Issues Raised in Pre-consultation paper on Net Neutrality
TRAI had, in its pre-consultation paper dated 30th of May 2016, discussed issues such as the definition of NN, scope of traffic management practices, importance of unrestricted access and transparency, need for preserving customer privacy and national security. The pre-consultation paper also highlighted salient points of the recommendations made by DoT's High Level Committee constituted on the same subject in May 2015. In addition to this, the paper listed various regulatory approaches seen worldwide in the treatment of NN issues, with a detailed account of the approach followed in jurisdictions like the United States, the European Union, Australia, Japan and Brazil.
The first stage, of pre-consultation, was an attempt to identify the relevant issues in all the areas on which the DoT had sought TRAI's recommendations. In this next stage, the Authority has considered all the relevant issues identified during the pre-consultation process and the preliminary inputs gathered from stakeholders on those issues. The purpose of this second stage of consultation is to proceed towards the formulation of final views on policy or regulatory interventions, where required, on the subject of NN.
Now, TRAI has released a fresh comprehensive consultation paper on net neutrality seeking comments and advice from all the stakeholders. In this, TRAI stressed on the larger understanding on the issue. It says, “It is important to identify core principles of net neutrality for India and the types of practices that might be regarded as being in violation of these core principles.”
The Authority recognises that the topic of NN has garnered a lot of attention in global policy debates over the last few years. A number of jurisdictions, developed and developing, have seen extensive discussions on various aspects of this subject while considering their approach towards potential discrimination in access to content on the Internet. As a result, we are now in a position where a wealth of information on NN is already available, both in terms of academic literature and stakeholder perspectives. In addition, the Authority has also gathered a lot of pertinent information from stakeholders in India in the course of its consultations. This may prompt some to question whether any additional value will be gained by undertaking further consultations on this subject in India.
Promoting Ethical Practices
TRAI’s fresh document posted on its website says, “Service providers generally use a range of techniques to manage the safety, security and efficiency for their networks. It is important to ensure that such techniques are not used by providers in a discriminatory manner.”
According to TRAI, “Given the rapid changes in technology, evolving regulatory/ policy environment and fast developing business models, we need a monitoring mechanism which can remain relevant and appropriate through these changing circumstances.”
Net neutrality activists all over the country appreciated TRAI’s latest effort by releasing a fresh consultation paper with an aim to curb the unethical intentions of the service providers. They believe that hard checks and balances are required to enable all users to have equal access to the net’s content. This time, TRAI has ensured that all the remaining or pending issues have been covered in this latest consultation paper in a very comprehensive manner.
Idea of Equal Access
The idea of equal or nondiscriminatory treatment of traffic that flows on the Internet resonates in the NN principles adopted by various jurisdictions, although the term itself does not necessary feature in their regulatory instruments. The EU regulations, for instance, “create common rules to safeguard equal and nondiscriminatory treatment of traffic" without expressly using the term NN. Given that key terms such as “equal treatment" are still contested, many have urged against a rigid definition of NN. This was also the view expressed by the DoT Committee in its report, where it stated that “the crux of the matter is that we need not hard code the definition of Net Neutrality but assimilate the core principles of Net Neutrality and shape the actions around them". The Committee suggested the following as guidelines to define these core principles:
1. User rights - Subject to lawful restrictions, the fundamental right to freedom of expression and nondiscriminatory access to the internet will apply.
2. Content - Right to create and to access any legal content, applications or services without any restrictions
3. Devices - Freedom to connect all kinds of devices, which are not harmful, to the network and services
4. Harmful practices - Practices like blocking, throttling and improper (paid or otherwise) prioritization may not be permitted.
Issues for consultation
TRAI posted these issues for which stakeholders have been requested to provide their comments:
Q. 1 How should Internet traffic" and providers of “Internet services" be understood in the NN context?
(a) Should certain types of specialised services, enterprise solutions, Internet of Things, etc be excluded from its scope? How should such terms be defined?
(b) How should services provided by content delivery networks and direct interconnection arrangements be treated?
Q. 2 In the Indian context, which of the following regulatory approaches would be preferable:
(a) Defining what constitutes reasonable TMPs (the broad approach), or
(b) Identifying a negative list of non reasonable TMPs (the narrow approach).
Q.3 If a broad regulatory approach, as suggested in Q2, is to be followed:
(a) What should be regarded as reasonable TMPs?
(b) Whether and how should different categories of traffic be objectively defined from a technical point of view for this purpose?
(c) Should application-specific discrimination within a category of traffic be viewed more strictly than discrimination between categories?
(d) How should preferential treatment of particular content, activated by a user’s choice and without any arrangement between a TSP and content provider, be treated?
Q.4 If a narrow approach, as suggested in Q2, is to be followed what should be regarded as non reasonable TMPs?
Q.5 Should the following be treated as exceptions to any regulation on TMPs?
(a) Emergency situations and services;
(b) Restrictions on unlawful content;
(c) Maintaining security and integrity of the network;
(d) Services that may be notified in public interest by the Government/Authority, based on certain criteria; or
(e) Any other services.
Stake holders to send Comments by 22nd March
Now on request from the stakeholders, the last date for receipt of written comments has been extended by TRAI to 15th March, 2017 and counter comments by 22nd March, 2017. The full text is available on the website of Cable Quest www.cablequest.org. For extensive details, visit TRAI’s portal.