This is the third research note from Smarika Kumar, one of the short-term social media research fellows at The Sarai Programme.

In previous posts, I have focused on judicial discussions and reasoning, particularly upon how the authority of law over a certain vision of the internet is sought to be established through the process of making analogies. In the present post I examine the area of policymaking for the internet to trace the processes through which different visions of internet as a technology are manifested. In this regard, I look particularly at policy discussions around regulatory frameworks for Voice over Internet Protocol (VoIP) services in India.

VoIP, more commonly referred to as Internet Telephony had been allowed to a limited extent by the National Telecom Policy of 1999, for communication (a) between personal computers, or (b) between a personal computer and a Public Switched Telephone Network (PSTN), or (c) between a personal computer and a Public Land Mobile Network (PMLN), or (d) between devices connected to ISP node with static IP addresses.[1]

However in August 2014, at a seminar organised by Telecom Regulatory Authority of India (TRAI) certain representatives from the Indian telecom industry made out a need to revise this regulatory framework over VoIP services on account of such services competing directly with the services offered by the telecom industry, but subject to different regulatory treatments. In opposition to this, another view of mainly web application services and civil society representatives broadly held that since traditional telephony and VoIP services operate on different layers of the internet, the differential regulatory treatment or differential access or pricing concerning them is justified. Following this, when the Telecom operator Airtel tried to issue differential prices for VoIP services over its network in December 2014, there was a public uproar. Subsequently in April 2015, the TRAI released a Consultation Paper on the Regulation of Over-the-Top (OTT) services. OTT services refer mainly to web application services which ride on top of telecom networks to provide a myriad of data services to consumers. OTT services were used to refer to both internet mobile apps as well as VoIP services. As this snowballed into an important public debate in the country, the Department of Telecommunications (DoT) set up a panel on the issue of net neutrality, which touched upon the concerns of the regulation of VoIP services. This panel publicly released a report in July 2015, which was dated May 2015.

Both the Consultation Paper issued by TRAI, the responses to it and the report of the Panel of the DoT were vast and dealt with a range of interrelated themes having implications for the functioning of OTT services as a whole. The present post will focus on only one category among these, viz. the deliberations over the regulatory framework for VoIP services.

From Analogies to Classification: “Are VoIP services like TSP services?” to “Can VoIP services be classified in the same category as TSP services?”

One of the central issues which is a common question for both the TRAI Consultation Paper and the DoT Panel Report is whether VoIP OTTs should be subject to the same regulatory framework as the telecom service providers (TSPs)? The Consultation Paper poses as one of its questions:
“Q2. Should the OTT players offering communication services (voice, messaging and video call services) through applications (resident either in the country or outside) be brought under the licensing regime? Please comment with justifications.” [2]

Currently, the limited VoIP OTT services offered are subject to only ex-post regulation under the Information Technology Act, 2000, whereas TSPs are regulated through licensing conditions issued by the central Government under the Indian Telegraph Act, 1885.

The notable point is that in order to provide a context to this issue, the Paper initiated a comparative analysis of VoIP OTT services and TSP services. Chapter 3 of the Consultation Paper comprises of tabular comparisons between OTT and TSP services on the account of “regulatory imbalances.” [3] It may seem unremarkable that a comparative method is employed to resolve the question of whether VoIP OTT services and TSP services should be placed under the same regulatory regime. But I would argue that there is more to this comparative process than is immediately apparent.

A process of comparison is essentially a process of drawing analogies. In the previous post, I have tried to trace how the Supreme Court relied on analogies (and the lack of them) to make its pronouncement in the Shreya Singhal judgment. In the TRAI Consultation Paper, I would argue, this is taken a step further: The process of drawing analogies is used to pose the question to be determined. This is a question of classification. The underlying reasoning of drawing analogies poses: Are VoIP OTTs and TSPs alike? This is further built upon to frame Q2.: whether VoIP OTT services should be licensed, like TSP services are? Another way to frame this question is: Can VoIP OTT services be classified in the same category as TSP services?

The process of analogies thus gives way to the more formal question of classification. This question of classification impinges on a number of outcomes: All things in the same classified category are to be treated the same, and all things classified differently need not be treated the same. Which is why a question of treatment of VoIP OTT services in law (i.e. whether they should be licensed or not) begs the question of whether VoIP OTT services and TSP services can be classified together?

Imagining Classifications: Identity from Difference

An answer, or more precisely, a “right” answer to the question of classification is hardly as natural as it seems. In his 1942 essay “The Analytical Language of John Wilkins”, Jorge Luis Borges refers to an ancient Chinese encyclopaedia which embodies a classification according to which all animals can be classified into the following categories: (a)belonging to Emperor, (b)embalmed, (c)tame, (d)sucking pigs, (e)sirens, (f)fabulous, (g)stray dogs, (h)included in the present classification, (i)frenzied, (j)innumerable, (k)drawn with a very fine camelhair brush, (l)et cetera, (m)having just broken the water pitcher, (n)that from a long way off look like flies.

