirmita Narasimhan is a Policy Director at CIS and works on accessibility for persons with disabilities. She was awarded the national award for empowerment of persons with disabilities by the President of India and also received the NIVH Excellence Award. Nirmita Narasimhan is a disciple of Dr. Radha Venkatachalam and renowned maestro Prof. T.R. Subramanyam. She began learning music at the age of 5 and went on to complete her Ph.D. in this subject from the Delhi University. Nirmita has been performing since 1995 and received several accolades such as the Sahitya Kala Parishad Scholarship and prizes in several competitions. She received the Gold medal in MA for standing first in the University and also stood first in MPhil. She has released a CD on Ponnayya Pillai compositions and also sung in an album of varnams. Nirmita has performed in different places in India such as Delhi, Chennai, Tirupathi and Bangalore as well as in Singapore and has also given several thematic concerts such as Eka Raga Sandhya and Pallavi concerts.
Sharath Chandra Ram	Sharath Chandra Ram (Sharathchandra Ramakrishnan) has interests in multimodal art, cognitive science, accessibility, digital humanities and network cultures. He is a faculty at the Centre for Experimental Media Arts at the Srishti School of Art Design and Technology. At the Centre for Internet and Society he helped set up and manage activities at the Metaculture Media Lab : an open hackerspace and alternative platform for research and exchange. His writings and musings at CIS maybe found here: http://cis-india.org/author/sharath He graduated from the University of Edinburgh with a degree in Artificial Intelligence specializing in interactive virtual environments. Previously as a Research Associate at the National Institute of Mental Health and Neurosciences he received a special mention award at the International Conference on Consciousness (2012) held at the National Institute of Advanced Studies for his work on ‘Cross modal Integration’. As an amateur radio broadcaster, he is a proponent of the free use of airwaves for relief work, education and transmission art. He has also been a development related radio journalist (PANOS @ Nepal, Voices UNDP@Bangalore), speaker at the International Ham Radio Convention (Port Blair, 2006) and as a film enthusiast has been a Press Reviewer for the Edinburgh International Film Festival.

Locations

Bangalore

Centre for Internet and Society
No. 194, Second 'C' Cross, Domlur,
2nd Stage, Bangalore - 560071,
Karnataka, India
Ph: +91 80 4092 6283
Fax: +91 80 2535 0955

Delhi

Centre for Internet and Society
G 15, Top floor
Behind Hauz Khas, G Block Market
Hauz Khas,
New Delhi 110016
Ph: + 91 011 40503285

Event Brochure

Event Flier

Event Posters/Banners and Videos

Accessibility

National Resource Kit (PDF, PNG)
NVDA E-Speak (PDF, PNG)
International Collaborations (PDF, PNG)
Partners (PDF, PNG)
Publications (PDF, PNG)
Timeline (PDF, PNG)
Inclusive Planet (PDF, PNG)

In the below video Anandhi Viswanathan gives a demo of the National Resource Kit project and Rameshwar Nagar gives a demo of the NVDA and ESpeak (Text-to-Speech) project during the exhibition.

Access to Knowledge

Broadcast Treaty (PDF, PNG)
Copyright (PDF, PNG)
Software Patent 1 (PDF, PNG)
Software Patent 2 (PDF, PNG)
Pervasive Technologies (PDF, PNG)

Access to Knowledge (Wikipedia)

Factsheet (PDF, PNG)
Reaching Out (PDF, PNG)
Outreach (PDF, PNG)
Bridging Gender Gap (PDF, PNG)
Press Coverage (PDF, PNG)
Education Programmes (PDF, PNG)
Team Achievements (PDF, PNG)
Visualization (PDF, PNG)

Openness

Open Access to Scholarly Literature (PDF, PNG)
Open Access to Law (PDF, PNG)
Open Standards (PDF, PNG)
Free/Open Source Software (PDF, PNG)

Internet Governance (Free Speech)

Blocking of Websites (PDF, PNG)
Freedom of Speech (PDF, PNG)
Intermediary Liability (PDF, PNG)
Internet Governance Forum (PDF, PNG)

Internet Governance (Privacy)

Privacy Events (PDF, PNG)
Timeline (PDF, PNG)
UID (1) (PDF, PNG)
UID (2) (PDF, PNG)
DNA (1) (PDF, PNG)
DNA (2) (PDF, PNG)

Telecom

Institutional Framework for Indian Telecommunication (PDF, PNG)
Growth of Telecom Industry in India (PDF, PNG)
Delicensed Spectrum (PDF, PNG)
Spectrum Sharing (PDF, PNG)

RAW Monographs

Archives and Access (PDF, PNG)
Internet, Society and Space in Indian Cities (PDF, PNG)
The Last Cultural Mile (PDF, PNG)
Porn, Law, Video Technology (PDF, PNG)
Re:Wiring Bodies (PDF, PNG)
Community Informatics and Open Government Data (Special Issue) (PDF, PNG)

News and Media

Media Coverage (PDF, PNG)
Organizational Chart (PDF)

For more details visit https://cis-india.org/internet-governance/events/celebrating-5-years-of-cis

Catching up on broadband

Shyam Ponappa — 2012-05-10T10:32:27Z

The govt can invest some of the Rs 1,00,000 crore from the spectrum auctions to help India catch up on broadband, says Shyam Ponappa in his latest article published in the Business Standard on July 1, 2010.

