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An estimated 7-minute read

Net Neutrality : Pre-Consultation paper and way ahead

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India has an estimated 426 million Internet users, a number that is estimated to grow to approx. 515 million by the mid of 2017, giving it the second-largest online user base in the world after China. Despite this impressive number, only a third of India's 1.25 billion citizens have Internet access. And for perspective, the U.S. has approximately 300 million Internet users among a population of above 324 million. The government is actively pursuing to beridge this gap through campaigns like “Digital India Initiative”. With mobiles companies like Freedom 251 and Docoss X1, Namotel [1] claiming to provide smartphones for an absurd price of Rs 99, internet is getting to accessible to more users. According to another study year on year growth of internet users in India is approx. 54 %.

It took India more than 10 years to reach 100 million Internet users. Then over the next three years, it quickly climbed 200 million users, said the IAMAI. The jump from 300 million users to 400 million took only a year.

It is this growth in users that CEOs in MNCs intend to target. The company with most users can literally decide how users will form opinion about events around the world.

Facebook has arguably been the most aggressive India-focused company, starting with its Internet.org initiative. Designed to get two-thirds of the world’s population not currently online connected to the Internet, the initiative was attracting users in India with low- or no-cost web access. Some other campaigns include Wikipedia Zero, Facebook and Whatsapp on Aircel, Google’s Free Zone on Airtel, Reliance's collaboration with Twitter. These campaigns had fairly larger number of critics as well. In their opinion the intended plan was to control access to variety of information and communication facilities. Volunteer-led online coalition Campaigns like save the internet established that there many takers for the concept of free and equal access to the internet for all.

In its landmark ruling in February, TRAI had banned discriminatory pricing of data and zero rating platforms for violating the principles of net neutrality.

Trai has ruled that throttling of Internet speeds and fast lanes by telcos will be regarded as “unreasonable”. The quasi-judicial body also suggested that telecos should rather focus on “advanced traffic management techniques” to balance consumer and business interests, without compromising on net neutrality guidelines. Given that a majority of the population is yet to be connected to the Internet, allowing service providers to define the nature of access would be equivalent of letting TSPs (telecom service providers) shape the users’ Internet experience. Additionally future users experience will be prone to be dependent on what is available for their usage.

The decision has forced Facebook and other telecos to change their business strategies as far as India and US are concerned. Surprisingly Google and Facebook support Net Neutrality in United States but not in India. Since there are huge revenues involved Companies intend to reach a consensus with such Public run campaigns.

Since 2015, TRAI has been releasing several consultation papers and orders on the Internet Usage Policies in India. In March 2015, a consultation paper was released seeking views on regulatory framework on OTT (Over-the-top) content providers such as WhatsApp, Viber, and Facebook messenger. In December 2015, they released a paper on differential pricing by the service providers. The pre-consultation papers are a good initiative by TRAI to identify the gaps and promote revenue generation in economy.

The latest Pre-consultation paper has been released on 30th May, 2016. This pre-consultation paper seeks to address few relevant questions and has solicited the views of stake holders on the same.

  1. What should be regarded as the core principles of net neutrality in the Indian context?
  2.  What are the key issues to be taken into account so that the principles of net neutrality are ensured?
  3.  What are the reasonable traffic management practices that need to be followed by TSPs while providing Internet access services and in what manner could these be misused?
  4.  Are there any other current or potential practices in India that might give rise to concerns about net neutrality?
  5. What should be India's policy and/or regulatory approach in dealing with issues relating to net neutrality?
  6. What precautions must be taken with respect to the activities of TSPs and content providers to ensure that national security interests are preserved?
  7. What precautions must be taken with respect to the activities of TSPs and content providers to maintain customer privacy?
  8. What further issues should be considered for a comprehensive policy framework for defining the relationship between TSPs and OTT content providers?

Arguably, TSPs are not unjustified in expecting that OTTS should also be regulated. This would mean that OTT content providers will have to follow similar security and privacy rules which govern carriers besides having to adhere to licensing and revenue-sharing conditions. This has been a major concern for TSPs and hopefully will be addressed after the data from this series of consultations is analysed. This can be addressed only by having a comprehensive policy framework to define the relationship between TSPs and OTTs.

There is also a need to regulate certain websites in India that feature objectionable content such as child pornography. The Government has to frame policies so to find ways to manage online traffic and transparency in such a way so as keep the freedom of Internet intact. These questions also address the issue of balancing universal access to the Internet without compromising on the security and integrity of India.

It is evident from the analysis of the recent pre-consultation paper that government seeks to emphasize on balancing consumer privacy and regulating objectionable content. Therefore, it seeks views on how to regulate it. Governments around the world are getting serious about customer privacy. Recent updates in Whatsapp services with regard to encrypted messaging services are butterfly effects of government measures. Facebook messenger service has also assured the same in next updates. The consultation will shed more light on how these services will work. The government needs to be extra cautious in framing guidelines taking into consideration December 2015 incident in United States involving a terrorist’s I-phone. Apple had declined to assist, saying that to do so would compromise the security of all iPhone users. The company argued that law enforcement officials didn't understand the consequences of creating a backdoor into the phone. The government would do good to address these concerns as well.

To conclude we can safely say that the pre-consultation paper intends to address potential programs which might favour one service over another. In the US, for instance, there is a huge protest going on against T-mobile's Binge On service. The service first debuted in November 2015 in select states letting T-Mobile customers watch unlimited video streaming without it getting counting towards their monthly data charges so long as they access internet from a select set of providers. Binge On now includes 42 different streaming services, including Netflix , HBO Go and Amazon Prime .On the other hand T-Mobile CEO John Legere claims that since no money is changing hands it is all about innovation, competition and consumer choice.  In his view Net Neutrality is about these things, and everybody should support such innovations, which cater to consumer satisfaction. With services like Binge on getting popular is it justified to curtail innovation because it stifles revenue generation for previous players. The question holds relevance because the consumer market ultimately intends to achieve fast, free and unlimited internet access.

A local example of a similar situation is the now banned Wikipedia Zero which basically provided a lighter version of its webpage. Since Wikipedia runs only on donations and does not earn through advertising, why should anybody including government discourage knowledge sharing. The guidelines as they stand today ultimately fail to address the concern in totality. The objective is to promote innovation, competition and provide customer choice.

The government’s intention is to promote “Digital India” initiative which talks about free access to every citizen of India and promoting innovation. If initiatives like Wikipedia Zero intend to provide free access to information and knowledge sharing, why should government interfere? Till what level Government would want to regulate internet usage so as to not fall prey to its own regulations is what all concerned parties are anxious about.

All Stakeholders  are  required  to  send  their comments with regard to the pre-consultation paper, preferably  in  electronic  form,  by 21st June,2016 on email  id . For any clarification or update please connect at .

by Harshit Saxena, Associate at Abhay Nevagi and Associates, Advocates

[1] http://indianexpress.com/article/technology/tech-news-technology/namotel-acche-din-smartphone-at-rs-99-claims-to-be-worlds-cheapest-one/

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