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SPECIAL REPORT

Source: Organiser - Weekly      Date: 12/10/2011 9:59:11 PM

Govt attacks free speech by rationing SMS 

By Dr Rashmi Singh




-Ostensibly the UPA-II government’s intention is to control unsolicited commercial calls but its real intent is to prevent people from congregating against the government.

Anti-corruption movements have gone viral. SMS have become an important platform for campaign and co-ordination. Now under the garb of controlling spam SMS, Trai is contributing its bit to government’s efforts to crush massive protests on graft launched by Anna Hazare and other mass organisations.

With this end in view a cap on SMS has been put in place: 200 per day per SIM. This was the direction by Trai which was made effective from September 27, initially with a cap of 100 SMS, and from November 1, the cap was raised to 200 SMS per day per SIM. Trai did it under the garb of controlling spam SMS, which telemarketers use to send messages to mobile users.

On the face of it, it looks like an innocent act of safeguarding consumers’ interest. But, if one goes into the details, one would reach to an inescapable conclusion that Trai has done it at the behest of the government, which is trying to crush Anna Hazare movement against corruption. During the Anna movement, the activists and even the common man used SMS to communicate instantly to build up the momentum against corruption.

Means of communications are the first targets to be hit by a draconian government. It happened in Tunisia, in Egypt where despots jammed the mobile networks and the internet to prevent people from congregating against them.

But India is different. Even an anti-people government like UPA-II has to keep up the veneer of democracy. Hence the clampdown is on the plea of consumers benefit. But everything, right from the timing, intention and methodology of implementation is malafide. We will go into that later.   

The cap imposes serious restriction on the Freedom of Speech and Expression of the citizens. Prior to September 27, 2011, there was no such bar. Trai has suddenly imposed the restriction on SMS under the garb of controlling Unsolicited Commercial Communications (UCC).

There is no doubt that unrestricted UCC calls and SMS were interfering with the personal lives of the individuals as often telemarketers would call them up for selling their products. Telemarketing had emerged as one of the simplest and cost efficient tool for marketing of products. A large number of these ‘telemarketing’ calls and SMS were unsolicited, i.e. the receiving party does not want to receive such calls or messages. Such messages disturb the recipients, intrude into their privacy, and impose a cost in terms of the time and effort.

Trai has made several attempts since 2007 to control UCC. For the first time, on June 5, 2007, Trai issued “The Telecom Unsolicited Commercial Communications Regulations, 2007 (4 of 2007)”. However, these regulations were very weak and had never acted as a deterrent to such UCC calls and SMS. The penalty for default was a meagre amount of Rs 500, which was increased to a maximum of Rs 5,000 for the first violation and Rs 20,000 for the second and subsequent violations.

Trai then attempted to make the regulations more stringent for the defaulters. It invited suggestions on its consultation paper issued on May 11, 2010 which was titled as, “Consultation Paper on Review of Telecom Unsolicited Commercial Communications Regulations”. It proposed various suggestions to curb the menace of UCC. This included even proposal of putting a cap on the number of calls as well as SMS.

Trai’s web site indicates that about 53 persons/entities responded to this consultation process. Out of them, only four had responded in favour of the cap, while the others had rejected the idea of putting a cap. Those who rejected the cap had stated that the telemarketers can buy more SIMs to restrict their communication within any specified limit, and as such it would not be advisable to take this step of cap.

In response to the above question, even the two government-owned telecom operators - MTNL and BSNL – had also said that such cap will not help in controlling UCC menace (see Box-1). 

Box

BSNL&MTNL response to Trai’s Consultation Paper on UCC

BSNL: In our humble submission, there does not appear to be any requirement for putting limits etc. on the calls/SMSs. Such restrictions will only put additional burden on the resources of the operators and will not help in any manner to restrict the menace of UCC. We have already submitted a detailed scheme in the main letter, which, in our submission, is sufficient to control the UCC. The same may kindly be referred in this regard. In any case, putting limit on the maximum number of calls/ SMS per day for the subscribers in BSNL network is not technically feasible.

