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This is IT for Change's take on the Indian regulator's ground
breaking decision, as the main op-ed in Deccan Herald<br>
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<a class="moz-txt-link-freetext"
href="http://www.deccanherald.com/content/528549/trais-historic-decision.html">http://www.deccanherald.com/content/528549/trais-historic-decision.html</a><br>
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<h1 style="margin:0px;padding:0px 0px
10px;font-size:26px;color:rgb(0,0,0);font-family:Arial,Helvetica,sans-serif">Trai's
historic decision</h1>
<div style="margin:0px;padding:0px 0px
5px;font-size:12px;color:rgb(51,51,51);font-family:Arial,Helvetica,sans-serif"><big>Parminder
Jeet Singh, February 13, 2016<br>
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<p style="margin:0px;padding:0px 0px
10px;color:rgb(54,54,54);font-size:13px;line-height:18px;font-family:Arial,Helvetica,sans-serif"><big><b>NET
NEUTRALITY : As most public services go digital, it makes
sense to ensure access to them free of data charges, as a
citizen's right.</b><br>
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<big><a name="2027992729_top"
style="margin:0px;padding:0px;color:rgb(0,0,0);font-family:Arial,Helvetica,sans-serif;font-size:12px"></a><span
style="color:rgb(0,0,0);font-family:Arial,Helvetica,sans-serif;font-size:12px"></span><img
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src="cid:part3.03010504.04010408@itforchange.net" alt=""
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align="justify"><big><span style="margin:0px;padding:0px">In its
ruling on “Prohibition of Discriminatory Tariffs for Data
Services”, the Telecom Regulatory Authority of India (TRAI)
has held that data services over the Internet are a
commodity business whereby data cannot be discriminated on
the basis of the content it carries. It also asserted its
regulatory control over data services, which would be
provided as a regulated public utility. </span><br
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<br style="margin:0px;padding:0px">
This is a historic decision setting a high bar for maintaining
complete Net Neutrality, and thus sanctifying the Internet in
the Indian law, as a model of equal and non-discriminatory
communication, information-exchange and networking.<br
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<br style="margin:0px;padding:0px">
The Internet was always supposed to be so, but as it became
the anchor of society-wide digital transformations, and thus a
carrier of untold value and riches, it has been sought to be
captured by big business in an exclusive market paradigm. This
decision safeguards the Internet as being first an egalitarian
social artifact, providing a social and economic level playing
field for all, before it is a market good. <br
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<br style="margin:0px;padding:0px">
The original net neutrality concern was with the quality of
service-based discrimination, making for a tiered Internet.
Strong advocacy the world-over resulted in telcos losing this
battle. By early 2015, it appeared evident that quality-based
differentiation was simply not going to pass public and
regulatory muster. <br style="margin:0px;padding:0px">
<br style="margin:0px;padding:0px">
Quickly shifting their strategy, even the telcos begun to
profess net neutrality, but seeking such exceptions that could
still enable revenues from the content providers' side, which
was their main objective. They argued that price-based
discrimination, including zero rating, did not violate net
neutrality because all content got the same quality of
service. <br style="margin:0px;padding:0px">
<br style="margin:0px;padding:0px">
Taking a middle ground, regulators in the US and EU, and most
other countries, while ex ante outlawing quality-based
discrimination, left price-based discrimination to be
subjected to ex post consideration, on a case to case basis. <br
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<br style="margin:0px;padding:0px">
Promoters of price-based discrimination claimed that such
practices are especially important for developing countries,
helping their huge unconnected population come online faster.
Facebook’s grand campaign promoting its zero-rated “Free
Basics” service become the most visible manifestation of this
particular spin.<br style="margin:0px;padding:0px">
<br style="margin:0px;padding:0px">
The most striking feature of Trai’s ruling is that it has
upended this logic. Noting that jurisdictions like the US and
EU had left differential pricing for ex post consideration,
the TRAI held the case of a developing country like India,
with a huge unconnected population, to be more (rather than
less) appropriate for banning differential pricing because
such conditions especially allow the telcos to,
problematically, “shape the users' Internet experience”. <br
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<br style="margin:0px;padding:0px">
Maintaining that “what cannot be done directly, cannot also be
done indirectly”, the ruling bans even models offering
deferred free data allowance for accessing specific services
which can later be used for accessing full Internet. <br
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<br style="margin:0px;padding:0px">
The ruling is thus perhaps the most clear and absolute
anywhere in the world in fully protecting what it calls as
“the unique architecture of the Internet”, and allowing no
loopholes. So strong is the economic attraction of
gate-keeping data services that the slightest loophole would
certainly be blasted into a gaping hole by big telcos and Net
businesses, disfiguring Internet’s egalitarian architecture. <br
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<br style="margin:0px;padding:0px">
Rejecting the argument that Trai should act only ex post, on a
case to case basis, it went with the contrary view that
“differential tariff for data services goes against the basic
features of the Internet and it needs to be restricted upfront
on account of the far reaching consequences that it is bound
to have on the structure of the Internet and the rights of
stakeholders. Once such practices are allowed, it may not be
possible to quantify, measure or remedy the consequences in
the short to medium term.”<br style="margin:0px;padding:0px">
<br style="margin:0px;padding:0px">
With TRAI clarifying that data services would remain an
undifferentiated commodity, telcos should now focus on
extending the infrastructure and improving overall quality of
service rather than eying revenue potential from the content
providers' side. It gives both the data and content businesses
a much needed certainty. This is especially important for the
telcos in view of the forthcoming spectrum auction.<br
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<br style="margin:0px;padding:0px">
The regulator has said that it will now examine quality of
service based discrimination, the original net neutrality
issue. However, having disallowed price-based discrimination,
it is unthinkable how a regulator can allow quality-based
discrimination, which is a more core net neutrality violation.
A similar short regulatory order on quality-based
discrimination, based on Trai’s existing powers, should firmly
close the matter. <br style="margin:0px;padding:0px">
<br style="margin:0px;padding:0px">
Some misgivings have been expressed about the exemption of
closed networks from the price discrimination ban. Can a telco
develop its own channels of content and applications, outside
the public Internet, available only to its own customers? <br
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<br style="margin:0px;padding:0px">
The regulator insists that it will ensure that this exception
is not misused for specifically undermining the spirit of the
ruling. This is the ‘specialised services’ issue which other
countries are also considering, and would require further
discussions. Special networks like for tele-health services
and motor-vehicle automation are cited as possibly requiring a
different treatment. <br style="margin:0px;padding:0px">
<br style="margin:0px;padding:0px">
Emergency situations are also exempted by the ruling: personal
ones, like health and personal safety related, and collective,
like floods and earthquakes. This leaves open a window for
other possible public interest exceptions, like essential
public services, as designated by the regulator. As most
public services go digital, it makes sense to ensure access to
them free of data charges, as a citizen’s right.<br
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<br style="margin:0px;padding:0px">
The ruling is silent on the question raised in the regulator's
consultation about alternative ways to provide connectivity
for the currently excluded, which received a lot of public
inputs. This is understandable because this is a regulatory
decision, on something within the regulator's own power. <br
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<br style="margin:0px;padding:0px">
Alternative ways for expanding connectivity has to be in the
form of TRAI's recommendations to the government, and taken up
separately. However, this is an important and urgent issue
raised by the “Free Basics” controversy, which should be
addressed comprehensively and quickly. <br
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<br style="margin:0px;padding:0px">
<strong style="margin:0px;padding:0px"><em
style="margin:0px;padding:0px">(The writer is with
Bengaluru-based NGO, IT for Change)</em></strong></big></div>
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