Net neutrality: Trai does well to recommend hard-coding it in licence terms

The Indian regulator has taken a position in stark contrast to its US counterpart, the FCC whose actions are a reminder that regulation itself is subject to political vagaries, & changing governments

TRAI has come out with its recommendations for the net-neutrality regime in India. This comes close on the heels of its counterpart in the US turning its back on it two years after it had endorsed it. The author looks at TRAI’s recommendations and also at what the big influencers were in this matter globally.

We can now say, with some certainty, that the Indian telecom regulator (TRAI)’s support for net-neutrality is among the strongest in the world. The timing could not be more auspicious – TRAI now stands tall alongside European regulators, even as it positions itself in stark contrast to its US counterpart, the Federal Communication Commission, where the Trump appointee Chairman Ajit Pai infamously proposed a roll back of net-neutrality rules last week.

Yesterday, TRAI recommended that internet service providers (including telecom operators) be restricted from engaging in any discriminatory treatment of content or entering into any agreement that has such effect. Discrimination, whether based on the sender or receiver of the content, the protocols used or the equipment being used to access the internet is prohibited.  In addition, TRAI recommends specific rules against blocking, degrading, slowing down or granting preferential treatment to any content.  It’s a recommendation, and not yet a rule, because it is to be implemented by amending the license agreements that govern all providers of internet access – which is under the remit of the Department of Telecom. But by providing the text of the rule, TRAI has paved the way for smooth passage of these amendments by government.

In a sense, this principled commitment to net-neutrality was expected. In 2016, following a highly charged debate with the fate of Facebook’s FreeBasics hanging in the balance, TRAI banned ISPs from charging discriminatory tariffs for data based on the content being accessed. The next obvious question was that of discriminatory speeds – examples of ISPs slowing down or blocking web content seen to threaten their businesses had been the most visible violation for net-neutrality debates globally (think: Comcast throttling BitTorrent). The nitty-gritty of what such a rule should look like is unarguably complex- over the last year TRAI held multiple public consultations– debating tricky issues like defining exceptions to the rule, the treatment of ‘specialised services’ (that have different characteristics from the internet), evolving technologies like Internet of Things (IoT) and how to monitor violations. TRAIs recommendations take a position on each of these, the nuances of which will be debated in the following weeks.

For now, it’s a good moment to step back and identify some highlights from this global advocacy and policy tussle:

• Rhetoric has been critical to the net-neutrality debate. Just recall  Facebook’s counter-campaign in India to attacks on FreeBasics was that they were in support of “digital equality”, not “net neutrality”. Similarly, in this round of TRAI’s consultation, both sides were using the same rhetoric–innovation and freedom–but as signposts for two very different arguments (and at opposite ends). Those in favour of the net-neutrality rules argue that net neutrality embodies “permission-less innovation” -  preventing ISPs from acting as gatekeepers by potentially charging  internet companies and/or users for preferential access. On the other hand, ISPs, globally, and the current FCC chairman uses the term “internet freedom” synonymously with deregulation of ISPs, on the premise that government interference stifles innovation. In fact the US proposal for repeal is curiously termed “Restoring Internet Freedom”. This debate tracks a classic tension on the role of the state in a ‘free market’. Does a ‘free market’ not require the government to set the rules of fair play?

• People power:  Net-neutrality exemplifies the pressure that coordinated and sustained public engagement can have on policy issues. Curiously, in their submissions to TRAIs consultation, most Indian telecos declared they support the principles of net-neutrality, and even explicitly support rules against blocking and throttling – “merely” disagreeing on how/whether these should be enforced. Similarly, in the US, major ISPs (Comcast, Charter, AT&T) have come out and vowed that irrespective of the repeal, they would “continue to” adhere to net-neutrality rules. This demonstrates that even ISPs, for whom this deregulatory move would be welcome, were compelled to at least  provide lip service to the principles of net-neutrality. The idea of net-neutrality – and the ‘open internet’ has gained currency with internet users in a way that has made it imperative for regulators and industry to engage.

• (Unlikely) alliances: Ever since rumours of the net-neutrality repeal surfaced in the US, dominant internet platforms like Google, Facebook, Netflix, Amazon, thousands of start ups, civil society, and grassroots organizations all come out to defend the 2015 Order. This alliance with civil society is noteworthy because it comes at a time when internet platforms are under fire on issues ranging from privacy to fake news. Indeed, it is becoming increasingly difficult to ignore the “gatekeeping” potential of the platforms themselves. So while this might be a somewhat rare moment of strategic alliance, as advocates emphasize that net neutrality is “not about saving Netflix but saving the next Netflix” – and understanding the unique threat ISPs represent to that innovation.

• Transparency is a necessary but insufficient solution: TRAI’s recommendations emphasize the important role of transparent disclosures in strengthening the enforcement of a net-neutrality rule. However, transparency is often used to negate the requirement of the rule altogether – take Pai’s repeal order which relies on the assumption that if ISPs are transparent about their practices (including net-neutrality violations), users will themselves switch services, and this will discipline ISPs to act in consumer interest. This faith is on flimsy ground – it puts the burden on consumers to recognize and react to net-neutrality violations, while the ISP market (particularly in the US) is often concentrated to a few providers (and in some rural areas, limited to one), besides other reasons why people might even be otherwise reluctant to switch. This is a recurring theme in internet policy debate, and we need more India-specific research - how much competition will be ‘enough’ in the market for internet services? Are there invisible barriers to consumers switching providers?

• Vertical integration: In India,  examples of telecom operators launching their own content and services has become increasingly common (think: Airtel’s Wynk music service or Jio’s payment wallet JioMoney). Interestingly, in his announcement Chairman Pai argued that net neutrality rules prevent ISPs from “experimenting with business models that could help them compete with online businesses like Netflix, Google, Facebook”. Here, Pai has controversially thrown light on both the ambition and incentive for ISPs to enter into partnerships or merge with content companies. In the US, recently AT&T announced plans to merge with Time Warner (the move is being challenged by the Department of Justice) This vertical integration between what have been traditionally separate markets - and the lack of net-neutrality rules represent a particularly worrisome combination. If ISPs are empowered to “pick winners and losers” on the internet, it is but obvious that they will bet on their own horse.

Developments in the US are a reminder that regulation itself is subject to political vagaries, and changing governments. In its wake, TRAI’s recommendations to hard code net-neutrality into enforceable provisions are welcome - clear articulations of principles, grounded in law, rather that case-by-case decisions evidently have greater resilience and legitimacy in the face of these choppy waters.

Amba is a Mozilla technology policy fellow. She tweets as @ambaonadventure