Over the past few years, the discriminatory treatment of internet traffic by entities that control internet access has become the centre of a global policy debate on network and net neutrality. The prime component of net neutrality is the ability of all internet users to access all content on the internet without being discriminated against by internet providers. It is considered the cornerstone of a free and open internet that provides equal access to all and bans any form of data discrimination.
While the debate has been at the helm of global policy affairs for a long time, in India, it gathered steam in December 2014, when Bharti Airtel decided to charge extra for internet-based calls. This led to widespread protests, which forced Airtel to roll back its plan and propelled the government to bring in some norms that guaranteed open and non-discriminatory access to the internet.
Between 2016 and 2018, India took two major steps to establish a strong net neutrality regime. The first step was the adoption of a regulation by the Telecom Regulatory Authority of India (TRAI) in February 2016 to prohibit any content-based pricing of data services. It also started a consultation process on the net neutrality issue. It sent its recommendations to the Department of Telecommunications (DoT) in November 2017. DoT accepted most of TRAI’s recommendations and issued principle directives on net neutrality on July 31, 2018, which was the second major step towards establishing a net neutrality regime. Further, DoT amended the licence conditions for access providers and introduced relevant requirements to conform to the principles of net neutrality. Meanwhile, it made some decisions, which were at variance with TRAI’s recommendations. DoT decided that it will be responsible for monitoring and enforcement of net neutrality and for establishing a multi-stakeholder body that would have an advisory role. Moreover, it will formulate the necessary traffic management practices (TMPs).
In this regard, DoT sought recommendations from TRAI on the necessary TMPs for consideration by DoT and the composition, functions, role and responsibilities of the multi-stakeholder body. Following this, in January 2020, TRAI issued a consultation paper on identifying and cataloguing the list of reasonable TMPs, establishing a set-up to monitor and detect violations of net neutrality, and creating a multi-stakeholder body to assist and advise DoT in the matter. The consultation paper elicited many responses from stakeholders. Further, an open house discussion was conducted using a videoconferencing platform on June 24, 2020, where stakeholders from both India and abroad participated. Based on the inputs received from stakeholders and its own internal analysis, TRAI has now finalised its recommendations on the issue. A look at TRAI’s key recommendations….
Composition, functions, roles and responsibilities of the multi-stakeholder body
As discussed earlier, DoT decided that the monitoring and enforcement functions for net neutrality will rest with it while the proposed body will have an advisory role. Accordingly, under this framework, DoT will handle the enforcement of net neutrality principles, complaints registered by consumers, and conflicts arising among stakeholders of the internet ecosystem. TRAI is of the view that the role of the multi-stakeholder body will be to provide advice and support to DoT in the monitoring and enforcement of net neutrality principles.
In terms of composition of the body, the role of internet access service providers and representatives from the research academic and technical community would be crucial. Further, small and large content providers and civil society organisations that engage in advocating the public rights and wishes of the people will need to be involved in the decisions regarding net neutrality. Moreover, some consumer representatives will be members of the body for voicing the concerns of consumers. In this regard, TRAI recommends that the multi-stakeholder body should comprise all telecom service providers, internet service providers and other stakeholders such as content providers, the researcher, academic and technical community, civil society organisations, consumers and the government.
The body will be set up as a non-profit entity under the Societies Registration Act, 1860, by DoT. It may start by registering all licensed service providers as mandatory members, and further invite and/or nominate other stakeholders to become its members. As per TRAI, its responsibilities would include providing support to DoT in creating and maintaining the repository of TMPs; investigating complaints regarding the violation of principles of net neutrality from its members or from the public; submission of reports based on monitoring of internet services, investigations of incidents and review of reports submitted by its members; recommending suitable technical standards and methodologies on matters pertaining to best practices to be adopted for TMPs; and any other responsibility assigned by DoT related to the monitoring and enforcement of net neutrality.
In terms of functions, the multi-stakeholder body will seek comments of members on the list of TMPs submitted by internet access service (IAS) providers; perform the tasks of compilation and harmonisation of TMPs for DoT’s approval; maintain and publish a repository of TMPs; periodically review the TMPs listed in the repository of TMPs; periodically review the reports on the application of TMPs submitted by IAS providers; prepare technical standards and define methodologies in matters pertaining to net neutrality; and perform any other tasks related to net neutrality assigned by DoT.
Framework for the compilation of TMPs
Currently, there are several TMPs being developed and deployed in networks for different requirements. Some of these may be of concern from a net neutrality perspective and ought to be ended, while some other TMPs may be necessary in specific situations. Further, the monitoring and enforcement of net neutrality principles in an objective and transparent manner requires listing out reasonable TMPs and the conditions when these may be applied.
However, in view of the continuously evolving features and capabilities of networks and services, it is not feasible to make an exhaustive list of TMPs. Therefore, TRAI recommends that DoT may define a process for the creation and maintenance of a repository of reasonable TMPs. This work may be managed with the help of the multi-stakeholder body. As per TRAI, the process may include the IAS providers submitting the TMPs that they employ for managing their networks to both DoT and the multi-stakeholder body. This list may be added to the provisional repository of TMPs, specific to each provider. Further, the IAS providers and the multi-stakeholder body will publish the repository of TMPs on their website. TRAI also recommends that DoT may frame a policy for IAS providers to inform the affected users (including those that may have been potentially affected) regarding the impact of applied TMPs. TRAI further recommends that DoT may require IAS providers to maintain complete and accurate records of instances of application of TMPs for future reference, with details of the situation and circumstances that compelled the access provider to apply a particular set of TMPs, the geographical area and the start and end timings when the TMPs were in effect, and any further information necessary to justify that the actions were proportional and were operative only for a minimum period of time. TRAI also recommends that DoT to direct the multi-stakeholder body collate information provided by the IAS providers and submit a report on the application of TMPs annually to DoT.
What lies ahead?
Net, net, the move to constitute a multi-stakeholder body, comprising all the relevant partners of the internet ecosystem, is a welcome step. The body should be established expeditiously in order to establish non-discriminatory internet access. The creation of a framework for TMPs is also a step in the right direction. However, it should be remembered that such a framework is only meant to supplement, and not replace, the bigger responsibility of DoT and TRAI towards monitoring and enforcing net neutrality norms in India.
By Kuhu Singh Abbhi