8 February 2016

We are thrilled that the Indian telecom regulator, TRAI, has notified regulations in favour of an open internet, after grueling rounds of consultations in which many stakeholders with different views and interests participated. Facebook’s Free Basics also comes within the sweep of TRAI’s prohibition of any service that seeks to segregate users on the basis of content they want to access. Service providers found contravening these regulations could be fined an amount of fifty thousand for each day of contravention, upto a maximum of fifty lakh rupees.

After a busy few weeks of consultations, the Telecom Regulatory Authority of India on 8th February 2016, notified regulations prohibiting differential pricing of mobile data services. TRAI said that such a prohibition is

‘necessary to ensure that service providers continue to fulfil their obligations in keeping the internet open and non-discriminatory.’

The Internet Democracy Project welcomes TRAI’s decision. It is encouraging to see TRAI note that TSPs are custodians of public resource infrastructure, and that its provision should be made available without discrimination. The Internet Democracy Project’s submissions and interventions stressed on the importance of equitable access to an open internet, as it is a public resource. We submitted that even by a market regulator, the internet cannot merely be seen as a marketplace, but an information and communication network, the openness of which enables exercise of active citizenship.

In favour of ex-ante regulation, TRAI has put forth that the regulatory costs involved in a case-to-case assessment of services would be high, and the lack of clear regulations would create uncertainty among TSPs. Articulating the reasons for its decision in the explanatory memorandum, TRAI notes that it has taken into consideration the social, technological, economic and legal implications of content-based price differentiation, specific to the Indian context.

TRAI has left room for alternative models of access- a capped amount of free data with unrestricted access to any content has been categorically allowed. The regulator is also open to monitoring (via advertisements/surveys/direct coupons) proposals that seek to provide free/open data.

The end-to-end design of the internet has been considered worth preserving, even in light of access challenges in a developing world.

‘Any proposed change in business models and commercial practices must also be seen in the context of the need to preserve the unique architecture of the internet’.

TRAI, anticipating that telecom companies may try to circumvent the prohibition and seek to introduce preferential treatment of content through tweaked models, makes it clear that any arrangements that have the same effect as charging discriminatory tariffs on the basis of content would be prohibited. Given the tendency of powerful business interests’ to evade the spirit of the law, this is a welcome direction.


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