<< A report on

Consultation on Net Neutrality

in the Indian Context: Reality v. Rhetoric

<< Organised by

Alternative Law Forum, Bangalore

with support of

Centre for Internet and Society, Bangalore

<< On

18th April 2015

<< At

Centre for Internet and Society, Bangalore

Acknowledgments

The present report compiles an indexed summary of the discussions which took place at the
Consultation on Net Neutrality in the Indian Context: Reality v. Rhetoric. I would like to express
my gratitude to each person who participated in this event, in many cases, without much
financial support from the organisers. It was heartening to see the enthusiasm the topic
generated with the participants, something which will no doubt be reflected by the enriching
discussions in the perusal of this report. I have attempted to reproduce the discussions as close
to what was said, but in case there are discrepancies, it is I who should be blamed for my
shortcomings. The Consultation further would not have been possible without the generous
support of Centre for Internet and Society, Bangalore, who heartily assisted with logistical
arrangements at a very short notice.
I would further like to thank Jessamine Mathew, IV year student at National University of
Juridical Sciences, Kolkata and an intern at Alternative Law Forum, who facilitated the
compilation of this report. Without her immense hard work in assembling the transcripts of
the discussion, this report would never have seen the light of the day.

Smarika Kumar
24 August 2015

Editor

Cover Design: Nikhila Nanduri

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CONTENTS

Glossary of Terms.. 03
Concept Note... 04
Speakers and Participants.. 06
Session 1: Resource Allocation for Net Neutrality: via State Regulation or via
Markets?.......................................................................................................................... 10
Presentation by Prof. V. Sridhar.11
Presentation by Parminder Jeet Singh..17
Presentation by Pranesh Prakash.19
Session
2:
Net
Neutrality,
Licensing
and Models
for
Innovation
..24
Presentation by Amlan Mohanty..25
Presentation by Swaraj Paul Barooah...28
Session 3: Freedom of Speech v. Media Diversity v. Access to Internet32
Presentation by Namita Malhotra...33
Presentation by Rahul Sharma36
Presentation by Smarika Kumar...39
Presentation by Apar Gupta.45
Session 4: Equality, Common Carriage and the Internet as a Public Utility...48
Presentation by Raman Chima...49
Presentation by Rohan George..51
Index.,58

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Glossary of Terms

CCI

Competition Commission of India

CDN

Content Delivery Network

DoT

Department of Telecommunications

DPI

Deep Packet Inspection

FCC

U.S. Federal Communications Commission

FTA

Free to Air

HTTP

Hyper Text Transfer Protocol

HTTPS

Hyper Text Transfer Protocol Secure

ICT

Information and Communications Technology

IP

Internet Protocol

ISP

Internet Service Provider

ITU

International Telecommunications Union

NN

Net Neutrality

OSP

Other Service Provider

OTT

Over the Top (service provider)

QoE

Quality of Experience

QoS

Quality of Service

SPDI

Sensitive Personal Data and Information

SSL

Secure Sockets Layer

Telco

Telecom company

TRAI

Telecom Regulatory Authority of India

TSP

Telecom Service Provider

UASL

Unified Access Service License

UL

Unified License

WCIT

World Conference on International Telecommunications

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Concept Note
As TRAI releases its Consultation Paper on regulation of OTT services1, it becomes essential for
us to understand the issues surrounding net neutrality better. Accordingly this Consultation is
designed to identify relevant directions of research which need to be undertaken in order to
solidify a position on the issue.
Simply stated, net neutrality is the principle which mandates equal treatment (in terms of
availability, speed and price) of traffic on the internet irrespective of its content or source. This
principle has been able to sustain relatively democratic communications on the internet by
preventing differential gatekeeping. There is no legal backing for net neutrality as of now and
the principle has evolved purely as a matter of practice. Consequently, telecom and ISP
companies, which have to bear the cost of the net neutrality principle, are urging that they be
allowed to violate it.
Though in many circles the issue is painted as mere corporate greed which needs to be resisted
to ensure the comparatively gatekeeper-free nature of the internet, in reality, things are more
complicated than this. This complication is best illustrated by the launch of the net-neutralityviolating Internet.org by Facebook and Airtel Zero by Airtel, which offer access to parts of the
internet free of cost. Such zero-app business model has the potential to offer internet access
if partialto those who do not have it. For many such people, mere access of some popular
internet services becomes more valuable than net neutrality simply because it makes no sense
to talk about equality on the internet when you have no access to the internet. If one thinks of
internet as a public amenity, locating the issue of net neutrality in the context of access then
becomes pertinent, as both access and neutrality stand to be principles serving the public
interest.
Given this background, the debate on net neutrality perhaps has a lot to learn from experience
in distribution and access to other public amenities like transport, roads, water, electricity etc.
Even if exact parallels cannot be drawn from these into the telecommunications sector, the
issue of creating rights for people for access and equality (neutrality) in use of public amenities
as they become increasingly privatised, is part of the same broad question. In this context,
sectors like railways and civil aviation which have seen application and/or modification of the
common carriage principle become of particular interest. The history and implications of
common carriage or its erosion in these sectors can deepen our understanding of the multiple
paths which the net neutrality question opens up.
There is also the peculiar nature of the internet as media to be taken into account. How public
rights are defined on a privately operated media like the internet will ultimately influence the
process through which speech is mediated on the internet. This obviously, will have
consequences for the freedom of speech and expression on the internet: But it may not
necessarily manifest as the good-for-free-speech versus bad-for-free-speech binary, as
illustrated adequately by the zero-rated apps conundrum. The various facets of freedom of
speech need to be then evaluated to understand what exactly will be at stake in each
governance model for access and for equality on the internet. The relationship between
innovation, competition, monopolies and speech on the internet should come under scrutiny.
1

See, http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf

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How the value of innovation impacts free speech on the internet, for example, can become an
area of enquiry. So can questions about the difference in the impact on free speech when
innovation is market-driven versus when the innovation is State-sponsored.
On a broad level, the issue of net neutrality thus opens us to an assessment of the nature of
the relationship of the State and the citizen: In what ways can the State orient itself so that the
citizen can have both access to media allowing for free speech, and equality in the making and
receiving of such free speech? What choices about State and market power are made in such
orientations? Which values are given precedence and what is put at risk? Answers to these
questions are essential if we are to make an informed decision about any kind of governance
framework.

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Speakers & Participants

Swaraj Paul Barooah has a deep interest in IP, Innovation and Information policy, especially
when they involve issues relating to Access to Knowledge, Innovation incentive mechanisms,
Digital Freedoms, Open Access, Education, Health and Development. After his BA, LLB (hons)
from NALSAR University of Law, Hyderabad, he went on to do his LLM from UC Berkeley in
2010. He is now pursuing his J.S.D. degree from UC Berkeley where he is focusing on Drug
Innovation Policy and Access to Medicines. Aside from SpicyIP, he is also engaged as a
consultant on various IP matters, and is a visiting faculty member at NALSAR University of Law.
He is also in the process of starting up a New Delhi based "IP, Innovation & Information Policy"
focused think-tank.

Rohan K. George is an IP, information technology and commercial lawyer with 10 years of
experience as a litigator, policy analyst and commercial legal consultant. He has been involved
in drafting and providing advice on policy documents relating to intellectual property,
information technology law and competition law. In the course of his policy engagements as a
lawyer he has worked on projects for the Department of Chemicals and Fertilisers, the
Department of Industrial Policy and Promotion, Microsoft India and UNCTAD. He has also
guided a number of it and internet enabled services entities on commercial and intellectual
property-related issues and has advised a number of clients on the information technology and
telecommunications law and the regulatory framework involved. He is currently a partner in
Samvad Partners, a national corporate and commercial law firm. Prior to becoming a partner
at Samvad Partners, Rohan operated an independent legal practice specialising in technology
law issues. He has also written for the Centre for Science and Environment (CSE) on internet
policy in India and for the Centre for Trade and Development on intellectual property and
technology transfer, and with the law firm Amarchand Mangaldas in the intellectual property
practice and on competition law and policy. He is a graduate of NALSAR, Hyderabad and holds
an LLM from Columbia University, New York.

Apar Gupta is a litigator based in Delhi, appearing in cases concerning commercial disputes
which include civil litigation and arbitration. A substantial part of his work includes
representations for clients in the technology, media and telecom sector. He has been listed by
Forbes India magazine in its list of, 30 under 30 for his work.

Raman Jit Singh Chima currently advises Access Now on digital rights and Internet policy issues
impacting Asia, and is an India qualified lawyer enrolled with the Bar Council of Delhi. Prior to
this he served as Policy Counsel and Government Affairs Manager with Google based in Delhi,
where he helped lead the company's public policy work in India from 2010 to end 2014. He
holds a Bachelors in Arts and Law (Honours) from the National Law School of India University,
Bangalore, where he was Chief Editor for Volume 5 of the Indian Journal of Law and
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Technology. He has studied Internet regulation as an independent research fellow with the
Sarai programme of the Centre for the Study of Developing Societies, and contributed to
Freedom House's 2009 Freedom on the Internet report.

Kiran Jonnalagadda is the founder of HasGeek and has been involved with the pro-net
neutrality Save the Internet campaign in India.

Smarika Kumar is a legal consultant Alternative Law Forum. Her area of interest lies in the
intersection of law, science & technology with development. She works on legal issues
concerning media content, ownership and infrastructure, internet governance, and the
allocation of natural resources.

Namita A. Malhotra is an ex-member of the Alternative Law Forum. She currently works with
Pad.ma and her interests lie in archiving, technology, sexuality and film. She is also an aspiring
filmmaker.

Amlan Mohanty is a lawyer with specialised experience in intellectual property, telecom

regulations, privacy, cybersecurity and intermediary liability. He is currently being retained by
Trilegal as part of the technology, media and telecom practice. In the past, he has contributed
to SpicyIP, 'myLaw.net and other publications on the intersection of law and technology. He
also runs 'Techlawtopia, a website featuring analysis, how-tos and legal resources.

Pranesh Prakash is the Policy Director at Centre for Internet and Society, and works on policy
research and advocacy around intersections of technology and law focusing on access to
knowledge (primarily copyright reforms), promoting 'openness' (including open government
data, open standards, open access, and free/libre/open source software), freedom of
expression, privacy, and internet governance.
Rahul Sharma is working as Senior Consultant with Data Security Council of India. Presently in
his role, he is engaged in the study of emerging issues in the area of Cyber Security, Data
Security, Privacy, Internet Governance including study of global Cyber Security policies &
initiatives, Privacy regulations and their impact on outsourcing, Data Protection challenges in
Cloud Computing, Internet Governance issues effecting businesses. He also liaisons with Indian
delegation in trade negotiations with EFTA countries over privacy issues that impact transborder data flows. He engages with the Industry for National Cyber Security Mock Drill exercise
conducted by CERT-In and facilitates related government-industry interactions & coordination.
He is actively engaged in promoting the adoption of DSCI Security Framework (DSF) and DSCI
Privacy Framework (DPF) by the Indian IT / BPM and domestic industry. He has contributed
in drafting the NASSCOM-DSCI Securing our Cyber Frontiers Report, DSCI-BSA report

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Security Considerations in Software Procurement by Govt. Agencies, DSCI Assessment

Framework-Privacy etc. He is involved in the development of an assessment ecosystem built
around the organizational Privacy certification framework DSCI Privacy Certified and has
contributed in developing entire ecosystem and content for DSCI Certified Privacy Lead
Assessor (DCPLA) training and certification program and is one of the faculty for classroom
training program. He is also involved in organizing roundtables, workshops, conferences and
meets on IT Act, privacy and security issues. He leads the DSCI Excellence Awards initiative
meant to award organizations and individuals in field of security, privacy and Indian security
companies, including startups. Simultaneously, he has undertaken study project on subjects
like Internet Governance, global best practices in security and privacy and learning Cyber Laws.
He was selected as one of the Fellows for ICANN 49 conference scheduled in March14 in
Singapore, only fellow from India. He represented DSCI and NASSCOM at NetMundial
conference on Internet Governance issues in Brazil. Prior to this, he has worked with HCL
Technologies as Senior Security Analyst. He has also worked with Nokia Siemens Network for
a short period. Academically, he has his B.Tech from Indraprastha University, New Delhi) in the
field of Electronics and Communication.

Parminder Jeet Singh works with IT for Change which works on the intersection of ICTs and
progressive social change, with equity and social justice as its cornerstone values and
objectives.

Dr. V. Sridhar is Professor at the Centre for IT and Public Policy at the International Institute of
Information Technology Bangalore, India. He has published many articles in peer-reviewed
leading telecom and information systems journals. His book titled The Telecom Revolution in
India: Technology, Regulation and Policy was published by the Oxford University Press in 2012.
He has co-authored a recent book titled The Dynamics of Spectrum Management: Legacy,
Technology, and Economics published by the Oxford University Press in 2014. Dr. Sridhar has
taught at many Institutions in the USA, New Zealand and India. He was also a visiting scholar
at Aalto University, Finland and was the recipient of Nokia Visiting Fellowship. Prior to joining
IIIT-B, Dr. Sridhar was a Research Fellow at Sasken Communication Technologies. He has been
a member of Government of India committees on Telecom and IT. He has written more than
200 articles in prominent business newspapers and magazines relating to telecom regulation
and policy in India. Dr. Sridhar has a Ph.D. from the University of Iowa, U.S.A.

Other participants included:

Sarthak Gupta, Convenor, The Law and Technology Society, National Law School of India
University, Bangalore.
Aradhya Sethia, Editor, Indian Journal of Law and Technology, National Law School of India
University, Bangalore.

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9|Page

Session 1
Resource Allocation for Net Neutrality: Via State Regulation or via
Markets?
Speakers: Prof. V. Sridhar, Parminder Jeet Singh, Pranesh Prakash
- What are the pros and cons of net neutrality regulations?
- If OTT business models disrupt the business models of telecom companies, should the State
step in to regulate the OTT business, or should a market environment to incentivise telecom
companies to develop new business models be created?
- How can different kinds of net neutrality regulations affect spectrum policy and vice-versa?
- What is a fair and equitable model in consumer interests for the allocation of limited
bandwidth?: Is it achievable by market mechanisms or should the State intervene?
- In what way can net neutrality regulations affect pricing and quality of services of internet
connections and mobile data?
- What are the implications of regulation/non-regulation of prices of internet connection/OTT
apps for the Indian internet consumer?
- Are net neutrality regulations an impediment to the expansion of internet services?
- What will be the implications of the licensing of OTT apps to bring them under the same
regulations as their brick and mortar counterparts? How can a fair tax and legal regime be
framed for OTTs?
- Can net neutrality be ensured merely by a competitive market?

