Delhi, IND — Earlier today, the Telecom Regulatory Authority of India published its report of recommendations from the consultation it launched in 2016 on Net Neutrality. In a bold step ahead in favour of the rights of users and our open internet, the TRAI has recommended strong regulatory clauses be added to the licenses of all service providers licensed by the government of India to offer internet access services to enshrine the principle of “Non-Discriminatory Treatment of Content”.
TRAI’s Net Neutrality consultation sought to outline what regulatory action should be taken to protect acts of potential technical discrimination by telecom service providers impacting Net Neutrality in India, including blocking, throttling, and paid prioritisation. In doing so, TRAI was advancing its previous efforts to safeguard Net Neutrality, which had last taken the form of its historic February 2016 differential data pricing regulations which had prohibited the harmful practice of “zero rating”. Access Now had also participated in the consultation; we submitted our views at the start of the process to the TRAI and participated in their open house discussions on this to highlight the need for and the means to achieving Net Neutrality.
“TRAI deserves congratulations for taking a strong position in favour of protecting Net Neutrality by calling for the addition of specific regulatory provisions to ensure the non-discriminatory treatment of internet content in the license of service providers involved in internet access,” said Access Now Policy Director Raman Jit Singh Chima. TRAI’s recommendations will now be studied by the Union Government’s Ministry of Communications, whom TRAI has recommended to take action to amend the telecom license it issues and administers to service providers. “In taking this bold position in its recommendations, TRAI has not only helped advance the digital rights of users in the world’s largest democracy and second largest internet market, it has chosen to assert the importance of the open internet for the world. Regulators globally should take note,” added Chima.
However, this process is not yet over — only closer to the finish line. Chima stressed, “the Ministry of Communications must respond quickly to TRAI’s recommendations, and take action to actually carry out the licensing changes that have been proposed. TRAI has also proposed that several issues pertaining to implementation — including the definition of traffic management practices — be clarified in future regulatory action, which means that all those concerned with protecting Net Neutrality must stay vigilant and engage with these important next steps.”
Background and facts on these recommendations:
- The TRAI had discussed the importance of the subject of Net Neutrality as far back as 2007, while studying the issue of broadband services in India. More active discussion began in late 2014, and intensified in March 2015 as a result of the topic being included in a consultation paper on “over-the-top” (OTT) services issued by the TRAI. Over a million Indians filed comments to the TRAI in support of strong measures to protect Net Neutrality in response to that consultation via the SavetheInternet.in campaign
- In summer 2015, a Committee of Experts constituted by the Department of Telecom of the Union Government outlined recommendations on protecting Net Neutrality — including the option of modifying the license terms of telecom service operators in India — and called for the subject to be further studied by the TRAI as the independent regulator.
- In response to a specific request for study and recommendations issued to it by the Department of Telecom in March 2016, the TRAI announced a multi-stage consultation on the subject of Net Neutrality — a pre-consultation paper was issued in June 2016 and a more detailed consultation paper was issued in January 2017.
- TRAI’s Net Neutrality recommendations outline that:
- The principle of “Non-Discriminatory Treatment of Content” by service providers who provide internet access services must be further reinforced via amendment of the language in their state issued licenses. The TRAI has provided specific language that should be adopted in these license amendments. TRAI has also defined what constitutes “internet access services” for the purpose of these recommendations.
- Exceptions to the non-discriminatory principle include a category of “Reasonable traffic management and other exceptions”. Any actions by licensed operators seeking to justify themselves under the category are required to pass a threshold of being “proportionate, transient and transparent in nature”. The definition of what constitutes reasonable traffic management will be specified by TRAI in the future. Exceptions also exist for measures taken by licensed service provider to implement any order of a court or direction issued by the government in accordance with law. Carve-outs have also been created for measures taken in pursuance of (1) preserving the integrity and security of the net and equipment; or (2) taken in pursuance of an international treaty, as may be specified by the Union Government.
- Specialised services as a category have been defined and stand as exceptions to the bar on preferential treatment. However, the Department of Telecom has been asked to identify such specialised services and guidance has been provided that the provision of such specialised services should not negatively impact the availability and quality of service of internet access services. TRAI has also specified that the Specialised Services must not be “usable or offered as a replacement for Internet Access Services”. No blanket carve-out has been provided for Internet-of-Things (IoT) devices – the Department of Telecom has been empowered to specify critical IoT services which require exclusion from the restrictions on non-discriminatory treatment.
- A multi stakeholder advisory body should be established — “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” — tasked with the responsibility of developing technical standards pertaining to monitoring of traffic management practices and advising on the enforcement of the principles on non-discriminatory treatment.
- The next steps on TRAI’s net neutrality recommendations are now to be taken by the Union Government’s Ministry of Communications. The Union Minister for Communications and Telecom Secretary are required to indicate whether the Government of India accepts the independent regulator’s recommendations and to announce how they plan to implement them. The implementation of these regulations by the Government of India would include formally issuing new executive orders to amend the telecom license conditions of service providers who have been licensed to operate in India by the government.
Raman Jit Singh Chima
Access Now Policy Director