Net Neutrality Standoff Escalates As TRAI Hauls Facebook Over the Coals in New Letter

TRAI chief R.S. Sharma isn't pleased with what Mark Zuckerberg's Facebook has been doing to promote its 'Free Basics' program in the country. Image sources: eletsonline & Facebook Newsroom

TRAI chief R.S. Sharma isn’t pleased with what Mark Zuckerberg’s Facebook has been doing to promote its ‘Free Basics’ program in the country. Image sources: eletsonline & Facebook Newsroom

The spat between Facebook and the Telecom Regulatory Authority of India (TRAI) over the company’s lobbying initiatives escalated rapidly on Tuesday, with both parties going back and forth over questions of foul play, the ongoing regulatory process on net neutrality and the spirit of public consultation.

In a startling series of e-mail exchanges made public on January 19, the regulatory body delivered a scathing indictment of Facebook’s lobbying practices, accusing the company of converting the regulator’s consultation process into a “crudely majoritarian and orchestrated opinion poll” and wilfully disregarding its request to better inform Facebook’s users.

For its part, Facebook has alleged that a majority of the comments and responses that it had collated and sent to TRAI in response to the regulator’s consultation paper were not received by TRAI because an “individual with access to the TRAI email account designated to accept comments” took action that blocked receipt of all emails from Facebook.

This effectively means that after a certain point, every email collated by Facebook was never sent to TRAI.

Number of responses

Over the last few weeks, the telecom regulator and Facebook have clashed over the number and quality of responses sent by Facebook to TRAI in favour of Free Basics and differential pricing of Internet services. In one particular email exchange made public last week, the two parties curiously disagreed over the number of comments sent to TRAI as a result of Facebook’s public outreach campaign; TRAI says it has received only 1.89 million responses to the questions posed by its consultation paper while Facebook claims it has sent over 11 million.

This disparity in numbers has now become one of the two major sources of contention between TRAI and Facebook.

“Specifically, our inquiry revealed that on December 17 05:51:53 GMT, an individual … took action that blocked Facebook from delivering any additional emails to advisorfea1@trai.gov.in. This appears to have been accomplished by unsubscribing from receiving all further emails from Facebook, effectively requesting that Facebook cease delivering emails to the address. This action prevented the Facebook system from sending further responsive emails to TRAI,” the letter, written by Ankhi Das, Facebook’s Public Policy Director for India, states.

In response to Das’s letter, which is dated January 13, TRAI’s Joint Adviser K.V. Sebastian points out that if the regulatory body had been informed right away, it could have taken steps to correct the error.

“If this were indeed the case, TRAI should have been informed immediately for appropriate steps to be taken. In fact, a similar instance of user complaint regarding the non-functioning of an email address during the response period for this Consultation paper was brought to the notice of TRAI by individual stakeholders and the situation was immediately rectified. It is surprising that it took over 25 days for you to inform TRAI of this,” Sebastian writes in his reply.

Sebastian further points out that in the spirit of ensuring that all points are heard, which TRAI made clear to Facebook in a meeting on January 14, the regulator will take into account all relevant responses that are made available to it; including ones that Facebook handed over to TRAI on a pen-drive on January 14.

Quality of responses

When it comes to quality of the responses, the primary reason TRAI is unhappy with Facebook, the telecom regulator points out how the latter’s public campaign for Free Basics doesn’t gel with the concept of a truly consultative exercise as it ignores the actual issues. In the letter, Sebastian points out:

1. The template response that Facebook showed to its users, based on which responses were collected, do not adequately answer the questions raised by TRAI in its consultation paper. They cannot be accepted by the regulator even in spirit. “Previous responses to not indicate that these were in reference to TRAI consultation paper. Furthermore there is no mention of the consultation paper/process at all in the entire response. Neither the spirit nor the letter of a consultative process warrants such an interpretation which, if accepted, has dangerous ramifications for policy-making in India.

2. Facebook’s attempts at whipping up support do not contribute positively to the consultative exercise that TRAI is trying to undertake. Put quite simply, Facebook can’t plaster the photo of “Ganesh the farmer” and expect that Free Basics will not be appropriately scrutinised. “[Facebook’s] urging has the flavour of reducing this meaningful consultative exercise designed to produce informed decisions in a transparent manner into a crudely majoritarian and orchestrated opinion poll.”

3. Facebook simply doesn’t have the authority to speak for its users. While it is clearly a conflict of interest for Facebook to be collecting responses, the users who do respond through Facebook’s platform may not be aware that they are in fact delivering a formal response to a Government-issued consultation paper.  “Equally of concern is your self-appointed spokesmanship on behalf of those who have sent responses to TRAI using your platform. It is noticed that you have not been authorised by your users to speak on behalf of them collectively. No disclosure in the act of sending a message to TRAI using your platform to this effect has been issued to users.”

(Emphasis added.)

With this back-and-forth, TRAI has established two things: that a great majority of Facebook’s responses are simply not relevant to the consultation process on net neutrality and therefore will not be accepted. Only those responses that specifically answer the questions laid out in TRAI’s consultation paper are relevant.

The second point, which is more significant, is that TRAI has had enough of Facebook’s shenanigans. The message that the regulator is giving out is one that the Government should echo: that no company will be allowed to bully its way into shaping public policy. This TRAI letter lays the foundation for critically examining the ways in which social media companies officially influence public policy creation through their services and users.

Facebook’s allegation is simultaneously serious and hilarious; it can’t  be brushed away lightly. The difference in the number of responses can be explained away by a technical error – Facebook, however, believes otherwise. The company couches its complaint carefully by pointing out that “an individual with access to TRAI’s account” caused the issue.

Though this issue has now been solved with TRAI willing to accept any “relevant comments”, if what Facebook says is true, and its emails stopped going out on December 17, why did the company not notice it at that point (as TRAI notes) and try and get it fixed? At this stage of the consultation process, it seems as if the company is simply trying to stall matters.

Where does the net neutrality debate go from here? While the TRAI-Facebook tussle seems to have to come to a close, it seems likely that Facebook will look to escalate its lobbying efforts past TRAI and perhaps toward the PMO-level. Whether the company will have any success remains to be seen, although if this does happen, it will be the first true test of TRAI’s independence as a regulatory authority.

In the shorter-term, it will be interesting to see whether these issues are raised in TRAI’s open house on net neutrality and differential pricing later this week; an event that anybody who has a perspective on the matter should attend.

  • brown_fox

    Salute to the “individual” who defeated a behemoth like Facebook by one smooth stroke – unsubscribing from Facebook!

    If the sinister hand of Facebook doesn’t stop meddling in India’s regulatory affairs, let us all ditch our FB accounts, and then let us see where Mr. Zuckerberg stands!

  • dp

    So now facebook employees have taken to the comments section. A template response isn’t consultation or legitimate participation.