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Presentation 1, Session 1: Prof. V. Sridhar

Prof. Sridhar: I want to focus on four areas. One is content prohibition, everyone agrees that
this should not be allowed. The next is access tiering. This means prioritisation, which means
providing a fast lane or a slow lane of selective content in lieu of payment by the content or
app provider. The third is vertical integration, or bundling of bandwidth and content. If the
Telecom Service Providers (hereinafter TSPs) bundle Over-the-Top services (hereinafter
OTTs)2, it is vertical integration and they can actually provide priority for their own bundled
app. The fourth is differential pricing. There are different prices for bits depending on
application or content. So Zero Rating comes into this because we are providing a price at
zero for some content.
I want to focus on these four areas out of which content prohibition is beaten to death.
Vertical integration is a question of competition law. For example, if there is going to be
vertical integration, and the TSP gives preference to a bundled app, it is a competition issue
and the Competition Commission of India (hereinafter CCI) should look at it.
I will concentrate on the other two things: access tiering and differential pricing. The other
important things to keep in mind are the excludability and rivalrous of the goods. Excludability
refers to excluding a particular good or service through a mechanism and rivalrous means
that the consumption of one decreases the value of another. Telecom service is excludable
and rivalrous.
Especially in mobile services, the spectrum is constrained and if a heavy tail user uses the
bandwidth much, it will affect another user. It is excludable because you have to get a SIM
subscription and you have to pay. On the other hand, an OTT app is non-excludable and nonrivalrous. Therefore, unfortunately, these two are not independent. The non-excludable and
non-rivalrous OTT is riding over and excludable and rivalrous TSP. That is the context we need
to put it in. The question is whether we can find a middle path.
Let us look at the issues of Access Tiering and Differential Pricing.

The terms OTTs and TSPs are used as per TRAI consultation paper 27 March 2015, available here:
http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf

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In this table, in the row, I have priority of bits and in the column, I have price per bit.
For same price, if one gets the same priority per bit it results in pure net neutrality.
If one gets different priority for different price per bit, it results in a situation of pure non-net
neutrality. We have consensus on these two that pure net neutrality is preferable and pure
non net neutrality is not preferable. On the other hand, the other two grey areas matter quite
a bit. Let us take same priority, different price per bit. An example of this is Zero Rating. I have
the same priority, everybody accesses the bits with the same priority but certain bits cost
nothing. Should we allow this?
Pranesh Prakash: I'd like to propose a modification to the definition of Zero Rating because
in essence, it is the number of bits not being counted against that users internet traffic. There
may be a situation where there is paid or unpaid Zero Rating or when it is Zero Rating to an
extent but not after that. Zero Rating is normally thought of as zero price but this is only one
of the features of Zero Rating and is not a necessary component.
Prof. Sridhar: (i) If the price per bit is zero, a downward sloping demand curve will say that
the demand will shoot up to infinity. That is the problem with Zero Rating. Even it is for certain
bandwidth or time, it may crowd out the network and essential applications may be denied.
We want universal accessibility of certain applications.
(ii) Zero Rating also forms close cartels between the OTTs and TSPs because both of them
have to agree and someone has to take care of the cost of the bit used by the end user.
Obviously, the OTT pays the TSP in order to compensate for the cost. The question is does it
improve consumer surplus? Definitely, it does because we getting it at the price zero and
there therefore the net utility is positive and the consumer surplus is positive. But it is not
sure whether the TSPs profit and we are not very concerned much about that but we have to
consider social welfare which concerns profitability also.

Table 1, from Prof. Sridhars presentation on the occasion

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Q.: Could you explain extreme pricing and how it doesn't apply to say, Wikipedia which has
crowded out many other encyclopedia?
Prof. Sridhar: If the price is zero, we expect the demand to be very high and the particular
OTT providing that application at zero price is going to have the largest market share. If I
create an app which is absolutely exquisite, much better in term of Quality of Experience,
then there is no one preventing me from putting it on the app store and pricing. Therefore,
there can be a demand and a long tail which can actually look at my app and I might even
survive. I'm not prohibiting or reducing the Quality of Experience. I just might set a price for
it. If there are people who can pay the price then there will be a demand for it.
Q.: Why do you say extreme pricing is inherently bad when most of the web economy
including apps on Play Store are all zero-priced?
Prof. Sridhar: I am not talking about the price of the app but of the bandwidth consumed.
There is a difference. Zero Rating has two components: One is the price I pay for the
bandwidth, the second is the price of the app and the content. I agree that apps provide free
service. That is okay but what is being compensated is the access cost by the OTT. That is
wrong and is a cartel. For example, I have a plan in which I pay 300 rupees for 1 GB. Every
byte I consume is accounted for in that plan. But Zero Rating is not counted which means that
I am not paying for the bits consumed.
So what could be the solution? One possible solution is the fixing of floor and ceiling price per
bit. The regulator could possibly fix floor and ceiling price per bit. It may be possible to charge
one paise per bit. It could just be okay to say that it is not zero and the demand can lead to
infinity. What I am saying here is that if the price is zero, I would call it extreme zero. The price
cannot be zero or infinity and must be something in between.
Prof. Sridhar: The other grey area is price per bit is the same but the priority is different. This
means that I am providing a fast lane for certain applications or content but the price is the
same so it is, to some extent, net neutral.
Kiran Jonnalagadda: There is no such thing as a fast lane. There is only a slow lane.
Prof. Sridhar: As you are must know, OTTs and TSPs work together to improve Quality of
Experience. For example, Airtel or any other TSP, if it thinks that Google has to be experienced
much better then it can provide caches, or using Deep Packet Inspections (hereinafter DPI)
and provide it to you. It is possible to provide improved Quality of Experience for certain
applications or services. Technology exists today and most of the TSPs in the US and Europe
have been doing this by bringing the cache closer to the access point. In ipv6 additionally,
there is a field called Quality of Service. I can look at that and prioritise that. If the packet is
behind, I can push it to the front by looking at the deep packet.
Q.: Because Quality of Service is indicated in the ipv4 and ipv6 headers, do we need DPI to
look at them?
Prof. Sridhar: Yes to go deeper: In IPv4, you can only look only at the IP address. In IPv6, you
can differentiate between applications: I can prioritise google over yahoo. In the application
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layer, I am using the same HTTP and IP address. For example, I am hosting two applications,
same IP address but different ports. I can even differentiate between two websites.
Kiran Jonnalagadda: But that's not possible if you use HTTPS. DPI as a technology is dead.
Prof. Sridhar: If I am using HTTPS, I cannot do an application level inspection but can do IP
and transport layer inspections.
Kiran Jonnalagadda: But that is not DPI. IP level prioritisation is something routers do already
at the port level.
Prof. Sridhar: But caching can always be done near the access provision. I can bring the service
close.
Kiran Jonnalagadda: In this case, you are bringing a machine closer and this is part of network
infrastructure, which is equivalent to peering. What is a fast lane then really?
Prof. Sridhar: Yes, but we are differentiating in terms of the priority. I am not talking about
speed. ISPs can put up cache. OTTs also can. OTTs and ISPs can have a cartel where the OTT
can bring the cache closer to the TSP access point.
Comment: You cannot cut up the Google cache for example according to Google policy. When
Airtel promises Zero Rating, it cannot give only a part of Google, it has to give the entire thing
for free or nothing.
Prof. Sridhar: The important thing is that in the case of Differential Access the demand for
OTT is based on Quality of Experience and not on price whereas in the case of Zero Rating, it
is based on price. It means for the same price I am getting a better Quality of Experience, is
the consumer better off? I would say there is consumer surplus.
Comment: Since the question of fast lane etc. has come up in this discussion about Quality of
Experience, it needs to be clear that even without actually creating a fast lane, Quality of
Experience can be improved by bringing the cache closer to access point etc.
Prof. Sridhar: For Differential Access to work, there has to be close coordination between OTT
and TSP in most cases. But TSPs/ISPs have only limited bandwidth and so non-exciting (which
do not provide a good Quality of Experience) but essential apps may be crowded out.
The regulatory intervention could be to prescribe a minimum broadband speed for all bits.
We have a National Telecom Policy 2012 which says that 512 kbps is recognised as broadband.
If this is prescribed for all bits irrespective of application or service, irrespective of whether a
bit is traveling in a fast or slow lane, then this problem to some extent, can be resolved. For
example, if I subscribe internet for 2mbps, and I am using a media content heavy application
coming at a very fast rate, say, 1.5 or 2 mbps. So I am left with only 500kbps in my pipe. Then
suppose I use another app consuming 250 kbps, then there is only 250 kbps left for the
essential app like an e-governance app to travel on, but it might be crowded out at such low
speeds.

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Q.: How it is technologically possible to set a minimum speed for all bits? Setting a floor in
such a manner seems technically problematic because you cannot predict how many apps
require how much bandwidth etc. How would it work?: Would it work by application by
differentiating on the basis of application, like communications services?
Prof. Sridhar: I am not very clear on how the technical aspects of it would work really. It is
quite possible that this 512 kbps should be reserved for communication services.
Rahul Sharma: Isn't the end point making these decisions, what speed should be allocated to
different applications? Say you have a connection and browse Youtube which takes up 1.5
mbps and you are also downloading torrents, then the Youtube video is automatically
prioritised.
Pranesh Prakash: Not only the end point but also the middle layer is also making these
decisions: The ISP for example is also making these kind of tradeoffs, the Cisco routers are
also making these kinds of decisions.
Prof. Sridhar: It may be possible to have an app which will make this differentiation. It may
not be from the TSP point of view but can be an app built into your smartphone.
Q.: It seems that there are two ways/directions in which this can happen. One is at the
consumer end and that's what I understand to be the present dialogue. The other is at the
TSP end. The third is what you mentioned, which is an app built by a TSP. How desirable is
this in the first place?
Prof. Sridhar: If I am interested in a particular app which gives me a Quality of Experience, I
should be able to pick that.
Comment: Consumer directed modification of priority is what is desirable.
Prof. Sridhar: We should consider consumers' level of cognitive abilities.
Comment: Services have been prioritised on the basis of the wisdom of the dumb masses.
Using this regulated model, you are basically saying that even there are essential government
services, other services will have a minimum access priority and the flipside, certain of these
services will have a minimum bandwidth.
Prof. Sridhar: We have a National Telecommunications Policy 2012 and a roadmap. As of now
it is 512kbps, it is supposed to reach 8 mbps by 2020.
Q.: Isnt price is more important than speed for consumers?
Pranesh Prakash: There is some research on this. If the speed of Netflix decreases, many more
people stop using Netflix, whereas people stick on with google for much longer before they
stop using it. The demand function for different applications is different.
Prof. Sridhar: The user is always paying for it. If he consumes more than 1 GB, then the fair
usage policy can be put into place as a heavy user affects average and medium users.
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Therefore, your price will increase/speed will drop and the demand function would take over.
That will be platform agnostic.
Q. What about non-agnostic applications?
Prof. Sridhar: What I want to point out is that unlike in any other country, the apps can always
multi-home. We still think that 6-7 operators will be in India and not a 3-4 situation as in other
countries. The spectrum price in India is 3 dollars per megaHz per population which is among
the highest in the world. In India, spectrum is a constraint in terms of availability. World
average is 0.9-1 dollars per megaHz. We have to put it in context.
The proposal to have a minimum speed of 512kbps came to me only by look at the cable
market. Free-to-Air has a mandate for local cable operators to provide 20 channels at a
particular cost. The same thing can be replicated in the telecom sector. Additionally, the
different between Quality of Experience with prioritisation and without prioritisation tends
to converge if you have access speed. Having prioritisation is a criminal act in situations where
you have high speeds. In India, where we have pathetic access speeds, the difference of
Quality of Experience is not much.
Pranesh Prakash: One example of this is South Africa. Until 2010, they only had one
international cable landing which meant that there were lots of stringent prices caps and
there was a lot of throttling happening. Now, imagine the same kinds of rules that net
neutrality activists are proposing in the US (no data caps, no throttling) were introduced in
South Africa at the time, what would have been the result? There are organisations that
believe that data caps is a Net Neutrality violation. If this had been introduced in South Africa,
the price of internet would have increased and only the rich would have been able to access
the internet and not the poor. These kinds of things, having tiered models of pricing with
lower bandwidth allows for greater affordability of the internet. Data caps etc. may be a good
thing. In 2010, more international bandwidth was added in South Africa and what ended up
happening was that a lot of these practises disappeared. No one does BitTorrent throttling
anymore.
Prof. Sridhar: There is no problem in terms of international bandwidth coming to India. It's
only the access that is the problem because it is constrained by the spectrum which is very
less for the operators.
Pranesh Prakash: Even in the US, they have much more available international bandwidth. I
am trying to say whether the problem should be regulated heavily and whether the same
solutions and principles apply globally. In the US, in 2008, if we said no data caps, no
throttling, I wouldn't have had an issue. In South Africa, in 2007, I would have had an issue.
Q.: Can we agree that data caps are not being considered a Net Neutrality issue by its very
definition?
Pranesh Prakash: I am using this as an example to prove a point about how the principles
might be universal but implementation of those principles has to take into fact whether it is
wireless or not wireless, how much bandwidth is available, how much competition there is in

16 | P a g e

the eyeball ISP side. The more the competition, the less the need for heavy handed regulation.
I am saying that when we are talking about regulation, we must pay attention to these facts.

Presentation 2, Session 1: Parminder Jeet Singh

Parminder Jeet Singh: I am trying to figure the principles within which we are holding this
debate. This debate is moving at many levels. It is difficult to understand what it is so I will
start from what it is not. I come from an NGO which works for the interests of marginalised
people. Net Neutrality is not a technical principle, there is nothing technologically sacrosanct
about Net Neutrality. Nothing would happen to the IP-based communication network if Net
Neutrality is violated and in that technical sense, it has been violated many times. The internet
is in our view foremost a social construct and we are talking about social and political issues.
Second, I find a lot of articles defending Net Neutrality from a fair price/market
principle/viewpoint, which is inadequate to me. It is not so much about a free/open market
principle. The issue is not a matter of more market choices. Most telcos today will agree to
provide net neutral internet as one of the choice. However, they ask for Zero Rating and mixed
services to be allowed as well, as contributing to greater choice. If you look from a choice and
free market viewpoint, they indeed give you a larger bouquet of services. Most telcos are
ready to come around to that kind of an arrangement. This has emerged in the current
discussions.
Q.: Just factually, what you're suggesting is very interesting, mandating not that the entire
network be neutral but that one channel be entirely neutral, without pay prioritisation or Zero
Rating etc. Do you know of any instances in the rest of the world where this has been
mandated?
Parminder Jeet Singh: No, this has not been mandated anywhere. There is either a regulation
under which a telco must be net neutral or there is no law. The existing Indian situation is the
latter. Telcos can do all these things and there is no regulatory check. Even if ISPs dont give
you a full bouquet, there is a lot of competition and there would be even more if you have
open access etc, and others will provide a net neutral channel.
What I am coming to is that it is not a matter of providing a series of free choices. It has to be
a deliberate state regulatory interventionist approach. It is funny to both profess free market
thinking but also call for a regulatory principle/approach to Net Neutrality.
The main basis of this intervention is important to make clear. It is not enough to regulate
Internet infrastructure as just any other market. The internet denotes the new centre or
paradigm of what I call a communicative sphere. This sphere always has had been of a very
high social interest. It is not like white good or like soap/toothpaste. We have always
considered the communicative sphere to have very high social value and therefore it is seen
to require a very different kind of state policy and interventions. Internet is not only a
communication space but also the DNA or the bricks and mortar of many new institutions and
organisations. All emerging systems have a base or are grounded in bytes and digital systems.
Therefore, it is important for a certain neutrality and public interest to be built into the digital
17 | P a g e

