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Enforcing Net Neutrality in India: what to know before TRAI’s open house discussion

The Telecom Regulatory Authority of India (TRAI) will hold an open house discussion on traffic management practices and a committee to enforce Net Neutrality regulations on June 24. Here is all you need to know about the consultation if you’d like to participate in the discussion (register here). We will cover the discussion live.

In 2018, the Telecom Commission had approved TRAI’s recommendation that strong Net Neutrality rules be made a part of the licence conditions. The main Net Neutrality issues that remain are traffic management and oversight. In 2016, TRAI prohibited discriminatory data tariffs. The other way Net Neutrality, the principle that all data must be treated equally on the internet, can be violated is if telcos choose to slow down speeds for some parts of the internet. They cannot do this for business reasons, as TRAI has abundantly made clear. But they might still do it to manage traffic — video bitrates across several streaming services continue to be suppressed at telecom operators’ request, across all internet connections in India.

Traffic management practices

Traffic management practices (TMPs) are the methods telcos use to manage traffic to keep the network running well. But depending on how telcos do it, TMPs could violate Net Neutrality by slowing down specific parts of the internet (like gaming or video), whether there is congestion in the network or not. Here’s a lowdown of the responses to this aspect of the consultation in filings:

  • Telcos argued that TMPs should not be significantly regulated, and that the licence conditions are enough to keep them in line.
  • Barbara van Schewick, Stanford law professor, argued in her filing that regulation should make clear that TMPs should be as “application agnostic” as possible, which means they should not slow down specific types of content or specific applications, when other ways to manage traffic exist. Professor van Schewick’s filings and work were cited in the 2016 discriminatory tariff prohibition.
  • Civil society groups said that a “wait and watch” policy, where regulators do nothing until a a violation is actually detected, could be misguided, and that regulation needed to start soon, so that telcos don’t feel empowered to manage traffic in discriminatory ways in the absence of enforcement. The Asia Internet Coalition, which represents the big internet companies in the continent, said that telcos shouldn’t get to discriminate in ways that benefit their own applications.

Monitoring Net Neutrality violations

A key concern TRAI has is the monitoring of Net Neutrality violations, and detecting them definitively in the first place.

  • Telcos argue that monitoring Net Neutrality should be done on a case-by-case basis, left to the discretion of the telco itself, and should not be crowdsourced (because of data quality concerns). BSNL, on the other hand, supported crowdsourcing, such as through apps that do connectivity tests with different services to check for discrimination.
  • Civil society groups said that detecting Net Neutrality would need a mixture of several approaches, such as crowdsourcing data from users, using network probes; they also said that tools for detecting Net Neutrality violations exist, such as those developed by the Open Observatory of Network Interference (OONI) and M-Lab. These tools are essentially probes that can detect differential treatment of data at a network level, which is a key step to detect violations of Net Neutrality.

5G and Net Neutrality

The fifth generation of mobile networks, 5G, will use techniques like network slicing to manage traffic. Network slicing lets telecom operators more efficiently split a network into different parts that all have different levels of bandwidth, latency and quality of service.

  • Telcos argue that since 5G technology would use techniques such as network slicing, Net Neutrality rules would hinder the development of these networks. They also argued that strict Net Neutrality would be difficult to follow when different applications need different levels of Quality of Service and latency (for instance, gaming and “specialised services” such as streaming video can have higher latency but telesurgery can not).
  • Civil society, however, argued that 5G networks should also be subject to Net Neutrality rules, and that “These
    ‘specialized services’ should neither degrade the quality of experience for general internet access services nor be offered in ways that circumvent India’s net neutrality regulations.”
  • Professor van Schewick pointed out that 5G will also increase the overall bandwidth available in networks. She added, “Internet access providers have argued that they want to use 5G technology to offer special treatment under the specialized services exception to any app that pays them a fee, and some commenters in this proceeding seem to suggest the same. But that’s not what specialized services are for; they are supposed to be for apps that simply can’t work on the normal internet [emphasis ours].” Citing the example of remote surgery, she said that applications that really need the level of quality that cannot be achieved on the regular internet should get a 5G network slice that does not affect general users.

A Net Neutrality committee

The Department of Telecommunications accepted TRAI’s recommendation that a committee to look into Net Neutrality violations be set up in 2018. The ongoing consultation will determine the form and powers of the committee that TRAI will recommend to the DoT.

  • Airtel and Jio were not on board with a committee even being needed, and both said that it should be led by the telecom industry if it were created. Telcos would, under their model, be exempt from fees, and form the majority of members. Telcos would also have veto on complaints and wouldn’t need to pay membership fees.
  • Civil society pushed back against this, saying that “both [TRAI] and the DoT would benefit from additional institutional capacity to overcome existing limitations in monitoring and enforcement”.
  • Barbara van Schewick said that any potential committee should avoid “potential capture” by telcos, and that membership should not be based on a fee, as this could reduce access to civil society.

IFF, CIS and van Schewick all agreed on one point: the buck would stop with TRAI or DoT, which should have the last say on acting on the committee’s recommendations. In 2017, our editor Nikhil Pahwa wrote that a Net Neutrality committee should be a TRAI body, as the regulator has the expertise and a record of transparency for the job.


Dive deeper: Consultation | Airtel’s submission | Reliance Jio’s submission | Barbara van Schewick’s submission | Asia Internet coalition’s submission | IFF’s submission | IFF and CIS’s counter-comments

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Disclosure: MediaNama editor Nikhil Pahwa was the founding chairman of the Internet Freedom Foundation.

Written By

I cover the digital content ecosystem and telecom for MediaNama.

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



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