How India is on course to securing net neutrality after TRAI’s landmark recommendations

By Yash Budhwar

The Telecom Regulatory Authority of India (TRAI) proposed a set of recommendations on November 28th, 2017 that laid the foundation of an open and equal-access-to-all internet. These proposals provide a pathway to establishing a ‘net neutral’ India.

What is net neutrality?

Imagine yourself, if you are not, to be a person who streams all of their television content online. You have multiple sources from where you can potentially stream the content – Netflix, Hotstar and Sony Liv amongst many others. Now say one of these companies, whoever can afford to, strikes a deal with an internet service provider (ISP) that enables the ISP to stream content from that particular source faster. Now, there are two things to consider here.

Firstly, if the ISP’s network is going to be able to stream content from the source faster than before, there will be a greater utilisation of its bandwidth in delivering the content due to the greater speed which is now required. Hence, assuming that the ISP’s total deliverable bandwidth remains the same, other content providers are going to suffer because their content is now being delivered across a lower available bandwidth.

Secondly, the fact that only those content providers who are financially capable will be able to strike such a deal with the ISP in the first place. Thus, a non-net neutral situation would be biased towards some content, while not giving the same platform to some other content providers. Therefore, the concentration of wealth by a few leads to unequal opportunities being provided by the internet to all.

TRAI’s recommendations

TRAI’s recommendations only serve as guidelines as the final decision-making power rests with the government’s department of telecommunications (DoT). However, if followed, they will provide for the establishment of an open internet for all. TRAI suggested changes to the licensing rules of ISPs. The new rules to be formed from these suggestions should not allow any discrimination in internet access. It should also be applicable to all Internet-based content, including applications, services and any other data. What this means is that the tariff for data services cannot vary on the basis of the website, application, platform or type of content being accessed. For example, a consumer cannot be charged differently based on whether she was browsing social media site A or B, or on whether she was watching streaming videos or shopping on the Internet.

The telecom body also recommended that ‘specialised services’ be excluded from the scope of its net neutrality suggestions. While the regulator has not laid down a clear definition of specialised services, it said that the status of such services should only be given if a service follows two broad principles. First, such services cannot be used as a replacement for public internet access. Second, the provision of such specialised services cannot affect the overall quality of and accessibility to the internet. An example of such services would be video-calling services used by an organisation internally.

Further overheads

The regulator has also suggested exempting content delivery networks (CDNs) from the scope of net neutrality rules. CDNs are used by content generators to store their data at suitable geographical locations. This geographic expansion allows these content providers to deliver their content to end users at a faster rate. This particular suggestion seems to benefit those ISPs who also generate their own content. For example- Reliance Industries. However, the requirement from TRAI that prevents ISPs from entering into any agreement, no matter who it is with, that leads to discriminatory behaviour would ensure that the CDN exemption does not lead to any non-net neutral practices.

The ability of ISPs to deploy “reasonable” traffic management practices (TMPs) from time to time was also made by TRAI. However, these practices had to be made “proportionate, transient and transparent” in nature. TMPs have always been a contentious issue as many ISPs seemingly manipulate the flow of traffic under the guise of regulating it. The effort by the regulator to strike a balance between providing ISPs with the autonomy they require in managing the flow of traffic on their networks and efficient but necessary transparency seems to be leading in a direction towards net neutrality though.

Another step in that direction seems to have been made with the advisory body recommended to be set up to monitor and investigate whether service providers are adhering to the rules. The regulator suggested that this body be a multi-stakeholder body. It will be led by the industry players and will be comprised of members representing different ISPs, large and small content providers along with representatives from research, academia, civil society organisations and consumer bodies. Such a body will not only ensure that the rules are adhered to by ISPs but will also provide a platform for all stakeholders—especially the consumers—to voice their grievances. The presence of research-oriented professionals and industrial players within the body will also ensure that in the future, there will be scope to further enhance the delivery of a free and open internet to all. Finally, the recommendations also call for keeping Internet of Things (IoT–a term for the network which allows for the transfer of data between physical goods and appliances such as cars and home appliances such as TVs) within the purview of non-discriminatory practices. This extension will not apply to over-the-top (OTT) communications providers like data-based call services (such as WhatsApp)

The industry players are not pleased

TRAI’s recommendations have not been met with great enthusiasm by the industry players. Its proposal to have an advisory body has been labelled as “unnecessarily bureaucratic” by the apex organisation representing the telecom sector corporates. The organisation is also said to be unhappy with the fact that the net neutrality guidelines do not extend to OTT services. The representative body is joined with advisory firm, Deloitte, in decrying TRAI’s decision to include the IoT under the ambit of the net neutrality guidelines as they feel it will stifle the development of the technology.

Positives outweigh the negatives

The claim by the industry players that up-and-coming technology falling under the purview of net neutrality guidelines will prevent its development seems to be unfounded. Following on from the example given at the beginning of this article, if financially strong content providers are not met with competition from providers that do not have that level of financial muscle, there is no guarantee that the established players will continue to innovate. A free and neutral internet ensures that deals like the one described in the earlier example do not happen. The new and up-and-coming companies are provided with a platform they require in order to bring about innovation in the field.

While the decision to exclude OTT players from these guidelines does raise a few eyebrows, the initiative lies with the established telecom players to respond to disruptive technologies. They should emphasise the redesign of their revenue models which have primarily been reliant on incomes received via voice traffic and model their income streams around data-derived usage instead. The decision to establish an advisory body comprising of members from all the different stakeholders to the internet ensures that perspectives from all those affected by the medium can be taken into consideration. While it may lead to decisions being made at a relatively slower pace, it will also safeguard and guarantee the freedom of the internet to all concerned.

Eliminating CDNs from the ambit of the guidelines does favour players who have their own established network coverage and content generation platforms but the antitrust authority in India should prevent any firms from taking undue advantage from such policies.

All eyes on the DoT now

The net neutrality guidelines do enable the provision of a free internet to all. Such stringent recommendations, if followed, would usurp those present in the United States (US) and the European Union (EU). In these countries, the respective regulatory bodies examine case-by-case whether an ISP can provide a certain service free of charge. Such actions will be outlawed in India in their entirety according to TRAI’s recommendations. With the United States’ regulatory body deciding to go ahead with the withdrawal of its net neutrality guidelines within the next month though, the US seems to be heading in the opposite direction to what India is on the way to achieving in terms of net neutrality.

It remains to be seen if TRAI’s recommendations will be taken up in their entirety because there will certainly be opposition from established players within the telecom sector. However, with TRAI’s guidelines potentially confirming the identity of India as one of the most net neutral countries in the world, if not the most, the emphasis lies on the DoT to deliver a free and open internet to all.

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