MTNL: Identifying an unregistered telemarketer in a network is a complicated task. A subscriber making more no. of calls, SMS, MMS may be monitored. However, it is difficult to identify whether the subscriber is telemarketer or not. A high user subscriber may be individual subscriber, businessman, company or any complaint resolving cell of any market product etc. However, if any subscriber using bulk SMS facility and not registered as telemarketer may be easily monitored and detected. Further, Sometimes telemarketers are also using the PCO facility, individual subscriber numbers to call particular no. of subscribers in a day. In such a scenario, it is difficult to identify whether subscriber is genuine or telemarketer. Operator may take action only on registration of complaint.

After the above consultation process, Trai came out with its Regulations called “The Telecom Commercial Communications Customer Preference Regulations, 2010” dated December 1, 2010. This regulation did not specify any cap on SMS and calls as almost everyone had opposed the cap. The Regulation took every possible step that could help in curbing UCC menace. It has imposed severe penalties on violations by telemarketers ranging from Rs 25,000 for first violation to Rs 250,000 for the sixth violation (see box-2).

In this Regulation, Trai also made the process of making complaints simple. Within three days of having received the UCC call/SMS, a user can lodge complaint with the operator. Apart from making complaints by calling toll-free number 1909, a user can also send SMS on 1909 to lodge his complaint.

Trai also ensured that the Operators take prompt action within 72 hours of having received the complaints. The Regulation has also specified the detailed process of handling complaints without leaving any chance for any ambiguity.

All the above measures were adequate to put effective control on the UCC. These Original Regulations were to be implemented from January 1, 2011. However, its implementation was postponed several times through amendments. Trai amended this Original Regulations eight times – six times before its implementation and twice after its implementation. This Original Regulation eventually became effective only from September 27, 2011. From this very day, Trai also implemented its 6th Amendment Regulation dated September 5, 2011 that restricted SMS to 100 per day per SIM. This restriction was imposed by inserting a clause to the Original Regulations dated December 1, 2011.

The Original Regulations along with other relevant amendments (minus the cap of 200 SMS per day per SIM) would have been adequate to put a curb on this UCC menace, but Trai chose to go for a cap even before implementing the Original Regulations and without seeing its results. One can observe that the UCC “calls” have dropped substantially. This has been achieved without imposing any limit on the number of “calls”. Therefore, putting SMS cap was an undesirable act which Trai did apparently  at the behest of the DoT, run by Kapil Sibal who is also the government’s points man for handling anti-corruption protests.

Subsequent to the above amendment, Trai brought out another (7th) amendment dated October 25, 2011 through which it imposed termination charge of 5 paisa per Promotional SMS payable by the registered telemarketer to the originating operator. This further discouraged the use of bulk SMS for promotional marketing purposes. Subsequently, Trai came out with 8th Amendment dated November 1, 2011 through which it increased the cap on SMS from 100 to 200 SMS per day per SIM.

Imposing of SMS cap through 6th Amendment dated September 5, 2011 has been done in a completely non-transparent manner and is illegal. Before making any changes, Trai was duty bound to discuss the issue with all the stakeholders. Prior consultation with all the stakeholders was necessary to fulfil the requirement of transparency mandated under the Trai Act. After the cap was rejected by 49 respondents out of total 53 respondents in response to the consultation paper dated May 11, 2010, it was incumbent upon Trai to call for fresh consultation process in case it wanted to revisit the issue of cap.

Moreover, no country in the world has resorted to this kind of cap to control UCC; in recent times only some failed states and rogue regimes have stopped SMS and internet to snuff out public anger against their governments.

Box-2

Violation       Penalty on
                      Telemarketer

1st                 Rs      25,000
2nd                Rs      75,000
3rd                 Rs      80,000
4th                 Rs     120,000
5th                 Rs     150,000
6th                 Rs     250,000

All telecom resources allocated to telemarketers are removed immediately and they are blacklisted for two years.

  

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