Net neutrality is the principle of non-discrimination of all data on the Internet, regardless of the Internet Service Provider (ISP). Regardless of the source or content of the data, all data itself must be treated equally. There has been a growing movement for the recognition and acceptance of net neutrality as a principle not just by the people but by the Government itself, leading to the desire for regulations and policies that protect net neutrality. The Telecom Regulatory Authority of India (TRAI) recognising the same, held pre-consultations and drafted a consultation paper on the specific issue of net neutrality.
In this consultation paper the TRAI focused on a few core issues regarding net neutrality specifically in India, that being of the definition and principles of net neutrality, transparency, traffic management and policy and regulatory approaches to the entire issue. The consultation paper serves as recognition of the important legal and policy questions to address as well as to provide a clearer understanding of net neutrality itself. The opinions of the multiple stakeholders, including Telecom Service Providers (TSPs), content providers and academicians, were taken into account as well.
When discussing the policy and regulations approaches that India could take, the consultation paper was interestingly far more ambivalent than in any of the other sections of the paper. The paper provided three different approaches towards regulation: cautious observation, tentative refinement and active reforms towards regulations and laws relating to net neutrality.
There is a larger question first, of whether the government should indeed regulate the Internet and enforce principles like net neutrality. The Electronic Frontier Foundation (EFF) raised this issue when the Federal Communications Committee (FCC) in the United States passed the Open Internet Order of 2010, an order mandating, among other things, net neutrality. Yet, as was pointed out by Pranesh Prakash of the Centre for Internet and Society, there is a need for regulation. It prevents monopolization and aids in ensuring certain goals such as universality and maximum utility. Without regulations, net neutrality in particular would be an ancillary consideration for ISPs, with practices such as throttling more favourably looked upon. There are of course problems with regulation, both in the forms of bias present in the government and that of over-regulation, however with adequate stakeholder representation this can be mitigated. The consultation paper by TRAI has fulfilled this aspect, and the same ideally will strike the correct balance with regards to regulations.
Countries around the world enforce (or don’t) net neutrality in different ways. The United States creating regulations rose from their belief that the internet is a utility and not a luxury (to the point of being court mandated). Their regulations, as with the Open Internet Order, were thus more citizen focused (how effective it is or actually focused on citizen needs is a separate question). Currently however Trump is rolling back any regulations that were unpopular with big telecom companies. The European Union in 2015 ensured net neutrality but it has been criticised for being plagued with loopholes. In China, considering that the regional ISPs are all owned by the government, there is apparently net neutrality ensured by the government.
India on the other hand is caught in a somewhat nascent stage with regards to regulations. Initially there was close to no government action in favour of net neutrality, but on February 8th 2016, the TRAI barred telecom service providers from charging differential rates for data services in response primarily to the actions by Facebook and Airtel, essentially upholding the principle of net neutrality. Yet, in the absence of a legal framework, as pointed out in the consultation paper, there is still scope for violating the principle of net neutrality by private ISPs. It is at this juncture that the consultation paper poses the questions as to what manner of governance would be most suitable.
The current policy adopted by the TRAI, as well as other countries, is to simply wait and watch. The TRAI would simply observe the practices of the service providers, providing them the freedom to take action as they see fit. This is problematic considering that violations occur currently and in the absence of any legal frameworks they can continue to do this unchallenged. Predictability in the form of a lack of retribution leads to further abuse.
The other option identified by the TRAI is self-regulation. Here all licensed ISPs would follow a voluntary form of adherence to the core principles of net neutrality, with the TRAI providing overall guidance, monitoring the ISPs. This sort of model is well practiced in Europe, including in Denmark, Sweden and the UK, however there are indeed pitfalls of this measure as well. The lack of uniformity is a cause for concern, ranging from transparency to traffic management, and thus leads to a lack of optimisation. When taking multiple countries into account, this effect is magnified multifold, especially in Europe with a large number of highly developed small nations. However, this method has had success in Norway. Applying it to India however, much like most other Western concepts applied to India, causes problems due the differences in context. It becomes easier to provide small corporations this power over a relatively small number of people, however in a country as large as India, with a larger number of big corporations, the same becomes far more difficult. This is not to say that it is misguided or impossible, merely that it is not as easy nor may it be as successful as it would have been in Norway.
