It has taken the Telecom Regulatory Authority of India (TRAI) nearly three years to cross its first milestone in curbing unwanted messages on mobile phones. But it is far from the ‘finish’ line.

On August 22, it issued the 13th amendment to its telecom commercial communications customer preference regulations (TCCCPR) of December 2010. In this, it made an attempt to put the responsibility for these invasive messages on advertisers (owners of the products and services being promoted).

This, however, should have been the approach in December 2010 itself. Instead, the regulation imposed a slew of stringent requirements on every stakeholder in the chain — the mobile service providers, the telemarketers and the customers — but did not hold the advertiser accountable.

Intended to come into effect from January 1, 2011, the deadline was so impractical that the regulation finally became effective only on September 27, 2011.

Obviously absurd

Once the regulations began to be implemented, the absurdities became apparent. Multiple amendments were made to accommodate market realities, genuine users and complexities created by the regulation.

For example, a separate category called ‘transactional’ messages had to be created to accommodate genuine business and social messages. These were different from promotional, commercial and telemarketing messages — for example, messages that banks send to customers, or schools to parents, or registered institutions (such as charitable trusts, clubs) to members.

However, this definition was not comprehensive enough, and, therefore, more exclusions from regulatory requirements had to be made — such as messages from machines to people (updates from ATMs to customers or balance updates to prepaid mobile customers). They added to the burden of implementation and caused confusion.

At one stage, the regulation prohibited organisations (such as a charitable trust) from sending transactional messages directly — they were forced to use the services of a ‘registered telemarketer’. This was neither enforceable nor easily monitored. Organisations protested — and prevailed.

Then there was a caveat that transactional messages could not contain anything promotional. It was open to interpretation as to what promotional meant. For example, if a bank sent confirmation of an ATM transaction, could it at the end of the message tell the customer about a new card or feature in the ATM, or would that amount to promoting its services? Such instances multiplied and more layers of confusion got added.

Meanwhile, the menace continued. While registered telemarketers were now regulated, the incentive for unregistered messengers and advertisers remained high, as neither fell within the ambit of this regulation.

So to curb misuse by unregistered entities, the regulation introduced extreme restrictions that penalised innocent and ordinary mobile users.

For example, it prescribed that not more than 100 SMSes per day could be sent by a single user. This was absurd because hundreds of millions of ordinary users were not the source of the problem. After howls of protest the regulation increased this limit to 200 per day.

Then in November 2012, a financial burden was imposed on all users through the 54th amendment to its Telecom Tariff Order of 1999. It fixed a tariff of 50 paise on all messages beyond the first 100 SMSes. Millions of customers who had paid an upfront fee to avail lower rates for bulk SMS were now at a disadvantage.

In effect, to make things unattractive for unscrupulous, unregistered telemarketers and advertisers, ordinary subscribers were being made to pay a price. The regulation has been challenged on this aspect in the Telecom Disputes Settlement and Arbitration Tribunal (TDSAT) and the Delhi High Court. Both these courts saw merit in these appeals.

The regulation was rapped for infringing on the fundamental rights of citizens — freedom of speech and expression — enshrined in Article 19 (1) (a) of the Constitution.

TDSAT set aside the regulation on July 17, 2012, because it held that messages from ordinary users to each other were not the source of the menace. The Delhi High Court too rejected the blanket limit imposed on all customers. TRAI has challenged these orders in the Supreme Court.

Who is responsible?

All this confusion could have been avoided. The regulation itself has a laudable objective: to tackle the invasion of privacy from unwanted messages. But the question from the start was: Who should be held responsible for the promotional messages?

The 13th amendment attempts to answer this: it is the advertiser. And it prescribes disconnecting the telecom services of the advertiser for this breach. But two notices have to be sent before such action can be taken. This leaves ample room for those with multiple connections to send messages soliciting business on different numbers (and circumventing the two notices rule).

It is time we learnt from similar legislations in other parts of the world which have been effective. Unsolicited messages on mobile phones, being a blatant invasion of individual privacy, should be instantly cognisable and actionable. No second chances.

The US model for the ‘do not call’ registry provides a good example. Implemented in 2004, it does not permit telemarketers to call or message mobile phones at all.

This may be impractical for India where there are barely 30 million fixed telephone lines. Advertisers and telemarketers will protest that this leaves them with a very low addressable base. But if mobile phones are allowed to be messaged, protecting the privacy of numbers in the do not disturb (DND) list is non-negotiable.

It is the responsibility of the advertiser — be it a real estate broker, a bank, a restaurant or an industrial house — to ensure that the messaging lists are scrubbed and DND lists respected. It is the advertiser’s responsibility as much as the telemarketer’s or the telecom service provider’s. Violating this should attract serious financial disincentives, apart from disconnection.

The Indian telemarketing industry is still in its infancy and can adapt to early discipline. Advertisers should learn to respect people’s privacy. And TRAI should withdraw both the restriction on number of messages that users can send to each other in a day and the tariff floor it has imposed on such users.

(The author has been associated with the Indian telecom sector since 1996. The views are personal.)

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