To many of us as to John Wilkins, in response to whose classification proposal the above method of classification is proposed by Borges, it appears absolutely absurd to classify anything in the manner of the said Chinese encyclopaedia. But the very fact that such an “absurd” classification can be imagined and be found in an encyclopaedia points to the idea that there is very little which is given, or obvious about a manner of classification, which is considered to be the “right” classification. It might not appear relevant to us, but who is to say that what might appear a relevant way of classification to us will necessarily appear relevant to others?

Law and legal policymaking is besotted with a similar problem: the problem of how to frame a “right” basis for classification? This problem is in fact two problems: First, what are the possible bases for classification, and second, which of these bases is the right basis to apply for the problem at hand?

Michel Foucault in his writings has discussed the changing nature of classification methods to modern times at some length. He writes, “From the seventeenth century, there can no longer be any signs except in the analysis of representations according to identity and differences,” that is to say, the world is understood through similarities and differences which analogies throw up. Further, “…all designation must be accomplished by means of a certain relation to all other possible designations. To know what properly appertains to one individual is to have before one the classification—or the possibility of classifying—all others.” [4] Modern methods of classification thus hinge on differences of an artefact when compared to others, similar differences merit the same classification. But what is important is that such classification, as opposed to the classification proposed by the Chinese encyclopaedia, results a relational or comparative understanding of the artefact in terms of the differences or similarities it makes visible in itself with respect to other artefacts.

The question then is what differences can be observed between VoIP OTT services and TSP services? Because in modern classification, differences define identities. The identity of VoIP OTT services would be the same as TSP services a certain basis of classification lends to the observation of no differences between them. And like Foucault says, since the 17th century, the identity of an artefact has increasingly given meaning to the artefact. One’s understanding of what the artefact is, is based on its identity (Foucault: 1966). This means that if different differences are observed between VoIP OTT services and TSP services, the understanding of what each of these technologies is, stands to be transformed.

Two Identities of VoIP OTT services: Observing Two Bases of Difference

Different differences are in fact, observed in the nature of VoIP OTTs in relation to TSP services. The DoT Panel Report mentions, “Depending upon the legal framework, different countries view VoIP either as voice or as data and accordingly attempt to regulate it.” [5] This treatment of VoIP as either voice or data points to two different bases for classification, and therefore two distinct understandings or identities of VoIP. In legal and policy discussions concerning regulation of VoIP in India, both these bases of classification find voice.

(i) Identity upon function
Consider this statement from the TRAI Consultation Paper:
“It is becoming increasingly difficult for consumers to know if there is an economic difference in connecting various networks via a land phone, cell phone, or a computer. In fact, young users find it difficult to distinguish among these three networks; from their perspective, all that matters is connectivity. They visualize these not as a layered and interconnected series of discreet networks, but as an organic whole.” [6]

If one asks why exactly consumers are unable to distinguish between services offered via phones or computers as per this statement, the answer is simple: Consumers derive the same kind of use from one or the other. So for example, VoIP used via a service like Skype over a TSP mobile data network, might for example, be no different for a consumer from an actual call placed over the TSP mobile telecommunications network, precisely because for the consumer it serves the same function.

And on the rationale that they serve the same function, a number of submissions to the TRAI Consultation Paper argue that VoIP OTTs should be classified together with TSPs. [7] This is evident when VoIP and TSP services are dubbed together as “same service”, the call being of “Same Services, Same Rules.” [8] The submission of the Cellular Operators Association of India (COAI) states in this regard, “While we welcome the entry of OTT players and believe that they play an important role and offer many new services; however, it is pertinent to note that some of the services that are offered by the OTT players such as messaging/instant messaging and VOIP telephony are perfect substitutes of the services that can be offered by the telcos.” [9] This is echoed in the DoT Panel Report, “With improvement in quality of service and related technological advancements, increasingly VoIP is viewed as functionally equivalent to conventional voice communication services.” [10]

This direction of thought seeks to find differences between VoIP and TSP services by interrogating their respective functions. The function of both is long-distance voice communication. Therefore when it finds none, it classifies them under the same category, and demands same regulatory treatment for them. The proposed rationale or basis for classification thus becomes: the function of the technology, or the use to which it is most commonly understood to be put. Consequently, the DoT Panel Report recommends the bringing domestic VoIP services under the same regulatory regime as TSP services.

The proposal of function as the basis for classification has implications not just for the regulatory regimes to which VoIP will be subjected. It has implications for the very meaning and identity of VoIP, wherefore it will become increasingly defined by the function it serves, as opposed to other observable characteristics which the VoIP may possess. The identity of VoIP in this argument is thus established on the function which it serves.

