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By Sagar Godbole

Airtel’s recent announcement that it may levy an additional charge for using VoIP services used over its 2G or 3G data service was met with significant outrage across India. Most consumers believed that it was unfair for a telecom company to charge an additional fee apart from the data charges it already collects, just because a consumer used a VoIP based app. Net neutrality advocates were up in arms as Airtel’s plans meant differential pricing for data service based on the app used. Two days ago, Airtel finally rolled back its controversial decision upon TRAI’s promise of consultation paper on issues relating to services offered applications providing messaging and calling services using an Over-The-Top (OTT) mechanism which utilizes the data service provided by the telecom company.

However, it should be noted that the response to Airtel’s VoIP charge announcement was in sharp contrast to its announcement of December 2013, when no one batted an eyelid regarding Airtel offering free Facebook access in nine languages to all its prepaid customers.

Several other companies have followed suit and are advertising similar offers. Reliance Mobile has started its ‘Free Facebook Fridays’, an offer which allows unlimited Facebook Browsing and Facebook Messaging without any data charge. Earlier in the year, Aircel introduced free access to Facebook and Whatsapp across India for its customers. All of these moves were not met with any outrage or examined for net neutrality violations as they offered freebies rather than additional charges.

https://twitter.com/AircelServices/status/519060098543390721

https://twitter.com/RelianceMobile/status/548353093025271809

However, even free access to certain websites or apps violates net neutrality as, in effect, service providers are providing preferential treatment to specific apps and companies. This can make it virtually impossible for a new app or a start-up company to compete with the established players. It is not clear whether Facebook and Whatsapp, services which advocate net neutrality in other markets like the US are paying the service providers for preferential access in India but in either case, it is unlikely that a service provider would set up such a deal with any new app or company which is not yet a market leader in its field.

Furthermore, the privacy concerns raised regarding the use of Deep Packet Inspection in relation to Airtel’s recent plan to charge more for VoIP, apply equally to the provision of free services, as companies might have to inspect the data packets to determine which app and for what purpose the data service is being used.

Against this backdrop, it becomes clear that Airtel’s plan to charge for VoIP, though in violation of net neutrality, was at least fair to the extent that it treated all apps using the VoIP protocol in the same manner and did not discriminate arbitrarily between two apps, for example Skype and Viber, which operate on the same protocol. Providing free access to Facebook and Whatsapp alone is worse for net neutrality, as it discriminates between apps and creates a rigged playing field which can hurt the consumers in the long run.

Now that the issues relating to net neutrality are finally in the limelight, the ball is in TRAI’s court to deal with the issues fairly. Telecom service providers already charge fees for providing the data service and any loss in their SMS or call revenues can be offset by the increasing volumes of data usage over the past several years. The operators also have a free hand to set their own rates for the data service and thus have no justification for levying specific additional charges.

Thus, TRAI must not only stop Airtel from proceeding with additional charges for VoIP, but must also keep tabs on price discrimination based on data usage. This also includes freebies because, more often than not, consumers are not aware if it is in their best interests. It's time for regulators to step up and reclaim net neutrality in India.

Sagar Godbole is a law student at Gujarat National Law University.