Net neutrality is a principle that promises equality for all packets of data over the internet. The topic has spurred wide public debate and credit for this goes to Trai, which has set high standards for public consultations. In August 2014, faced with growing demands by telecom companies for separately charging users and internet companies for data-heavy web services, it organised a high-level seminar. There seemed to be a sharp difference of opinion and peace was brokered at the time by a statement that a consultation paper would be released on it soon.
A consultation paper provides the necessary background of policy choices and legal regulations on the basis of which inputs are invited from the public. After these inputs are received and published, it may provide an opportunity for additional counter-comments before publishing its recommendations. The consultation paper on OTT (over the top) services didn’t come without public nudges by various stakeholders due to repeated violations of net neutrality. It was highlighted that violations were eroding the basis of any future rules and could shape usage patterns and business practices that would render future net neutrality rules toothless.
When the consultation paper on OTT services was finally published in March 2015, it made several comments that lacked balance. Trai’s delay and lack of familiarity with new technologies caused disgruntlement. Towards the end, an unprecedented number — more than a million people — participated and sent in their comments. It has been more than six months since the counter-comments were sent to Trai. It has still not published its recommendations. However, it has, without clarifying its position on or concluding the OTT consultation, issued a subsequent paper on differential pricing of data services in December. Differently pricing data services is a core issue of net neutrality and covered in the consultation paper on OTT services. While the contents of the new paper are reason for optimism — it states how Trai can use its tariff regulation power to regulate net neutrality — the document has also been viewed with suspicion, as a delaying tactic. The delay has been compounded by a lack of clarity on the path the consultation processes are following.
Parallel to the Trai consultations, two other processes on net neutrality are underway: First, the department of telecom’s (DoT’s) report on net neutrality, which, on one hand, makes actionable recommendations and, on the other, is ambiguous about details. Further, it’s somewhat irregular for it to preempt Trai with a report. The DoT usually waits its turn and exercises its power to issue regulations on the basis of Trai recommendations. Then, there’s the Rajya Sabha standing committee on information technology.
Communications Minister Ravi Shankar Prasad has said the DoT will wait for Trai to make recommendations. But there’s a lack of clarity on how these different reports and recommendations will be considered. The four processes, although well-intentioned, will undoubtedly result in contradictions and delays at the cost of net neutrality. This has reportedly been mitigated by Trai asking Reliance to halt Internet.Org/ Free Basics services, which, as per the DoT report, violate net neutrality. However, it isn’t clear if this is a legal order. In fact, users have reported that Internet.org/ Free Basics remains accessible.
Delays increase regulatory uncertainty. The absence of clear norms only furthers the interests of incumbents with sizeable market power, which have the ability to take on risks in circumstances of ambiguity. This is clear from Facebook’s resistance to maintaining the status quo on Free Basics. Facebook has, instead, sought to expand it to further telecom circles in the midst of this consultation.
Net neutrality has implications for issues concerning the development of the internet and its adoption in India. These include licensing of internet applications like those permitting voice calling, payment of carriage fees to telecom companies, and zero-rated plans like Internet.org/ Free Basics. The longer these issues linger, the more violations will occur and the status quo may become the norm. It will likely lead to a further undermining of public trust in a consultation that has seen record participation. It’s necessary that a clear timetable and process for bringing in net neutrality laws in India is announced at the conclusion of the counter-comments period for the consultation on differential pricing of data services.
The writer is a lawyer and is associated with the ‘Save the Internet’ campaign.
