Medianama 15 May 2017

Here’s what everyone is saying in TRAI’s latest Net Neutrality consultation 

by Aroon Deep

Last year’s highly public and widely discussed TRAI consultation resulted in Internet providers being barred from charging differently for different parts of the Internet. This time around, the telecom regulator’s newest consultation on Net Neutrality is significantly more business-as-usual, and much more muted. Now that the consultation has finished accepting responses and counter-responses, here are some of the most significant themes to watch out for from telecom operators, Internet companies and advocacy groups.

1 “Same service, same rules”

Telecom operators have long complained that many apps like WhatsApp and Skype eat into their revenue by replacing the non-Internet access services that they charge for, like SMS and calling. Curiously, Indian telecom operators, instead of arguing that they should face less regulation, have called for these “over the top” (OTT) services to face more regulation instead. They argue that unlike so-called OTT apps, telcos face several regulatory constraints that put them in an uneven playing field. As such, they argue that there needs to be “same services, same rules”, a framework where OTT apps and telcos compete fairly, without regulatory imbalance.

Multiple stakeholders, such as the Broadband India Forum and Hotstar, pointed out that unlike OTT services, telecom providers held a monopoly on providing access to the Internet, mooting the argument that apps and ISPs need to be treated similarly.

Broadband India Forum’s curious reversal

In this consultation’s initial stages, the Broadband India Forum, an association of telecom operators, argued (pdf) that “OTT Communication players need to be brought under the same regulatory regime as the ISP/TSPs.” In an apparent reversal, the BIF made the opposite argument towards the end of the process (pdf), saying that “The so-called “Same Service, Same Rules” argument is flawed”. Further contradicting its earlier position, the association went on to say, “Rather than attempting to increase the regulatory burden of OTTs by applying telecom regulations to online services, there should be consideration given to reducing the regulatory burden of TSPs.”

What changed?

2 What is an enterprise service?

Practically every Internet provider wants an exception on “enterprise services” or “specialized services”, like dedicated video calling services that some organizations subscribe to. For example, Reliance Jio argued that since enterprise services were “tailored” to specific business requirements, they did not affect Net Neutrality. The Centre for Internet and Society, an advocacy group and think tank, also said (pdf) that enterprise services should be exempted (from Net Neutrality restrictions), but only if i) access to the rest of the Internet is priced similarly, and ii) if the enterprise service in question cannot be served over the regular Internet in the required level of “delivery guarantee”.

Hotstar‘s submission was far more blunt. “The definition of Internet traffic should not exclude … Internet services masquerading as ‘specialized services’,” the streaming service argued. It went on to say that any specialized service seeking an exemption from Net Neutrality rules “should not be usable to provide general access to the Internet”, and must fulfil a very narrow function.

3 “Don’t touch CDNs!”

Content Delivery Networks (CDNs) are so-called “middle-mile” networks, which content providers use to distribute their traffic globally in a decentralized and efficient manner. CDNs typically host copies of content in servers around the world and connect directly with Internet providers, so that there is less latency when sites are accessed, and less distance between the content and the end-user. Content providers, CDN providers, and Internet providers strongly opposed CDNs from being regulated. In fact, Netflix dedicated much of its submission arguing against CDNs coming under regulatory purview, whereas TRAI itself only touched on the possibility passingly in its consultation paper.

Akamai, a large CDN provider, argued that “[A]ny net neutrality principles or rules adopted in India should apply only to Internet access service, which should refer to a publicly available electronic communications service provided by a telecommunications service provider (TSP) in India that is offered to end users on a retail basis”. To some extent, advocacy groups also argued that CDNs should largely be left out of Net Neutrality regulations. The Internet Democracy Project argued (pdf): “Since deploying high traffic content closer to the edges eases up the load on the network as a whole, [CDNs] need not be treated as violating discriminatory access to the internet.”

4 “Can we even detect Net Neutrality violations?”

Some telcos argued that detecting whether some Internet traffic was being slowed down or sped up would be next to impossible, and would require access to an ISP’s confidential internal traffic data. The GSMA, an international association of telecom operators, said (pdf) “monitoring and detecting [unfair traffic management] practices is challenging,” and that any detection framework should be highly robust. Spectranet, a broadband provider, said that it would be difficult to detect practices like throttling and paid prioritization, unless there’s a “neutral network” that is outside an ISP’s network which works with end-users to measure speeds of different applications and services to see if there’s any discriminatory traffic management.

The Measurements Lab said (pdf) that detecting unfair traffic management was very much possible. “Academic researchers and national regulatory authorities have been actively engaged in measuring traffic management practices for well over a decade to considerable success,” M-Lab said. “The adoption of TMP measurement tools by TRAI would build on a rich history of research and implementation, and align with the current agenda of BEREC and other regulators.”

5 “Device neutrality”

Multiple operators are arguing that since the fair treatment of all data depends on the end-user’s Internet browser and device, Net Neutrality should apply to those as well. Airtel, for example, argued (pdf) that device manufacturers and content providers should also be regulated under Net Neutrality rules (Airtel cited Netflix allegedly “slowing down” data for mobile data users as an example; Netflix denied Airtel’s allegation in a counter-filing). The Internet Freedom Foundation* argued strongly against such a framework, saying that “the focus of network neutrality as a regulatory concept has been to ensure that TSPs [don’t] misuse their unique, license-enabled position” which gives them monopoly over Internet access, unlike device manufacturers and OTT services. Similarly, Hotstar argued that “Independent devices, browsers or operating systems themselves do not constitute a network and are not the subject matter of the net neutrality debate.” (emphasis theirs)

Originally published in Medianama.