Net Neutrality in India: Full List of TRAI Recommendations

The Telecom Regulatory Authority of India has backed the basic principles of an open and free internet in its recommendations on Net Neutrality released recently.

The term “net neutrality” was coined to represent the idea that “a maximally useful public information network aspires to treat all content, sites and platforms equally”.

Over the past few years, this term has acquired a central place in many global debates on Internet policy and governance.

Interestingly, most jurisdictions, including those that are said to have adopted a “net neutrality” framework, do not explicitly define the term in their policy or regulatory framework.

Instead, they have tried to evolve appropriate principles of non-discrimination and neutral access in their respective contexts.

In general, these principles try to encapsulate the idea that the providers of Internet access should seek to ensure equal or non-discriminatory treatment to all categories of content, application and services on the Internet, subject of course to the flexibility to carry out reasonable traffic management, which is necessary for the delivery of an acceptable level of quality of services.

Recommendations of the DOT Committee On Net Neutrality:

The Committee on Net Neutrality formed in DoT submitted its recommendations in May 2015. The salient points of the recommendations made by the Committee are as follows:

All licenced TSPs providing Internet services in India should be bound to follow the “core principles” of net neutrality.

Legitimate traffic management practices may be allowed subject to the core principles. The general criteria against which these practices can be tested may inter alia include:

– Adequate disclosure to users about traffic management policies and tools to allow them to make informed choices.

-Application-agnostic controls may be used but application-specific control within the “Internet traffic” class may not be permitted.

-Practices like deep packet inspection should not be used for unlawful access to the type and contents of an application in an IP packet.

-Improper (paid or otherwise) prioritisation may not be permitted.

There should be a separation of “application layer” from “network layer” as application services are delivered over a licensed network.

In case of VoIP OTT communication services, there exists a regulatory arbitrage wherein such services also bypass the existing licensing and regulatory regime creating a non-level playing field between TSPs and OTT providers both competing for the same service provision. Public policy response requires that regulatory arbitrage does not dictate winners and losers in a competitive market for service provision.

The existence of a pricing arbitrage in VoIP OTT communication services requires a graduated and calibrated public policy response. In case of OTT VoIP international calling services, a liberal approach may be adopted. However, in case of domestic calls (local and national), communication services by TSPs and OTT communication services may be treated similarly from a regulatory angle for the present. The nature of regulatory similarity, the calibration of regulatory response and its phasing can be appropriately determined after public consultations and TRAI’s recommendations to this effect.

For OTT application services, there is no case for prescribing regulatory oversight similar to conventional communication services.

Suggested enforcement process is as follows:

-Core principles of Net Neutrality may be made part of License conditions and the Licensor may issue guidelines from time to time as learning process matures.

-Since Net Neutrality related cases would require specialized expertise, a cell in the DoT headquarters may be set up to deal with such cases. In case of violations, the existing prescribed procedure may be followed. This would involve a two-stage process of review and appeal to ensure that decisions are objective, transparent and just.

-Tariff shall be regulated by TRAI as at present. Whenever a new tariff is introduced it should be tested against the principles of Net Neutrality. Post implementation, complaint regarding a tariff violating principle of Net Neutrality may be dealt with by DoT.

-Net Neutrality issues arising out of traffic management would have reporting and auditing requirements, which may be performed and enforced by DoT.

-QoS issues fall within the jurisdiction of TRAI. Similarly reporting related to transparency requirements will need to be dealt with by TRAI. TRAI may take steps as deemed fit.