A WEB WITHOUT PREJUDICE
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.