Dated: May 8, [email protected]. Dear Sir,

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1 By To, Dr. Rahul Khullar, Chairman, Telecom Regulatory Authority of India Mahanagar Doorsanchar Bhawan, Jawahar Lal Nehru Marg, (Old Minto Road ) New Delhi Dated: May 8, [email protected] Dear Sir, Re: Counter Comments on the Consultation Paper on Internet Services and Applications by SaveTheInternet.in Kindly find below counter comments on behalf of the SaveTheInternet.in in which I am volunteer. The comments are made in my personal capacity being a lawyer who has been closely engaged with the formation of policy and regulation in the technology and internet sector. You are requested to consider them alongwith the responses to each of the 20 questions on Savetheinternet.in which have been used as a draft by over 1 million individual users in India. 1. The SaveTheInternet.in Coalition is a group of over 50 volunteers from across India, concerned about safeguarding an open Internet and net neutrality; these include concerned individuals from different walks of life: journalists, engineers, artists, web developers, policy experts, entrepreneurs and lawyers from across India. Over a million everyday Internet users, web developers, and other affected citizens have used the resources made available on savetheinternet.in to provide their comments to TRAI as part of the ongoing Apar Gupta, Advocate & Legal Counsel E 215 Third Floor, East of Kailash, New Delhi E [email protected] T F

2 public consultation. By sheer numbers, this is an unprecedented level of public participation in any regulatory consultation in India s history. 2. In addition, everyday Internet users, hundreds of business leaders, artists and film personalities, political leaders, entrepreneurs and technologists have joined the discourse on the need to prevent Internet licensing and ensure rules to protect network neutrality. Such a cross section of society has rarely found reason to unite on complex issues of telecommunications and Internet regulation. As volunteers and affected persons in this important issue, we wish to note that every person today to some degree is invested in the effort to protect network neutrality. 3. By way of these brief counter-comments, we wish to support the opinions and data have been so far submitted in many lakhs of comments to TRAI so far asking for the following principles to be carefully adhered to: No licensing of Internet content and communication apps and sites Legitimate and transparent network management without paid prioritisation to ensure stability of the network. A legal framework to protect Net Neutrality in India, to: o o Prevent predatory practices from telecom operators and Internet companies via paid discrimination between services, which restricts consumer choice in the long run; Address zero rating, which creates hurdles for new enterprises, reducing innovation & tech advancements.

3 4. We join in supporting many of the comments which have expressed grave concerns with TRAI s March 2015 consultation paper, particularly with respect to: Misplaced arguments calling for additional regulations (nearly a new license permit raj ) on Internet applications and services; and The absence of any network neutrality oversight in India on telecom operators. This presents an existential threat to the way the Internet is accessed in India, by failing to provide for a system to protect the public interest. 5. The Internet in India is already regulated by many laws; much has already been publicly spoken about the comprehensive provisions of the Information Technology Act - and calls from policymakers and legal experts for its reform in order to stop over-regulating the innovation and creativity of Indians online. Other sector specific laws overseen by the RBI and IRDA - such as regulations in the online payments, banking industry, and insurance - already exist. Despite this clear intent by Parliament and our Government as a whole, TRAI s current paper has called for regressive measures as licensing Internet sites and apps. Such a proposal which would kill all innovation and the rapid growth of India s technology sector - destroying the future of tens of thousands of entrepreneurs and hardworking young IT professionals along with throttling consumer choice. We therefore oppose any measure calling for the licensing of the Internet. 6. The second prong many of the comments filed towards the TRAI consultation revolve around network neutrality. Net neutrality requires that the Internet be

4 maintained as an open platform, on which network providers treat all content, applications and services equally, without discrimination. This principle to preserve the free and open character of the Internet has been recognised by several fellow democracies - including Brazil, the United States, Mexico, a number of South American countries, and many others - along with support and policy development discussions in the European Parliament, Korea, and Singapore. 7. We also strongly emphasize the points included in lakhs of comments which have noted that protecting net neutrality is a critical step in helping ensure the future of an open Internet, and the boundless innovation and access to information that it makes possible. As TRAI itself noted in 2006 in its consultation paper on reviewing Internet services: The Internet has operated according to this neutrality principle since its inception. Indeed, it is this neutrality that has allowed many companies (application service providers, content providers etc.) to launch, grow, and innovate. Fundamentally, net neutrality is about equal access to the Internet The issue of net neutrality in the long term can threaten popularity of Public Internet based Internet telephony and similar other applications as all the intermediate Internet providers may start asking commercial agreements in absence of which they may refuse to carry the content and provide desired quality of service.

5 8. The Government of India and TRAI need to urgently commit to a policy which outlines how net neutrality will be legally safeguarded. Some telecom companies operating in our country are increasingly engaging in commercial and technical practices which violate network neutrality - to the detriment of consumer interest, free competition and innovation between Internet businesses. In particular, we support the many comments from Indian technical experts, indigenous startups, and consumers which have emphasised that attention needs to be paid to the recent practice of zero rating some select services - where access to a specific website or online application is given for free as the discretion of the telecom operator. Several countries have also chosen to carefully oversee and regulate this practice of zero rating services - or have given only case-by-case approvals to ensure that they do not skew incentives and create entry barriers for young entrepreneurs. They also affect user behaviour destroying the free and open basis on which the Internet functions. 9. It is also surprising for us that telecom companies have shown little respect or adopted a policy of forbearance during this period of consultation organised by the TRAI by rolling out and announcing such services. Zero rated plans, in various forms, continue to be offered by most telecom operators in the country. We believe that that this is unfortunate since it appears to be with a view towards consolidating violations of network neutrality as a norm. It is crucial that the Government of India and TRAI urgently enforce policy of forbearance on such practices while the present consultation is progressing.

6 We also join in supporting many of the comments which have requested TRAI to follow an open and nationally accessible process in any further discussions that take place as part of this consultation. This includes ensuring that open house discussions are organised in locations across India and accessible to the many stakeholders affected by this important issue. We also submit that any policy measures or proposed regulatory recommendations flowing from this consultation should be made available in draft form so that the general public can provide their comments and expert inputs can be made available to TRAI and the Government - ensuring publicly informed and data driven policymaking in the spirit of the nation s Digital India mission. I further look to place these views and engage in open house discussions as and when they are conducted by the TRAI. Best Regards, Apar Gupta [email protected]