India’s telecom watchdog, Telecom Regulatory Authority of India (TRAI), has finally put to rest the differential pricing debate. TRAI’s paper was linked to one of the key principles of Net Neutrality: that all data should be treated equally. Before venturing into the key points that TRAI said in the Monday’s (8th Feb 2016) order, let’s understand few basics things about Net Neutrality in India.
The debate on network neutrality in India gathered public attention after Airtel, a mobile telephone service provider in India, announced in December 2014 additional charges for making voice calls over the Internet Protocol (VoIP) from its network using apps like WhatsApp, Skype, etc.
What is net neutrality?
While there are several definitions of Net Neutrality around the world, in general, net neutrality is the principle that Internet service providers and governments should treat all data on the Internet the same, not discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, or mode of communication. That means companies like Airtel should not block or slow down access to any website or content on the Web to benefit their own services over those of competitors.
How can ISPs harm net neutrality?
Have you ever wondered why your downloads are always so slow even if you have already subscribed to the fastest internet service available in your area? In order for ISP to keep their bandwidth cost and load down, they would have to throttle the speed of certain services. To do that, ISP will have to implement the Quality of Service (QoS) to ensure that important packets are marked as priority and leave their routers first. To differentiate the different kinds of packets, ISPs have to analyse the packets to determine the importance of the packet. ISPs have also previously talked about charging extra for services like Skype that compete with its voice business. This means Airtel could additionally charge (apart from the normal internet bills) its customers for using Skype and might make its customers stop using Skype completely.
What is Free Basics?
On 10 February 2015, Facebook launched Internet.org in India with Reliance Communications. It aims to provide free access to 38 websites through an app. Only Bing was made available as the search engine. In May 2015, the Internet.org Platform, open to participation by any developers meeting specified guidelines, was announced. In September, the app delivering these services were renamed Free Basics. The problem here is the Facebook’s role as gatekeeper in determining what websites were on that list. The scheme was criticized for violating net neutrality. Though Mark Zuckerberg replied in an article for Hindustan Times stating that Internet.org will never differentiate between services, the scheme is still considered as a violator of Net Neutrality.
In the last few months, Facebook had entered into a tussle with Telecom Regulatory Authority of India over Free Basics and has been trying to garner support for the platform through advertising campaigns and a poll on its platform asking users to save Free Basics.
What is Airtel Zero?
On 6th April 2015, Airtel announced the “Airtel Zero” scheme. Under the scheme, app firms sign a contract and Airtel provides the apps for free to its customers. The cost of this data traffic will be borne by the partner. For example, if Flipkart signs up as an Airtel Zero partner, you will not be charged for data you use while accessing Flipkart, and Airtel will bill Flipkart for that session.
While that may sound great on paper, experts say that in the long term it’s against consumer interests, because consumers are more likely to use free services. They say smaller companies, who cannot afford to subsidize consumer access to their websites and services, are likely to lose out, stifling innovation in the country, which means fewer options for consumers in the long run.
Who regulates this?
Telecom Regulatory Authority of India (TRAI), regulates all Internet access in India and is currently in the process of forming the guidelines for all OTT players. In March 2015, Telecom Regulatory Authority of India (TRAI) released a formal consultation paper on Regulatory Framework for Over-the-top (OTT) services, seeking comments from the public. The consultation paper was criticized for being one-sided and having confusing statements. It received condemnation from various politicians and Indian Internet users. Crusaders for Net Neutrality set up savetheinternet.in and netneutrality.in to spread awareness among public. The last date for submission of comments was 24 April 2015 and TRAI received over a million emails.
Takeaways in the Current Order:
TRAI said that no service provider shall enter into any arrangement, agreement or contract, which has an effect of discriminatory tariffs for data services being offered on a basis of content.
This in effect disallows subsidized data packages that offer access to only select services, such as Whatsapp or Twitter, pack packages which are currently offered by various telcos to attract subscribers. Free Basics and other similar services are banned.
The telecom regulator has also ruled that if a service provider is found violating the regulation, there will be a penalty of Rs 50,000 for each day of the contravention, subject to a maximum of Rs 50 Lakhs. The Service Provider will be given a chance to explain the violations, upon which the final penalties would be decided (from 50k to 50 lakhs).
TRAI is exercising its powers under the section 36 of Telecom Regulatory Authority of India Act 1997 (24 of 1997) to impose this order.
However, the aggrieved parties can go to a High Court under Section 227 of the Constitution and seek a quashing of the order.
TRAI has clearly backed Net Neutrality by referring to ISP License agreement which reads,
“The subscriber shall have unrestricted access to all the content available on Internet except for such content which is restricted by the Licensor/designated authority under Law.”
TRAI has also provided few solutions for Telcos. It has exempted intranets or closed communication networks from this regulation but has added a caveat saying if a closed network is used for the purpose of evading these regulations then the prohibition will definitely apply.
TRAI will review these orders two years after the expiry of the data of order; this means that in February 2018, the issue will be re-examined.
While Facebook says the current order is a disappointment, the telecoms are expected to stand against the order, meaning that they might fight asking to reduce the base price of the Spectrum Auction and might also ask for complete detailed Net Neutrality rules.
By far, this is the strongest endorsement of Net Neutrality that TRAI has given. But, on a whole, this is just a smaller aspect of the entire Net Neutrality debate. However, the issue of VoIP apps like WhatsApp or Skype and whether they could come under a licensing regime as telecoms have been demanding remains unresolved. Technically, India still does not have a law that endorses Net Neutrality as a whole. Until the Parliament passes one, the latest order is the closest India has to a pro-Neutrality stand.
Given that there’s no law on the subject, the debate is unlikely to end in 2016. As more and more Internet users come online in India, especially via mobile, the fight for their screen space, between telecoms, content providers will continue. The lack of a law means that telecoms might still go to court against the order.