systems and the Internet. That's where there is a need for certain neutrality and I think
neutrality is a subsidiary principle of public interest. I approach the Net Neutrality issue on
that basis.
The 'Save the Internet'4 campaign's first sentence is that internet-based services do not need
to be regulated, now or ever. This is a huge issue and I think we are talking of many kinds of
ways in which our common communicative and digital system has to remain neutral or has to
have public interest issue embedded into it. We have issues of vertical integration, algorithm
transparency, social media neutrality, hardware neutrality etc. Although here we are only
dealing with net neutrality. The Facebook CEO says that Net Neutrality and universal access
should be compatible. I don't know why and how is it a trade-off between the two.
Q. But that's the debate happening in India right now: Can Zero Rating coexist with Net
Neutrality in force as a principle?
Parminder Jeet Singh: The debate is whether universal access will be improved if Net
Neutrality is violated. It's like a white man's burden. Transnational corporations have taken
the burden of social service in India. The same companies would not accept Government of
India to mandate open access and use the national optical fibre network and open access
principles on the National Optical Fibre Network (hereinafter NOFN) . We are going to do
consultations on the retailing of NOFN and we are saying that a private sector model is not
sufficient in this regard. If we are talking about universal service, it is very devious to say that
it is done by violating Net Neutrality.
The other point I hear put forward is that telcos are losing investments, and that they should
be able to meet their costs. This is fair enough. When big content providers offload a lot of
content at the peering points, there may be a little lack of fairness in that. My problem is
whether they get a priority lane. Non-settlement peering was done on a principle that both
parties are making money, at their respective customers ends. They would peer on an equal
basis without any settlement because rather than getting into accounting of who would pay
the other person, they can go by what is a rough equality between the parties. This does not
happen when a Content Delivery Network (hereinafter CDN) offloads content. Top-level
peering takes place because both sides bring a huge number of customers.
Q.: Could you please explain the point about CDNs being different because they do peering
and transit?
Parminder Jeet Singh: Free peering takes place between the top-level ISPs because both are
benefitting and it is easier not to settle and get content. When a big content provider offloads
content at that peering point, it is a one-sided offloading of content because that person is
only bringing in content and not taking other people's content. I'm just looking at possibilities
of making sure that TSPs get a fair amount of money for their infrastructural investments and
somebody doesn't just get an unfair carriage. This could be possible to do without prioritising
lanes. My insistence is that priority lanes should not be given. At the consumer point, you can
have data caps and tiered billing and at peering points, there could be a possibility that when

See, http://blog.savetheinternet.in/

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big data providers offloads content they pay up, because that is at a different level than when
peering usually takes place.
Comment: CDNs don't just do peering but also transit. Transit works through payment of
money.
Prof. Sridhar: In the international call settlement between the US and India, BSNL received
billions of dollars as settlement charges because of the asymmetry in the calls. The only we
can break this asymmetry is to introduce competition. It is also proven that competition will
increase settlement rates, however.
Parminder Jeet Singh: I believe that Net Neutrality should not be violated because of some
higher social principles. There is an investment issue that needs to be sorted out. What I am
saying is that if you offload content, you should give transit and should not have settlement.
When it is done on a settlement basis, it is understood that both parties are more or less equal
and it is easier to settle. Whether the content providers who offload at tiering points should
be considered on transit level because they are taking a one-sided advantage is what I am
laying as a possibility. The distortion of the basic communicative platform that the internet is
if of too high a social value for us to allow the distortion. Lastly, I am not against positive
discrimination on the internet which would violate Net Neutrality. For example, if the
government says that maybe 3% of the spectrum should be reserved for community radio
then it is all right. These social principles are important and I see Net Neutrality from this
perspective.

Presentation 3, Session 1: Pranesh Prakash

Pranesh Prakash: I think the first two presentations captured what is at the heart of this
issue. The heart of the issue is commerce, is this settlement thing. It is about who gets paid
how much for data travelling between one point and the other. All the rest of it (consumer
harms, issues of Airtel trying to get them to pay money separately, wanting to regulate etc.)
are symptoms that follow on from this root cause.
Paraminder Jeet Singh: I would like to differ and say that for me, the social principles are
important and at the core of the issue.
Pranesh Prakash: For me, the root cause is the settlement issue. You have to watch this
presentation by Vishal Misra at Columbia.5 It captures a lot of my thinking around this. Have
we had this problem before where we have an infrastructure provider and we have those
who use the infrastructure and we try to figure who gives/takes money? The answer is yes.
Airports, for example. The classical way of looking at this in economic terms is through
the cooperative game. In 1953, the Shapley value was proposed. This is a particular kind of
cooperative game called a Convicts Cooperative Game.6 There will be a stable core and at the
5
6

See, https://www.youtube.com/watch?v=t06cK2pPLOM
See, http://en.wikipedia.org/wiki/Prisoner%27s_dilemma

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centre of this stable core will be a Shapley value.7 The fairest way of distributing surplus
profits/costs, it's a distribution issue.
Q.: Are you equating fair with stable?
Pranesh Prakash: Stable means that everyone has an incentive to stick on, meaning all of
them will stay on. The centre of the stable value is the Shapley value. In essence, they are
being equated (similar to sustainable). I'm not going into the theory of the Shapley value. This
is used with airports. All airports operate on the basis of the Shapley value to see which airline
can use which gate for how long because it is a network. This is not a two sided market. This
site is enormously complicated.
Dave Clark proposed a tripartite division of eyeball ISPs (i.e. people who provided access to
internet to companies and home users). With the internet growing in the 90s this changed
and there was emphasis on content, which led to the classification of content ISPs which
provided the wholesale bandwidth to content providers. Third, there is a transmit ISP
between eyeball and content. How much value any one derives depends fully on how many
more actors are like itself. If there are multiple content ISPs then each content ISP derives far
less value than if there is only one. Traditionally, eyeball ISPs have been far fewer so they have
been able to they have been able to command a lot more of the market, because of lack of
competition and the gatekeeper effect etc. This entire thing assumes perfect competition but
in reality, not all eyeball ISPs are equal and have a much bigger market share and are able to
extract more value out of the system. With the rise of content companies, some content
companies are really big and this messes up the system because there is no symmetry
anymore. In this system, there is no stable core possible anymore.
Comment: This asymmetry is seen in the fact that certain applications are extremely
bandwidth hogging.
Pranesh Prakash: Vishal Misra gives example of the UK where there are no net neutrality
regulations but when ISPs started doing BitTorrent throttling, other ISPs capitalised on this
and did not throttle. People shifted to other ISPs which did not throttle. This would work only
when there is competition, and would not work in the US where switching costs are extremely
high.
In India, thankfully TRAI has been a good regulator. A lot of what it has done plus the intense
competition to reach the bottom of the pyramid the competition in the mobile area has
been really high. This might be different when we do analysis of wired broadband but most
of what I have been thinking about is mobile internet. It is being thought in certain circles that
when there is high competition between eyeballs ISPs, there will be no need for net neutrality
regulations because competition will solve the problem. I disagree.
All situations where we have deals or Airtel Zero/Facebook Zero, we have to apply
competition law analysis. These are network management issues have a fair overlap with
competition law and where it doesn't overlap would be BitTorrent throttling. But we cannot
assume that all of them won't decide to go in for BitTorrent throttling. Which is where what
7

See, http://en.wikipedia.org/wiki/Shapley_value

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Parminder said about a mandated channel of net neutral becomes very interesting. Misra et
al look at something called a public option ISP, either a street run ISP or something of that
sort. There is a separate ISP where there is clear and full neutrality.8
They do this through the Nash equilibrium by design a two stage game with very reasonable
assumptions and look at whether paid prioritisation produces consumer value. Their analysis
is that in a monopolistic situation, the answer is no, because there is a tendency to for the
monopolist to make everything paid so the free internet will disappear. This is in theory, that
hasnt really happened in reality (In cable TV for example, Free-to-Air channels dont crowd
out the rest). In an oligopolistic situation, it creates very different dynamic because one of the
TSPs has the ability to steal customers from each other, based on the assumption of
competition.
By doing this analysis under idealised assumptions, they come to these conclusions: In a
monopoly, the best way is to create a public option ISP, the second best is Net Neutrality
regulation and the least preferable is hands off the internet approach. In an oligopoly, the
best is a hands off approach, the second is a public option and then the least preferable is Net
Neutrality regulations. In a perfect competition market, the Public Option ISP would disappear
but the other two would be relevant.
According to them, the problem is about competition and settlement and who gets how much
value. In the last 5-6 years, apart from traditional transit and peering, there has been a new
beast created called paid peering. Traditional peering was a situation where are two networks
which have kind of an equal value and they would peer, without any exchange of money. In
case of traditional transit, smaller pipes would transit into larger pipes. But now we have a
situation where really large pipes are trying to transit to other really large pipes giving rise to
the new category of paid peering , driven by things like Youtube, Netflix etc. The Shapley
value cant be implemented, because of bilateral agreements. These bilateral agreements are
completely opaque and unregulated.
Q.: Is paid peering against Net Neutrality?
Pranesh Prakash: That goes straight to the point. Verizon actively did not help in fixing the
Netflix problem. I want some regulation on this, in an ideal world. With Comcast, they were
asking for money but it was a very legitimate demand. Investment in the last mile is much
higher than anywhere fair. CDN investment is much less that last mile investment. What
Comcast was asking for was fair. All the other traffic was getting negatively affected because
of Netflix. By transferring directly (direct paid peering), it was quicker for Netflix.
There are three principles. All regulations should be looking at universal affordable access,
effective competition and protection from consumer harm. There is a possible fourth
diversity. This is an ideological call and also depends on the long tail which promotes diversity.
It is not considered in classical ICT regulationit is in essence considered as a part of
competition.

See,
https://www.youtube.com/watch?v=t06cK2pPLOM,
pubs.cs.columbia.edu/citation/paperfile/212/ToN_PublicOption.pdf

and

http://dna-

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In the context of Zero Rating, most of what weve seen is anti-competitive. It is a bigger harm
than Net Neutrality violation and throttling. I think most of Zero Rating is anti-competitive but
not all. You have to look at the market and where the competition exists. An example I use to
explain this is predatory pricing. Look at a steep price drop. Consumers benefit but it cannot
be said whether it is a good thing or not without looking at the marketplace within which it is
happening and whether it is sustainable in the long run? I believe that Wikipedia zero and
Facebook zero can both be anti-competitive, in most cases. We have to examine the system
to see whether it is harmful or not. In the long run, systems/competition will get harmed and
access cannot come at the cost of competition getting harmed. We have to align these three
goals and make sure that access comes in that without competition being harmed. The
example I look at it is the CDN example from 15 years ago when startups were not able to
access CDNs. The correct regulatory response was not to ban CDNs but to encourage
competition in the market. We should not ban Zero Rating unless competition doesn't work.
There are reasons why competition may not work entry barriers, cartelisation etc.
Q. You said that the goal of diversity really lumps in with competition. I see it falling closer to
the universal affordable access part. I want to know how you see the two together? I see
universal affordable access as content not being restricted from a consumer end.
Pranesh Prakash: Looking at the cable market is instructive. You have two sets of things
happening. TRAI recommended in 2010 that minimum Free-to-Air channels be put up and
that at least a set of popular channels must be provided as a minimum and that for the
diversity issue, a minimum of 500 channels must be on offer. One reason is to ensure that
rival political parties do not cut access to channels. Another thing is about diversity as a
separate thing saying 500 channels at minimum must be carried. This actually is not
something that just the operator can do. This is about what is being given to the satellite as
well. They're forcing diversity there.
On the internet, one example where the diversity and the competition principles conflict is in
the case of voluntary Facebook or Whatsapp. Imagine Facebook and Whatsapp have not
entered into any shady deal. Right now, even in the absence of such a deal, most of these
telecom providers have been providing voluntary packs. From a purely
consumer/competition analysis, these are beneficial. You'll opt for a special pack in two
situations. One is where you don't want the rest of the internet, but only want Whatsapp.
Another is when most of your internet usage is Whatsapp and you want to differentiate so
that it is cheaper.
These are purely voluntary and based on what consumers are actually using. If you look at
classical economics, this is beneficial and should surely be allowed and competition does not
get harmed. It is also an issue about diversity because it gets harmed. If we want to include
diversity as a separate goal then one would say that perhaps (and if that goal overrides
competition and benefits) these packs should be disallowed. If one goes by classical ICT theory
then these packs are unbundling and are actually good for the consumers and should be
encouraged except from a perspective of diversity. Innovation for me comes within
competition and is not a separate goal. Diversity might take a hit because the long tail which
the internet provides might be affected.

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Q. What do telcos get out of specialised schemes?

Pranesh Prakash: They aim for a larger market share which they will get.
Q. The TSPs are analysing the most used bandwidth and selecting OTT players to create
schemes for. According to you, is this a violation of Net Neutrality?
Pranesh Prakash: I have not taken a position on what is and what is not Net Neutrality. I know
what an absolutist position.
Q. There is a limited amount of bandwidth so wouldn't the net neutral channel slow down?
Wouldn't people rather pick the non-net neutral channel because it is cheaper and faster?
Pranesh Prakash: If the ISP earns more from a net neutral channel, all of it is riding on the
ability to price discriminate and people essentially wanting it. I see two essential models;
American let the marketplace take care of diversity and let there be a marketplace of ideas,
and French market cant do that and state must intervene because we don't any crowding
out happening. In the long run, I have a feeling that the American model has in fact worked.
Nothing is really being crowded out. If people want that, people will opt for it. The question
is whether people want it and even if they do, should we say that we can't break up the
internet? The analysis will go beyond the Zero Rating of the ISPs. It is not just the ISP that we
want to regulate but Facebook itself. The switching costs are very low with respect to mobile
networks unlike Facebook.
Raman Chima: On what basis do you say that switching costs for ISPs in India are low?
Pranesh Prakash: Looking at contractual and transactional lock-ins, neither of which exists in
India. Interconnection and mandatory carriage both exist in India and the rest of the world.
Ten years ago, Airtel to Airtel phone calls were far cheaper than Airtel to Spice phone calls.
Now, we have situation where those rates are equal and if you want cheaper Airtel to Airtel
phone calls, you have to buy a special pack. The network effect of that is far lower. Number
portability exists, it's not great but still exits. Multi-SIM phones also exist. Switching costs
would approach zero if in a market with n telecom players, every subscriber had a phone
with n SIM slots.
Raman Chima: Why I ask is that the one simple test in broadband policy is to check whether
you can switch on a wired line. Every telecom company would like everyone to move to a
wired line. Many people look at the access and ability to switching with respect to wired lines.
How do you factor that it? I actually think that the competition with respect to wired lines has
reduced.

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Session 2
Net Neutrality, Licensing and Models for Innovation
Speakers: Amlan Mohanty, Swaraj Paul Barooah
- What does net neutrality or lack thereof imply for innovation in internet services?
- What does net neutrality or lack thereof imply for innovation in modes of accessing the
internet/in the telecommunications industry?
- What is the impact of competitive markets on innovation? Is competition enough to ensure
innovative environments?
- How can a prize-based model of innovation work in lieu of regulations for net neutrality?
- What implications can licensing of OTT have for innovation in internet applications?
- What implications can lack of net neutrality have for access to knowledge over internet?

