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Striking a Balance: TRAI consultation paper paves the way for net neutrality framework

February 15, 2017

 

Over the past few years, concerns have been raised globally about the discriminatory treatment of internet traffic by access providers. Often referred to as the “violation of net neutrality”, the issue has garnered significant attention in India as well and become a key topic of policy debate in the telecom industry. The Telecom Regulatory Authority of India (TRAI) and the Department of Telecommunications (DoT) too have undertaken multiple discussions and consultations on the issue and its related aspects.

In January 2015, DoT set up a committee on net neutrality, which presented its report in March 2015. Meanwhile, TRAI issued a consultation paper on the regulatory framework for over-the-top services. Thereafter, in December 2015, TRAI released a consultation paper on differential pricing for data services. In February 2016, the government introduced a regulation prohibiting discriminatory tariffs for data services.  This was followed by DoT seeking TRAI’s recommendation on net neutrality in March 2016. TRAI, in May 2016, released a consultation paper on free data and initiated a pre-consultation on net neutrality. The latter set the stage for detailed consultations in the industry on issues such as the definition of net neutrality, the scope for traffic management practices, the importance of unrestricted access and transparency, and the need for preserving customer privacy and national security. The pre-consultation paper also highlighted the salient points of the recommendations made by the DoT committee. It also listed various regulatory approaches adopted worldwide for addressing net neutrality issues.

As a next step to pre-consultation, TRAI has now released a consultation paper, listing out several key issues that need to be deliberated upon further to take a final call on the subject. The areas in which stakeholder inputs have been solicited are as follows:

Traffic management

The exponential increase in internet traffic and the evolving nature of the content that constitutes a part of this traffic can lead to the overburdening of networks. As a result, operators may not always be able to deliver an adequate level of quality of service (QoS) to their users, which is problematic both from a regulatory compliance perspective as well as for competitive reasons. Competitive forces often drive operators to manage their networks in a manner that is conducive to attracting new customers and retaining existing ones by offering them a satisfactory user experience. As a result, operators tend to deploy various types of traffic management techniques on their networks. This is often done by taking into account the specific nature and needs of the data packets being transmitted. Operators, optimise the overall network performance and maintain a consistent QoS for users, while carrying a diverse variety of traffic over their networks. However, it is important to ensure that such techniques are not used in a discriminatory manner.

Thus, a net neutrality policy/regulatory framework should not interfere with the ability of service providers to manage their networks in a reasonable and fair manner. TRAI has suggested two policy/regulatory approaches to achieve this end. First, a broad approach that involves defining what should constitute “reasonable” traffic management practices and accordingly setting the parameters for what can be regarded as acceptable or unacceptable forms of interference by a service provider in internet traffic flowing through a network. In contrast, a narrow approach would limit itself to a negative list of non-reasonable traffic management practices.

To this end, TRAI has sought comments on the definitions of internet traffic and internet service provider (ISP) in the net neutrality context, and whether certain types of specialised services, enterprise solutions, internet of things, etc. should be excluded from the scope. Also, suggestions have been sought on how services provided by content delivery networks and direct interconnection arrangements should be treated.

Principles of net neutrality

Based on a review of various reasonable and non-reasonable traffic management practices in the Indian context, it is important to identify the core principles of net neutrality for India and the types of practices that might be regarded as being in violation of these core principles. In addition, it is important to see if any specific practices such as blocking, throttling or preferential treatment of content need to be specifically dealt with within the net neutrality framework.

To this end, TRAI has asked for suggestions from stakeholders on the type of tests, thresholds and technical tools that can be adopted to detect the deployment of such practices. For instance, how can it be established that a particular application is being throttled, or whether preferential treatment is being provided to a particular application? Further, inputs have been sought on how factors such as the type of device, browser and operating system can impact a user’s quality of internet experience in the net neutrality context.

Transparency

Transparency is one of the key enabling factors for ensuring adherence to non-discrimination principles within the net neutrality framework. End-users must have access to relevant information about the types of traffic-shaping practices being followed by service providers and also why they are being deployed. Effective disclosure of information pertaining to traffic management practices and performance characteristics of a network will enable users as well as the regulator to detect violations.

It is, therefore, important to identify specific transparency-related obligations that need to be followed in various circumstances. To this end, stakeholders have been asked to cite their preference for one or more models of disclosures to various parties for ensuring transparency. These include disclosures provided directly by an operator to its consumers, to the regulator, or to the general public. Also, suggestions regarding the mode, and the trigger and frequency to publish such information have been sought. Comments have also been solicited on the Information Disclosure template prepared by TRAI. The regulator further wants suggestions on whether the template should vary for different categories of stakeholders.

Monitoring framework

Identifying net neutrality violations will require a robust monitoring and information seeking approach. While transparency with respect to traffic management practices is critical, relying purely on operator disclosures to self-report violations may not be sufficient for this purpose. This calls for the implementation of a proactive monitoring approach to be put in place that takes into account operator disclosures while focusing on the collection of information from users through complaints, user experience apps, surveys and questionnaires, and from third parties through research studies, news articles, consumer advocacy reports, etc. In addition, the authority responsible for monitoring and supervision may also need to adopt other innovative tools for detecting violations.

To this end, TRAI has asked for suggestions on an effective legal/policy instrument for implementing a net neutrality framework. Stakeholders have been asked to identify the body that will be responsible for monitoring and supervision, as well as for taking action in case of any violation detected. Inputs have also been sought regarding the challenges that could surface while monitoring framework violations. TRAI has also suggested that the adoption of a collaborative mechanism be considered, with representation from operators, content providers, consumer groups and other stakeholders, for managing the operational aspects of the net neutrality framework. TRAI has sought industry comments on the design and functions of such a body, and the role of the regulator in its functioning.

Policy/Regulatory instruments

Following a discussion on the above issues, TRAI will also need to consider a range of instruments to give effect to the net neutrality framework in India. This can be achieved either through a voluntary commitment agreed to by operators under TRAI’s guidance or through the adoption of more specific policy/regulatory instruments. The latter can include legislative changes or amendment of the terms of the licence agreement to cast net neutrality- specific obligations on operators.

Conclusion

Growth in internet adoption directly impacts multiple other sectors of the economy, including commercial businesses and the social sector. Thus, ensuring non-discriminatory access to the internet is critical for fostering innovation and preventing consumer exploitation. At the same time, TRAI has to take into account the interests of operators and ISPs. This calls for a mechanism or a regulatory framework that would help in striking a balance between allowing operators to manage their network in a reasonable manner while fulfilling their obligation to do so in a non-discriminatory manner.

This second stage of consultation will pave the way for formulating a policy/ regulatory framework on net neutrality in the country.

 
 

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