[governance] India's net neutrality decision

Sun Feb 14 00:53:54 EST 2016

(Apologies for cross postings)

This is IT for Change's take on the Indian regulator's ground breaking
decision, as the main op-ed in Deccan Herald

http://www.deccanherald.com/content/528549/trais-historic-decision.html

  Trai's historic decision

Parminder Jeet Singh, February 13, 2016

*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.*

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. 

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.

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. 

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. 

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. 

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. 

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.

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”. 

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. 

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. 

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.”

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.

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. 

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? 

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. 

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.

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. 

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. 

*/(The writer is with Bengaluru-based NGO, IT for Change)/*
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