Today, in India, OTT Apps are a much-maligned class of useful products. One cannot, however, imagine life today without the power of the ‘OTT’ apps constantly assisting us in every aspect of our everyday life — whether for making payments, shopping online, video interactions with colleagues as well as socialising with friends and family, medical consultations, etc.
Everybody realises that, these days, broadband is almost as essential as food, water and shelter. It is also true that internet connectivity is of little use without the powerful engine of apps driving its usage. In fact, it would not at all be an exaggeration to state that many of us might not have survived the pandemic if it had not been for the availability of OTT apps.
There are claims being made by incumbent telco (Telecom Service Provider or TSP) lobby that OTT apps need to be regulated like telecom because many OTTs deliver services which are alleged by telcos to be the same as what they offer. It is therefore demanded that the principle of ‘same service, same rules’ be applied to ensure a level playing field. This is a most unreasonable demand. It is akin to demanding that, since a bullock cart, a motor car an aeroplane all provide movement or transportation, they should all be subject to the same traffic rules!
They cite Article 14 ot the Constitution to bolster their claim. But Article 14 guarantees equal treatment to only those who are equally situated. (Government of Andhra Pradesh vs Maharshi Publishers Pvt Ltd., AIR 2003 SC 296….).
There is adequate case law that establishes that “unequals are not only permitted to be treated unequally but also they have to be so treated mandatorily.. It is also indicated that equal treatment to unequals is nothing but inequality.”
Legal experts say another consequence of the right to equality is the element of reasonableness. It would be improper and unacceptable to make unreasonable demands for equality by using untenable comparisons like between OTTs and telecom.
Are our OTTs and telecoms placed in similar circumstances? A simple examination shows that telecom networks and OTT applications operate in completely different layers (network layer and application layer respectively). Importantly, TSP licences also confer several exclusive rights that OTT players do not enjoy.
These include: (i) the right to acquire spectrum, (ii) right to obtain numbering resources, (iii) right to interconnect with the PSTN, and (iv) right of way to set up infrastructure. OTTs enjoy none of these rights. OTTs enjoy no exclusive right to deploy their applications either. TSPs can, and often do, provide their own OTT application/s. On the other hand, an OTT application provider would need a licence to deploy a TSP Network.
OTTs often offer diverse functionalities that do not easily fall into straitjacketed categories.
Apps like WhatsApp, Hike, Messenger and Google Hangouts, for example, provide rich messaging features not available through SMS, are not substitutable with telco offerings and they also have a broader economic impact. It would, in fact, be more appropriate and meaningful to refer to these products as ‘Rich Interactive Applications’ or RIAs.
A study by WIK Consulting estimated that, for the year 2017 , the consumer surplus for India provided by RIAs,i.e. OTTs, a substantial ₹6.3 lakh-crore, at the then dollar value! WIK also found that each 10 per cent increase in usage of RIAs leads to an average increase of $1 billion additional global GDP daily!
In view of the above, OTT services are rich applications provided to end users which drive usage of the internet. They neither operate a network, nor lease network capacity from a network operator for the provision of their services. TRAI defined in 2015 itself that “OTT provider is a service provider which offers Information and Communication Technology services, but neither operates the network nor leases network capacity from a network operation.”
In fact, OTTs can neither place a call without the support of the TSPs, nor complete a call without the core and transport network provided by the TSPs. The workings of OTT services can be distinguished from the definition of telegraph as provided in the Telegraph Act and hence the latter does not apply to OTTs.
We welcome appropriate regulation but note that OTTs are already adequately regulated and governed by the Information Technology Act, 2000, besides other Acts like e.g. the Competition Act. Increased regulation would undoubtedly stifle both innovation and the rich consumer benefits. After exhaustive public consultations over five years, TRAI recommended to DoT in September 2020 that “There is no case for regulating OTT Communications.”
The writer is Hon.Fellow, IET(London) & President, Broadband India Forum. Views expressed are personal