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Presentation 1, Session 2: Amlan Mohanty

Amlan Mohanty: Id like to talk about three things. One is the licensing of OTT services I
think it is bad. Another is modes of accessing the internet. This is important because when
talking about models of innovation, since a lot of companies are content providers, it is
important to trace what has been happening on the internet. The last is access to knowledge.
I haven't made up my mind about this and how you're able to jump from link to link, network
to network. Licensing, zero rating and impact on startup is what I'd like to talk about. On
licensing, I think we have to deal with the question of whether OTT services can be licensed.
The way that telecom licenses are issue already is under the Indian Telegraph Act. It's an
outdated act but grants the government the exclusive privilege to grant licenses. If you look
at the definition, what they are referring to is telegraph, very broad and could cover any
telecom equipment. It is very clear that they have the right to issue licenses for establishing,
working, maintaining telegraphs. I am doubtful about whether they have the right to regulate
services on top of telegraph services. There are many kinds of infrastructure and on top of
this are internet services.
Q.: Not licensing and not regulating are two different things?
Amlan Mohanty: Absolutely. I am simply speaking about the right to license. The current
licensing system comes from the Indian Telegraph Act which gives the government the
exclusive power to operate, establish, work, maintain telegraphs, which it then delegates and
licenses. I dont think that OTT falls under this. The second issue is regulation. If we agree that
the government doesn't have the right to license OTT services, the questions becomes
whether they have the right to regulate it. I think they do have the right to regulate and they
should. What's important to know if that they are already substantially regulated in India. For
example, through the Information Technology Act, there is no distinction between different
intermediaries and it is very broad.
Let's look at the arguments that telcos have made for regulating and making a level playing.
Just looking at the licenses, there are many obligations, for example with respect to Quality
of Service, security and monitoring, user traceability etc. These are regulations which should
also apply OTT service providers. My argument is that we are already regulating
intermediaries with respect to these things. Under the Information Technology Act, there are
several provisions which allow the government to ask for information for investigations etc.
When it comes to Quality of Service, I haven't made up my mind about this. Does there need
to be regulation by the government? What I see is that telcos want a level playing field when
it comes to telephonic services. They are regulated under licenses but there are also OTT
services like Skype which provide VoIP. My argument is that telcos have experience in working
in things like radio signals and telecom networks to be able to develop a better Quality of
Service, so they should have superior services in the market especially when it comes to VoIP.
I dont know why they are asking for a level playing field with OTTs. For the purpose of
innovation, the burden is on the telcos to advance their service.
The third relates to content itself. Being intermediaries and telcos, there are equally regulated
if intermediaries aren't probably regulated more, especially with respect to content removal,
blocking which telcos are made to do under the Information Technology Act. I dont think
there is an argument for unequal playing field.

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Comment: All the things you mentioned are post fact, once the government gets in touch
with you, you have to do certain things whereas for telcos, they have to create the
infrastructure in the first which the others can say that they don't have to do. It's a strange
system where there are many different kinds of licenses, some have to provide encryption
keys and some don't. Even then the only time the government seems to have enforced
decryption was in the Blackberry case9.
Q. Can what happened with Blackberry, that is, not directly regulating Blackberry but
essentially trying to do that through Airtel and others who were offering Blackberry services,
is that a possibility that exists in law and if it is, is it something desirable?
Amlan Mohanty: On law, the way we advise companies is to say they are subscribers under
the license agreement so on the basis of the doctrine of privity of contract, the license
agreement is between the DoT and the ISP. If you violate the license agreement then the
government can't proceed against you. All that can happen is that the ISP can terminate your
services. This brings up the important point about being able to switch ISPs in the wireless
and the wired line market. If it's a possibility for the government to bully ISPs for compliance,
it should be much more convenient to change ISPs.
Q. Given that you are saying that a licensing agreement can't apply to OTTs and a regulation
regime can, there is no ex-ante thing under the Information Technology Act. Ex-ante
regulation may be possible through the licensing route, for example, by mandating Airtel that
they will not carry anything that employs bulk encryption? Is it a possibility to regulate the
OTT through the carrier TSP?
Amlan Mohanty: That's a terrible thing. If you were to enforce something like that, we
wouldn't have some services and it is important to have a diversity of services. This was
apparent in the context of the shutting down of Lavabit, where the government forced the
service provider to hand over private encryption keys of users.10
Q. There was a TRAI Recommendation in 2008 on Value Added Services that they need to be
registered. If you don't have a regulation, it is very difficult for anyone to comply with laws.
Can we propose the registration of OTT services? It is not licensed but only to promote
accountability. Secondly, the Unified License and the Internet Service Registration is still
regulated. The difference between the license fees for different services is huge. We really
should propose that the restriction on telephony should be abolished.
Amlan Mohanty: I think registration is a terrible idea except for specific services that may
raise national security concerns, as identified by the government based on multi-stakeholder
consultations. There is a registration framework called the OSP registration. All application
services are required to be registered. This was brought out in the era of call centres. It's really
broad and if we assume that it applies to OTT services, it would be a disaster. Right from the
compliance obligations, there are many redundant requirements.
Comment: We think of OTT service providers in a certain way. If there is a housewife who is
selling baked goods out of her home decides to set up an online incomers port, which is very

See, http://articles.economictimes.indiatimes.com/2008-05-15/news/27694657_1_encryption-blackberryrim
10
See, http://www.thehindu.com/opinion/op-ed/lavabit-reopens-temporarily/article5241180.ece

26 | P a g e

easy. Registration requirement for OTT services will make running this small business very
difficult for her.
Q.: Can we then say that only communication services should be licensed?
Counter Q.: How do we draw lines regarding what constitute communication services, since
many apps have many multiple uses?
Amlan Mohanty: How do we respond to clients somewhere in the middle, who are
subscribers but on top of telecom networks? For example, if there were a subscriber involved
in call masking. That's barred under the license agreement so telecom service providers
cannot do that. What if I as a person innovate enough to be able to do that without the
knowledge of the TSP, how would you respond to that question? I think the solution is to be
in a Communications Convergence Act. Some of the issues that deal with this would be the
classification of intermediaries.
Rahul Sharma: When you said that OTT players are already regulated to an extent and we
don't need more regulations, under the Information Technology Act, actually it is only the
OTT players who have computer resources that are regulated. Is that not a problem or
discrepancy?
Apar Gupta: The problem you are pointing to is enforcement. How do you internationally
enforce the law? You do it through the Mutual Legal Assistance Treaty (MLAT) which is
inefficient or block the website. That does not mean that they are not regulated.
Raman Chima: They are obligated to respond to government requests on the basis of the
effects doctrine. The Information Technology Act also has extra territorial application, look at
the Banyan Tree case11 where this was clarified. They will send a request under the Criminal
Procedure Code and they will tell company to stop. Otherwise, it will be a conflict of laws
situation. Does law apply? Of course it does.
Pranesh Prakash: This poses for me the conflict in terms of the approach between saying that
there are distinct layers and hence they should be regulated distinctly versus saying that they
are functionally equivalent and one is becoming much more in size and scope. The
traditionally well-regulated thing is becoming smaller and the unregulated thing is becoming
bigger. Some of those regulations should come there. We've accepted the principle of
functional equivalent to an extent by the fact that the Information Technology Act also has
some ideas of telecom regulation. On certain things such as Quality of Service, you can't
impose the same kind of standards because they don't control the network end to end.
Whereas the telecommunication providers do. Do we have analysis on the obligations that
telcos are under and whether any similar regulation exists?

11

See, http://indiankanoon.org/doc/151685239/

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Presentation 2, Session 2: Swaraj Paul Barooah

Swaraj Paul Barooah: The ability to innovate increases with market concentration. Also
increases with market contestability. These two clash when it comes to the internet. When
there is a loose oligarchal structure in place, that scenario should be the highest innovation
market possible. But in this context, I don't think that these are the incentives that have
worked with respect to the internet. It doesn't look like financial incentives have worked on
the internet. What I would propose that to mean is that access and diversity of material
become the incentives here.
Comment: It could also be market share that is an incentive which is not necessarily financial
because of the network effect.
Swaraj Paul Barooah: Diversity and availability would become the most important factors.
Something with substantial diversity seems to have more importance. Looking at it from a
Zero Rating perspective should be anti-competitive but from this perspective it seems like it
encourages competition. I'm not segregating between profit and non-profit motives.
Apar Gupta: Even if you look at fragmentation in an oligopoly, it is very hard to define whether
the layer itself is individually dominant. Any existing telecom player will have 23-24%.
Establishing it to be a dominant player is tough. Aside from this, under competition law you
need to show evidence of cartelisation and this is a high threshold.
Q.: Are you talking about diversity and access with respect to content or telecom?
Swaraj Paul Barooah: I was thinking about content.
Pranesh Prakash: I was proposing in my presentation earlier a test which treated everything
in the same way. It shouldn't be a content based test but based on competition. What Im
saying is that Zero Rating is not necessarily anti-competitive and can exist in a competitive
market place and any decision we take should not be based on content but solely based on
the market. In this market, we can have a separate set of regulations without going under the
Competition Act.
Q.: If diversity a principle then, how should judgments about preserving diversity be made?
Rahul Sharma: Government services are not classified as OTT, according to TRAI.
Comment: In that scenario, the government can classify Facebook as a government service
as many government services are offered through Facebook.
Pranesh Prakash: The Government can force Facebook to come round to its views.
Comment: Facebook has more power. This has happened with the Youtube case in USA.
Pranesh Prakash: The question is what happens if we create an exception for essential
services. Can the government bypass a standard by classifying things that aren't essential
services as essential services? If there is mirroring happening, then only the governmental
28 | P a g e

mirror should be classified as essential not the Facebook mirror. The problem with Facebook
for me is that there is no real mirroring.
Q.: Do you think the dangers are so large for carve-outs to Zero Rating services?
Pranesh Prakash: If Zero Rating can exist in a competitive market place, we should promote
Zero Rating because it allows access.
Paraminder Jeet Singh: This is an issue of positive discrimination. All telecom laws have
emergency services. This is regulated by courts. Zero Rating is a company decision and
positive discrimination is a regulatory issue.
Pranesh Prakash: I agree we should treat them separately. As long as it doesn't kill the market,
Zero Rating should be allowed.
Q.: Who decides this? We are talking about the social interest test. For example, while it
seems natural to provide Wikipedia for free as part of social or public interest, this is less
obvious for something like Facebook. How does one decide?
Pranesh Prakash: I disagree that there is a difference between Facebook and Wikipedia in
this context.
Q.: Do we have any ex ante regulation that we can propose?
Pranesh Prakash: Many people, especially computer side people, agree that ex post is a
better way of regulating because it allows greater scope for innovation and also allows a
regulator to point out any problems. If a problem arises, then fixing that problem need not
be clear, defined regulations. A framework could also be an ex ante thing. The regulator can
decide on individual cases based on the framework. This will allow for innovation in the
market as well as not being over regulated. That's not what we think of as ex ante. It's just a
broader framework.
Q.: What are the implications of Zero Rating on innovation?
Pranesh Prakash: We shouldn't be looking at whether it is helping innovation or harming it.
The answer on the innovation question is no and there is a separate question on diversity. If
we see diversity as an independent value (separate from fair competition etc.) that a regulator
ought to be promoting aside from the three I earlier mentioned, then my analysis of Zero
Rating becomes moot.
Q.: Leaving aside the diversity issue for a bit, if there is a competitive service, which performs
the same function as Wikipedia but Wikipedia is provided for free, how will that OTT service
be able to penetrate the market?
Pranesh Prakash: Look at the effect that Wikipedia has had. Multiple other encylcopedia have
had to shut down after Wikipedia has come up. This is because of the fact that it is faster but
also because it is free. That itself has led to the shutting down of other encyclopedia. If we
think that is okay, then we are against the idea of diversity alone being an argument. The
29 | P a g e

question then becomes whether zero-priced items are good or bad. The answer depends on
the other three: access is benefitted, competition is not harmed. With respect to innovation,
I think it's the same as asking whether Wikipedia is bad for innovation.
Raman Chima: This is linked to the fact that it is not free but it is a private body choosing to
do it for free. I would argue that five or telcos providing Wikipedia for free has an effect on
innovation because it discourages other people in the space.
Pranesh Prakash: In a non-competitive market, there is harm to innovation. In a competitive
market, there is none.

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Session 3
Freedom of Speech v. Media Diversity v. Access to Internet
Speakers: Namita Malhotra, Rahul Sharma, Smarika Kumar, Apar Gupta
- What implications does regulating/not regulating for net neutrality have for freedom of
speech and the right to circulate speech?
- How does right to circulate ones speech come into conflict with right to information, and
how can they be resolved?
- What does presence/absence of net neutrality imply for media diversity?
- What are the tensions between media diversity and access to internet, and in what ways
can they be resolved?
- What does (lack of) net neutrality regulations imply for privacy on the internet?
- How does right to privacy come into conflict with right to circulate speech and how may it
be resolved?
- What does a net neutrality regulation imply for State control of internet content?
- What implications can licensing of OTT have for freedom of speech?
- How should OTT business models like advertising and data mining which impact the scope
of the freedom of speech and expression and privacy on the internet, be governed?

