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Damn, Spam!

Indian telecom regulations on spam may have missed their mark.

The latest Telecom Commercial Communications Customer Preference Regulations, issued by the Telecom Regulatory Authority of India (TRAI Regulations) cap the total number of text messages that can be sent per day. This comes as a source of woe not only to the average Indian teenager, but also businesses that rely on bulk messaging services to operate. While a legitimate spam problem does exist, the fear remains that legitimate businesses could suffer from the broadly framed conditions under these regulations.

The ostensible reason for introducing the TRAI Regulations is a failure of the national Do Not Call Registry, which is aimed at limiting unsolicited text messages sent to customers. Keeping this in mind, TRAI has classified messages into two categories – ‘transactional’ (for example, a notification after an ATM withdrawal) and ‘non transactional’ (for example, commercial communications about offers and prizes). Every customers can decide to place himself or herself in either a ‘fully blocked list’ or the ‘partially blocked list’. The former ensures that a customer  will receive no commercial communications at all, while the latter allows communications from certain pre-defined categories such as health, education, and banking. Importantly, the TRAI Regulations contemplate a maximum limit of a hundred messages daily for individuals and businesses, unless a commercial licence has been obtained.

Exempted categories

Given the broad ambit of the TRAI Regulations, it was subsequently announced that certain service providers would be exempt from the daily limit. For now, dealers in telecom services and Direct To Home operators are allowed to send requests for e-recharges. Similarly, e-ticketing agencies have also been exempted. along with social networking sites like Facebook and Twitter. E-ticketing agencies in particular will benefit from this exception since they will be allowed to send messages about delayed departure times and changes in pick-up points to customers, without worrying about the daily limits.

However, there are several ambiguities in the exception applicable to social networks. For one, there is no definition of ‘social networks’ and clarity on whether it only applies to the businesses mentioned in the directive. Interestingly, telecom operators have been given full discretion to decide which services fall under the exempted category, which could make things murky. Lastly, directory services like ‘Justdial’ have also been exempted.

Affected Groups

Despite these exemptions, certain businesses and individuals continue to face difficulties. Stockbrokers, in particular, have taken a beating, since they are not subject to the blanket exemption under the category ‘financial institutions’. In such turbulent economic times, customers may wish to receive updates on stock prices, investment options, trade forecasts, or stock trading confirmation messages. The TRAI Regulations affects not only the brokers, but also customers who have voluntarily signed up for such services. The only alternative appears to be to switch to e-mail notifications, which has its own problems, especially for Indian users with limited smartphone penetration.

Entrepreneurs who rely on bulk text messaging services, which are not in the nature of spam, have been hit the worst. For example, services like Way2SMS that allows customers to communicate through text messing but using an online service, cannot effectively operate once the daily limit comes into force. Similarly, SMS Gupshup, which provides alerts about railways, traffic police, blood donation camps etc. would also fall within the restricted category. Another budding entrepreneur, who recently started a service called Textme that can be used to share content worldwide using a simple mobile phone, has criticised its broad scope and lack of adequate exceptions.

The TRAI Regulations will also affect those with special needs. Hearing-impaired students who stay rely almost entirely on text messages to communicate will find it strange that the government has ignored their special requirements. But ,as explained in this article, an exception for the hearing-impaired may not be the best solution. As one affected student points out, “If my friends can’t send more than one hundred messages, what is the point of me being exempted from the limit?”

messaging

Possible solutions

From the perspective of consumers. it seems rather pointless to place a blanket limit, especially when some are willing to pay extra to be able to send additional messages. In the case of an emergency, it would be cruel if one cannot communicate because of the daily limit. Perhaps charging additional per text message after a certain limit would help spam.

More generally, the TRAI Regulations must be revised to define the scope of certain categories such as ‘social networks’ and should consider limiting the discretionary powers given to operaters in classifying services in the restricted category. Lastly, the exempted categories must be expanded, taking into account the problems faced by online service providers, who have obtained the consent of its customers. Perhaps it would be more sensible to allow consumers to specify which services they want to whitelist.

It is encouraging that TRAI has listened to consumer complaints about increasing spam on their mobile phones. But in the absence of an efficiently designed system, the entire purpose behind a spam regulation is lost. That said, I will certainly sleep well knowing that I will not be woken up at six in the morning with an offer from Doctor Batra’s clinic.

(Image from BdwayDiva1 under a Creative Commons license)

This was originally published on myLaw.net

About Amlan Mohanty

Amlan is a lawyer based in India. He has been writing about technology and intellectual property for the last five years.