To say there is confusion over net neutrality in the country would be an understatement. In February this year, the Telecom Regulatory Authority of India, or TRAI, banned discriminatory pricing of data by telecom networks; in other words, no website or app could get preferential treatment on a network. It was no longer possible for a content provider to subsidise the subscriber's cost of surfing. But then, the regulator decided to allow differential tariffs so long as the service was offered in a "closed electronics communications network", or CECN. This, it is understood, is a "walled garden", a service exclusively for the subscribers of a network. It is not the internet, it was claimed, but an intranet, and thus did not violate the principles of net neutrality. But this really provides a loophole that opens the sluice gates for discriminatory tariffs. The telecom networks are now free to zero rate some content, or subsidise the cost of surfing them. This runs contrary to TRAI's original decision on net neutrality.
The Cellular Operators' Association of India has sought clarity from the regulator on the matter. Some of its members, it has said, have been approached by content providers who are ready to pay a subsidy to the surfers for their content, provided they get exclusivity, in return for which they have offered to share advertising revenue. Is that legal now? The second issue relates to the definition of CECN: does it include all the subscribers of a service provider?
Even as this debate rages, TRAI has released a "pre-consultation paper" on net neutrality, to which all stake holders are expected to respond by June 21. Among other things, it wants people to comment on what they think should be the core principles of net neutrality in the Indian context, and what the regulatory response to the issue should be. This has only muddied the debate further. To its credit, TRAI in the pre-consultation paper has attempted to broad-base the concept of net neutrality. So far, all debate has focused on discriminatory pricing of data. But that is a narrow view of the subject: net neutrality, or the lack of it, is also about blocking some content and selectively throttling the speed of surfing. TRAI has said that these are live issues which could interfere with net neutrality. In the absence of clear guidelines, it is possible for a telecom network to slow down the speed of certain content, which achieves the same objective as discriminatory pricing without indulging in it.
This is, however, not the first time that TRAI has tied itself up in knots. It had imposed a penalty on service providers for call drops, which was some time back struck down by the Supreme Court. Its flip-flop on net neutrality hasn't added to its reputation, just as its earlier order on allowing differential tariffs for services through CECN has exposed it to the charge that the regulator may be using discretion to decide on what is permissible and what is not.