31 | P a g e

Presentation 1, Session 3: Namita Malhotra

Namita Malhotra: There is a lot of coming together of the discourse of censorship and privacy,
which is also a problem we might have to untangle right now. How important/relevant/real
is the threat to privacy? Is it something that consumers should feel particularly concerned
about or is it a hyped up concern that a certain middle class activist audience would want to
be taken seriously for insuring that their bandwidth and service are remaining at the service
they are at right now?
In this background, I would suggest starting with an article written by this queer person who
writes about their experience, where they live life performing masculinity in public spaces,
but in online spaces they perform a feminine identity.12 While these examples may sound
irrelevant to a discussion that is largely about competition and marketplaces and what/how
money is made and how it is exchanged, but perhaps it does help to look at from the
perspective of certain groups of people.
Connected to this question of privacy, one can look at pornography, which in my work I have
tried to understand through parallels with cinema, Bennett Coleman case, and how
controlling infrastructure can be a form of censorship. There are various examples historically:
the Cinematograph Act which was initiated to control theatre spaces and controlling
performances which grew to controlling cinema. The newsprint example is also example of
controlling speech via regulating infrastructure.
One of the questions I was asked to look at was DPI and pornography. This raises the question
of privacy: should you be concerned about privacy as individual person or concerned about
your data being aggregated with other users, should you be concerned it will be used in ways
you do not agree, should it be concern of targeted advertisements? Is it pre-censorship or
even simultaneous censorship? In the Indian context, pre-censorship was only allowed for
cinema and not for books and other kinds of materials.
How do you try to unravel that when privacy and censorship can speak to each other? Do you
want to use privacy when youre actually concerned about censorship and vice versa? The
vagueness in ones approach in using the law can often backfire. The idea that you can use
one law and assume it will benefit you in other ways has always in various ways backfire for
various social movements.
Kiran Jonnalagadda: The web has moved to HTTPS almost universally. The one category
which has probably not adopted HTTPS is pornography. It is curious, and I wonder why. I dont
know why, but I just want to put this question forth.
Raman Chima: Also, Asia is one of the worst regions for the use of HTTPS, and Asia especially
South-east Asia, does not use it widely. From the industry, there is a push to use HTTPS, but
there are regions in the world which are not using it.
Kiran Jonnalagadda: If you look at PornHub, which even puts out stats, lots of data on what
is watched, even they dont use HTTPS.
12

See, http://orinam.net/netneutrality-and-queer-rights/

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Comment: One guess might be that its because the market has not quite driven it there,
because there are not many locked-in users and it is advertisement based.
Raman Chima: Might be third-party ad networks. The reality is that the industry now uses
HTTPS because of a lot of advocacy from consumer networks and groups, which were
concerned about privacy issues from third-party ad networks. It could be that most of their
ad networks are in house. Many of these are part of one large conglomerate, and it might be
the case they have something in house or it could be that there are multiple ad networks,
including third party networks.
Kiran Jonnalagadda: HTTPS also prevents tampering of pages and profiles. Without HTTPS it
was fairly easy to figure out a persons profile by just concluding the network and you could
get a sense of their interests or what theyre doing, so independent of the concerns about
what profile you may have in the back in companies any third party could just snoop on your
traffic.
Q.: What are the disadvantages to a service provider allowing HTTPS on their network?
Kiran Jonnalagadda: (i) The only limitation is you cant do a cache authorisation. Doesnt
prevent the ability to do data analytics etc. (ii) There is one other factor, though it is now not
an issue anymore: HTTPS requires you to have a dedicated IP address to the server. SSL applies
even before you know which website you are trying to access. But this has changed with
something called Server Name Indication, which is a relatively new feature. Well, it has been
around, but since Internet Explorer on Windows XP did not support it, it was held back for
almost 10 years, since dedicating an IP address to a single server is costly. But now that
Internet Explorer is not the dominant browser, and Windows is not the dominant Operating
System, this is not an issue.
Pranesh Prakash: (iii) The one other thing which doesnt work with HTTPS is Deep Packet
Inspection, as Kiran already pointed out in an earlier session.
Rahul Sharma: HTTPS data also takes more time to load on your machine as compared to
others.
Kiran Jonnalagadda: Thats not true anymore. There is so performance penalty whatsoever
with HTTPS.
Rahul Sharma: Well, it is the argument that Indian banks have been giving. If you notice, the
homepages of Indian banks are not HTTPS, only the login page is.
Kiran Jonnalagadda: Yes, that is true. They use HTTP for other reasons as well: The GitHub
attack from China13 for example was largely because of the mistake a lot of people make in
the way they use HTTPS

13

See,
http://www.slate.com/blogs/future_tense/2015/04/06/github_ddos_attack_shows_china_isn_t_content_to_c
ensor_its_own_internet.html

33 | P a g e

Pranesh Prakash: I want to make explicit the link between DPI and Net Neutrality because I
think when we talk about privacy in this space that is the main idea, the main concern,
because there could be a few kinds of things: First, finding and the site youre visiting and
then blocking it. This can happen with or without DPI because that you can find even because
an ISP has to know and an encryption doesnt really help.
Second, DPI works differently in IPv4 and IPv6 I dont know IPv6 well enough so wont
comment, but at least in IPv4, what DPI allows you to do is move beyond the numbering etc.
and go down into the Application Layer, that is you can find out essentially what application
has been creating this traffic. So think about BitTorrent. Initially BitTorrent was blocked by
blocking port numbers. Then they started then different BitTorrent clients started
randomizing the port number so that they couldnt do port number blocking anymore. So
then what they had to start doing was to analyse the content of the traffic to detect whether
it was a BitTorrent client or not. So what kind of traffic, whether it was P2P traffic or not, and
by looking at that they started blocking.
So what did BitTorrent clients do in retaliation? Encryption. Now still there is blocking and
throttling going on. The way it happens is through pattern recognition. So they actually dont
know if it is BitTorrent or not, but if it kind of looks like BitTorrent, then they throttle it. But,
in this the clear there are clear problems at multiple levels: The second option of identifying
whether it is particular application is fraught with danger because you do it without
cooperation of the application feeder, which can lead to a lot of misidentification.
Second, even if that kind of DPI doesnt work, and encryption would prevent that at least in
IPv4 analysis, then any other kind of throttling is very likely to be overreaching, not just
throttling the kind of traffic they want.
And also additionally there are very many legitimate reasons for deploying DPI, not just
against things like BitTorrent but also other situations where you want to accord real-time
applications faster priority, and this kind of stuff, though we think of them as dumb pipes, the
reality is this infrastructure has been deployed throughout the formerly dumb pipes, they no
longer are really dumb, they already are there. And so DPI isnt the only issue because
whether you visit a porn site or not can be detected without DPI, but this becomes a Net
Neutrality concern at that level in terms of blocking, but also in terms of application based
blocking.

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Presentation 2, Session 3: Rahul Sharma

Rahul Sharma: Security and privacy are not always things that come to mind when you hear
of the principles of net neutrality: No throttling, no blocking, prioritization, you wonder how
to fit in security and privacy. But in the whole scheme of things, security and privacy concerns
are definitely present. If you look at the TRAI Consultation Paper Q.614 and Q.715 do focus on
security and privacy of the OTT players.
When you look at the Information Technology Act and say OTT players are regulated, Section
43(a)16 would rule that the organization that collects sensitive personal data and information
(SPDI) must have reasonable security practices and procedures in place to protect SPDI. But
what about the organizations that dont collect sensitive personal information as defined in
the Information Technology Act, and just collect any other category of personal information
what security and privacy requirements are they required to have and what is their liability?
That is one concern.
Second, if you look at the security aspects in the Information Technology Act, it is structured
more from the cybercrime viewpoint- for example, if you try to break in through a website or
hack, it is cybercrime and it is a breach and you need to pay a penalty and may be imprisoned.
But organizational liability to protect cyber assets is not the core focus of the Information
Technology Act. When we think of a privacy law that should be developed, it should not just
talk about protecting just sensitive personal information, but the entire gamut of personal
information, so then maybe we can have a uniformity in the applicability of security
requirements on the application service providers or the OTT players.
Lets say you have a mobile and have 25 applications and all those applications have different
privacy requirements and they collect data that prima facie you would find absurdthinking
why does this application need this information? Nevertheless, individuals sometimes trade
off their privacy to get access to application and services because they want the service and
it is just a matter of convenience or choice for consumers, whether they want their privacy to
uphold in all services and platforms or do they trade off privacy and get the service they really

14

Q.6 How should the security concerns be addressed with regard to OTT players providing communication
services? What security conditions such as maintaining data records, logs etc. need to be mandated for such
OTT players? And, how can compliance with these conditions be ensured if the applications of such OTT players
reside
outside
the
country?
Please
comment
with
justifications.
See,
http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf
15

Q.7 How should the OTT players offering app services ensure security, safety and privacy of the consumer?
How should they ensure protection of consumer interest? Please comment with justifications. See,
http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf
16

43. Penalty and compensation for damage to computer, computer system, etc. -If any person without
permission of the owner or any other person who is incharge of a computer, computer system or computer
network,- (a) accesses or secures access to such computer, computer system or computer network 46 [or
computer resource], he shall be liable to pay damages by way of compensation to the person so affected.

35 | P a g e

want. There is no middle ground. So privacy through the viewpoint of application providers
and OTT players is also a big issue that should also be discussed.
Raman Chima: Did you notice that in the TRAI Consultation Paperand this connects to what
Namita was saying alsothere is very little examination of the privacy practices of telecom
companies, and Im talking more broadly, not specific questions about DPI, but if one was to
change the model of how telcos route traffic, would that involve more intrusion into what is
going on? Do you see compendiums of privacy practices of telcos which are regularly updated
and available. Why I ask is because one of the elements of in terms of good rule of law but
even for Net Neutrality is transparency, and I think a lot of people are curious about what
practices telcos follow because it might build trust or not build trust.
Rahul Sharma: DPI standards is something that ITU adopted in its WCIT meeting17, though its
implementation status is still unknown. One of the few resolutions that most countries
supported, DPI is important from both privacy and security viewpoint Security because you
would be able to identify the viruses and malwares only when you decrypt the traffic and see
what the packets are actually doing on the network. That was the intent for implementing
DPI to improve the resilience of networks and security. But also it has implications of privacy
because one can see the content and it is a violation of privacy if the user has not consented.
Parminder Jeet Singh: Connecting TRAI consultation issue. Rahul ended talking about privacy
practices of internet services. Weve been talking about the telecom peoples privacy
practices, which is very important in any case, but perhaps more relevant to this particular
TRAI consultation is the issue they raised about privacy practices of internet services, and
what happens if there are similar concerns on the telecom side how does regulation deal with
that?
Namita Malhotra: And also on the other hand, you have to look at the laws in terms of
harassment of women and just generally globally the whole like pushing companies to deal
with instances where women are being harassed using technology and they should have a
certain responsibility. So at that level, you are looking at how you can use the infrastructure
of the company to deal with them being able to figure out who is harassing you, so you have
this double edged requirement on your side as well as a user.
Amlan Mohanty: Im interested in this idea of a level playing field between telecoms and OTT
services in the context of privacy. What is the ideal privacy regime that should apply to both
of them? Couple comments on this: Privacy rules apply to body corporates they apply
technically both to OTT and telecom companies. But my experience has been that OTT
providers have had to deal with this more than telecom companies. Im not sure if this is
because the use cases or potential violations are different. Im wondering if the privacy rules
are enough to create a level playing field between both different types of providers, especially
17

See, https://www.techdirt.com/articles/20121203/07493221209/itu-approves-deep-packet-inspectionstandard-behind-closed-doors-ignores-huge-privacy-implications.shtml

36 | P a g e

given that the licenses right now: the Unified License for example18, places an obligation on
telecom companies to collect a lot more information than in the previous regime, for example
to collect IP, data records, IP call data records, location information with precision Im not
sure what the number is19. And then the issues of mobile network big data. The number of
subscribers that telecom companies have is ridiculous, so Im wondering if we need one
unified regime or do we need so split them.
Rahul Sharma: I think Parminder and Amlan were kind of asking the same thing. Is the current
regulatory framework on privacy equally applicable on both telecoms as per the Information
Technology Act? Technically yes. But TRAI guidelines are additional in saying that telecom
operators must ensure privacy of communication and violation of that will lead to penalty or
criminal liability.
Comment: Thats a translation of requirement of the Telegraph Act: The Telegraph act says a
telegraph operator must keep the privacy of communication.
Rahul Sharma: From Information Technology Act perspective, Section 43(a) deals with
privacy, and it only applies to body corporates, and it just talks about SPDI. So information
such as call data records does not fall under the category of SPDI. However, there are other
related provisions for privacy, for example, Section 72A20. Now Section 72A talks about
criminal liability in sharing personal information without consent in breach of lawful contract
for wrongful loss or gain.
Q.: What kinds of data do not fall under SPDI?
Rahul Sharma: Any category of personal information. So if there are records that say they
trade user info without user consenting, it is in violation of the lawful contract. Usually when
a user signs up for any service, organizations may seek their consent for sharing it with
partners and affiliates. It makes it a criminal offense to violate privacy agreements.
Comment: And the same is true for telcos.
Raman Chima: Thats why I thought it was very striking that the TRAI Consultation Paper
didnt look at telco practices at all. Advertising is the one thing that telcos are leading on. They
say it is the next revenue model for them. They say they have very accurate data. Telcos are
leading the way on that as shown by reports. For example, if you are leaving Delhi, you will
18

See chapter 5 of the Unified License Agreement, Operating Conditions, available at

http://www.DoT.gov.in/sites/default/files/Unified%20Licence_0.pdf
19
Someone interrupts to say 10 metres
20
72A. Punishment for disclosure of information in breach of lawful contractSave as otherwise provided in
this Act or any other law for the time being in force, any person including an intermediary who, while providing
services under the terms of lawful contract, has secured access to any material containing personal information
about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful
gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to
any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine
which may extend to five lakh rupees, or with both.

37 | P a g e

get message saying you are leaving internationally. As soon as you cross a threshold you get
the SMS. A microcell in the airport cuts down on bandwidth but allows very accurate
geolocation as soon as you cross a threshold area (such as departures area in airports). Do
you find it interesting that TRAI did not look at this at all, and looked at the issue
comprehensively?
Some of the efforts to get telcos to do voluntarily endorsement net neutrality or practices like
that, which European Parliament and others have regarded as being not very effective, but
they still asked them to look at privacy and security in that practice.

Presentation 3, Session 3: Smarika Kumar

Smarika Kumar: I want to connect some of the topics from the morning, where there was
some talk about diversity and Pranesh mentioned how he sees the Net Neutrality question as
a real question of commerce. I want to connect that question with implications on public
interest and rights through the reading of 1972 Supreme Court decision in Bennett Coleman
regarding the regulation of the number of pages in newspapers. In this case, the government
had come up with a regulation that said that newspapers may consume only this much
amount of newsprint. Even in that quota, they can have only a certain number of maximum
pages, regardless of whether they are big or small newspaper.
Q.: Can you please expand on why was supply of newsprint was an important issue, because
the economics of it is interesting.
Smarika Kumar: Newsprint was a scarce commodity since it was imported. There was an
import policy for newsprint, and so the Newsprint Import Order of 1962 and Newsprint Policy
of 1971. Regulation laid down upper limit on pages that any newspaper could have. It was
challenged by big newspapers, such as Bennett Coleman group, under the argument that it
violates freedom of speech and expression and the Constitution and Article 19(1)(a). Majority
opinion in the judgment held that yes it is a violation of 19(1)(a) because it is violation of the
right of newspapers to circulate their content.
This is interesting I think, to Net Neutrality debate. Because in a way, if we look at what the
issues at stake here are it is really about ease of access of various content on the internet to
various users. So this is what this case was about in the context of newspapers. The argument
given by the Government for regulation is that they are some big newspapers who run a lot
of number of pages. A majority of the pages are used for advertisement, and the use of
advertisements subsidized businesses, allowing them to sell paper at much cheaper rate,
which makes it very lucrative to the consumer. That creates a huge demand for consumers to
buy these newspapers and that is built on a kind of unfair distribution of the newsprint
because ultimately he who has more money can buy more newsprint and can distribute more
newspaper.
Q.: To clarify, there was no subsidy involved in the newspaper?