When it comes to broadband, India is “notably lagging its peers”, to quote Booz & Co, an international consulting firm.1 Its report recounts our pathetic coverage — less than half the anticipated 20 million — and recommends that both industry and government must act in concert. Spelling out the roles for both, it concludes that we need a national policy to improve fixed-line infrastructure more rapidly than the current market-based approach does, as well as satellite-based communications.

The report recommends this because advanced economies have broadband on widespread fixed-line networks, and many are pursuing strategies to further empower their citizens through state action, as before. The effects are many, but let’s start with examining costs. Figure 1 shows the relative cost of broadband in a sample of countries.

India seems favourably placed with its low purchasing power parity (PPP) cost. However, relative to costs in India, this is about 6 per cent of average monthly gross national income (GNI) per capita, ranked 78th, as shown in Figure 2. In comparison, the first 23 countries — Macao, Israel, Hong Kong, the US, Singapore, etc., Greece and Spain included — have costs below or close to 1 per cent; the next 16 have costs below 2 per cent. As the 39 countries have PPP costs of only 0.25 per cent to twice India’s cost, India’s cost as a percentage of its GNI is six times theirs, i.e. Indian users have to pay relatively more. Increasing GNI, while desirable, is harder, more complex, and will take much longer. By contrast, costs can be reduced quickly by sharing network resources and limiting government collections to a reasonable percentage of revenues, instead of auctions and arbitrary levies.

Broadband leaders

Wired Asian countries like Japan, Hong Kong and South Korea already offer broadband on the next generation of high-speed networks. Singapore’s approach especially should be of interest to India, with policies supporting a blend of public subsidies and private investment, while separating three activities: infrastructure, network operations (wholesale), and user services (retail).2

Two years ago, Singapore set out to create an environment with more open access to downstream operators by separating the building of infrastructure from the running of the network. It drew on the experience of local community networks in countries like Britain, France, the Netherlands and Sweden. Three Singapore companies partnered with Axia Netmedia, a Canadian broadband company, to form a consortium called OpenNet, the infrastructure operator. OpenNet uses one partner’s existing network (SingTel’s) as a base. With a government grant of 750 million Singapore dollars, OpenNet is building an extensive fibre-to-the-home (FTTH) grid to be completed by 2012. The second partner is a subsidiary of Singapore Power, SP Telecommunications, which leverages Singapore Power’s experience in developing infrastructure. The third, Singapore Press Holdings, is a leading media services company.

The network operator, a subsidiary of StarHub (a cable and phone operator), is Nucleus Connect. Residential services at 100 mbps have been announced, to be provided by over 10 retail service operators. While some analysts opine that increased competition may not lead to appreciable cost reduction, Singapore is already ranked fifth-lowest in cost as a percentage of average monthly GNI per capita.

Can India do some catching up?
a) Can India do something similar? Don’t we need to? How?

The answer to the first question is: only if the government decides on a concerted drive.

To the second: yes, to be competitive.

To the third: with a comprehensive, integrated systems approach. It is insufficient if only one or a few ministries and agencies are involved, because the development and execution of solutions require cutting across turf boundaries. The conventional approach of the ongoing Trai consultation followed by recommendations addressed by the DoT is simply inadequate, because their charter is too limited. Many issues concerning commercial and user decisions, particularly of government agencies and the Department of Defence, and radical changes in approach need active participation from these players as well as the private sector for resolution. Examples are Booz & Co’s recommendations of a better fixed-wire network, and satellite communications in the Ka band, or the possibility of exploiting the cable and satellite TV network of around 110 million households. The entire communications network, or at least the backbone, needs to be shared for efficiency, unlike the existing limited tower-sharing. Also, state governments need to be closely involved in issues like Rights of Way and user needs.

b) Governments at the Centre and all states need to facilitate the productivity of their citizens, instead of hamstringing them with taxes, levies, auctions and dysfunctional policies. This is more easily said than done, with our predatory history, fractious coalitions at the Centre and states, and freewheeling, combative state governments. Governments at all levels have to coordinate this problem-solving initiative for all stakeholders, adapting the experience of leading broadband countries, instead of predatory behaviour seeking personal gains. The consultative process needs to agree on goals, and then figure out practical ways to achieve them.

c) With inspired leadership and a constructive approach, half of the over Rs 1,00,000 crore from the 3G and BWA auctions could support a broadband gambit drawing on concepts like Singapore’s public-private partnership, instead of being just a damaging revenue-collection exercise. Again, easier said than done, but with result-oriented, strong leadership to elicit enlightened employee engagement, even MTNL and BSNL could be partners in a core network in a role like SingTel’s. A public-private network-builder can draw on the combined strengths of its participants to provide a platform for a number of private operators. Separating the infrastructure building and operations from wholesale network services and end-user services could make this feasible and practicable.

