TRAI’s Final Attempt at Shaping Net Neutrality in India Begins This Week

The consultation process for an overarching framework is being done in two phases this time, in order to be more comprehensive, but will also likely require greater focus and attention from the supporters of net neutrality.

New Delhi: The Telecom Regulatory Authority of India’s (TRAI) final attempt at shaping the contours of net neutrality – a principle that has seen civil society advocates and multinational technology corporations at opposite ends over the last year – will likely kick-off with a two-step consultation process today or tomorrow.

TRAI Chairman R.S. Sharma’s goal is to potentially construct an overarching framework on net neutrality and then hand those recommendations over to the Department of Telecommunications, which will take a call on how best to translate TRAI’s inputs into official policy.

This time around however, unlike the issue of differential pricing of data, the regulatory process will consist of two different components: a ‘pre-consultation’ process that will first decide the issues that make up net neutrality and then a proper consultation process that will address those issues and the questions that are posed.

“We are issuing a pre-consultation paper tomorrow [Thursday] or day after [Friday]. The way I look at it is that in a month’s time we will be done with the pre-consultation process. Thereafter we will formulate the final consultation paper,” Sharma told The Wire in an interview.

This two-step process of consultation, according to multiple people with direct knowledge of the matter, is advantageous for a number of reasons. Firstly, it gives TRAI a bit of breathing room in being able to comprehensively frame the issues for the final consultation paper instead of tackling it through multiple papers and over the course of six-to-eight months. For example, the regulatory process on differential pricing of data is still essentially ongoing, with TRAI issuing another consultation paper last week on whether ‘free data’ or non-discriminatory zero-rating models of Internet access should be allowed.

Secondly, unlike the ‘differential pricing of data’ aspect of net neutrality – where TRAI was able to step in and issue regulation – the final call on other issues of net neutrality that are likely to be on the table this time, including throttling and fast-lanes, will not be taken by the telecom regulator but will be decided by the Department of Telecommunications and the government.

“[I] don’t want to define net neutrality, but broadly there are five issues. The networks must not treat traffic in a different manner, all traffic for a network is equal. It should receive equal treatment. So what we have done thus far in the discriminatory pricing regulation, we have tackled the issue of net neutrality from a tariff perspective. The two other issues which remain…one is throttling and the other is fast lane. These two issues will be included in this [consultation process], besides any other issues which might have bearing on this subject,” said Sharma.

The incoming consultation process, however well-intentioned, will still almost certainly split the attention and focus of net neutrality supporters who have to attend to both the yet-to-be-released pre-consultation paper and last week’s consultation paper on free data.

“It is difficult to devote a lot of attention and participate consistently in each and every consultation even though we want to. I understand that TRAI has to be thorough, but with each consultation process it naturally ends up becoming a little less democratic each time as not everybody has the resources of say a Facebook to lobby and present their point of view,” said the CEO of one of India’s leading start-up companies that came out in support of net neutrality last December.

Not a U-turn

Last week’s paper on the nuances of zero-rating, in particular, has been seen by a section of net neutrality supporters as a disappointing U-turn or doubling back on the part of TRAI.

Sharma, however, vehemently disagrees. He believes that with the controversy surrounding Facebook’s Free Basics and Airtel Zero late last year, the question of coming up with non-TSP or gatekeeper-centric models of free Internet access last year was largely ignored and made “insignificant”.

“No in fact, this is completely wrong to say that this issue has been addressed. This question [different zero-rating models] was asked [last time]… this question became insignificant in the last consultation on differential pricing,” he said.

One of the examples Sharma gives is that of an e-governance website that is looking to promote itself. “The second question of the differential pricing paper last December was can we have a mechanism of free Internet or subsidised Internet… irrespective of the pipe in which they come. For e-governance websites, can we have some architecture that provides free data to them without depending on which TSP they visit the website through.”

Nevertheless, Sharma doesn’t buy into the idea that zero-rating will solve India’s Internet access issues. While price of Internet access is certainly a factor, he believes that infrastructure is far more critical. However, that doesn’t keep TRAI from impartially evaluating whether free or subsidised data would be useful.

During discussions the office of TRAI had with Facebook last December, during the Free Basics controversy, Sharma passed on this exact argument. “I told them we are not against free or subsidised data. What we are against is this architecture… where you decide consumer choices, which is not consistent with the broad principles of net neutrality.”