Introduction

The much-awaited recommendations on Net Neutrality (Recommendations) were issued by the Telecom Regulatory Authority of India (TRAI) to the Department of Telecommunications, Government of India (DoT) on 28 November 2017. While the Recommendations provide key suggestions and anecdotes, TRAI appears to have left some stones unturned. These Recommendations are also released at an interesting time, where the United States of America is contemplating repealing its rules on net neutrality and the continuance of a free and open internet is under threat.

Net neutrality in the Indian context

Net neutrality postulates that providers of internet access services should ensure equal or non-discriminatory treatment to all categories of content, application and services on the internet. While management of internet traffic by such service providers may be considered reasonable in certain circumstances (for instance where quality of services need to be optimised maintained for particular applications or services), TRAI is alive to the fact that ‘a one size fits all’ approach is not appropriate in the Indian scenario.

Prohibition of discriminatory behaviour under the licensing framework

The majority of the telecom license agreements in India already contain provisions that obligate Internet Service Providers (ISPs) to treat all content, sites and platform at an equal footing. However, with a view to augment these provisions, TRAI has called for amending the licenses to set out express restrictions on ISPs engaging in discriminatory treatment of content, including based on the sender or receiver, the protocols being used or the user equipment. The suggested amendments also prohibit an ISP from entering into an arrangement, agreement or contract with any natural or legal person that has the effect of discriminatory treatment of content.

Exception for provision of ‘specialised services’

While TRAI has advocated the prohibition of discriminatory treatment of content on the internet, it also understands that certain services require a minimum quality of service. In order to bring this distinction out in a profound manner, TRAI has recommended that internet services can be classified in two categories under the licensing framework, since ‘internet’ as a whole has a very broad connotation.

To this end, TRAI recommends that the definition of ‘Internet Access Service’, be added to the licensing framework by way of an amendment. This would relate to a service generally that is available to the public and which allows access the internet. In other words, it is designed to transmit and receive data from all (or substantially all) endpoints on the internet.

It is suggested that ‘specialised services’ should form the other category. This would refer to services that are provisioned for specific content and require a minimum quality of service. The functioning of these services cannot be guaranteed by flow of traffic on a best efforts basis. More importantly, TRAI acknowledges that services shall not be allowed to qualify as ‘specialised services’ if they are offered as a substitute to or if they detrimentally affect the availability and quality of ‘Internet Access Services.’

However, unlike the case of ‘Internet Access Service,’ TRAI has refrained from suggesting a definition for ‘specialised services’ and left it to DoT to devise the same. It is noteworthy that TRAI has recommended that ‘Internet of Things’ (IoT) as a class of service should not be included in the definition, except critical IoT services that are identified by DoT. Interestingly, on the other hand, content delivery networks (CDNs) are placed outside the ambit of the net neutrality regulations. In TRAI’s view, CDNs perform an essential function in delivery of traffic on the internet.

Exception for reasonable traffic management

TRAI has recognised that ISPs may be required to manage their telecom networks in order to optimise overall network performance and offer satisfactory quality of services. Hence, while acknowledging that such traffic management is intrinsic and essential to the design of the internet itself, TRAI appears to have carved an exception to the prohibition on discriminatory treatment of content on this ground.

However, what is ‘reasonable’ in this context will be determined by regulations that may be released by TRAI from time to time. At this stage, the criteria for determination have not been defined by TRAI.

Other salient recommendations

Some other notable recommendations made by TRAI in this respect are as under:

  • ISPs must be transparent about their practices and policies with respect to prevention of discrimination treatment of content. However, TRAI will frame additional regulations in relation to disclosure and transparency with specific focus on net neutrality.
  • With a view to monitor and enforce the spirit of net neutrality, TRAI recommends DoT must establish a multi-stakeholder body, which will be a consultative not for profit body. Such body will comprise of telecom service providers, content provider, civil society members, academicians and consumer rights representatives.

Comment

Through these Recommendations, TRAI has made manifest its intention to uphold the free and open nature of the internet. Discriminatory treatment of content in any form has been sought to be prohibited, except in certain circumstances. A level of uncertainly continues to loom over these exceptions, as these will depend on the definition of ‘specialised services’ that is eventually adopted and implemented by DoT.

Another area where the service providers were expecting some relief was applicability of net neutrality based non – discriminatory practices such as blocking, throttling and preferred treatment only where commercial gains were involved. However, TRAI has not made any such distinction in its Recommendation.

It was anticipated that the Recommendations will address other issues (such as internet service providers’ concerns regarding ‘over the top’ players) in a more holistic manner, but these have been left for a later stage.