Story Highlights

• The TRAI in its consultation paper is looking to identify the core principles of net neutrality for India
• Telecom operators contend that they should not be regulated or held accountable for “reasonably” managing internet traffic
• Free internet activists, however, oppose this as being against the ethos of net neutrality

Three weeks ahead of a key deadline in firming up India’s latest net neutrality rules, the country is set to head into a controversial few months over whether telecom companies can regulate the speed at which users can access the internet.

Mobile service providers, the biggest providers of data access to the Indian population, believe they can legitimately create a “fast lane” where websites that pay internet service providers are accessed faster than the rest of the internet.

This will surely fly into opposition by free internet activists such as the Internet Freedom Foundation (IFF), which is opposed to differential data speeds.

The Telecom Regulatory Authority of India (TRAI) earlier this month published a consultation paper on net neutrality — the idea of equal or nondiscriminatory treatment of content while providing access to the internet. Citizens and all stakeholders are to send in their comments on the paper by February 15 and make counter comments by February 28, after which public consultations will be held in different cities.

The regulator, while looking to identify the core principles of net neutrality for India, also seeks to identify the types of practices that might be regarded as being in violation of the core principles of net neutrality. (We highlighted six salient points in the paper when it was released.)

‘No throttling, no discriminating, equal access’

While agreeing to the broad principles of net neutrality, mobile service providers such as Airtel, Vodafone and Idea Cellular, broadly banded under the lobby group Cellular Operators Association of India (COAI), believe the regulator has to take cognizance of certain rare traits of the telecom and internet access market.

“Just about everybody says ‘Okay, fine’ — no throttling, no discriminating, equal access… Everybody says fine. The fourth provision is that of network management. This is where the (focus of the) discussion will be,” Rajan S Mathews, COAI’s director general said in an interview, adding he expected to make the industry body’s points to TRAI in a week or so.

Here is what Mathews said on the question of net neutrality and COAI’s position on it (edited for clarity):

“So what we are saying is why aren’t you dealing with the OTT (over the top services such as WhatsApp or Skype) issue. In the net neutrality paper, there is no overt reference. They said well OTT is separate thing, there was a paper on that… What we are saying is you need to bring in OTT because it’s an application-based delivery of voice; it’s still a voice thing.”

“(Telecom)’s a licensed activity so it’s a licensed network; it’s not a free open network like the internet. We are only providing a ramp with it. So what we are saying is: as an access service provider, what should be the requirement for people like us? For example, I have QoS (quality of service standards) and you want me to be competitive. There is no QoS for WhatsApp offering voice.”

“In a net neutrality situation, shouldn’t that be considered because that’s unique to India? Because, obviously, it also congests my network and that sort of thing. I’m not supposed to discriminate. I am saying the three fundamental propositions (no throttling, no discriminating, equal access) we all agree on. The only other thing is that if you allow network management then what are the disclosure requirements, what should the customer know, what should the regulator be able to monitor so that there is no untoward misuse under network management… that is invariably where the discussion is.”

To be sure, the COAI’s position is not different from what it was before a controversial run-in on the issue with the TRAI when the regulator was faced with taking a decision on whether an ambitious plan of Facebook to connect the unconnected millions in India, branded Free Basics, violated net neutrality principles. In February 2016, the TRAI had ruled that no service provider would be allowed to offer or charge discriminatory tariffs for data services on the basis of content, effectively banning Facebook’s Free Basics and Airtel Zero.

Both Free Basics and Airtel Zero let users access certain apps and websites without being charged for the data used. On Free Basics, where data was subsidised by Facebook through a partnership with a telco, any app or service provider could apply to be part of the platform, provided they stuck to a set of rules set by the social networking company. Airtel had plans to charge companies that wanted to be part of Airtel Zero.

TRAI chairman Ram Sevak Sharma in an interview with FactorDaily in June last year called telco “data wheelers” who should be “neutral to what flows through them”. There have been critics of the telecom regulator’s approach to net neutrality and other rules, one of who is Member of Parliament Rajeev Chandrasekhar, whose interview on the topic is here. Regulators in the developing world usually look for cues from US regulators on matters of internet and telecom regulation. The US Federal Communications Commission doesn’t allow blocking of content, throttling or paid prioritisation.

COAI’s Mathews said net neutrality rules should focus on whether anyone in the market is being deprived of the service or not. He used an analogy from the Indian Railways, where different classes of trains run at different speeds, to explain his stance. “Just because it’s going faster, you have a Shatabdi and there is a price differential (but) it’s the same track, you are getting from point A to point B. …the fundamental point is that as long as I am not disenfranchising anybody and there is sufficient bandwidth that is why (the regulation should be) ex post.”

“I’m not giving anybody a fast lane, if you come and tell me, I give everybody equal opportunity. Anybody who wants a fast lane can come to me; pay me, and you’ve got a fast lane.”

The TRAI paper lists options for ex-post and ex-ante regulation when it asks in its consultation paper whether there should be a detailed list of rules on what kinds of traffic telecom service providers cannot regulate (ex-ante) or a smaller list beyond which complaints will be examined after the event of a alleged violation (ex-post).

Telecom operators contend that they should not be regulated or held accountable for “reasonably” managing internet traffic; and that they should be allowed to enter into financial agreements with digital content companies to advantage their content.

Fast lanes: A question of ethos

Free internet activists, however, oppose this as being against the ethos of net neutrality.

Network management in a country of 1.3 billion people is essential because spectrum is limited, says the COAI. The industry body adds that 18-20 MHz is the average spectrum that most telcos get, whereas to cater to a country like India, telcos would need around 60 MHz, especially with the government’s digital drive in the backdrop. “I am responsible for ensuring that the health and quality with QoS and all of that is maintained so I will have to play traffic cop otherwise there is chaos,” says Mathews.

The IFF, on the other hand, claims that traffic management is an excuse telecom operators have long been using to cover up for poor QoS. A statement issued by it in earlier this month says, “It’s dangerous to allow internet providers to decide which websites are allowed to go at what speed. Of course, it isn’t wrong to work with internet companies to ensure that a user has an experience that is as good as that of the rest of the internet. What isn’t fine is creating a separate “fast lane”, where websites that pay internet providers get to go faster than the rest of the internet.”

Regulators across the world take cues from the United States, the largest economy in the world and one with robust regulation aligned with free market principles in most sectors. The US telecom regulator Federal Communications Commision bars creating fast lanes and slow lanes, as it violates net neutrality.

Mathews, however, argues that bulk of India’s internet traffic rides on mobile networks, which is not the case in countries like the US where traffic is distributed among a number of networks ranging from copper, fibre, satellite, government, and the like. And, to the extent that spectrum is a finite resource, there is a natural constraint on the Indian mobile service companies.

---