While the US is now heading for a clear deregulatory approach to net neutrality, Indian authorities appear to have fully embraced the stance of a strong oversight towards it. This started in 2015, with the first public consultations on the issue; continued in 2016, with the explicit ban of zero-rating; and is even more apparent in the recommendations issued by the TRAI on November 28, 2017. While these set out exceptions for “specialised services” and “reasonable traffic management”, they also strongly bind ISPs’ behaviour to the principle of net neutrality. The TRAI’s recommendations are not binding for the DoT; however, it is likely that the DoT will largely take them on board, since it has upheld the principles of net neutrality in 2015.
Context
The net neutrality issue has been one of the key topics for India’s telecoms industry for more than two years. In March 2015, the TRAI published a consultation paper to assess options for a regulatory framework for OTT services. This covered net neutrality among other topics. Almost in parallel, a consultation on net neutrality was carried out by the Department of Telecoms (DoT) within the government.
Both consultations highlighted the rise of zero-rating offers as a key point to address, and sought views as to whether it was a form of discrimination. In particular, the committee appointed by the DoT reached the conclusion that zero-rating can be a form of discrimination, and should be regulated by the TRAI. Rather than adopting a case-by-case approach, the TRAI issued a blanket ban on zero-rating through a tariff order in February 2016.
In March 2016, the DoT also asked the TRAI for recommendations on net neutrality. This led to the TRAI to launch a preliminary consultation in May 2016, followed by a more specific one in January 2017 which led to the recommendations set out on November 28, 2017.
Recommendations
The overarching principle of the TRAI’s recommendations is that internet access services should not discriminate or interfere with content, including practices like blocking, degrading, slowing down or granting preferential speeds or treatment. However, exceptions are made for “specialised services” and “reasonable traffic management”and are described in detail in the document. In summary:
Licensing: the terms of various license agreements governing the provision of internet services should be amended to incorporate the principles of non-discriminatory treatment of content, along with the appropriate exclusions and exceptions.
IoT and specialised services: any specialised service should be excluded from the non-discrimination principle. IoT as a class of service is not specifically excluded, although some “critical” IoT services would be excluded. Specialised services should only be provided if they are not a replacement for internet access, and if their provision is not detrimental to overall quality of internet access. Content Delivery Networks should not be included within the scope of any restrictions on non-discriminatory treatment, which are addressed to internet access providers.
Transparency: the TRAI proposes to enforce disclosure requirements with additional regulation
Monitoring and enforcement: the TRAI proposes the DoT establish a multi-stakeholder body for this purpose, led by industry and made up of members of different categories and sectors.
Next steps
The TRAI’s recommendations are not binding for the DoT. The Department can make what it wants of these recommendations - including taking them on board in their entirety, or, to the contrary, completely ignore them. It has to be noted though, that they have been issued upon request of the DoT, and,more importantly,that they come in a context in which policy makers and regulators have been clearly leaning toward a need to monitor and enforce the principle of net neutrality.
While the final report of the committee appointed by the DoT was open to the TRAI monitoring zero-rating in different ways, the regulator has opted for a radical blanket ban. This has marked the end of zero-rated offers in the market, which were being offered by most MNOs before the ban.
It is also clear that regulators and policymakers are not only worried about ISPs’ conduct in the absence of net neutrality regulation; they are also concerned about internet players becoming a bottleneck for other content and applications providers. The DoT committee’s report was explicit in saying that such behavior, and the partnerships which enable it, should be “actively discouraged” (page 70 of the final report). The stance reflects a heated debate in the country around Facebook’s “Internet.org” initiative, which was criticised during 2015 for creating preferential lanes for certain contents and services.
The TRAI has also recognised the need to re-consult on a framework for regulation of OTT services, including OTT communications. It has recognised that there exists a “regulatory arbitrage” whereby, for example, VoIP telephony is currently exempt from the same regulations as traditional telephony. The upcoming consultation will result in recommendations on how to level the playing field adequately, keeping in mind that the TRAI’s conclusion is that “there is no case” for prescribing regulatory oversight for OTTs similar to traditional communications.
