Telecom Regulatory Authority of India takes strong pro-net neutrality stance

On November 28, the Telecom Regulatory Authority of India (TRAI) released its Recommendations on "Net Neutrality", following a long, multistage consultation process. Net neutrality is the principle that Internet service providers must treat all data on the Internet the same, and not discriminate or charge differently by user, content, website, platform, application, type of attached equipment, or method of communication. For instance, under these principles, internet service providers cannot intentionally block, slow down or charge money for specific websites and online content.(In 2016, TRAI ruled against discriminatory access or differential pricing for data services, ending the operations of Facebook’s Free Basics in India.)    

TRAI has recommended that all licenced telecom service providers (TSPs) providing Internet services in India should be bound to follow the “core principles” of net neutrality. These principles may be made part of License conditions and the Licensor may issue guidelines from time to time as learning process matures.

This would include explicit restrictions on any sort of discrimination in Internet access, based on the content being accessed, the protocols being used or the user equipment being deployed. Content would include all content, applications, services and any other data, including its end-point information, that can be accessed or transmitted over the Internet

The "discriminatory treatment" in the context of treatment of content would include any form of discrimination, restriction or interference in the treatment of content, including practices like blocking, degrading, slowing down or granting preferential speeds or treatment to any content.

TRAI also recommends that the service providers should be restricted from entering into any arrangement, agreement or contract, with any person, natural or legal, that has the effect of discriminatory treatment based on content, sender or receiver, protocols or user equipment.

Internet of Things (IoT), as a class of services, are not excluded from the scope of the restrictions on non-discriminatory treatment. However, critical IoT services, which may be identified by the Department of Telecom (DoT), and which satisfy the definition of specialised services, would be automatically excluded.

Content Delivery Networks (CDNs), which enable a Telecom Service Provider (TSP) to deliver content within its network without going through the public Internet, are exempted from the restrictions.

The Internet Access Service Providers may take reasonable measurements for traffic management, provided the same are proportionate, transient, and transparent. They may also take reasonable measures to preserve integrity and security of network, for provision of Emergency Services, implementation of an order of the court or direction of the Government, or in pursuance of an international treaty.

TSPs shall be required to declare their Traffic Management Practices (TMP), as and when deployed and the impact it may have had on the users. The disclosure requirements shall also include information about specialised services, direct or indirect arrangements entered into by them.

For monitoring and investigation of violations, a collaborative mechanism has been recommended to be established in the form of a multi-stakeholder body comprising members representing different categories of TSPs and ISPs, large and small content providers, representatives from research and academia, civil society organisations and consumer representatives. This body would be responsible for developing technical standards pertaining to monitoring of TMPs and enforcement of the principles on non-discriminatory treatment and making appropriate recommendations to the Authority.

A cell in the DoT headquarters may be set up to deal with Net Neutrality related cases. In case of violations, the existing prescribed procedure may be followed, involving a two-stage process of review and appeal to ensure that decisions are objective, transparent and just.

Tariff shall be regulated by TRAI as at present. Whenever a new tariff is introduced it should be tested against the principles of Net Neutrality.

Post implementation, complaint regarding a tariff violating principle of Net Neutrality may be dealt with by DoT. Net Neutrality issues arising out of traffic management would have reporting and auditing requirements, which may be performed and enforced by DoT. QoS (quality of service) issues fall within the jurisdiction of TRAI. Similarly reporting related to transparency requirements will need to be dealt with by TRAI.

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