The TRAI plans to act upon any notification of abuse of net neutrality or discrimination in either of the two options but there are significant problems, some of which the TRAI themselves identified. The first problem the TRAI identified is a failure or delay in identifying cases of discrimination, a problem that is extremely difficult to counter. Users rarely have opportunity to actually identify and understand the discrimination, and bodies like the TRAI do not have the resources to cover the entirety of the nation. The second issue is the lack of power the TRAI itself possesses. In the absence of any legal frameworks, the TRAI cannot unilaterally impose its will with ease. Further, relating to the third problem identified, this lack of law leads to uncertainty, and uncertainty is a disincentive for businesses to enter the market. In addition, the lack of an adequate definition of what net neutrality is as well the limits of what is required in terms of transparency and traffic management. While these are sought to be addressed by the consultation paper, it cannot singlehandedly solve these issues.
The consultation paper provides for a course of action that can be taken in the case of active reforms, primarily in the form of licensing, regulations and legislative changes. Licensing allows for a form of control, as only those ISPs who abide by the standards set out by the TRAI would be provided the licenses. Australia, through the ACMA and Bangladesh, through the BTRC, both provide licenses to ISPs. For licensing to be successful however there must first be an accurate definition and understanding as to what constitutes the core of net neutrality, and thus the limits that must be placed on ISPs to protect the same. Further, licensing all ISPs is a laborious task, and after licensing monitoring is even more difficult. While there is an association for ISPs, it is essentially defunct (as can be ironically seen from their very site). The TRAI simply does not have the resources to look into all ISPs and whether they maintain the conduct required by their license. Further, the TRAI needs some regulatory power in the form of the law in order to actually make decisions or levy punishments. Explicitly laying down what is permitted in a license is only the first step.
Regulations in the form of Quality of Service requirements could lead to a reduction in discrimination on the basis of quality. This regulation could include certain aspects such as preventing throttling and blocking, or other forms of preferential treatment, as well as laying down a particular standard that is to be met, regardless of content. It would also allow for a mandatory level of transparency. While this action is likely to be helpful, it is not the perfect solution. Creating the standard itself is difficult, enforcing it is even more so. It further does not combat the entirety of the discriminations that occur, and acts more as a stopgap.
Legislative changes are the most effective towards attaining active reforms, though as pointed out earlier, providing the government this power is not a unilaterally positive action. Yet if the TRAI has this legislative power to back its actions, or even another external, quasi-judicial body to act in its stead, this would lead to enforceability, leading to a greater incentive to follow the principle of net neutrality.
In terms of regulations and policy approaches, the TRAI sticks to these issues. In the paper, the importance of monitoring is also brought up, however there is a distinct lack of both innovative solutions and a recognition of the specific domestic issues India faces. Instead the paper focuses more on the approaches of foreign countries, hoping that a patchwork solution will work for all.
In conclusion, the paper raises certain questions which are to be answered in future consultations. The questions of which body should be given the power of monitoring and supervision, collaboration with other stakeholders and the manner in which the legal framework should be evolved are all directly relevant and extremely pertinent towards creating an effective upholding of net neutrality. Hopefully, these questions and the multiple issues and problems of the measures raised in the paper will be addressed during the actual consultations on the 15th of February, 2017.
For Further Reading:
IFF Summary on TRAI’s Paper – https://internetfreedom.in/iffs-summary-of-trais-new-net-neutrality-paper/
Vox – Saving Net Neutrality through Republican Legislation – http://www.vox.com/new-money/2017/1/26/14383040/thune-net-neutrality-bill
International Telecommunications Union – Discussion paper on regulations of Net Neutrality – https://www.itu.int/ITU-D/treg/Events/Seminars/GSR/GSR12/documents/GSR12_Webb_NetNeutrality_1.pdf
Tech Law Forum @ NALSAR 