“Son your ego is writing cheques that your body can’t cash”: this rebuke made to Tom Cruise’s Maverick by his commander in the iconic movie Top Gun in response to Maverick’s opening scene bravado flying antics, are fully applicable to TRAI’s latest move, which appears to be an attempt at regulatory overreach.
In its initial years in the nineties, TRAI had a history of flying over the boundaries of its statutory functions. Through a series of litigation, the specific and limited scope of its statutory powers and functions were settled. Things have been quiet for more than a decade in this regard. However, through two key provisions in the recently notified “Telecom Commercial Communications Customer Preference Regulations, 2018” (“T3CPR”), it seems that the TRAI is once again in Maverick mode of flying into no-fly zones and disregarding the limits of its statutory framework:
Para 5.1.4 of the T3CPR states “ Access Provider should ensure, within six months’ time, that all smart phone devices registered on its network support the permissions required for the functioning of such Apps. If such devices do not permit functioning of such Apps then Access Providers shall, on the order or direction of the Authority, derecognize such devices from their telecom networks”. Regulation 34 of the T3CPR states “ Every Access Provider shall ensure , within six months’ time, that all smart phone devices registered on its network support the permissions required for the functioning of such Apps as prescribed in the regulations 6(2)(e) and regulations 23(2)(d). Provided that where such devices do not permit functioning of such Apps as prescribed in regulations 6(2)(e) and regulations 23(2)(d), Access Providers shall, on the order or direction of the Authority, derecognize such devices from their telecom networks.”
Pursuant to Regulation 34, TRAI claims to have developed software applications “TRAI MyCall” “TRAI DND App”. “TRAI MySPeed App” to enable effective “Do Not Disturb” facility for telecom subscribers. However, TRAI, legally, has no statutory function to develop software applications or “apps”. Moreover, it has no statutory authority to use its regulatory power to thrust its “app” onto consumers and mandate every “Access Provider” to ensure that “all smart phone devices registered on its network support the permissions required for the functioning of such apps” and then to “derecognize” all smart phones that do not support its app.
Right Objective, Wrong Method
The apparent reason for TRAI’s mandate on its apps is that consumers need to be protected from pesky calls. TRAI is therefore seeking to cloak its regulatory overreach with a blanket of consumer interest against unsolicited calls. But it seems strange that under TRAI’s explanation, “consumer interest” is best served by a direction to disconnect the consumer having a phone that does not support its app.
Protection against unsolicited calls is a key public policy objective, and TRAI has been addressing this through regulations since 2010, with limited success. A key bottleneck has been lack of effective prosecution of pesky tele-marketers and imposition of penalties. Instead of addressing these bottlenecks, however, the 2018 avatar of these regulations appear to be mandating apps that raise the spectre of a surveillance state, with the app providing a government agency with access with vast amounts of information on a user’s phone.
The TRAI My Call has the stated objective to “
help TRAI gather customer experience data along with Network data”. This in itself is outside the statutory functions of TRAI and not supported by the TRAI Act. TRAI has disclosed the various aspects of its three apps on its website, which includes the following: (i) the app reads all the contacts on the user’s phone (apparently to know who the consumer’s real contacts are and determine whether the caller is a telemarketer, (ii) know the location of the user (network-based) and precise location (GPS and network-based,(iii) read SMS texts (for “intelligent spam detection”), (iv) Phone Directly call phone numbers; (v) Reroute outgoing calls; (vi) Read call log; (vii) Read phone status and identity; (viii) Write call log, (ix) Read the contents of the phone’s USB storage;(x) Modify or delete the contents of USB storage, (xi) Device ID & call information; (xii) Read phone status and identity, (xiii) View network connections, and so on. Consumer Protection Be Damned!
Each of the above raises serious questions about the ability of a government agency to access vast amounts of consumer data and information, without providing any choice to the consumer. The TRAI notes, almost innocuously that
“some rare concerns have been expressed in social media about privacy”.
Other than the serious concerns that this would raise with regard to a consumer’s right to privacy, the TRAI regulations falter on the assumption that TRAI has the statutory function to be a developer of software applications, and that use of such applications is the
method to stop pesky calls and enable a DND regime. It is then also assuming that it has the statutory authority to mandate that its app be necessarily supported by each and every handset used by telecom subscribers in India. There is clearly no linkage between the stated objective and the actual impact of the regulation. only
What is more surprising is that this direction from TRAI breaches various provisions of the telecom licenses itself. Under the telecom licenses, the service providers have to ensure levels of service and cannot disconnect consumers from their network for not possessing a particular type of phone. Furthermore, it is shifting the liability from the pesky telemarketer, to the manufacturer of the phone, and in the process penalising not only the manufacturer, but also the consumer it is allegedly seeking to protect!
Such a measure by TRAI including the very development of these TRAI “apps” are clearly of a nature not supported by its statutory framework and must not go unchallenged.
Piyush Joshi, Partner, Clarus Law Associates, cannot live without his iPhone.