India Today - - UPFRONT - RAMAN JIT SINGH CHIMA The au­thor is Global Pol­icy Di­rec­tor at the in­ter­na­tional non-profit, Ac­cess Now, and co-founder, In­ter­net Free­dom Foun­da­tion

On Novem­ber 28, the Tele­com Reg­u­la­tory Author­ity of In­dia (TRAI) is­sued its out­come re­port from its con­sul­ta­tion pa­per on net­work neu­tral­ity, “the re­sult of a long, multi-stage process” over the past three years. TRAI’s re­port com­pleted an­other pil­lar on the reg­u­la­tory struc­ture it be­gan build­ing in Fe­bru­ary 2016, when it is­sued its Dif­fer­en­tial Data Pric­ing Reg­u­la­tions which banned ‘ze­rorat­ing’ ar­range­ments be­tween tele­com ser­vice providers and in­ter­net firms (such as Face­book’s Free Ba­sics pro­gramme, part­nered with Re­liance Com­mu­ni­ca­tions in In­dia).

TRAI’s most re­cent rec­om­men­da­tions fo­cus on di­rect forms of tech­ni­cal dis­crim­i­na­tion that tele­com ser­vice providers could use to pref­er­en­tially treat web con­tent to favour their own mone­tary ben­e­fits over those of users. TRAI has rec­om­mended that ser­vice provider li­cences be amended by the gov­ern­ment to in­clude an ex­plicit ban on pref­er­en­tial treat­ment of web con­tent. Tel­cos can­not throt­tle, block or oth­er­wise pref­er­en­tially treat cer­tain web con­tent over oth­ers by speed­ing up or slow­ing down how their sub­scribers ac­cess it. TRAI rec­om­mended that cer­tain ex­cep­tions be al­lowed, but has pushed back on lob­by­ing pres­sure to craft loop­holes. It has in­di­cated that ‘specialised ser­vices’ should not be in­cluded within the scope of its pro­hi­bi­tion of pref­er­en­tial treat­ment (po­ten­tially, for ex­am­ple, IPTV), and that op­er­a­tors must en­sure that their de­ploy­ment does not im­pact the pro­vi­sion­ing of gen­eral in­ter­net ac­cess and that they can­not be­come a back­door means to un­der­mine net neu­tral­ity. Some in­dus­try in­ter­ests called for a vaguely worded ex­cep­tion for In­ter­net of Things (IoT) de­vices, which TRAI re­jected while not­ing that some IoT de­vices may re­quire specialised ser­vices and oth­ers may be de­signed to op­er­ate on the public, open in­ter­net. TRAI has also said that ser­vice providers can per­form rea­son­able ‘traf­fic man­age­ment prac­tices’ that might in­volve some amount of pref­er­en­tial treat­ment, but has left the def­i­ni­tion of such prac­tices to be per­formed by it­self in the fu­ture.

TRAI’s rec­om­men­da­tions are pro­gres­sive, but do not rep­re­sent a cross­ing of the fin­ish­ing line yet. Since TRAI chose to is­sue its re­port in the form of rec­om­men­da­tions, it now falls upon the de­part­ment of tele­com (DoT)— ad­min­is­tered by tele­com sec­re­tary Aruna Sun­darara­jan and led by Union com­mu­ni­ca­tions min­is­ter Manoj Sinha—to study TRAI’s rec­om­men­da­tions, in­di­cate whether they ac­cept them in to­tal­ity or only in part, and then ac­tu­ally carry out the im­ple­men­ta­tion. While TRAI has dis­ap­point­ingly cho­sen to wait upon the DoT, it has in­ter­est­ingly stressed that its cur­rent rec­om­men­da­tions are “with­out prej­u­dice” to its pow­ers un­der the TRAI Act—hint­ing that it re­serves the right to is­sue reg­u­la­tions if the DoT does not act.

TRAI’s rec­om­men­da­tions are strik­ing given the re­peated op­po­si­tion mounted by parts of the tele­com in­dus­try. Sev­eral tele­com firms and the in­dus­try as­so­ci­a­tions rep­re­sent­ing them sought to ar­gue that not only should TRAI not take any ac­tion to fur­ther safe­guard net­work neu­tral­ity—ar­gu­ing that there was ‘no mar­ket fail­ure’ jus­ti­fy­ing fur­ther ac­tion—but that it should also re­verse its Fe­bru­ary 2016 land­mark de­ci­sion to glob­ally lead on reg­u­lat­ing zero-rat­ing prac­tices. Sev­eral tele­com in­dus­try in­ter­ests also sought to bol­ster their op­po­si­tion to net neu­tral­ity by cit­ing how, post the Trump in­au­gu­ra­tion ,US Fed­eral Com­mu­ni­ca­tions Com­mis­sion (FCC) chair­man Ajit Pai had em­braced the ar­gu­ments of big tele­com’s lob­by­ists to dis­man­tle the land­mark Open In­ter­net Or­der is­sued by it dur­ing the Obama ad­min­is­tra­tion to safe­guard net neu­tral­ity. To its credit, TRAI seems to recog­nise that the Trump ad­min­is­tra­tion in the US is an out­lier amongst pro­gres­sive democ­ra­cies when it comes to safe­guard­ing our global, open in­ter­net. In Europe, net neu­tral­ity re­mains en­shrined in law by the Tele­com Sin­gle Mar­ket frame­work passed by the Euro­pean Union in Oc­to­ber 2015, and it has been strength­ened by com­pre­hen­sive im­ple­men­ta­tion guide­lines is­sued by BEREC—the body that com­prises the na­tional reg­u­la­tors for tele­com and elec­tronic com­mu­ni­ca­tions across Europe’s na­tion states. Na­tions like Canada have re­in­forced their net­work neu­tral­ity frame­works, and taken In­dia’s lead on pre­vent­ing the rise of eco­nomic dis­crim­i­na­tion on the in­ter­net via prac­tices such as zero-rat­ing.

Il­lus­tra­tion by TANMOY CHAKRABORTY

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