Trai sets the stage to define net neutrality

Pre-consultation report to address definition, seeks public view on core principles and issues of network neutrality

India is on course to join an ever-increasing list of countries that will clearly define what 'net neutrality' is and its binding principles. Telecom Regulatory Authority of India (Trai) has come out with a pre-consultation report on net neutrality, following the department of telecommunications seeking the regulator's views.

The issue of net neutrality is an important one as the country currently has over 331 million internet users and 94 per cent of these are wireless. Like the voice telephony market changed in the late 1990s, data is also set to transform the manner in which Indians do things. The internet is fast redefining how Indians socialise, consume information and entertainment, and transact online. And if all this has to happen, the internet has to allow for new models to come up and for this, it has to stay independent.

According to Trai, the shift in consumer behaviour will not only create opportunities and innovations as far as businesses are concerned, but will also increase risks for consumers, thanks to the trail of information they will leave behind. As new business models spring up and telecom service providers sink billions of dollars into their networks, it is imperative the interests of all stakeholders are balanced.

Therefore, it is critical for India to have an articulate policy on the Open Internet and Trai has set the context for this discussion to happen. While acknowledging that the Internet has enhanced user choices, telecom service providers (TSPs) also need reasonable tools to manage internet traffic to protect integrity of networks. The regulator says, "This merits a deeper enquiry into the various issues relevant to the subject of net neutrality, including determining the reasonableness of traffic management tools that may be adopted by TSPs; understanding the importance of unrestricted access to the internet; transparency and informed choice by users; customer privacy and national security."

As more Indians access the Internet on their mobile devices, it will lead to congestion on their networks and they will want to do some traffic management to avoid service quality deterioration. The telecom regulator has not only identified areas but also recognised issues and raised appropriate questions that will need to be addressed as consumers, service providers and online businesses at their respective business models.

WHAT IS NET NEUTRALITY?
It essentially means that all internet service providers must treat internet traffic equally. All points of the network should be able to seamlessly connect to all other points, without any discrimination on the basis of speed, access or price

Five issues Trai focuses on

1. Traffic management: Telecom service providers (TSPs) can adopt a set of techniques to direct internet traffic in a manner that helps them attain optimum performance. The tremendous growth in internet traffic, particularly of video content, has prompted telcos to devise strategies to address network related  capacity and capability issues
2. No Blocking or Throttling: There is a fine line between reasonable traffic management tool and unreasonable interference like throttling of speeds, blocking of applications and offering discriminatory tariffs  to direct traffic in any particular direction     
3. Transparency: In the absence of clear rules, TSPs could use traffic management tools for anti-competitive purposes by preventing consumers from going to certain websites and applications. Strict adherence to net neutrality rules may prevent TSPs from dealing with traffic congestion in an appropriate fashion, so that service quality does not deteriorate
4. Unrestricted Access: Subscribers should have unrestricted access to all forms of content and restrict only content that is lawfully banned
5. Customer Privacy and  national Security: The growth of OTT communication services  has resulted in transfer of personal information, which poses a threat to national security and individual privacy. This calls for a need to examine the legal and  regulatory framework

Trai has defined "network neutrality" as a principle that ensures telecom service providers treat all internet traffic on an equal basis, without regard to the type, origin, or destination of the content or the means of its transmission.

However, there are multiple interests at work here between consumers, telecom service providers and over-the-top (OTT) applications and websites. With telcos investing billions of dollars to enable networks to handle bandwidth consuming data traffic (especially video), they would want to manage traffic in a manner such that quality of networks do not deteriorate. All this requires transparent policies so that access to platforms, apps and websites is not throttled illegally.

In addition, the rapid proliferation of OTT applications also are collecting large amount of private data of consumer, which needs to be protected. Given that the OTT players are not regulated currently by Indian authorities, there are chances of abuse of this data. There are also implications for national security, which need to be addressed effectively through this regulation. Trai's pre-consultation paper says: "While the open architecture of the internet is responsible for the phenomenal growth of OTT services, it also causes the transfer of personal information on the internet to be fraught with potential risks and scope for misuse. This calls for a need to examine the legal and regulatory framework required for governing the privacy of users of OTT services."

The issue of net neutrality had kicked up dust earlier this year over platforms like Facebook's Free Basics and Airtel Zero as well as attempts to charge certain Internet services, including calls. Seeking to put in place an overall framework for Internet usage in the country, Trai said: "This pre-consultation paper is an attempt to identify the relevant issues in these areas, which will help Trai in formulating its views on the way forward for policy or regulatory intervention."

There has been a conflict between telecom operators, internet companies and consumers' interest on the issue of net neutrality. While all the three major stakeholders - telecom operators, Internet companies and consumers - favour net neutrality, their definitions can vary which is why having a framework is necessary.

Trai has partially addressed the issue of net neutrality like differential pricing and, through a separate consultation paper, is in process of exploring model for providing free Internet within framework of net neutrality.

The paper has sought public views on various aspects such as: "What should be regarded as the core principles of net neutrality in the Indian context? What are the key issues that are required to be considered so that the principles of net neutrality are ensured?"

KEY QUESTIONS RAISED BY TRAI

• What should be regarded as the core principles of net neutrality in the Indian context? What are the key issues that are required to be considered so that the principles of net neutrality are ensured?
• What are the reasonable traffic management practices that may need to be followed by TSPs while providing internet access services and in what manner could these be misused? Are there any other current or potential practices in India that may give rise to concerns about net neutrality?
• What should be India’s policy and/or regulatory approach in dealing with issues relating to net neutrality? Please comment with justifications.
• What precautions must be taken with respect to the activities of TSPs and content providers to ensure that national security interests are preserved?
• What precautions must be taken with respect to the activities of TSPs and content providers to maintain customer privacy?
• What further issues should be considered for a comprehensive policy framework for defining the relationship between TSPs and OTT content providers?

COUNTRIES AND WHAT THEY HAVE DONE ON NET NEUTRALITY

• Brazil enacted the  Marco Civil da Internet, popularly known as the Internet Bill of Rights, in 2014
• The US Federal Communications Commission released Open Internet Order in February 2015. It has laid down bright line rules like No Blocking, No Throttling and No Paid Prioritisation
• At present in Australia, there are no specific ex ante law governing net neutrality. Issues relating to net neutrality can however be addressed through the general competition regime administered by the Australian Competition and Consumer Commission and some sector-specific telecom regulation. In the absence of any specific restrictions, ISPs have adopted practices of zero rating and other forms of traffic differentiation.
• European Union: In October 2015, the European Parliament voted in favour for the EU-wide open internet access regulations. The regulations enshrine the principles of net neutrality into EU law: Obligation to treat all traffic equally, without discrimination, restriction or interference and transparency requirements

It has also sought views on approach that "India's policy and/or regulatory approach" should take in dealing with issues relating to net neutrality.

Adherence to the principal of net neutrality is arguably necessary for maintaining the open and non-discriminatory character of the Internet, features that are responsible for the phenomenal growth of the Internet in the past decades.

"In the absence of a clear regulatory framework on net neutrality, advanced traffic management techniques can potentially be used by an operator for discriminatory or anti-competitive purposes," Trai said.

(With inputs from PTI)