“Bringing mass broadband to India: Roles for government and industry”, Booz & Co, June 7, 2010: http://www.booz.com/media/uploads/Bringing_Mass_Boadband_To_India.pdf.
“Singapore gets wired for speed”, Sonia Kolesnikov-Jessop, NYT: http://www.nytimes.com/2010/06/15/technology/15iht-rtechbroad.html?ref=internet.

Read the original in Business Standard

For more details visit https://cis-india.org/telecom/blog/catching-broadband

Cashlessness Needs Connectivity

Shyam Ponappa — 2017-02-02T15:17:34Z

And connectivity needs political and administrative convergence. This new year brings with it uncertainties amidst the push for cashlessness. Without going into the demerits or otherwise, some clarity on a road map to go forward from where we are might help with realistic planning to manage our way out of this situation.

The article was published by Business Standard on January 4, 2017 and mirrored in Organizing India Blogspot on January 5, 2017.

Cashless transactions need ubiquitous connectivity, which we don’t have. Without it, the goal is simply unfeasible. Better to recognise this now, rather than act out elaborate charades, resulting in avoidable economic hardship and social ructions. Connectivity needs effective, efficient communication links at a reasonable cost. These call for realistic objectives and solid implementation, not bluster and unrealistic goals or plans, such as fibre-optic networks everywhere, payment systems on a hastily assembled database riddled with imposters, or insufficient security and privacy.

What is required?

The need is for internet connectivity using fibre backbones, extending to users through aggregation networks that are mostly wireless. The chances of establishing these networks increase if political parties and government agencies take concerted action on how to do so. This is necessary for two reasons. One is that our present network development and spectrum policies do not facilitate achieving universal broadband, especially in areas with lower commercial potential than prosperous urban clusters. The second is the legacy of network development with entrenched rivalries and perceived ways of managing spectrum, and the aftermath of the spectrum scam. These constrain society’s collective ability to configure solutions for connectivity, as opposed to the biased or limited perceptions of stakeholder groups such as the government, the judiciary, the citizenry, and industry (comprising service providers and equipment suppliers). Government agencies also have divergent agenda, e.g., the Telecom Regulatory Authority of India (Trai) is responsible for recommending spectrum use, the Department of Telecommunications/Ministry of Communications has licensing authority and runs the state-owned operators, the Ministry of Information and Broadcasting holds certain spectrum bands, the Ministry of Defence and government agencies hold other bands, and the Ministry of Electronics and Information Technology is responsible (without the authority) for providing broadband. Hence, the need for a convergent approach, as effected partially for electricity supply, from coal mining through transportation to distribution (although other sectors – hydel, hydrocarbons and nuclear – are yet to be similarly linked).

What needs doing

Radical changes such as pooling and sharing network infrastructure have to be considered for widespread connectivity. Such changes can’t happen with confrontation and mistrust, but only with trust and cooperation. This may seem naïve, but the ruling party leadership sets the tone for cooperation, as does the administrative leadership. Their pitch has to be sufficiently persuasive to induce diverse stakeholders – other political leaders, the judiciary, the citizenry who want industry to pay their pound of flesh while getting good services that are priced very low, and the operators, who have huge investments in networks and spectrum rights – to consider sharing equipment, and to work out worthwhile terms for everyone.

Currently, contending political parties pursuing selfish objectives as antagonists settle at the lowest achievable equilibrium. To understand why, consider two parties, A and B, with objectives along the horizontal X axis for A and the vertical Y axis for B in the chart.

When parties pursue conflicting interests confrontationally, they end up at N or Nash Equilibrium, where neither can improve their position without the other’s concurrence. Assume A has the objective of maximising a majoritarian agenda, while B seeks to maximise dynastic control of its leadership positions. This holds for any objectives that are unrelated (orthogonal). If their objectives are along the same dimension — say, control of the Centre or of the same states, there can be no accommodation: one wins what the other loses. This has happened so far, as parties are periodically voted in and then out by a disenchanted electorate. But if they accommodate, their equilibrium could move up to S, the “Best Feasible Equilibrium” point, where the acceptable limits of their respective objectives meet. (For more details, see: “Tata’s Corus Buy: A Game Theory Analysis”, organizing-india.blogspot.in, November 2, 2006, and "India’s Access To Nuclear Fuel & Technology", April 3, 2008.)