38 | P a g e

Comment: Actually there was import quota. Indian newsprint is not sourced and there are
very few producers, most of it was imported and that is where import control came. It was
controlled under the Essential Commodities Act.
Smarika Kumar: Right. So what the government argued is that some of the big newspapers
were able to buy more newsprint because they have a very established model of advertising.
They are able to flood the market in a way and they are able to create demand and circulation
which stifles the voices of other newspapers which are smaller and who are not able to afford
that kind of business model built on advertisements. So the majority judgment in this held
that yeah, all of that is fine, but it is about the right of circulation of any newspaper, whether
big or small. So in a way, what it said was that the right to circulation is a right to unlimited
circulation for anyone who can afford to buy it. So, for example, if a newspaper can pay for
having 15 pages and use some of them for advertisements and subsidize it, the court said that
it is okay to do that because that is a right under the freedom to speech and expression. It is
okay to do that because that will enable it to circulate its speech to more and more people.
But there is a dissenting opinion in this judgment which I think becomes really important in
the Net Neutrality question, which is Justice Matthews. He tried to take the arguments of the
Government into account. So here is where he raises issue of public interest and comes at it
form side of the reader of the newspaper, and not just from the side of the newspapers
themselves. So what the majority judgment does is it really considers the right of the
newspaper, the speaker, the creator of the content, to circulate its newspaper. What Justice
Matthew does is look at the right of the public, and of the reader, to get a diversity of
information in to have equal access to a diversity of information which is not possible in a
scenario where a newspaper is able to increase its circulation unlimitedly. So in a way Justice
Matthews dissent limits the right of circulation. It says there is a right of circulation, but he
also says that there is no unlimited right of circulation, especially when we are concerned with
a scarce resource like newsprint.
I want to look at like bandwidth as a scarce resource in the way newsprint is looked at as a
scarce resource and what we see here is a lot of heavy applications are using a larger part of
the bandwidth. So for example video applications and maybe traffic from the dominant
players on the internet like Google or Facebook and all this while bandwidth is a limited
resource in the current context at least. There is a dominant flow of a certain source of traffic
on that limited resource. If you go to the majority judgments pronouncement in Bennett
Coleman, you can argue that thats okay because that is OTTs right to circulation and that is a
right under 19(1)(a).
Interestingly this does not really create a position either for Net Neutrality or against
NeutralityIf what we have right now (no specific regulation for Net Neutrality and no
specific regulation about use of bandwidth by OTTs) is Net Neutrality, then the same thing is
happening which the majority judgment in Bennett Coleman in a way endorsed. That is, you
have certain players are using scarce resources in a more dominant manner. NN in a way is
okay with that. And if you look at absolute anti-Net Neutrality position, it still is that it is okay
for some players to use more dominant part of the bandwidth as long as it is paid for. Both
Net Neutrality and anti-Net Neutrality positions as argued in this country currently are okay
39 | P a g e

with certain dominant players consuming a large part of the bandwidth. What these positions
disagree about is whether large consumptions by dominant players should be made paid (the
question of fast lane etc.).
So if you look at just the majority judgment it is a question of whether the dominant use of
the traffic should be paid for or not. So I think in this background the minority judgment
provides a very interesting third way to look at diversity question and of how India might look
at the Net Neutrality question from citizen kind of perspective or public interest perspective
because Matthew says it is not okay that some people are able to use scarce resources in
more dominant way than others. This is a departure from both the traditional Net Neutrality
and traditional anti-Net Neutrality position. So I think it is interesting transposing this to the
internet, because then he actually looks at it not just from the OTT point of view, but he also
looks at it from the internet user point of view and what kind of allocation of bandwidth
internet user might want for different OTT players. So I just want to point out that this is an
interesting third way to look at the debate.
What also is quite exquisite about this is that Matthew questions the advertising model of
business of the newspapers in the judgment. I also notice this in the TRAI consultation paper
that they also have questions about the business models too.
Q.: The division between commercial and journalistic speech is not so clear in case of
newspapers, whereby commercial speech is presumed to be a part of journalistic speech. How
would this then apply to the internet?
Smarika Kumar: I wont say that newsprint and internet are a perfect analogy, but there is at
least some direction that we can maybe learn from.
Q.: What were you saying about TRAI and commenting on advertising models of OTT? Were
you commenting on models of OTTs or telcos?
Smarika Kumar: Of OTTs. I just wanted to mark out that Justice Mathews approach is
interesting as this way also kind of looks it is not denying that TSP need to better their business
model and need to read it like saying that the newspaper industry must produce more
newsprint if it can. But it is also looking at the problematic aspects of the OTTs or the
newspapers themselves, especially the more dominant newspapers/OTTs.
Q.: I had two questions. The first is with respect to the analogy between newspapers and the
internet. In this judgment one of the very important reasons that this was allowed was the
idea of editorial discretion and the value of editorial discretion, especially with respect to
newspapers under Article 19(1)(a). One of the arguments was that even if we could afford
more paper and advertising to provide more substantive news, at the same time we can
exercise better editorial discretion. How do we apply that kind of a framework to the internet
and does internet discretion makes sense to telcos in the sense of what should pass through
the bandwidth. How does that discretion work and does it have the same value in that case?

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Smarika Kumar: I think its not a case of what should pass or not through the bandwidth but
how fast it should pass when you transpose it to the internet. It is more about if an ISP has a
limited amount of bandwidth it is not as if youre trying to block certain content, but at a
certain point in time a certain source might be able to pass only a certain amounts of bits. I
dont see how that is a form of editorial discretion, can you please explain?
Q.: What you put in the newspaper can be limited by many factors, so the editor has to
exercise discretion. Since there is limited space in the newspaper, he can put only limited
things and definitely has to choose at some point. Similarly in bandwidth they have to put
things because they have limited bandwidth or choose what should exist and not just what
should go faster maybe based on who is paying them. But editorial discretion has its own
value when it comes to journalism newspapers and the free speech question, but does that
apply specifically to a purely commercial model which exists with respect to telcos? Second,
more specifically, if you are drawing a constitutional argument, would any such excess to
material or greater competition be desirable in this case? Should it stand at all if it is a purely
legalistic question within Article 19(2) like this? Can this interest of state of greater
competition in market be justified?
Smarika Kumar: I dont think those regulations are argued under Article 19(2), but under
Article 19(1)(g) exceptions viz. Article 19(6).
Comment: Just to point out, the US companies have used the editorial independence
argument for Net Neutrality controls. Saying telco is an editorial player and they get to choose
what content is travelling through its lines, is an intermediary liability argument to me,
because then they are liable for whats in the pipe.
Q.: Are the media advertorials different? Would that be a violation of media neutrality? Im
not talking about advertisements that are carried in a separate column but advertorials that
are in the context of a newspaper.
Pranesh Prakash: A few points, both in terms of comparison and distinction between current
Net Neutrality debate and this. One is that newspapers arent gatekeepers the same way that
ISPs are since they are more limited in number, so generally the kind of analysis we perform
for common carriage/utility services cant be performed for newspapers. But to argue against
that I would say that in this case newsprint itself is an essential thing to newspapers was taken
to be the essential commodity and similarly with the internet the spectrum as opposed to
wired broadband where the scarcity is far less, spectrum can be said to be similar in that way
to newsprint so there are some points of similarity there as well. Second, from the 14th Annual
Report of the Registrar of Newspapers of 1969, it turns out that newspapers were owned by
7 groups of businessman who controlled more than 80% of the total newspaper circulation in
the metropolitan areas. It was that kind of a context in which this case arose, which one could
liken that in a sense to the current situation with ISPs if need be. They arent too dissimilar
that way. Where a number of ISPs exists, hundreds of ISPs exist in India, but only a smaller

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number are things that customers actually have access to and the difference though is the
switching cost between newspapers is far, far less which is common carriage.
Smarika Kumar: I would liken them to OTTs rather than ISPs because the analogue of ISPs is
the newsprint provider for newsprint production.
Pranesh Prakash: Sure, but the thing Im pointing to is even if we keep the sense of OTTs, the
fact that so few control so much becomes part of the important background in this case and
Justice Mathew essentially is against this one fact it seems to me that so few can control so
much. Whereas the majority judgment, I read as saying essentially, but that is okay; there is
nothing inherently anti-free speech about that. And as long as diversity of viewpoints can exist
within that, that scenario is fine, and balancing that of course with trade etc., that should just
be allowed.
Smarika Kumar: I see Justice Mathew is not just against the idea so few can control so much,
but he is also against the implications of that. It is for the users. And so it becomes not just an
Article 14 argument about that so few can control so much, but also an Article 19(1)(a) for
the users. To my understanding the majority judgment doesnt address this point at all.
Pranesh Prakash: I agree, one doesnt see it as a problem and the other does.
Amlan Mohanty: Im interested in who the future gatekeepers will be, say 10 years from
now. So Im looking at new models of connecting people to the internet and who these people
are. We basically using balloon, drones, microsatellites, etc. to connect people to the internet.
So they are looking into these things and they are already in discussion with the Indian
government to test these things. I want to know who these people are the majority of them
by the way seem to be content providers or rely on users generally for content.
My second point is that it seems likely that these will be walled gardens eventually. These are
not philanthropic activities. In the earnings calls they talk about Facebook, Zuckerberg has
spoken how they intends to make money off of these things. So this ties into how internet.org
and how zero rating might apply in the future. The reason I bring it up in this session is because
I think it might have important implications for privacy. And again, talking about advertising
specifically, I think the link between advertising and privacy is ingrained into how internet
businesses work. I would expect in a walled garden, they will use whatever advertising
platform, like an atlas that Facebook uses to track your every move and Im interested in
thinking about how to regulate this because traditional telecom operators have had some
restrictions on user privacy as in relating to spam for example. These dont apply to an OTT
service provider, so when we think of a level playing field I think these are some important
questions.

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Raman Chima: Most basic providers are not storing your email and other data so as to create
a profile. This is an important thing because when you are marking conversation on this, they
say SMS is dead, the future of data is at stake etc. This is very important. The regulation came
in later and it is important from an economic point of view because it hit one company very
hard and that was Tata because Tata acted as a conduit for other people.
Amlan Mohanty: Obviously, there are some models for controlling spam. But Im wondering
in the future how will we be controlling spam or targeted advertising use of big data or
targeted advertising in a walled garden, and this relates to the question I raised right in the
very beginning youre controlling not only the content but also the pipes. Facebook is
providing access, Google is providing access, but also controlling search.
Pranesh Prakash: On the advertising point, there are multiple systems, whether in airports or
in Bangladesh where you get free internet if you view certain advertising, so you view an
advertisement and you get one half hour free advertising, view more advertising and get more
free internet. In Bangladesh this kind of system already exists. In different airports this system
exists. So all the stuff we were saying about zero rating also applies to this kind of model. It is
very different from Airtel zero model and we need to think about that as well.
Amlan Mohanty: How are they serving these ads? Are the ads user-specific?
Raman Chima: It varies.
Pranesh Prakash: Two things essentially on the bandwidth question. There are 2 kinds of
bandwidth. One paper that goes into this in some amount of depth is Barbara Van Schewick
of Stanford, Toward an Economic Framework for Net Neutrality Regulation21 in which she
points out that people are not really in a capacity (even if switching were easy to actually
determine certain facts about Net Neutrality) to switch on the basis of some content being
throttled. All of that becomes difficult while you kind of raised it to the level of search
neutrality as well, but at least at the level of Net Neutrality that does exist there are papers
and consumers surveys etc. to show that.
Second, it is precisely because of this limitation question that I think what is fixed and what
should be fixed is are the principles underpinning Net Neutrality things like negative
discrimination should never be allowed, and certain guidelines when it comes to network
management, what allows for what can be called justified network management but I dont
think that it is used because international bandwidth the amount available changes, it is not
like newsprint at that time. So we have to every few years reevaluate the question of on the
basis of this are the same kinds of limitations that were applying or how we understand NN
whether it still remains the same keeps changing because these factors such as an
international bandwidth might increase we might reach low transit costs, etc. the way they

21

See, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=812991

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have in the U.S. we have higher degrees of competition. So the application keeps changing
based on these facts. The principles in essence I dont think change.

Presentation 4, Session 3: Apar Gupta

Apar Gupta: Im going to base my discussion on two points: firstly what the TRAI Consultation
Paper states or what are the implications of freedom of speech are and second what is the
case law in courts. Being a litigator, Im much more familiar and have a disposition to case law
and statutes as they exist on the book as opposed to nuanced policy arguments and
theoretical frameworks.
Firstly with respect to the TRAI paper itself, there are certain points where it does seem to
strike at a divergence from the Supreme Court in Shreya Singhal22 it states that people are
discussing things online freely and that is a cause of concern by itself. This is quite clearly
dispensed in that there para 6 of the Shreya Singhal judgment whereby it distinguishes
between discussion, advocacy and incitement, where an incitement to an offense is
considered to be prohibited by the law and even discussion which raises to the point of
advocacy is not something that is prohibited. We can also pass this off to the specific political
climate and the days we live in where any person who states a position contrary to the
government is treated as a five-star activist.
Secondly, going further, I think the judgment is quite important with respect to Article 14 23
argument. The court essentially holds that specific laws may be made specific to the specific
medium, which is the internet, however the restriction that is placed by that law is by that
same standard placed under reasonable restrictions which apply to other media still apply.
You can make a specific internet-based offence, for instance, cyber stalking and that may not
be an offence in real life. But if some person stalks a person online, keeps sending messages
which have sexual innuendos contained within them, and that situation may not arise in real
life. However the restriction and the framing of the restriction and the penalty that follows
has to be as per the constitutional guarantees, so that level of precision as well as safeguard
has to be inbred.
Going a little further, what are the points of concern specifically? They arise not only from a
reading of the law but in the present practical consequences of the application of the law as
to what are the points that the TRAI paper raises. First is data localization. Of course it is in
the countrys best interest if we have the best country that data is localized, but are we in the
best country that has a legal framework which furthers freedom of speech? This brings me to
the point why a lot of speech that was traditionally not considered protected under Article
19(1)(a) standards has become Article 19(1)(a) speech. It is because we have grown up for
some time 5-7 years at least and enjoyed a first amendment protection which existed in the
U.S. Constitution because the platforms were based there. That is why we can talk so openly
about pornography, it is not only due to the medium but also the platforms which were built
22

http://supremecourtofindia.nic.in/FileServer/2015-03-24_1427183283.pdf

23

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in compliance with the First Amendment protection s of the US. Imagine if those platforms
were operating and were built at the very get-go in India, we would have a much more, and I
have instances also, just terms of usage of Reddit and just look at the kind of content that was
there. That is the point of concern: licensing data localization. Do we have a framework by
itself that engenders and protects not only privacy but also freedom of speech? Do we really
want to push towards that goal? Do we really trust our government to that extent? Also what
is the starting point of all of our conversations? If we dont have a comprehensive privacy
framework, do we want to roll out and also further much more access especially when it is
done by a foreign corporation based in the U.S. Is it good for the poor if it is not good for the
rich? At least the rich have a certain level of knowledge as to what theyre signing up to. How
is the notice actually effectuated, these must also be considered.
Finally, I would like to end this by saying what is the conversation that is coming from people
who oppose NN? They phrase it in very technical terms stating this is a network management
practice. Now what is the definition of Network Management Practice? If you ask and look
closely through the interviews, they say we know what people visit, we just want to give it
faster, we just want to create a specific portal for them. And what are the choices of such
majoritarian discourse on websites which are just not visited that much more often? If it starts
loading a little slowly, you stop visiting it itself.
Q.: Shouldnt network discrimination be permitted? It is a private entity, not a public entity
so shouldnt the right to trade and commerce play in?
Apar Gupta: This is what happens in court and this is how the Cricket Association of Bengal
judgment24 is also being read. It is quoted in Shreya Singhal judgment because a convenient
passage by each party was cited before the court. This is how that judgment is being used
given its tremendous breadth. The passage which will be used in this respect and this context
is essentially that spectrum is a public resource. Even subsequent judgments of the court with
respect to natural resource allocations and auctions also underpin this concept, that even if
you go for auctions, it shouldnt only be revenue maximization, it should be in a sense of
welfare by itself of people so rights are inherent in it. The right to discriminate and profit flow
within that. Nobody is saying dont make money, but there is a way which is constitutionally
permissible when you are using a state resource.
Pranesh Prakash: A large part of the discussions to me this especially in this session seem to
point to the differences between spectrum and wired broadband in terms of scarcity and
natural resource and all those other kinds of terms. I myself have the kinds of to some extent
objections that Raman has that shared spectrum makes things more efficient and better.
Scarcity, it is a law, sure, but every 30 months weve had double the number of bits over any
megahertz, and it has been applicable since 1870s. Spectrum technology is improving rapidly.
But spectrum is far more limited though. Broadband is not limited in the same fashion,
theoretically but the reality of the world is that spectrum is limited in two fashions: 1) by

