As per recent news reports the Department of Telecommunications (“DoT”), in a report on net neutrality, has recommended against the regulation of over-the-top (“OTT”) services. Nevertheless, the DoT’s report favours ‘regulatory oversight’ on the OTT service providers offering local voice calls.

This report has been prepared by an internal committee formed by the DoT, comprising of 6 members, headed by Mr. A K Bhargava, Member (Technology). The report is presently not available in the public domain, however, the Minister for Communications and Information Technology has stated that the report of the DoT committee will be made public soon.

According to the media, the said report states “the committee favours regulatory oversight on the communication service providers. The committee believes that for (other) OTT application services (including those offering messaging and international voice calls), there is no case for prescribing regulatory oversight similar to communication services.” It has also been stated by the committee in the report that the internet telephony providers ‘bypass the existing licensing and regulatory regime’.

It is understood from certain news reports that the committee has observed that applications (such as Viber and WhatsApp) offering local calling services over the internet do not have to follow regulations as the telecom service providers do and this creates a non-level playing field between the said two providers of similar services. Further, as per certain media reports, the committee has also said that internet telephony providers (such as Viber, Skype, WhatsApp and Hike) should be regulated, through exercise of licensing powers available under Section 4 of the Indian Telegraph Act, 1885 and be brought under a licensing regime similar to the telecom operators (such as Airtel, Vodafone or Idea Cellular). Thus, the ambit of the ‘regulatory oversight’ remains to be seen.

The government is expected to take a decision relating to net neutrality after public consultation (our previous post on the consultation process can be accessed here) and recommendations of the Telecom Regulatory Authority of India (“TRAI”). The replies to the issues raised by the TRAI regarding net neutrality had been submitted and can be viewed here.

In a notable move, the committee has suggested and called for a new legislation to replace the Indian Telegraph Act, 1885 incorporating principles regarding net neutrality. As an interim measure, until the legislation is worked out the report proposes that the net neutrality principles could be enforced through addition of suitable conditions in the telecom licenses.

The said committee of the DoT recommended disallowing the controversial zero rating plans of the telecom operators and proposed a ban on throttling, traffic management policies and prioritisation, by any means, of the internet traffic.

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Original author: Arjun Uppal