Scroll 29 Nov 2017

The Indian telecom regulator’s net neutrality recommendations may be the strongest in the world 

by Aroon Deep

The proposals released on Tuesday ban discrimination in terms of price or speed, and demand greater transparency.

Even as the United States gets set to roll back laws protecting net neutrality, India’s telecom regulator on Tuesday released comprehensive recommendations that experts say signal a clear commitment to the principle of neutrality and could count as some of the strongest regulations in the world.

Net neutrality is the idea that internet service providers must treat all data on the internet equally, which means they cannot choose to speed up or slow down a particular service or charge different rates for different kinds of data.

After spending the last year and a half in consultation, the Telecom Regulatory Authority of India has come up with stringent rules that would prevent internet service providers from providing “fast lanes” for certain kinds of data, force them to be transparent about data management, and set up a committee to detect net neutrality violations. These come close to two years after Facebook’s Free Basics service – which provided a scaled down version of some websites for free – sparked a nationwide campaign to protect net neutrality and consequently had to exit India.

The Department of Telecommunications is expected to rely on the regulator’s recommendations when it forms official rules on net neutrality.

No fast lanes

The regulator has recommended that no internet provider should be allowed to slow down or speed up a website or service. A fast lane would allow an internet provider to load, say, Hotstar faster than another service like Netflix. Conversely, allowing this would be equivalent to letting providers slow down certain websites. A key principle of net neutrality is that there can be no fast lanes.

But this principle is already being violated. Internet service providers in West Bengal, for instance, have a fast lane where some services and websites are up to 40 times faster than the regular internet. Alliance Broadband, a large internet service provider in Kolkata, says on its website that it serves YouTube and Hotstar twice as fast as the rest of the internet. If the recommendations of the telecom regulator are implemented, such discrimination will not be allowed.

The recommendations also say service providers should not be permitted to block any content unless they receive a lawful order from the government or the courts.

Greater transparency

Another recommendation is that service providers must declare how they manage their traffic. For example, if a 3G tower gets congested, how does the service provider manage the flood of data? Does it make video slower and give preference to other traffic, or does it neutrally decide that each user gets a specific amount of bandwidth? Under the new proposals, the first option would be prohibited. The recommendations also require internet providers to declare whether they discriminate among various kinds of web traffic, like video and text.

Nayantara Ranganathan, a researcher at the Internet Democracy Project, said this recommendation is not as specific as the one the regulator had floated in its consultation paper, which was circulated among stakeholders in the last few months. Ranganathan said that in the consultation paper, “they recognised the importance of meaningful disclosures, and went as far as including a sample disclosure format”. She added, “So it is surprising they haven’t really recommended anything more specific than saying that disclosures need to be given.”

Yet another proposal of the regulator is that a committee of internet service providers, academics, civil society representatives and consumer groups be set up to detect net neutrality violations and communicate them to the government. It said it would elaborate on the specifics of this committee once the recommendation is accepted by the government.

Government action

The Telecom Regulatory Authority of India wants the recommended rules to be clearly stated in the licence terms all telecom providers must adhere to in order to provide their services. If the Department of Telecommunications accepts this recommendation, internet providers may face penalties if they are found to be violating net neutrality.

The regulator has chosen not to directly issue the regulations and has submitted them to the Department of Telecommunications, its parent organisation. This is in contrast to its actions in 2016 when it issued a regulation that effectively banned Facebook’s Free Basics service, which activists said violated net neutrality. This regulation comes under review in February.

However, in the meanwhile, the regulator has said it may issue regulations to support net neutrality like it did last year, even if the Department of Telecommunication does not move immediately to implement the recommendations. “The Authority notes that these recommendations are being made without prejudice to the powers and functions conferred upon it under the TRAI Act, 1997,” the regulator said.

Amba Kak, a technology policy fellow at Mozilla, said the recommendations may not have too much trouble passing through the telecom department. “Since TRAI has specifically described the exact changes DoT needs to make in their licence terms for telecom providers, I don’t foresee much lag in getting these recommendations passed,” she said.

What won’t be regulated

The regulator conceded to two key demands from industry groups.

The first was that content delivery networks, which store data from companies that pay them so that they can be delivered much faster to users, should not be regulated. These are not regulated in the European Union, United States, Brazil and Japan, as content delivery networks provider Akamai pointed out to the regulator earlier this year. Competitive issues from content delivery networks are expected to be tackled by an antitrust authority, which in India’s case is the Competition Commission of India.

Additionally, so-called specialised networks, such as video-conferencing services used internally by businesses, have been exempted. However, the regulator warned that these will not be spared from net neutrality regulations if they also offer access to the public internet like a regular internet service provider.

This is a significantly stronger rule than the United States Federal Communications Commission’s Open Internet ruling, which is set to be repealed soon. The Commission’s rules exempted all enterprise services from net neutrality rules, even if they provided regular internet access. Kak said the Indian telecom regulator’s definition of enterprise services is nuanced and well-defined to prevent internet providers from discriminating under the guise of providing specialised services.

Strongest rules in the world

Net neutrality regulations in other places, such as the European Union and the United States, deal with either pricing or speed. In case they deal with both, like the Body of European Regulators for Electronic Communications does, their regulations are relatively watered down. Kak explained, “The EU’s BEREC and FCC, for instance, follow a case-by-case approach for zero-rating.” (Zero-rating is when telecom service providers offer consumers certain services for free, so these do not count against their data usage). The Indian regulator prohibits it entirely.

If these recommendations become law, India would have the strongest net neutrality regulations in the world, with a “bright line” clearly mentioned in the licence conditions for internet providers that prohibits discriminatory behaviour – both in pricing and in speed of data access. Ranganathan and Kak said these recommendations, when combined with the regulator’s ruling last year, are much tighter than any other rules for net neutrality in the world.

The Department of Telecommunications will now have to consider the recommendations and decide whether to implement them.

Overall, the recommendations are a step in the right direction, said Kak. “Nitpicking is important, but I think more than anything else, [these recommendations are] a very strong articulation of a principle and one that will be hard-coded in law,” she pointed out. “The fact that we have this clear principled commitment is something to celebrate.”

Originally published in Scroll.