24

See, http://indiankanoon.org/doc/539407/

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international connectivity that a country has at any given point in time which makes a huge
difference in Net Neutrality debate. For example, South Africa, Pacific Islands, etc., the kinds
of Net Neutrality debates weve had would not be possible because there are far greater
limitations there.
2) Even within any country, in terms of laid last mile broadband has been a far greater
challenge than wireless, which is why we see much more uptake of wireless. But the question
of what the future iswired or wireless is still not clear. This is an empirical question, and
also a big debate in US. There is an exchange in Harvard Law Review between Susan Crawford
and Christopher Yoo essentially about this question. Crawford is pro-Net Neutrality regulation
and Yoo very anti-Net Neutrality regulation, and their essential debate in this four pieces
exchanged is about whether future is wired or wireless. The initial position that Raman laid
out that future is wired isnt as clear to me as it is to Raman. Also as for differences between
wired and wireless, wireless is more limited in terms of spectrum, but why dont we see more
wired? Because it is very difficult to lay out, right of way etc. pose serious challenges.
Raman Chima: Unlike the American experience, in India, the discussion is a mix. As a smaller
country, we have neighbors which means things are different, we dont have the Pacific and
Atlantic oceans on both sides and coastlines, which means you have to manage wireless a bit
more carefully, which means that wired line is what people do. This is one thing that Airtel is
very good at. They talk about what they do on wireless and dont talk about what they do
with wired lines, which is where they are actually laying cables themselves or buying cables
and doing offloading. I mention that because a strict understanding that something is scarce
wont happen. I like to ask whether packet loss is happening. What is the cost of sending data?
As lawyers we all very often tended to go to a scarce resource licensing control of the
government, etc. but it is much trickier, and I think the idea of the public interest is more
important in this and that is something that we should generally keep that in mind. It is not a
straightforward understanding of something being scarce. I come back to the idea that with
telcos and others it is about the fact that theyve been given a government license and utility
and essentially a monopoly saying that you can perform communication services of this epic
level and using a ton of other state resources as well. And when you do this we have the
position to be able put some restrictions on what youre doing to ensure fairness, equality,
and non-discrimination.
Apar Gupta: If the spectrum resources are so scarce, wont it eventually drive up costs of
wireless itself thereby making wireline connectivity much cheaper? With respect to how we
framed this entire discussion, what is the obligation with the Unified Access Service License
(UASL), how far has it been performed with wireline improving rural areas which dont have
that level of consumer demand? What is the role of existing state telecom companies cant
they perform this function?
Pranesh Prakash: Prices would go up, which is precisely the problem, e.g. South Africa
example. If you restrict the kind of network management that in a limited bandwidth scenario
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that is allowed, then the way to manage the network is through pricing. If you dont allow
throttling or data caps, then how else would you do it? Through pricing. If that becomes the
sole way, then only the rich would have access. So instead we must allow some small data
caps and the need to allow for that becomes much more in mobile broadband than in wired
broadband. The total amount of bandwidth is less in one situation and much more in another
situation.
Smarika Kumar: When you brought up Shreya Singhal along with the TRAI consultation paper,
it also connected with what Namita was talking about in pre-censorship of films, because in a
way what the TRAI paper seems to be proposing or implying is that we might be able to censor
content by controlling the medium itself. So even before the content reaches you, it is
backtracked. So I was trying to think of whether it means in a way this means having blocking
orders which come after the thing comes to a consumer, is this a kind of pre-censorship in the
internet sphere.
Raman Chima: I think the DoT over several years, but amongst the mid-level bureaucracy has
consistently had this idea that you need not just real-time surveillance but real-time response.
You need to have the ability to block something as it is occurring. Why I mention this is
because it is not unprecedented and documented well, but they have done this occasionally,
and the security establishment is very clearly asking this saying you should be able to respond
real-time, and sometimes they dont say this publicly, and they talked about the immediate
response capabilities of the great firewall.
Rohan George: With respect to pornography being regulated, the main argument by ISPs is
that they dont have networks to get at this. If OTT requirement were in place at TRAI level, it
would make this much easier to enable; the government could do this without as much
complication.
Parminder Jeet Singh: The prime concern for TRAI and DoT is that they have not been able to
get most of the encrypted traffic because we dont have servers located here in India. That is
the primary argument by TRAI and DoT both and that is why they want OTT services to be
registered here, and they are also trying to mandate data localization so they can decrypt
traffic whenever they want.
Apar Gupta: Two quick things: first, you need a comprehensive privacy framework to stop
resistance from foreign companies as well as to build confidence within civil society to
pressure them to act. Secondly, with respect to compliance by itself, Ill send you a chart with
all 4 companies the number of information requests and compliances. Many compliances are
not done because they issue notices without listing material particulars, and it has to cross a
threshold of law. Weve all seen blocking orders and how they are passed, and they do not
contain any reasons. They have a bunch of websites, and dont even state the provision of
law under which they issue. You need to state the law in order for private intermediaries to
comply.

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Session 4
Equality, Common Carriage and the Internet as a Public Utility
Speakers: Raman Chima, Rohan George

In what context has the common carriage principle developed?

Should the common carriage principle be applied to the internet? What can be learned
from the governance experiences of other public utilities?
What implications does the application/non-application of common carriage principle
have for equal treatment/fair competition between services offered on the internet?
What implications does the application/non-application of common carriage principle
have for equal treatment/fair competition between services offering internet
connections?
How does one make sense of zero-rated internet traffic in context of principles of
equality and common carriage?
Is licensing of OTT services necessary to ensure fair competition and protection of
consumer interests? If yes, what kind of licensing regime should this be?

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Presentation 1, Session 4: Raman Chima

Raman Chima: Many questions relate to the idea of common carriage. I wanted to look at the
opening idea and reframe what we are looking at. I just wanted to stress on one thing. The
research questions and the data are critical but we also must keep in mind the
framework within which we are operating. People have thrown out positions at the TRAI
Consultation Paper. It is important to look at what they are saying and not saying. Even though
a lot of firms are in support of net neutrality, they are not fully clear on what they are
supporting and the framework they support.
It is interesting to see in the TRAI paper where they make argument that they dont have legal
powers. This is the first time hes seen an Indian regulator try and do that. It is also a poison
pill. Relative to common carriage the FCC or other regulators never took the position that
were not sure what our legal powers are. As soon as you talk about regulators, it is always
against their powers. In the paper it says we are unsure of the powers on this. They basically
say that they are not sure of their own powers to regulate net neutrality which is what I want
to throw out as a discussion. There is a common law background to common carriers in India,
but we actually have a fairly clear powers given to TRAI and DoT. Yet, we have very clear
telecom powers that have been given to TRAI and DoT to intervene here. In US, Net Neutrality
has come out of the communications acts on common carriers. The powers are explicit in
common carriers and common law jurisprudence. In India, although we have common
carriage at common law, I would argue, it is not as much common carriage as it is ability for
the state to regulate. Remember the origins of the Telegraph Act: the Telegraph Act is aspect
of imperial control, where the British were aware of it as an instrument to maintain imperial
control in 1857. Telegraph Act has always been about the monopolisation of power of the
state, that then they pass down to private entities. This is why we dont have common carrier
models as robust in India, it is never meant to be common carrier system in its basic
underpinnings. There are some fairness requirements. There are considerable powers given
to the government about what they can do nevertheless. The foundation is a bit broader.
Options to protect Net Neutrality under current Indian law you have two broad options:
1) Section 11 of TRAI Act which allows for the TRAI to issue recommendations; 2) Regulation.
It is being heard that TRAI recommendations will not be binding. I argue that Section 11(b) is
immediately binding and we need to keep that in mind as we advocate for a solution when
we frame an actual regulation in India. We should makes sure that we tell legislators that TRAI
should protect Net Neutrality under Section 11. The other more direct power is that the DoT
can issue further license terms under the Unified Access Service License (UASL); it is already
there actually (right to modify the Terms & Conditions and access should not be interfered
with). However, this is tricky as the DoT can always change powers by itself subject to certain
TRAI oversight. That is where it is coming from in the background. Common carriage is an
important principle and we must think of the ideal rule of advocacy or regulatory bent that
incorporates best aspect of common carriage with the existing laws.

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Other legal concerns include Section 79 of the Information Technology Act25 which provides
qualified immunity to any intermediary when they provide access to communications.
Definition of intermediary is so wide because they lobbied for it; industry and everyone else
wanted to be protected especially after the bazee.com case. The requirements of Section 79
mean that you shouldnt modify the transmission of content and you should keep that in mind
when you think of telcos. Section 79 is just an additional legal protection, not a penalty and
has about 10% effectiveness. As a matter of fact, for telcos it is just what TRAI and DoT says
if they say something they will act, and if not they will not.
Section 79(2) is referring to modify the transmission of data. In reality, I don't think it will
affect Net Neutrality. It is an important legal and academic point to keep in mind.
But what do we want to prevent? You dont want this to be TV space where you have carriage
fees, people are creating content, often broadcasters but may not always be, paying for
people to access content, they are not sure when will be blocked, they have seen smaller
market of intermediaries in between who are growing in power, and consumers have seen
reduction of diversity of viewpoints of content and the number of channels are reduced.
25

79. INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES (1) Notwithstanding anything contained in any
law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not
be liable for any third party information, data, or communication link made available or hasted by him.
(2) The provisions of sub-section (1) shall apply if (a) the function of the intermediary is limited to providing
access to a communication system over which information made available by third parties is transmitted or
temporarily stored or hasted; or
(b) the intermediary does not
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes
such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or
othorise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency
that any information, data or communication link residing in or connected to a computer resource controlled by
the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or
disable access to that material on that resource without vitiating the evidence in any manner.
Explanation.For the purposes of this section, the expression third party information means any
information dealt with by an intermediary in his capacity as an intermediary.

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There used to be a channel called Animax in India which couldn't pay carriage fees and shut
down. Keep perspective in mind because TV could happen to internet. Telcos are not evil, just
people are short-sighted and stupid. We need basic rules of the road.
The basic regulatory framework must be made clear to regulator and government in order for
them to be able to protect something. Even this conversation about what is acceptable or not
has provoked a basic rule of the road. The fact that the FCC or regulators under European
parliament had some legal power has caused telcos to be involved in the conversation.
Sometimes there is a Net Neutrality framework that European telcos voluntary put up. Do
you see Indian telcos ever to be in that position? Only if they think there is regulatory
supervision or oversight happening on the backend. We can only get this if we have a basic
framework there. The threat of future regulation that we will regulate other subjects has
caused us to be willing to share more info to build a better regulatory model or offer
commercial business models which will not cause this issue. As long as you have basic
framework you start getting good guidance. You could build this on common law principles,
but that perspective hasnt happened here yet.

Presentation 2, Session 4: Rohan George

Q.: Is there any precedent for common carriage and principles that apply to the public
domain?
Rohan George: If we ask TRAI for a rational basis on which they will rule against net neutrality
provision, what is that basis? We need a legal foundation. Existence of certain fairness
principles is potentially a legal foundation because it carries a lot of common features with
common carriage.
Common carriage implies that a person is exercising a public service which utilizes public
resources then certain limitations and advantages are placed upon them. A common carrier
is given 1) highly limited liability for its actions, 2) reasonable amount of protection from
competition (through regulation thanks to licensing usually), 3) discrimination in the usage of
public resources in some form, 4) this is the only read downside for the common carrier; little
or no choice to discriminate between customers. This foundation was at one point applied to
literally everyone in public occupation, such as innkeeper who couldnt refuse housing to
someone he couldnt say we only serve people of a particular type. Now the conception has
been diluted in the evolution of the common law, but still applies significantly in context of
public transportation carriers, utility carriers like railways, natural gas pipelines, electricity,
etc. When a person has been given the right to use a public resources in order to collect
revenue, he cannot discriminate between people in the use of that resource. Now the issue
is how much the common carriage doctrine applies in India. We have had a lot of production
of statutes relating to common carriage doctrine with the Carriers Act of 1865 which laid
down liabilities for common carriage and limited that liability to certain situations of
negligence, fraud, or gross negligence. That meant that a person was free to carry goods
around as long as he professes to carry them indiscriminately.

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It is not a perfect analogy because you already require people to pay according to the amount
of data they are downloading. In real-time I may be using 100 times more data than you, but
is that something the carrier needs to regulate? Only if they can justify how that is in the
public interest. And the fact that a person can choose the bandwidth line is part of the choice
they make as a consumer. My point is that a distinction can be made if it is across all
subscribers in an agnostic manner. If you can pay for 100 rooms, take it if that is what I have,
if you can pay for 1, take it if that is what I have. Beyond that point, the analogy falls apart
beyond that point because there are significant differences between aspect of common
carrier and this one.
Comment: Were confusing 2 concepts: public accommodation (Innkeeper) and common
carriage. In common carriage one thing that is much more important is network effect and
how much of that you control. In U.S. railroads were private at first then brought into common
carriage, analysis which is evident in antitrust law in U.S. and competition law in EU. Public
accommodation on the other hand has similar ideas but based more on idea of whether there
are alternatives, which also applies to the former situation, but in this case youre in a public
sphere so there is a zoning happening, so if on the other hand if youre running an Inn, if you
allow as a practice some people to stay over the same thing wouldnt happen because youre
in a private zone, but as soon as you enter the public zone as an inn, you couldnt discriminate.
Rohan George: The innkeeper analogy is a very outdated conception to the common carrier
doctrine and it doesnt apply in modern society anymore. Now it is only when someone is
using a public resource at public cost. In those situations, there are 4 principles which apply
to common carriers: limited discrimination against customers or no discrimination, reduced
liability, use of public resources, protection of competition. How do we apply those 4 factors
to TSPs (telecom service providers). The analogy is not imperfect, there are some strong
similarities as we talked about earlier, there are clear limitations on liabilities of TSP which
have been put in place by legislation with very clear objectives such as TSPs are not supposed
to care about what they carry. That goes back to section 79: if they start caring about what
they carry, then what is the result of the liability issue. Assuming no caring, then the next
question is are they using public infrastructure? Yes, spectrum is a limited public
resource. Because they are given right to use it, implies they have to follow certain
fundamental doctrines as far as its application is concerned. Irrespective of whether it's
pipeline or bandwidth, it's a public resource.
Q: Can we call different speeds a different product for under a so-called net neutrality regime,
and are we violating a discrimination principle at all then? How do we define discrimination
in such a case?
Rohan George: So youre asking if someone offers a package available to anyone, why is it
discrimination if one person agrees to purchase it? One distinction between other common
carriers and TSP is there is more than one actor in the scheme, one of which is the subscriber
(user), and TRAI guidelines say you cant discriminate between users, and the other of which
is the content service provider. The content service provider is the person who uses the lines
to reach the user.

