India takes the lead in shaping global Net Neutrality principles

by Nayantara Ranganathan

(Originally published on Asia Times. Link here.)

While the US seems to be busy unraveling progressive net neutrality protections passed during the Obama administration, India’s Telecom Regulatory Authority of India (TRAI) is putting down roots for one of the strongest net neutrality frameworks in the world.

In a detailed set of recommendations released earlier this week, TRAI does many things: outlines the need for such a framework, sets out its design and scope, proposes actual text for insertion into license conditions of telecom companies and envisions new bodies for its implementation.

TRAI has been viewed as a global leader on the issue since February 2016, when it passed a regulation prohibiting data offers that charged different prices depending on the content being accessed, effectively killing Facebook’s Free Basics. The present recommendations are strident enough to cement that view.

Non-discrimination rule and exceptions

The principle of non-discriminatory treatment is at the heart of TRAI’s framework. This has been arrived at for its merit in preserving the internet’s unique, even revolutionary, characteristics (like enabling free speech, having low barriers for innovation in content, a user’s role as both consumer and producer on the internet).

It means that your internet service provider should not discriminate in the facilitation of internet access— no matter who is doing the accessing, what is being accessed, through which devices and over what protocols.

The non-discriminatory access condition is proposed to be inserted in the license conditions of telecom companies providing internet access, with a limited set of exceptions. These exceptions include traffic management practices’ (TMP)— situations where telecom companies have to manage their network in times of congestion.

How to be sure that you, binger of Netflix mini-series, are not shortchanged by your telecom company de-prioritizing your Hotstar traffic to speed up Netflix, all in the guise of traffic management? Well, because TRAI requires that any traffic management be reasonable’, that is: (i) proportionate, (ii) transient and (iii) transparent.

While the reasonable traffic management and other exceptions are not specific enough at the moment, they are solidly grounded in principles— and that’s good news, even as we wait to see how it will be thrashed out at the time of further regulations.

Applicability of the non-discrimination rule

The non-discrimination rule applies only in the provision of Internet Access Services’, defined thus: where the service is generally available to the public; and designed to exchange data to and from all or substantially all endpoints on the Internet.”

TRAI envisions a category of network services called Specialized Services’ which would be exempt from the non-discrimination requirement, although they would share the pipes with Internet Access Services. Network services that need to be optimized for specific content, protocols or user equipment would fall under this category. Tele-medicine, where optimization would be critical to ensure there is good connectivity, is a safe example.

Whether a service would be allowed optimization would depend on the necessity for optimization, and whether the network provider has the required capacity to prioritize some traffic without it being detrimental to the overall quality of Internet Access Services.

Internet of loopholes? No thanks

By not allowing a blanket exemption for Internet of Things’, the regulator has ensured that this dubious category doesn’t get a free pass: IoT as a class of services, should not be specifically excluded from the scope of the restrictions on non-discriminatory treatment.” This means, an internet connected device like a wearable fitness monitor would not have priority over a user trying to access the week’s horoscope over the web, simply by virtue of the fitness monitor being a singular use-case device.

TRAI does however leave room for critical IoT services (say, a heart-rate monitor), to be identified by the DoT as a specialized service’, consequently enjoying an automatic exemption from the non-discrimination requirement.

Content Delivery Networks

If Facebook is not allowed to tie up with a telecom company (as it tried to do so in India in the past) to subsidize data charges for users accessing its platform (thanks to TRAI’s regulation in Feb 2016), is Netflix then allowed to tie up with telecom companies to host its servers within the telecom company’s premises, so as to deliver episodes of Black Mirror faster? Yes. Such an arrangement is one kind of Content Delivery Network (CDN), which have been exempt from the non-discrimination rule.

This is because CDNs increase the overall efficiency of the network by not only benefiting the content being delivered via these CDNs, but also freeing up bandwidth for other content— therefore cumulatively a positive thing.

TRAI nevertheless notes that there is a need for more transparency in arrangements between network providers and CDNs to fully appreciate their effect on the traffic flows, competition and violations of non-discrimination requirements by telecom companies. TRAI mentions it may frame regulations for transparency and disclosure requirements in this regard.

Regulation of OTT’ service providers still open

TRAI is issuing a fresh consultation to regulate Over the top’ services— a categorization TRAI uses to refer to content over the internet — Uber, Tumblr, Whatsapp, what-have-you.

Since the first consultation on OTT service providers in March 2015, there has been consistent push-back against the idea of regulating content, application and service providers within a network neutrality framework— mostly by user groups and OTT service providers themselves.

Concurrently, telecom companies have continued to push for leveling the playing field’. Their argument is that players like WhatsApp or Skype are at an advantage, as they don’t have regular lawful interception requirements, the burden of license fees and other assorted compliance required of telecom, companies, for providing roughly the same service (of making calls).

Transparency and disclosures

Disclosures are crucial in implementation, and yet this is where TRAI has been meek. TRAI explores possible disclosure obligations of telecom companies towards the public, towards its customers as well as towards itself, but ultimately does not mandate anything specific. Transparency and disclosure requirements relevant to non-discriminatory treatment, including about TMPs, are to be framed at a later point.

Monitoring and Enforcement

TRAI recommends the setting up of an industry-led multi-stakeholder body to supplement its own role in monitoring and enforcement. Functions of this body would include developing and recommending technical standards for monitoring of TMPs. While it makes sense to harness expertise in all stakeholder groups to effectively monitor for compliance, it is unclear how an enforcement role is envisioned, as it’s recommendations are non-binding.

While these recommendations are ultimately subject to be adopted by the DoT, TRAI notes that they are without prejudice to its own powers to regulate on matters of quality of services, consumer protection, transparency, and monitoring of compliance.