Imagine waking up to find that instead of the usual confrontation and vitriol, a different and gracious protocol awaits you. One of harmonious interaction marked by accommodation and courtesy, despite nature being red in tooth and claw. Utopian? Perhaps. But not if the powers that be realise that the way out of the cashless crisis is to seek benefits for everyone, instead of self-destructing by chasing chimera such as pure cashlessness or other unrealistic goals. Instead, they could give people what they need but don’t have: ubiquitous communications infrastructure that facilitates all activities (not just cashless transactions), and a more secure, well-ordered environment for pursuing their livelihoods and well-being. Policy decisions to share network infrastructure would be the start of this journey.

We can then break out of the impasse created by legacy communications policies and posturing, e.g., which party was responsible for what scam, the popular obsession with high auction prices for spectrum while wanting cheaper services, and operators committed to cornering spectrum.

Once the leadership collaborates, they’ll find that communications services delivery will be much improved by sharing capacity and coordination. This would enable other stakeholders – private sector operators, the citizenry, the judiciary – to accept that everyone gains from cooperative access to and delivery of communications services, provided adequate profits are generated and shared equitably. This will help in accepting a more rational, pay-for-use policy on the lines of highways, metro rail, or oil pipeline usage, and recognise the financial infeasibility of having auctions as well as funds for investments in networks for countrywide broadband access.

Government and stakeholders can then work together to develop solutions that are fair and practical. For instance, one or more consortium/s of operators with the government as a co-investor in each (on the lines of Singapore’s OpenNet) can co-own the network and coordinate for most effective and efficient service delivery. Earnings from spectrum usage can be collected by the government once the networks are commercially viable, as for developing any other infrastructure. Such collections are likely to exceed the auction fees foregone, as with revenue sharing from licence fees.

For more details visit https://cis-india.org/telecom/blog/business-standard-shyam-ponappa-january-4-2017-cashlessness-needs-connectivity

Call drops: Dealing with the menace or just shifting goal posts?

praskrishna — 2016-07-01T16:45:45Z

It is nothing short of an irony that the world’s second largest mobile user market that boasts of being the world’s fastest growing economy is plagued by poor infrastructure and overloaded networks to an extent that many callers are cut off even before they can finish a sentence. The fault in India’s much-acclaimed telecom revolution is a questioning, frequent phenomenon called “call drops”. There have been several signature campaigns and media pressure demanding that the government and telecom companies get their heads together to fix this raging demon of a problem. However, all they have been treated with is lip service and nothing more.

The article was published by India TV News on June 29, 2016

So, on one hand we have Union Minister Ravi Shankar Prasad claiming that the call drop problem is improving as telecom companies are installing towers, and on the other is TRAI that shows reports that operators like Aircel, Vodafone and Idea are using call drop masking technology incorrectly to fudge the data on call drops. Not long ago, we had Prime Minister Narendra Modi himself take up the issue and we saw a flurry of allegations and counter allegations flying between the government and the telecom companies on where the fault actually lies.

While the government claimed it had freed enough spectrum to fix network issues and blamed the companies for not investing enough in the infrastructure, the telcos hit back at the government saying they were facing regulatory hurdles in setting up of towers because of environmental issues posed by regulation. In all, we kept going in circles and the change promised remained as elusive as its perception.

Reality is that for cell phone users in India, call drop continues as a common phenomenon and figures released by the Telecom Regulatory Authority of India (TRAI) attest to this claim. According to TRAI, the figures have doubled in the last one year and the worst affected cell has more than 3% TCH drop (traffic channel call drop) rate, which is four times higher than the permitted limit. Quality of Service Regulations has allowed service providers a 2 per cent allowance of call drops on the basis of averaging call drops per month.

TRAI has recently conducted Audit and assessment of Quality of Service being provided by service providers through independent agencies for Cellular Mobile Telephone Service, Basic Service and Broadband Services in many states. In Ahmedabad all the operators have failed to meet the call drop rate benchmark of less that 2% expect Airtel 2G. Also in Mumbai most of the operators have not met the less that 2% call drop benchmark except Airtel 2G and 3G and Vodafone 2G.

Many other states have gone through this drive test and have failed.

This begs us to put up a serious question in the interest of the more than 103.518 cr users who shell out money for pathetic services - Is the problem actually being resolved or are we, the consumers, being taken for a royal ride?

Before we set out to give you a complete idea on the state of affairs and where we stand in terms of actually working towards fixing this problem, a look at some basics first to put things in context.

What is call drop?

A call drop technically signifies the service provider’s incapability to maintain a call, either incoming or outgoing, once it has been properly established. In India, call drops are a performance indicator for the country’s telecom networks. In many cities, mobile users have to rush from one room to another or drive around neighborhoods to find better signals or better voice quality.