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The TSP is able to give this to them because they serve a public need. The common carriage
needs to apply to these people irrespective of whether they pay the telecom provider or not.
Common carrier is traditionally meant not to discriminate between paying customers. But
problem here is that if content service provider is not paying customer but that does not mean
that they are not a user and if they did not exist there would be no use of the telecom service
provider in the first place, so if you distinguish between the kind of users, the quality of the
product/content which is being delivered will plummet. So that is an argument which can be
extended.
Q.: If you take the zero rating to that analogy, were saying the inn has to provide rooms for
people who cant afford as well, or everyone?
Rohan George: The inn analogy is problematic and we shouldnt use it. The thing which we
forget about the inn is that today at least it is a place where a person runs a private business.
Id prefer to think about the railways is better analogy, where public land is acquired. Im
concerned where a person wants to transport things that would make a more efficient train
than is currently being used by the railway may or may not be charged or allowed to be carried
in the first place at all. There may be situations where the carrier may see a good reason not
to allow certain things to be transported over their railway.
People have exploited the absence of the common carrier laws applying to them in the
past. The 1860, Western Union, the only telegraph service provider in the U.S. had a tie-up
with Associated Press, the dominant but not only newswire service. There was a preferential
dispatch and pricing, which is a flavour of zero rating and a certain flavour of preferential
bandwidth speed. Western Union had tie-ups with all the railways, so any information had to
go through them, which was an issue. This priced out existing players and prohibited new
players from entering the market. Associated Press used this in order to influence the
statements of politicians (which had to be transmitted by telegraph). Or another example:
AT&T Bell in 1960s, which had prohibited connecting an AT&T line to anything that was not
an AT&T phone. Decisions by FCC and DC Circuit laid down that any consumer can connect to
AT&T as long as it doesnt harm AT&T line or consumer themselves. This gave rise to the ability
for people to connect things to lines to understand how they transmit data in a different way.
It is the origin point for the fax machine, the modem.
Thus the regulation of the common carrier doctrine is very important in allowing the growth
of the medium itself. It is not just about content now, but also in the future. I think the main
issue Id like to propose is in that context. I feel that sometimes we see things like zero ratings
or other aspects of Net Neutrality conflict in the context of here and now, but do we see it on
a continuum? Policy is always a situation where an interested player tries to push dial to 1,
then it is tougher to get them back to zero, but they try to push it to 2, etc. There is always
start, middle, end game. Zero rating is most innocuous version of Net Neutrality violation that
can be offered, there are far more perverse ways, but people believe in dystopias and there
are a lot of things that can happen along this otherwise innocuous route. The table presented
by Prof. Sridhar earlier today of the different varieties of Net Neutrality or Net Neutrality
violations (depending on what you call Net Neutrality) can slowly lead to network

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discrimination on a continuum showed this26. Unless there is an initial push and legal
justification for why we need common carrier doctrine or something analogous, there is going
to be a situation where there will be a half step taken and a half step beyond that.
Pranesh Prakash: Im saying telecom is a common carrier, and it should be regulated not
because of scarcity, or network effects, but instead Im getting straight to the point, not
getting into spectrum scarcity.
Smarika Kumar: Can you explain what your alternative is if we don't go into scarcity?
Pranesh Prakash: The entire notion of telecom regulation exists precisely because in the area
of telecom because network effects are so high, if you just leave the market to itself, the
network will always tend towards a monopoly. Airtel will charge Airtel to Airtel calls cheaper
and everyone will flock towards Airtel because they have the largest market. So because
network effects are so strong, in the telecom market, so left to own devices without strong
regulation, it tends to monopoly and that is the primary reason that affordable access and
promoting that and consumer protection are the three foundational bases of traditional ICT
regulation. I use common carriage principles when coming to the idea of interconnection, but
for the basis of regulation, I dont use it at all, I just say common carriage is assumed.
Parminder Jeet Singh: I think these propositions are not enough to capture what net
neutrality is or should be. They are important but not adequate, and if someone comes with
bouquet which gives net neutral internet but gives others also, that would meet Praneshs
goals, but not those of others. Competition isnt enough. Competition regulation is different
from common carriage. Competition regulation will be of a different kind and people may be
happy to be regulated as such. There are also media regulatory principles. Internet is media.
It brings in diversity, integration issues, subsidization, ownership and a whole media
regulatory tradition has to be brought in and that tradition needs to be brought in because
internet is media. Internet changes health systems and education systems. Therefore that
kind of regulatory system of essential social goods has to be brought in. And there are multiple
layers to be brought in and therefore is much more complex.
Rohan: George Why the common carriage principle is so important is because competition
law doesnt come into the picture. Youre not allowed to deal with questions of competition
law if youre dealing with a resource given to you by the government. If that analysis comes
into play, you may have a point. If there are pitfalls in that analysis: the government has
particular rights to lay down the rules. Id like to highlight one key decision by the CCI
regarding electricity regulation, i.e. Anila Gupta v. Best.27
Here, the CCI looked at section 42 of the Electricity Act and saw the non-discrimination
principles that said electricity was a common carrier. If it is based on a Supreme Court
determination, if is determined by Supreme Court that electricity distributor is required to
provide Tata with common carriage of electricity over its network, then it will be required to

26
27

Refer to Table 1, footnote 2

See, http://indiankanoon.org/doc/102660644/

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do so and its failure to do so was an abuse of its dominant position. It didnt need to get into
too many other questions.
Pranesh Prakash: I'm proposing the same thing in telecom as well, and saying that there is
no need to go back to the Competition Act but we can bring these fairness principles down
here because the principles are good.
Smarika Kumar: How does the common carriage/fairness principle apply differently to
different industries such as telcom v. electricity because like electricity is a natural monopoly?
These fairness principles are framed keeping in account natural monopolies.
Telecommunications are understood to no longer be a natural monopoly. So how do you see
that?
Rohan George: The railroad could be a natural monopoly, but has extremely high barriers to
entry. For example, in Bombay, you can get Tata to supply electricity. Government has taken
a call to privatize to some extent in certain places. We assume telecom regulation is a natural
monopoly because that is how weve seen them. More importantly we should see the
situation where government allows electricity or radios in a particular manner, it applies
conditions on such allowance. We can draw a reasonable analogy to the situation of telecom
carriers as well when the government allows telecom carriers to use spectrum or lay pipeline
in order to provide their services, then they are expected to conform with certain conditions.
We shouldnt assume they are natural monopolies. There are high barriers to entry. The
amount of money required to be invested just to pay the entry fee, performance guarantee,
and financial guarantee to be a telecom provider or internet service provider is massive.
Smarika Kumar: Im not assuming, Im asking. A lot of economic and policy research in the
late 1990s, importantly by Jean Tirole suggests telecom should not have regulatory
interventions because unlike electricity and railroads, it is more competitive and you can
introduce competition, therefore there should be no fairness regulation by the government
but there should be a price regulation.
Rohan George: That argument is made but just because electricity is oligopoly not monopoly,
and it has a tendency to monopoly, that is the framework in which we operate. The railways
can be a monopoly because there is no interest in more than one line in the same direction.
Smarika Kumar: Do we think of telecom this way just because of Telegraph Act, or is there a
better reason for that?
Raman Chima: There are arguments about communities owning their own fiber. If you're not
interfering with the spectrum and the government just stops licensing it, that's the
challenging area because do you require a fairness and non-discrimination rule there as well?
When you leave a more natural free-flowing thing where people can work together, does it
naturally result in an equilibrium where people are not discriminating against each other or
with an open end to end principle? That requires experimentation. Governments, especially
India have forced it into this oligopolic control. They have made it so only a few companies
can have control. It is not an open market where you can see if something works. It is not just
barriers to entry, but practically impossible as the barriers to making any successful business

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are so high. They have created huge barriers to entry and it is so tough to get telco to work.
In a hypothetical situation, without government licensing and you can provide network on
your won, perhaps you dont need state regulated Net Neutrality principle, but in order to
test it out and see, it might be that people push others out and youd have to figure that out.
Net Neutrality has been talked of as an endearing concept. But would it apply in practise? You
have to test ideas out and see.
Q.: Did telegraph act apply to content ISPs? Did these providers need to get an ISP license or
a UL? By content ISPs, I mean an ISP which is not directly facing the subscribers but is a
separate ISP which has only companies, an enterprise ISP essentially.
Raman Chima: You can either be an OSP or just a UL holder and you're required to license in
both cases. This is crazy because smaller businesses are expected to match up to giants like
Airtel and Vodafone.
Q.: My question is whether those who connect to the internet and to the larger internet and
not a VPN provider, need to get a license.
Amlan Mohanty: They probably have an Other Service Provider (hereinafter OSP) registration
with DoT.
Raman Chima: The licensed entity can either be co-owned or there is supervision by the
licensed entity and that is checked and audited sometimes. If anyone runs a CDN, do they
need to get a license? No, if they are working through a license provider.
Amlan Mohanty: That is position DoT has taken informally and in letters. There was a
situation where information was being terminated in India over an international baseline,
whether you needed a licensee in India to terminate that content. They have imposed heavy
fines and the Central Bureau of Investigation (CBI) has been involved. The point is If you are
involved establishing, maintaining, or operating a telegraph you have to take a license; if you
dont you can be penalized under the Telegraph Act.
Q.: So if youre content ISP, you need a license in India?
Raman Chima: Either license or work through a licensed entity. You must terminate through
a licensed entity. If you bypass licensed entity to access end users in Indiathat is the point
at which DOT says youre breaking the law. The Production network (prod network) may come
through someone directly; technically in that process data has been terminated from
international location to an Indian and DOT would say youre breaking the law. It's a rare case
but can happen to people who do hardcore IP or app development.
Parminder Jeet Singh: How do you get international access without going through the ISPs?
Do you have to go through national gateways?
Raman Chima: People romanticise national gateways. It is a large enterprise holding which is
mostly owned by a bit of Tata, BSNL and Airtel now but you also have submarine landing
stations as well as cables which connect the submarine landings. You don't usually go through
international gateways because they mostly are close to clearing points and they themselves
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peer through telco networks. There are cases where you don't go through the international
gateway.
Parminder Jeet Singh: At some point, you would land into the ISP network through a VPN or
something but ultimately, you would need to go through an ISP license. Then you need to
have an end-to-end connection which is void of ISP connection.
Raman Chima: Even through CDN and other things like that, (and this is a counter to the
telecom company argument) a large amount of bandwidth is not given to anyone. If you are
a telecom company in Africa, you don't need to buy international bandwidth. At most you buy
international bandwidth if you are in Kenya to a neighbouring state where there is an
international transit node. You don't have to peer a transit from central to north Africa.
Someone else is bringing that to you because they have invested in their own production
network.

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Index

Differential Access, 15
diversity of services, 22, 23, 24, 27, 29-32, 3941, 43, 51, 55
encryption, 27, 35

access tiering, 12

eyeball ISPs, 18, 21

advertising

Facebook, 19, 21, 23, 24, 29, 30, 40, 43, 44

OTT v. TSP, 41, 42, 43, 44

fast lane, 12, 14, 15, 41

targeted advertising, 33, 34, 38, 44

freedom of expression, 5, 6, 32, 39, 45, 46

Anila Gupta v. Best, 55

gatekeeping, 21, 42, 43

Bennett Coleman case, 33, 39, 40

HTTPS, 15, 33, 34

BitTorrent throttling, 17, 21, 35

Indian Telegraph Act 1885, 26, 38, 50, 57

Blackberry, 27

Information Technology Act, 2000, 26, 27, 28,

cable TV markets, 17, 22, 51

36, 38, 51

caching, 14, 15, 34

innovation, 25, 26, 29, 30, 31

cartelisation, 14, 15

intermediary liability, 26, 28, 42, 48, 51

censorship, 17, 21, 23, 33, 35, 36, 48

international bandwidth, 17, 44, 58

pre-censorship, 33, 48

ipv4, 14, 35

Cinematograph Act, 1952, 33

ipv6, 14

Comcast, 22

Jean Tirole, 56

common carriage, 42, 50-56

jurisdiction for OTT services, 28, 46

telecom v. electricity, 56

last mile infrastructure, 22, 47

telecom v. railways, 52, 54, 56

Lavabit, 27

Communications Convergence Act, 28

legal enforcement for OTT services, 28

community broadband, 56

licensing

competition, 12, 17, 18, 20, 21-25, 29-31, 33,

42, 45, 49, 52-56

OTT services, 26
OTT v. TSP, 27

Competition Act, 2000, 29, 56

Mathew, KK Justice, 41, 43

Competition Commission of India, 12, 55

Misra, Vishal, 20-22

Content Delivery Network, 19, 20, 22, 23, 57,

monopolies, 22, 47, 55

58

natural monopolies, 56

Crawford, Susan, 47

Mutual Legal Assistance Treaty, 28

Cricket Association of Bengal, 46

National Optical Fibre Network, 19

Deep Packet Inspection, 14, 15, 33, 35, 37

National Telecommunications Policy 2012, 16

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Netflix, 16, 22

ex ante, 30

network management, 21, 44, 46, 47

fairness principles, 47, 52, 56

newsprint markets, 33, 39, 40, 41, 42, 43, 44

of OTTs, 26, 27

oligopolies, 22, 29, 56

OTT v. TSP, 27, 28

Other Service Providers, 27, 57

positive discrimination, 20, 30

paid peering, 22

post facto, 27

peering, 15, 19, 20, 22

scarcity

PornHub, 33

of spectrum, 12, 17, 42, 47

pornography, 33, 45, 48

of wired v. wireless resources, 42, 46, 47

priority differentiation, 12, 13, 14, 15, 16, 17,

18, 19, 22, 35
privacy

Shapley value, 20, 21, 22

Shreya Singhal, 45, 46, 48
spectrum pricing, 17, 46

female and queer identities, 33, 37

switching cost, 43

OTT v. TSP obligations, 37, 38

Unified Access Service License, 47, 50

SPDI, 36, 38

Unified License, 27, 38

privity of contract, 27

Value Added Services, 27

public interest, 18, 19, 30, 39, 40, 41, 46, 47, 53

Van Schewick, Barbara, 44

public option ISP, 18, 22

vertical integration, 12, 19

Quality of Service, 14, 15, 16, 17, 26, 28

VoIP, 16, 26, 28

registration

walled gardens, 43

of OSPs, 57

Wikipedia, 14, 23, 30, 31

registration of OTT services, 27

Yoo Christopher, 47

regulation

zero rating, 12, 13, 14, 15, 18, 19, 23, 24, 26,

classical ICT regulation, 22, 23

29, 30, 43, 44, 54

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