TRAI Firmly Anchors Net Neutrality in India but the Debate Is Far From Over

Though the regulator has made progress in establishing an overarching framework for net neutrality in India, it has its work cut out in framing additional regulations.

The TRAI’s decision is significant not just in setting a benchmark for other emerging countries that are considering similar regulations, but also in signalling a market-friendly regulatory approach to content providers. Credit: Reuters

Yesterday, the Telecom Regulatory Authority of India (TRAI) published a set of progressive recommendations on net neutrality for internet service providers, bringing policymakers one step closer to effectively ensuring an open and transparent internet in India. The recommendations successfully walk the tightrope of balancing both industry and public interests. TRAI does this by recognising and safeguarding an end user’s interest to access content in a free and fair manner while being mindful of the operational necessities of service and content providers.

The recommendations stand in stark contrast to the controversial decision of the US Federal Communications Commission chairman, Ajit Pai, to rollback the Obama-era open internet order. The TRAI’s decision is significant not just in setting a benchmark for other emerging countries that are considering similar regulations, but also in signalling a market-friendly regulatory approach to content providers.

The recommendations follow a reference from the Department of Telecommunications (DoT), seeking clarity on the design, scope and implementation of a net neutrality framework, and an extensive consultation process by TRAI. The consultations that began in January this year involved three open house discussions in New Delhi, Mumbai and Bengaluru, and solicited inputs from scores of stakeholders.

The recommendations themselves build on a February 2016 TRAI order that prohibited service providers from offering differentially priced data services based on content. In this iteration, TRAI casts a wider net by addressing the core principle of non-discrimination of content while also weighing in on reasonable traffic management practices, disclosure requirements and institutional mechanisms for enforcement.

The overarching principle guiding the recommendations revolves around an acknowledgement that throttling, blocking and preferential treatment are antithetical to net neutrality and apply to all internet service providers. TRAI has recommended that these principles be cemented in the various licensing agreements for internet provision. The recommendations, however, carve out exceptions for certain industry practices that are permissible in the interest of effective traffic management. Central among these exceptions are specialised services and Content Delivery Networks (CDNs).

Provision of specialised services – requiring a minimum quality of service and distinct from general services available over the internet – has been identified as net neutral. In justifying its approach, TRAI has made a reference to other jurisdictions like the EU and US that have also carved out exceptions for services such as Voice over Internet Protocol and IPTV that require separate network management practices so as to not affect other broadband services. Interestingly, the regulator has also extended this exception to include critical Internet of Things services, leaving it to the DoT to define the specific services to be excluded.

Another exception that TRAI has been careful to identify has been CDNs – arrangements that large content providers enter into with service providers to reduce latency and minimise congestion. Netflix, for instance, has entered into arrangements with several internet service providers (ISPs) to localise their traffic and provide its services more efficiently. In its response to TRAI’s consultation, the popular streaming service implored the regulator to omit CDNs from the ambit of non-neutral practices.

 The global debate over net neutrality revolves around whether ISPs should be treated like public utilities to ensure the internet is open and free. Credit: Reuters

The crux of enforcing the recommendations, however, relies heavily on disclosure of traffic management practices by service providers. Both of the exceptions discussed above have the potential to be non-neutral and run the risk of turning into paid prioritisation and creating faster lanes for some, to the exclusion of others. For instance, an ISP that also provides its own video streaming service, through a CDN can prioritise its own content over competing services. Similarly, the definition of specialised services that TRAI has adopted will likely be a bone of contention between the regulator and content providers vying for differential traffic management practices.

To tackle these issues, the regulator has recommended the creation of a multistakeholder body for monitoring and enforcement of net neutrality violations not unlike other self-regulatory bodies in India like the Advertising Standards Council of India (ASCI). A critical distinction, however, is that this body will be limited to advisory functions and will rely on the telecom regulator to carry out the enforcement mandate seemingly avoiding the pitfalls that ASCI is currently running into on account of not being statutorily mandated.

This body would be tasked with identifying technical standards for identifying acceptable traffic management practices. The multistakeholder body will be led by the industry comprising of internet service providers along with other stakeholders from content providers, civil society and academia. This body is seemingly inspired by the Brazilian Internet Steering Committee (CGI BR), which was established statutorily to collaborate with the regulator to promote principles of innovation and access.

While the CGI BR has been instrumental in formulating Brazil’s approach to internet governance and more famously the Marco Civil da Internet, it has also been criticised for over-representation from the government and thus susceptible to politician hijack. That does not seem to be the case with the body in question, which, not unlike the Telecom Standards Development Society of India, will be primarily industry-led. Given that large parts of the net neutrality debate in India have been led by non-state actors, this body can truly set the standards for multistakeholder policymaking. In fact, one may even argue that TRAI, spurred by the success of its open house discussions, may finally be moving to institutionalise the structure.

There is no doubt that the regulator has made significant headway in establishing an overarching framework for net neutrality in India; however, TRAI has its work cut out in framing additional regulations. Importantly, the regulator will have to enumerate on what constitutes reasonable traffic management practices and lay out supplementary disclosure requirements for service providers.  TRAI has also acknowledged that they are still unclear about their role concerning the regulation of over-the-top (OTT) service providers, indicating that they will initiate a separate consultation process. These and the questions that TRAI has left for the DoT to consider, ensure that the debate is far from over.

 Lawyers by training, Bedavyasa Mohanty (@darth_beda) and Madhulika Srikumar (@madhumachi) are with the Cyber Initiative, Observer Research Foundation, New Delhi.

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