Call drops now figure among the top customer issues with telcos in several Indian cities. There is very little transparency on call drop data but it can be said that most companies have multiple sites where the call drop incidence is much above the set 2 percent limit. New Delhi has been particularly hit after city authorities cracked down and sealed unlicensed mobile towers.

The problem had increased so much that India’s Telecom Regulatory Authority of India, the industry regulator, had specified that telecom service providers need to compensate users for dropped calls. The regulator said that the consumers will be paid Re.1 per call up to 3 dropped calls per day, only to be turned down by the Supreme Court, rendering the TRAI decision null and void.

Telecom companies had cried foul over the directive, firstly by saying that the regulator had no authority to levy such penalty and secondly, by saying that it wasn't possible to segregate the reasons for call drops.

SC gave a 99-page judgment and said that the regulation appears to be meant only to penalise telcos. The judgment highlighted various flaws in the ruling by the Delhi high court which upheld TRAIs regulation.

It further upheld the 2% exemption extended to service providers with regard to call drops and said the regulation would have penalized them despite it.

“A penalty that is imposed ‘without any reason’ either as to the number of call drops made being three, and only to the calling consumer, ‘far from balancing the interest of consumers and service providers’, is manifestly arbitrary, not being based on any factual data or reason,” the court said.

A ‘towering’ menace

Towers act as boosters that help radio waves travel better, and are a necessary part of the telecom architecture in any country. There are approximately 5,50,000 towers in India, and industry associations think another 1,00,000 are needed. The lower radio bands need less towers to travel longer distances, so when telecom companies offer services like 3G or 4G, they have to be at higher frequencies (2,100 MHz or 2,300 MHz instead of 900 MHz), which need more tower support.

Call drops occur due to several reasons.

Cities like Mumbai, Delhi, Chandigarh, Bengaluru, Jaipur and Patna have less towers than needed. Civic authorities across the country have shut down a total of around 10,000 towers and an additional 12,000 towers cannot be used due to various reasons.

Telecom companies are reluctant to share towers. This is because they are fixed investments by subsidiaries of telecom companies. Permission to erect a tower is given by the municipal body, but no uniform standards or procedures exist here.

The setting up of boosters on buildings remains a task, and permission has to be taken on a case-by-case basis. Things could improve if telecom connectivity were seen as being similar to water and power supply, and developers were to apply for a uniform set of permissions.

If we take the recent scenario the State-run telecom operator BSNL is said to expand its network in Chhattisgarh by installing 2,000 new mobile towers in the next two years, Communications and IT Minister Ravi Shankar Prasad, stepping forward to strengthen mobile connectivity in the state.

Telecom Secretary J S Deepak recently said that penal powers cannot be “one and final solution” for call drop and the telecom firms have committed Rs 12,000 cr to install new towers to check this problem.

“Government believes in the telecom sector. The quality of service must improve and industry has responsibility. They have committed 60,000 towers. Each tower cost about Rs 20 lakh which is around Rs 12,000 crore. The industry will make this investment in next three months,” he said recently.

Most of the mobile service providers have frequently failed in quarterly sample call drop tests conducted by Trai but operators have contested the results saying that they comply with benchmark set by the regulator.

On this, the operators raised issues such as regulatory hurdles by local authorities and opposition by residents associations to installation of mobile towers.

“All top CEOs have said they will set up war rooms to address this issue. We need to work with them to facilitate installation of mobile towers,” Deepak said.

“We are coordinating with minister (Ravi Shankar Prasad) to launch portal on EMF (radiation) next month. This will give data of about 4.3 lakh mobile towers. People can go online and check if a tower is emitting radiation within limit or not so that citizens are aware that it not an issue,” he added.

So after the launch of portal on EMF (radiation) next month, the fight on hurdles might be resolved, which will then raise questions on the operators if the call drop issue still persists.

Do companies benefit from call drops?

All the benefits depend on the tariff plan. If it’s measured in seconds, the telecom company gains nothing — no matter how many times the connection cut, billing resumes at the same rate. But if it is measured in minutes, or if the plan contains features such as a certain number of free calls in every billing cycle, call drops is a nightmare for the consumers.

Telecom firms claim that 95 per cent of tariff plans involves billing in seconds. Since call drops are the most common in overcrowded areas, interruptions tend to shorten the call and, to that extent, reduce the average revenue per user per minute. Since companies measure their performance on the basis of call drops too, it is risky for anyone to intentionally create conditions for drops, thus porting to another operator.