(ii) Identity upon means
A second basis of classification of VoIP services may be found in the means of delivery of the service. In response to the TRAI Consultation Paper, a number of public submissions also pointed out that VoIP and TSP services were made operational by two very different technical processes, and therefore could not be classified together, or subjected to the same regulatory regime. Accordingly it is stated, “VoIP and PSTN voice, and IP based messaging and SMS are not the same type communication…PSTN voice is not integrated into any (OTT) services, and neither is it an integral part because VoIP is a part of data. (sic)” [11] Another submission remarks, “Similarity of communication services depends not only on the underlying function served, but also on the technical and architectural frameworks over which said services function.” [12]

This last remark presents a direct challenge to a rationale of classification of VoIP which focuses on function, and looks to bases of differences beyond function. All such observations find differences, and therefore a separate identity for VoIP services when making comparisons with TSPs. The identity of VoIP in this proposed method of classification then becomes the means of the delivery of content and the nature of technical frameworks on which it functions.

Shifting identities of the Internet

These two different rationales for classification of VoIP in this manner observe or fail to observe differences between VoIP and TSP services. This implies that they create or fail to create a separate identity for VoIP services in relation to TSPs. The creation of this separate identity impinges on whether different regulations should apply to VoIP services or not.

But they also go beyond—these two different rationales of classification establish two very distinct identities or visions for the internet itself. It is interesting that the TRAI Consultation Paper implies that function-oriented consumers tend to see VoIP and TSP services as an “organic whole.” [13] Means-oriented classification however, perceives the internet as different technical and architectural layers: the Application Layer on which VoIP services operate, supposedly being very different from the Network Layer of TSP provide the physical infrastructure for VoIP operation. [14]

Borne out of two different bases of classification, these are two very different understandings of internet as a technology. They are almost contradictory visions: Whereas one sees internet as an “organic whole,” the other as a sum of layers, each of which are to be treated differently. But as discussed in this post, these visions could have only emerged through the arduous problem of classification. And once these different modes of classification have been identified, law begs the question: Which vision should it favour? In the next post, I shall reflect on this dilemma of lawmaking.

Notes

[1] Para 8.6, page 46, DoT Committee Report on Net Neutrality, May 2015, available at: http://dot.gov.in/reports-statistics/report-committee-net-neutrality-0
[2] See page 113, TRAI Consultation Paper on Regulatory Framework for Over the Top Services (27 March 2015), available at http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf
[3] See tables 3.1 and 3.2 on pages 43, 45, 46, TRAI Consultation Paper on Regulatory Framework for Over the Top Services (27 March 2015), available at http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf
[4] Michel Foucault, The Order of Things: An Archaeology of the Human Sciences, page 144
[5] Para 8.5, page 45, DoT Committee Report on Net Neutrality, May 2015, available at: http://dot.gov.in/reports-statistics/report-committee-net-neutrality-0
[6] See page 5, TRAI Consultation Paper on Regulatory Framework for Over the Top Services (27 March 2015), available at http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf
[7] See Comments to TRAI Consultation Paper on Regulatory Framework for Over the Top Services by ASSOCHAM, COAI, NASSCOM, available at http://trai.gov.in/Comments/Comments-List002.pdf
[8] See page 3 of Comments to TRAI Consultation Paper on Regulatory Framework for Over the Top Services by COAI, available at http://trai.gov.in/Comments/Service-Providers-Association/COAI.pdf
[9] See page 4 of Comments to TRAI Consultation Paper on Regulatory Framework for Over the Top Services by COAI, available at http://trai.gov.in/Comments/Service-Providers-Association/COAI.pdf
[10] Para 8.8, page 47, DoT Committee Report on Net Neutrality, May 2015, available at: http://dot.gov.in/reports-statistics/report-committee-net-neutrality-0
[11] See Counter Comments to TRAI Consultation Paper on Regulatory Framework for Over the Top Services by Medianama, available at: http://www.trai.gov.in/Comments/cc/MediaNama.pdf
[12] See Counter Comments to TRAI Consultation Paper on Regulatory Framework for Over the Top Services by SFLC.in, available at: http://www.trai.gov.in/Comments/cc/SFLC.IN.pdf
[13] See page 5, TRAI Consultation Paper on Regulatory Framework for Over the Top Services (27 March 2015), available at: http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/OTT-CP-27032015.pdf
[14] See Counter Comments to TRAI Consultation Paper on Regulatory Framework for Over the Top Services by SFLC.in by Alternative Law Forum, SFLC.in, available at: http://trai.gov.in/WriteReadData/ConsultationPaper/Document/201505110908380696878CComments20150508.pdf