Need to counteract the violations of Network Neutrality by Internet Service Providers

By Deepak Parvatiyar

May 2, 2015

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Much had been and is being debated on the topic of Network Neutrality, or Internet Neutrality, and whether India needs laws to counteract the violations of network neutrality by Internet Service Providers (ISPs). On one hand, the Department of Telecom (DoT) constituted a committee in January this year to examine the economic impact of net neutrality on the telecom sector and recommend an overall policy, apart from the regulatory and technical responses, while on the other hand, the Telecom Regulatory Authority of India (TRAI[v1] ) in March released a consultation paper on the regulatory framework for Over-The-Top (OTT) services, for which counter comments can be given till May 8. 

The term ‘Internet Neutrality’ was coined by Isidor and Seville Sulzbacher Professor of Law Tim Wu of Columbia Law School in 2003. Internet Neutrality’ is a principle that says that all Internet traffic should be treated equally by ISPs. This implies that ISPs and governments should treat all lawful Internet content in a neutral manner without discriminating or charging differentially by user, content, site, platform, application, type of attached equipment, or mode of communication.

As of now, there is no such law in our country that governs net neutrality. Although the TRAI had issued guidelines for Unified Access Service Licensing (UASL) to promote net neutrality, those were never enforced. Besides that, the Information Technology Act, 2000 does not prohibit companies from limiting their services in accordance with their business interests.

There have been instances of ISPs violating the principle of net neutrality in our country. Lately, much public attention has been drawn to this issue since the major telecom service provider Airtel announced its plan to charge extra for 3G data used for Voice over Internet Protocol (VoIP) services like Skype. Offerings such as Bharti Airtel’s Airtel Zero plan and Facebook’s internet.org on the Reliance Communications network, as also “selective access” to social media by certain Indian operators such as Uninor, Tata and Aircel, have been seen as discriminatory moves by the advocates of net neutrality.

As these telecom companies have defended their respective offerings, it becomes important that any law promulgated to ensure net neutrality needs to be enforced as well.

It may be pointed out here that in the United States of America, there is an ongoing raging debate on whether net neutrality should be required by law. Those opposing such a provision have argued that net neutrality regulations would discourage investment into improving broadband infrastructure and try to fix something that is not broken. Though, on 26 February 2015, the U.S. Federal Communications Commission (FCC) ruled in favour of net neutrality and on 13 April 2015, the FCC published the final rule on its new regulations.

Many telecom players in the USA have challenged the regulatory rulings in the USA and the FCC is facing several lawsuits that challenge its open Internet order. As recently as on April 27 this year, an influential U.S. Senator Rand Paul, who is also a Republican presidential hopeful, introduced a resolution to block new regulations on ISPs, saying, “They would wrap the Internet in red tape”.

In India, too many telecom operators hold similar views as Senatro Paul’s and the TRAI is reportedly of the view that India does lack specific “law governing rules”.

Certainly, absence of proper legal provisions for either the government or the regulator to enforce net neutrality or non-discriminatory access to the Internet has given ISPs free hand to make their own rules.

However, even the TRAI is not above suspicion since a recently released consultation paper on framework for over-the-top services by the TRAI dated 27 March 2015, wherein it invited views on whether the telecom operators should be allowed to speed up or slow down Internet traffic based on its source, ownership or destination, created a furor among the proponents of net neutrality across the country.

The aforementioned consultation paper, centred on Mobile Internet Access, explained, “Telecom Service Providers (TSPs) offering fixed and mobile telephony are currently being overwhelmed by online content, known as over-the-top (OTT) applications and services”. However, the fact that many of the concerns raised about wireless providers by the TRAI also apply on broadband providers compounds the matter, because there is no clarity on how these broadband providers would behave in future.

(The term “Over-The-Top (OTT)” refers to the applications and services that are accessible over the Internet and ride on operators’ networks offering Internet access services such as social networks, search engines, amateur video aggregation sites, etc. Some best known examples of OTT are Skype, Viber, WhatsApp, Google Talk, Instagram, Facebook Messenger, Amazon, Flipkart and Netflix.)

Thus far, over three lakh e-mails have been directed to the TRAI in support of net neutrality, exhibiting protest against any such suggestion of differential pricing. However, what sent a wrong signal to the advocates of net neutrality was that the TRAI made public all these e-mails on its website and compromised with user privacy. The move invited widespread criticism and finally in a damage control move, the telecom regulator resorted to ‘munging’ of all the addresses to check spammers from automatically copying these email IDs.

On 29 April, the government had to step in, when questions regarding net neutrality were raised in the Parliament, to assure the House that it strives for non-discriminatory access to Internet for all citizens of the country. Indian Communication and Information Technology Minister Ravi Shankar Prasad, while elaborating that net neutrality referred to “non-discrimination of data packets”, conceded in the Lok Sabha that there was divergence of views among countries on the extent of neutrality desired for ISPs and that very few countries have opted for specific legislations in this regard.

Prasad, in reply to whether some telecom firms were using differential pricing, said, “Presently, the service providers are offering Internet packs, which allow the subscribers to use any content, applications, etc available on internet. In addition, some service providers are offering discounted special tariff packs for certain applications”.

The opposition to net neutrality is mainly on the following commercial grounds:

·        The operators need to invest in better Internet technology and should be incentivised through greater returns from their investments in quality OTT applications such as Skype and Whatsapp.

·        Zero-rating and tiered services could be a viable second option to enable greater Internet penetration by making cheaper plans for poorer citizens that would entail slower Internet speeds or restricted access to only certain applications and websites.

However, available statistics show that operators have earned significant returns on investment.  India’s cell phone market includes 970 million of India’s 1.2 billion citizens, covering more than 77 percent of the Indian population. Telecom companies have already benefited immensely from this market reach. Besides that, moves such as zero rating and stratification would adversely impact technological innovation and prove to be a setback for start-ups, which until now had flourished because of a meritocratic, open and equal Internet.

The significance of net neutrality in Indian context is immense as it allows a level playing field for start-ups.  Phani Bhushan, a Mumbai-based apps developer, who recently designed a highly acclaimed operating system (OS) that works in Indian vernacular languages, says:  “It is discriminatory if a Telco controls an app store/ app platform.  Access to apps at zero data cost should be offered under a truly neutral, third party umbrella that has nothing to do with any operator”.

Obviously, it is important for the government to ensure that legislations don’t influence but facilitate net neutrality particularly in recent times when globally it has become a “broad and ill-defined term that encompasses a range of policy objectives”. In fact, net neutrality was one of the most controversial issues at the NETmundial Conference, which was held in Sao Paulo in April 2014.

However, what sounds reassuring is that the National Internet Exchange of India (NIXI), a body under the Information Technology Ministry that coordinates with ISPs on issues concerning Internet Protocol or computer addresses, has come out strongly in support of net neutrality as “the only way to make the Internet open, free and innovative”. It has gone to the extent of saying, “Any move by Telcos (Telecom operators) to bundle application or content selectively will hamper the very basic concept of Internet”.