Cellular Operators Association of India (COAI) in a report said that the telecom industry is facing a lot of challenges which are leading to call drops:

State bodies initiate actions against the towers without any prior notices like disconnecting electricity supplies, sealing the premises and even dismantling of tower sites.
Restrictions imposed by state governments and municipalities for wireless sites for erecting cell-sites in non-commercial areas, sealing of the cell-sites by municipal authorities.
Issues pertaining to Right of Way (RoW) – due to no approval, operators are not even in a position to put up sites. Frequent fiber cuts due to infrastructure projects are recurring phenomena in almost all circles.
Site outages on account of long power failures and delay in restoration of power supply by electricity boards.
Owner/legal issues, which is an important factor, because if the operator does not obtain the permission to set up the cell site, calls in the area would be dropped.
Interference due to illegal wide band radio and coverage restrictions arising out of cross border spectrum interference.
Shortage of spectrum amid surging data traffic growth and the lack of availability of a sufficient quantum of globally harmonized spectrum in contiguous form is the biggest impediment to the deployment of wireless technologies in the access network and hence for better quality of service resulting in increased call drops with the increase in data traffic.

Government’s role and what it can do

The government says that call drops can be addressed to a large extent through better management of spectrum, something that will only provide partial relief. The occurrence of call drops is higher at busy areas, typically city centres. This means there is an unequal spread of traffic across the spectrum.

Regardless of these technical roadblocks, there is actually quite a lot that the government can do.

General allowing of shared spectrum so that the same bandwidth is homogenously distributed among towers that are in a row.
Government rules prohibit spectrum swapping, but to tackle the issue a policy should be amended for the same.
Unused spectrum bands, which are either not used or have been missed due to the traffic in the bandwidth should be reformed and put to efficient use.
Every state should be encouraged to use uniform procedures on towers and policies regarding this should be amended.
Set up rules for companies to improve on their services. Besides penalty which has been dropped government should keep a check on telcos to work properly.

Pranesh Prakash, Policy Director at the Centre for Internet and Society said that Telecom companies in India have scarcity in terms of spectrum, which needs to be rationalised by allowing spectrum policy in India.

He also added that the government’s decision of not allowing spectrum supply doesn’t really make sense as India needs the policy. Also, the radiations emitted by the spectrum which are harming people should be scientifically taken care of.

What are the benchmarks for call drop that should be followed by the telcos?

TRAI has laid down the quality of service benchmarks for call drop rate to be less than 2 percent. The 2 percent call drop benchmark means that not more than 2 percent calls made from a network should automatically disconnected in a telecom circle.

Recently, the call drop test was conducted in Bhopal and Mumbai. TRAI found that most operators in Mumbai, except Airtel 2G/3G and Vodafone 2G, are not meeting the under 2 per cent call drop rate benchmark. In the drive tests conducted during May 10 to 13 in Mumbai, the call drop rates of No 1 carrier, Bharti Airtel's 2G and 3G networks, stood at 1.49 per cent and 1.94 per cent, while Vodafone-2G's was 1.68 per cent.

Other than Airtel and Vodafone in 2G, all operators failed to meet the Call Drop Rate benchmark in Bhopal. TRAI in a report said that Idea, Reliance and BSNL all have Call Drop Rates in the range of 10 percent or above. These are exceptionally high and clearly indicate urgent need for improvement in order to deliver reasonable levels of service.

What steps should be taken to improve the problem?

A lot has to be done to settle the issue. The mobile towers do not have an unlimited capacity for handling the current network load. So telecom companies need to increase the towers to tackle the load. This is being followed as telecom operators have decided to invest Rs.12,000 crore for installation of 60,000 more towers over the next three months, while the BSNL will install 21,000 BTS towers a report said.

A report by TRAI said that the problems like removal of towers from certain areas by authorities needs to be addressed. Also, with the increase in the usage of 3G networks, the growth rate of mobile towers supporting 2G networks has reduced, which also needs to be addressed.

Recently, Union Minister Ravi Shankar Prasad claimed that the call drop problem was improving with various telecom companies are installing about 1.24 lakh towers to mitigate the issue. In a report he said, “Things are improving....private telecom operators have installed one lakh towers, while the State-owned BSNL has put in place 24,000 Base Transceiver Station (BTS) towers across the country in the past one year to improve the call drop problem.”

The roadmap

Surveys are being conducted and a lot of efforts are being made by the operators and also TRAI to solve the call drop issue. However, in a country with the world’s second-largest mobile user market it is tough to solve the problem completely but not impossible. That, in theory, is the situation. On ground though, things don’t appear to be running in tune with tall claims by the government or the telecom companies. If the situation is improving, as the government claims, change needs to be visible, which is apparently not the case. Also, if the investments are being made to the tune of what the telecom companies are claiming, that would translate into solving the issue.

The moot point here is that if the number of towers is the root cause behind the millions of consumers facing this absolute nightmare of an issue, can this “go-getter” government not come to any arrangement so as to solve the issue? Perhaps, the government, which displayed exemplary enthusiasm in gaining a seat in the coveted Nuclear Suppliers Group, needs to translate some of that energy into getting to a solution for an issue plaguing a large and growing population of its billion plus populace. It would only serve some good. No pun intended.

