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TRAI affirms Net Neutrality principles with Discriminatory Access ruling

The TRAI released its recommendations on Net Neutrality today, affirming the Net Neutrality principles of non discrimination, which will govern the ability of telecom operators and ISPs to speed up or slow down Internet access for apps. These recommendations will have to be accepted by the Department of Telecom, which will have to make changes to the license agreements of telecom operators, to make Net Neutrality a part of the license agreement. Download the recommendations here.

Net Neutrality is the principle which ensures that telecom operators and ISPs aren’t allowed to bundle access to websites/apps on the Internet, speed up or slow down certain sites, or charge differently for different websites/apps. In its recommendation/ruling, the TRAI has said the following:

  • Non discriminatory Internet access: Internet access services should be governed by a principle that restricts any form of discrimination or interference in the treatment of content. “Discriminatory treatment shall 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.”
  • Amendments to the license agreements: Amendments need to be made under Access Service licenses like UL, VNO, CMTS, UASL, so that these changes become a part of the license conditions, but also have kept open the option of acting “upon it under the TRAI Act, 1997, including on issues relating to quality of services, consumer protection, transparency, and monitoring of compliance.”
  • Specialised services: “Nothing contained in this provision shall restrict: the provision of any Specialised Services by a Licensee, provided that: the Specialised Services are not usable or offered as a replacement for Internet Access Services; and the provision of the Specialised Services is not detrimental to the availability and overall quality of Internet Access Service.The TRAI defines specialised services as “services other than Internet Access Services that are optimised for specific content, protocols or user equipment, where the optimisation is necessary in order to meet specific quality of service requirements.” On a CNBC TV18 interview just now, the TRAI Chairman said that services which do not act as a replacement for Internet access, such as autonomous cars, or assisted remote surgery, may be exempted, but by the DoT.
  • Internet of Things:There had been a demand to exclude  IoT as a class of services, should not be specifically excluded from the scope of the restrictions on non-discriminatory treatment. However, TRAI has said that “Those critical IoT services, which may be identified by DoT as satisfying the definition of specialised services (as stated above), would be automatically excluded”, and as long as these are not detrimental to the availability and overall quality of Internet Access Services. This needs to be monitored.
  • Content Delivery Networks: The TRAI has recommended that CDNs should be excluded from any restrictions on non-discriminatory treatment. CDNs essentially optimise traffic from ISP to ISP, and not directly to the end consumer.
  • Traffic Management: Reasonable traffic management practices has been allowed, but discrimination is allowed under the following circumstances:
    • Provision of emergency services or any services provided during times of grave public emergency
    • Implementation of any order of a court or direction issued by the Government
    • Measures taken in pursuance of preserving the integrity and security of the network and equipment
    • Measures taken in pursuance of an international treaty.
      Apart from this, no limitations to traffic management have been specified, but the TRAI has said that “The Authority may, from time to time, frame appropriate regulations to specify further details regarding the scope and assessment of reasonable traffic management practices.”
  • Transparency and disclosure norms not finalised: The TRAI hasn’t specified transparency norms for the ISPs and telecom operators, and said that it “proposes to supplement its existing disclosure and transparency requirements by framing additional regulations in this regard.”
  • Monitoring of traffic management: The TRAI has recommended that DoT create a multi-stakeholder body, a not-for-profit, led by industry, with ISPs, TSPs, large and small content providers, representatives from research and academia, civil society organisations and consumer representatives. The TRAI will recommend “terms, conditions and governance structure” once this recommendation is accepted by the Government.

This is the second ruling/recommendation from TRAI in this series, following the ruling on Discriminatory/Differential Pricing on February 8th 2016, which established the terms as per which pricing of Internet access in India is governed. In that ruling, the TRAI had said that the following:

From the TRAI’s Differential Pricing Regulation

  • On now allowing TSPs to shape Internet experiences: “In India, given that a majority of the population are yet to be connected to the internet, allowing service providers to define the nature of access would be equivalent of letting TSPs shape the users’ internet experience. This can prove to be risky in the medium to long term as the knowledge and outlook of those users would be shaped only by the information made available through those select offerings.”
  • On Users, not consumers or creators: “… First, unlike traditional markets where there are, for the most part, distinct producers and consumers, on the internet, users are also content producers.”
  • On Vertical Integration:“This poses an even greater concern in cases where there might be a conflict of interest in the service provider’s role as a service provider as well as a participant in a vertical market where it acts in competition with other content providers. New and smaller service providers will face crucial challenges in view of the significant market power enjoyed by bigger service providers and content providers.”…“allowing the keepers of the infrastructure to differentiate on the basis of content, would impose negative externalities on the rest of the network as internet serves as infrastructure for many other markets. This is especially so since the internet is a fluid and dynamic space where a user could be a simple subscriber at one moment (when she accesses the internet through a data pack), and become a content provider (when she writes a blog post) at the next. “
  • On taking a case by case approach:
    • First, a case-by-case regime will fail to provide much-needed certainty to industry participants. In the absence of a clear rule setting out the permissible and impermissible business practices, service providers may refrain from deploying network technology. This would be due to the fear that their conduct may subsequently be construed as being discriminatory as per the case-by-case analysis.”
    • “Second, it will create high costs of regulation on account of the time and resources that will be required for investigating each case. It will also lead to further uncertainty as service providers undergoing the investigation would logically try to differentiate their case from earlier precedents.”
    • “Third, there is also the concern that this approach provides a relative advantage to well-financed actors and will tilt the playing field against those who do not have the resources to pursue regulatory or legal actions. This may include end users, low-cost innovators, start-ups, non-profit organisations, etc. The Authority believes concerns are significant.”

Broadly, these are the Net Neutrality principles which we believe should lay the foundations of Net Neutrality, anywhere in the world:

Net Neutrality Principles

  1. The Internet is a single, global commons: It is not just a marketplace. The Internet belongs to all its users, who contribute to the richness and diversity of content, services and knowledge it has to offer. It is a space that unites the world and allows us to create for each other.
  2. All Internet users are creators and must be treated equally: Internet users are not merely consumers, but have the freedom to both create and consume. Their ability to do this without discrimination or permission must be protected.
  3. Internet service providers must act as neutral exchanges enabling interaction: The role of ISPs role is to transfer data packets between users, irrespective of whether the users are commercial or non-commercial entities: without differentiation or discrimination. For users to have confidence in the operation of an exchange, the exchange needs to be neutral and creation must be permission-less.


Disclosure: I had been a volunteer with SaveTheInternet.in, the campaign for Net Neutrality in India, and am a co-founder at the Internet Freedom Foundation, which participated in this Net Neutrality consultation

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Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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