The Telecom Regulatory Authority of India (Trai) is embroiled in an ‘access’ versus ‘content’ debate. The debate started with its much controversial regulation putting restrictions on differential pricing of data based on content.
First, let us see whether Trai has jurisdiction over the two issues, i.e. access and content. While Trai has a jurisdiction to regulate telecom services, which is the access part, it has no jurisdiction under the Act over content provided by non-telecom service providers. Therefore, its regulation on differential pricing of data based on content, in the first place, is without any jurisdiction and hence is immune to challenge.
Having indulged in a debate on content-based discrimination—which was avoidable—Trai’s justification on the regulation is based on the so-called licence condition which states that “the subscriber shall have unrestricted access to all the content available on the internet except for such content which is restricted by the licensor/designated authority under law.”
The above clause only mandates unrestricted access to the internet and content. Restriction here is with regard to such content which is restricted by the licensor—to ensure it is not against national security or public policy. No where the intention is to regulate pricing. If that was the intention of the licensor, the words used should have been “unrestricted and non-discriminatory access to all content either free of cost or at the same rate.”
Therefore, Trai’s reliance on a licence clause and coming out with a legally unsustainable regulation on differential data pricing is wrong.
Second, Trai should not confuse between the two terms—access to internet and access to content—as these are two different things. Access to internet does not necessarily mean access to all content at the same rate.
Third, to ascertain whether any practice is discriminatory or not, Trai needs to see whether the customer of the same class is being offered different tariff for the same content? The very basis of deciding discrimination by Trai is fallacious because it compares “same with similar” and confuses “same content” with “similar/all content”.
Trai, under its Telecom Tariff Order (TTO), has set the criteria to ensure non-discrimination, which is:
(1) no discrimination between subscriber of the same class—this was to ensure equality among equals;
(2) classification of subscriber not to be arbitrary—this was to ensure fair treatment and transparency.
Where is the question of discrimination when all the subscribers of the same class are offered content at the same rate?
As if the confusion created by the earlier regulation was not enough, the current consultation paper on free data is multiplying the confusion even further. Trai is basically seeking comments on whether content providers should be allowed to provide incentive to customers to access their content?
What Trai is saying here is that to create differentiation based on content through content provider is fine, but if it is created by telecom service providers (TSPs), it is not allowed. If we go by Trai’s understanding of content-based discrimination, then the incentive should be offered by all content providers to all customers, and not by a specific content provider to specific or all customers of same class. If this cannot be done by TSPs, then how can this be done by the content provider?
The idea to look at ways and means to make internet access cheaper and content cost reasonable is welcome. However, as the Supreme Court, in its recent judgment on call drops case, observed, “the Authority framing the Regulation must ensure that its means are as pure as its ends—only then will regulations made by it pass Constitutional muster.”
Trai must walk the talk when it says “what cannot be done directly cannot be done indirectly.” What Trai, in this new consultation paper, is actually trying to do is that discrimination cannot be done by TSPs but can be done by content providers. Trai should avoid an access versus content approach and should rather look at access and content to work as complementary to each other.
The author is CEO of Tathya Consulting