For more details visit https://cis-india.org/telecom/news/india-tv-news-june-26-2016-call-drops

Cable Television Networks (Regulation) Act, 1995

snehashish — 2013-03-15T06:10:46Z

In this module, Snehashish examines the purpose of the legislation, the persons affected by it, the administrative bodies which come under the Act, the penalties (including the consequences in case of non-compliance), appeal process and the debates surrounding the legislation.

Before the introduction of cable television in India, broadcasting was solely under the control of the State. The Government of India was caught unprepared with the emergence of cable networks and broadcasting through satellites in the early 1990s. The Government was not able to put a check on transmission and broadcast of television through foreign satellites.

The necessity of procuring licence for operating cable networks was first mentioned by the Rajasthan High Court in the case of Shiv Cable TV System v. State of Rajasthan.[1] In this case, the district magistrate ordered a ban on cable networks as they were being operated without licence. Subsequently the order of the district magistrate was challenged in the Rajasthan High Court on the ground that the order was in violation of fundamental right to freedom trade and profession. The high court held that there was no violation of the right to freedom of trade because cable networks fall within the definition of “wireless telegraph apparatus” under the Indian Wireless Telegraphy Act and therefore it necessary to have licence to operate such network. This highlighted the need for having a framework for the regulation of cable networks in India which led to the enactment of the Cable Television Networks (Regulation) Act, 1995.

Object of the Act

The object of the Act was to regulate the ‘haphazard mushrooming of cable television networks’. Due to the lack of licensing mechanism for cable operators; this resulted in large number of cable operators, broadcasting programmes without any regulation. The Act aimed at regulating content and operation of cable networks. This was due to the availability of signals from foreign television networks via satellite communication. The access to foreign television networks was considered to be a “cultural invasion” as these channels portrayed western culture. It also wanted to lay down the "responsibilities and obligations in respect of the quality of service both technically as well content wise, use of materials protected under the copyright law, exhibition of uncertified films, and protection of subscribers from anti-national broadcasts from sources inimical to national interests".

There were three amendments made to the Act.

The Act is divided into five chapters. The first chapter discusses the scope and extent of the Act and meaning of the terms used in the Act. The second chapter deals with "Regulation of Cable Television Network". The third chapter relates to "Seizure and Confiscation of certain Equipments". The fourth chapter focuses on "Offences and Penalties". The fifth chapter covers other miscellaneous provisions.

Regulation of Cable Television Network

The regulation of cable television network under the Act is ensured through a two step process. In order to keep track of cable operators, it has mandate a compulsory registration for cable operators. It also lays down provisions to regulate content to be broadcasted by the cable operator.

Registration of Cable Operators

In order to regulate cable television networks, it was made mandatory for cable television network operators to be registered.[2] Procedure for registration is laid down is section 5 of the Act. Any person who is operating or desires to operate a cable network may apply for registration to the registering authority.

An application for registration of cable operator has to be made under Form 1 along with the payment of fees of Rs.50 to the head post master within whose territorial jurisdiction the office of cable operator is situated. The registration certificate which is issued by the registering authority after inspection is valid for 12 months and can be renewed.

The registering authority may also refuse the registration of a cable operator. The reason for such refusal has to be recorded in writing and communicated to the applicant.

Section 4A was inserted into the Act by the TRAI (Amendment) Act, 2002. Section 4A deals with "transmission of programmes through addressable system". [Refer to section on “2003- Amendment to the Cable Television Networks (Regulation) Act, 1995 (Amendment Act)"].

Content Regulation

The Central Government, in public interest can put an obligation on every cable operator to transmit or retransmit a programme[3] of any pay channel through addressable system. In public interest the central government may also ‘specify one or more free-to-air channels to be included in the package of channels’ (basic service tier). The Central Government may also, in public interest specify the maximum amount which can be charged by the operator to the subscriber for receiving the programmes transmitted in the basic service tier provided by such cable operators. The cable operators have to publicize to subscribers the subscription rates of each pay channel at regular intervals.

Sections 5 and 6 of the Act deal with advertisement code and programme code. All cable services should be in conformity with the codes. Under section 7, cable operators have to maintain a register as to the content transmitted or retransmitted. All cable operators shall compulsorily re-transmit Doordarshan channels.

Section 9 of the Act mandates ‘use of standard equipment in cable television network’. It is the duty of the cable operator to make sure that the cable television networks do not interfere with authorized telecommunication systems.

Offences and Penalties

Section 11 gives power to the authorized government authority to seize any cable operator’s equipment, if such officer has reason to believe that the cable operator is using the equipment without proper registration.

Sections 16, 17 and 18 of the Act deal with offences under the Act. They lay down punishments for any act which is in contravention with the provisions of the Act.

