Story Highlights

• The TRAI released its consultation paper on net neutrality on Wednesday
• Net neutrality is a controversial issue with wide impact on how the internet is consumed
• At stake are user privacy, rights versus telecom provider concerns on traffic, profits

India’s telecom regulator published its consultation paper on net neutrality earlier on Wednesday. A subject of controversy in the last couple of years, a policy and rules on net neutrality are important because they gives telcos and other service providers the power to decide what content and at what speed you as an internet user can consume.

Here are six points that grabbed my eye in the Telecom Regulatory Authority of India (TRAI) consultation paper.

A little note before I go on: My reporting career started before the TRAI was constituted! I’m a little rusty reviewing such consultation documents — the last time I looked closely at one must have been about 12 years ago. Still, for whatever it is worth, here goes (parts italicised are quoted from the consultation paper; the rest are my comments):

1. Wednesday’s document defines the core of the consultation paper: “The aim is to restrict TSPs’ ability to interfere with the network in ways that hamper innovation and restrict user choice, while allowing them to retain the flexibility to manage their networks in an efficient manner.” (TSP, as in, telecom service provider.)

There are a few keywords here that need to be highlighted like in a semi-legal document. One, “ability to interfere” and “retain the flexibility to manage their networks”: the TRAI recognises the need for TSPs to be able to interfere/intervene for traffic management purposes. This is an important point and with sound technical grounding.

Two, “hamper innovation and restrict user choice”: user choice comes second to innovation. In short, this leaves much room about how innovation is defined and interpreted in the coming regulatory regimes.

Three, “in an efficient manner”. This signals the need for efficiently run networks (like a document like this should). But, it raises interesting possibilities on how this will play out in India, a predominantly mobile broadband services market and one in which spectrum is always a constraint.

2. In the ‘Traffic Management’ section of the consultation paper, the TRAI notes: “…it would also be pertinent to examine how we should treat certain specific types of services, such as the ones highlighted below, while arriving at a formulation of what is included or excluded from the scope of Internet traffic. 1. Enterprise solutions 2. Internet of Things (IoT) 3. Content Delivery Networks (CDN) and interconnection arrangements 4. Virtual Private Network (VPN).”

This is an important point because different services/networks have different rules. The TRAI is covering all bases here.

3. The regulator keeps its distance on views around deep packet inspection (DPI), which flies in the face of consumer privacy as we know it today. The TRAI notes that some telcos (predictably) have asked for the right to inspect what you are consuming “so that packages that are more critical or require a greater transmission capacity can be prioritised during congestion”. Reuters reported about Reliance Jio using DPI which MediaNama’s Nikhil Pahwa called out for the gross violation of user privacy it is.

4. There are definite technical and commercial reasons for managing and prioritising traffic. That said, who will define what kind of traffic to prioritise, especially in unusual or emergency situations, for telecom service providers (TSPs)?

The paper notes: “Some stakeholders stated that the definition of classes should be set out by the regulator and not be left to the TSPs, while others proposed that operators themselves should be allowed the flexibility to create these classes and rate them on a scale to prioritise delivery of services.”

The regulator lists two principles as options: a broad one that lists in detail what traffic will be allowed to manage and a narrower one that says what will be excluded.

Significantly, it also makes a mention of the department of telecommunications’ view that as long as adequate disclosures are made, DPI be disallowed in most cases, and improper (paid or otherwise) prioritisation be not permitted. The DoT is the government’s administrative department that decides on all things related to telecom policy in India and its recommendations in the matter indicate the direction in which rules will likely be framed eventually.

5. The TRAI expresses caution about TMI — too much information. “The Authority notes that several responses have raised concerns over the level of information disclosure that would be considered useful by users in making informed decisions, without being overtly technical and granular. Further, there are concerns surrounding confidentiality of the data pertaining to TSPs.”

TSPs will not be wrong to assume an enlightened stance on part of the regulator when it comes to net neutrality. However, if they are to take this as a signal as the regulator favouring light-touch regulation, they may be wrong.

6. Who will monitor and regulate net neutrality? The TRAI will have a primary role, the consultation paper signals.

There are two important suggestions towards this conclusion. One: “The Authority could also make a recommendation to the Government regarding the need to introduce a separate NN (net neutrality) legislation. However, the pros and cons of such an approach may need to be considered in light of the powers already conferred on the Authority by the TRAI Act to frame appropriate regulations keeping in mind the interests of consumers, service providers and the sector as a whole.”

In other words, the regulator wants itself to be the authority looking over the telecom landscape when it comes to net neutrality.

The TRAI has also signalled that a multi-stakeholder body could be ushered in to spell out and monitor technical and operational aspects of net neutrality. “Some of the questions that need to be addressed in this context include — should it be a multi-stakeholder initiative that consist of representation from TSPs, content providers, consumer groups, civil society; academic/research organisations and any other persons; how should such representatives be selected; and finally, what would be an appropriate role for the Authority or any other government agency in such a structure.”

To be sure, this is a consultation paper and the points and counterpoints could sway the eventual set of rules this way or the other. Still, the points listed in the consultation paper give a sense of what to expect.

The TRAI has its share of critics. But, among Indian regulators, it has done a reasonably good job holding open-to-the-public consultation processes. This time, too, there is time until February 15 to make points on the consultation paper and counter-points by February 28.

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