“Internet access services should be governed by a principle that restricts any form of discrimination or interference in the treatment of content, including practices like blocking, degrading, slowing down or granting preferential speeds or treatment to any content”- reads the opening paragraph of the recommendations of the Telecom Regulatory Authority of India (Trai), which was approved by the government’s Telcom Commission last week.
Simply explained, the principle net neutrality is that telecom-service providers (TSPs) providing internet services must treat all web traffic equally. In other words, a TSP cannot discriminate on the source or nature of information that is being transmitted, and that all information on the net should be equally accessible by all. An analogy often used is to compare a TSP as operating an internet highway, and, similar to traffic on a highway road, a TSP should not discriminate between service providers transporting information the highway. In other words, internet services are similar to an electricity line or phone line, and all public utility services.
The Telecom Commission’s action was widely lauded as India putting in place among the “world’s strongest” net neutrality norms. India’s move has been contrasted with the US Federal Communications Commission (FCC), which repealed net neutrality norms last month, a move which several critics feared would open the door for TSPs to provide premium or fast track access to certain content service providers (CSPs) who would pay for faster delivery of content. Like India, EU is a strong votary of net neutrality. In Australia, the ACCC- the competition watchdog, is said to keep a close watch on ensuring that TSPs do not implement discriminatory policies. Canadian government officials too have stated that they support net neutrality.
The Trai recommendations make limited exceptions and state that the net neutrality principle would not apply to “specialised services”. It would also not restrict adoption of “reasonable traffic management practices by the service provider”. Other than providing broad indicators, however, there is no clarity on what such specialised services would be. The Telecom Commission’s approval simply notes that the Government will notify the specialised services to which net neutrality principles will not apply.
How should ‘specialised services’ be determined?
The analogy sometimes used by Trai chairman RS Sharma is that of an ambulance, which is allowed to bypass traffic rules. Other examples cited include remote surgery, autonomous vehicles and enterprise-wired networks created through leased lines. A concern sometimes expressed is that a broad definition of ‘specialised service’ can lead to arbitrary discrimination in favour of some services.
This is an evolving area even in the EU where the European Regulators for Electronic Communications (BEREC) states that ‘specialised services’ are “services other than internet access services which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet requirements of the content, applications or services for a specific level of quality”. The BEREC Guidelines provide a few examples of what may be considered specialised services, such as VoLTE (high-quality voice calling on mobile networks), linear (live) broadcasting IPTV services with specific quality requirements, and real-time health services (e.g. remote surgery). Under EU Regulation, a specialised service would have to be objectively necessary to meet requirements for a specific level of quality. The BEREC Guidelines leave it to national level authorities to assess this ‘necessity requirement’ based on information submitted by providers about their services, which is followed by assessment of the ‘capacity requirement’ test. The latter is an assessment of how the TSPs are ensuring sufficient capacity, the scale of the specialised service being offered, and that the internet access service is not degraded.
Ensuring quality of internet infrastructure and services
The argument often used against net neutrality is that some CSPs, such as a video streaming service have such large data volumes that larger and better infrastructure is required for handling it and the TSPs should have the ability to charge for the same. But the flip side is that allowing certain CSPs to pay higher amounts for fast track access, would prejudice smaller CSPs and simply drive them out of business. There are also concerns that this would lead to TSPs ‘censoring’ content to decide what type of CSPs to allow at what speed on their network.
The underlying rationale for investment in better infrastructure, on the other hand, needs to be driven by quality norms and service delivery standards. A TSP should also be allowed to offer broadband access plans to consumers, based on the quantum of data that is accessed/downloaded, and not type or source of such data. Clearly therefore, it should be left to the consumer to decide what and how much to access.
The principle that TSPs should allow access for all legal content on their networks and not block or slow down traffic based on content, is a powerful concept, and arguably lies at the heart of the any society seeking to uphold freedom of speech and expression. At the same time, it is important to ensure free and fair competition and market based principles that can enable the provision of robust infrastructure and quality delivery of services. Similarly, any faster access for “specialised services” needs to be defined based on clear and objective criteria that can ensure that rent-seeking network operators do not exploit the exception. The transparency and objectivity with which this is determined will determine the robustness of India’s regulatory framework.
RV Anuradha is partner, Clarus Law Associates, New Delhi, and specialises in international trade and investment laws.