Section	Ingredients of the Offence	Penalty/ Fine
16	Anyone who is held to be in violation of the provisions of this Act	For the first offence: Imprisonment for a term which may extend to 2 years or with fine which may extend to Rs. 1000 or with both. For every subsequent offence: Imprisonment for a term which may extend to 5 years and with fine which may extend to Rs. 5000.

Section 17 deals with when an offence under this Act is committed by a company; in this case the person in charge will be liable.

The Act also gives power to the authorized officer[4] to prohibit the transmission of certain programmes in public interest under section 19 of the Act.

Under section 20 of the Act, the Central Government in public interest may prohibit the operation cable television network. The Central Government may make such an order in the interest of the (i) sovereignty and integrity of India; or (ii) security of India; or (iii) friendly relations of India with any foreign state; or (iv) public order, decency or morality.

2003- Amendment to the Cable Television Networks (Regulation) Act, 1995 (Amendment Act)

Numerous complaints were received by the Government stating that there has been unreasonable price hike in cable television by the cable operators. Moreover, the cable operator were not paying appropriate revenue by concealing there income and under-reporting their income. The cable operators defended themselves by stating that the broadcasting industry is unregulated and they are forced to increase the price for proving cable television services as the broadcasting companies can increase the charges as per their wish. In order to address these problems, the government appointed a specialized task force.

Special task force in its study noted that the consumers do not have the choice to select the premium channels they wanted to watch rather it is provided to them in a bundle irrespective of the fact they want to subscribe to such channel or not. In order to give choice to the consumer it recommended the introduction of conditional access systems (CAS). This would require the consumers to set up set-top boxes which will allow the consumers to view all the free to air channel and he can choose to watch any of the premier channels for a charge.

This recommendation of the task force was introduced through the 2003 amendment to the Act. The main objective of the Amendment Act was to address to the frequent and arbitrary increase in cable charges. This was introduced section 4A which allowed operators to transmit pay channels through an addressable system[5]apart from basic package of free-to-air channels.

There was a lot controversy with respect to implementation of the CAS. In order to explain the controversy, it is important to understand the structure of the cable market. The cable market is divided into three categories. Broadcasters, who are at the top of the pyramid, the Multi-System Operators are in the middle and the local cable operators are at the bottom of the pyramid.

The 2003 Amendment introduced to CAS was welcomed by the broadcasters and the MSOs. But the consumer and the local cable service providers were unhappy with this decision because the consumers feared that they have to pay special rates for pay channels whereas the local operators were outraged because they believed that CAS would affect their revenue. Due to the adverse reaction from the consumers and the local cable operator, the government delayed the implementation of CAS indefinitely. This finally culminated in a case[6] before the Delhi High Court.

The Delhi High Court decided that implementation of CAS cannot be delayed. Subsequently to this, the government announced in 2004 that Telecom Regulatory Authority of India (TRAI) will be handling the problems regarding CAS and make recommendations on the same. TRAI recommended that CAS should be denotified and it can be re-introduced later when there is adequate regulation to properly implement it.

The government on the recommendation of TRAI withdrew the implementation of CAS. However, this decision was faced with a new challenge[7]and this time the single judge bench of the Delhi High Court held that the Government does not have any ground to suspend the CAS and it has disregarded the previous decision of the Delhi High Court in Jay Polychem case. Finally, the government re-introduced CAS but after issuing rules as to its working and implementation.

[1]. AIR 1993 Raj. 1997
[2]. Section 4 of the Act: "No person shall operate a cable television network unless he is registered a cable operator under this Act..."
[3]. Section 2(g): “programme means any television broadcast and includes –
i exhibition of films, features, dramas, advertisements and serials through video cassette recorders or video cassette player;
ii any audio or visual or audio-visual live performance or presentation and the expression “programming service” shall be construed accordingly
[4]. Section 2(a): authorized officer means within his local limit of jurisdiction
i a District Magistrate, or
ii a Sub Divisional Magistrate, or
iii a Commissioner of Police, and includes any other officer notified in the Official Gazette, by the Central Government or the State Government, to an authorized officer for such local limits of jurisdiction as may be determined by the Government.
[5]. Section 4-A, Explanation (a), Cable Television Networks (Regulation) Act, 1995; Addressable system is defined as, "an electronic device or more than one electronic devices put in an integrated system through which signals of a cable television network can be sent in encrypted or unencrypted form, which can be decoded by the device or devices at the premises of the subscriber within the limits of authorisation made, on the choice and request of such subscriber, by the cable operator to the subscriber."
[6]. Jay Polychem v. Union of India, (2004) IV AD 249 (Del)
[7]. Hathaway Cable Datacom v. Union of India, 128 (2006) DLT 180

For more details visit https://cis-india.org/telecom/resources/cable-television-networks-regulation-act