1. Net neutrality, digital access, and Trai: Will innovation and the real end-users win?

Net neutrality, digital access, and Trai: Will innovation and the real end-users win?

The telecom regulator, Trai, has launched the second, and hopefully, final phase of its net neutrality consultation, more than two years after the commencement of formal regulatory and policy discussions on the subject.

By: | Published: February 22, 2017 4:54 AM
Trai’s attempt to settle the matter even before a global consensus is probably because India is poorly placed vis-a-vis internet and broadband penetration, and the approach to net neutrality could strongly influence this.

The telecom regulator, Trai, has launched the second, and hopefully, final phase of its net neutrality consultation, more than two years after the commencement of formal regulatory and policy discussions on the subject. The overlong consultation is a reflection of the global trend. World over, furious debates have raged on the subject for over ten years, but no one has yet arrived at an agreed, precise definition of, or a consensus on, net neutrality. Our regulatory authority, in this final phase, has posed 14 weighty issues, covering aspects of reasonable traffic management, core principles of net neutrality, transparency and methods of monitoring and enforcing net neutrality. Trai’s attempt to settle the matter even before a global consensus is probably because India is poorly placed vis-a-vis internet and broadband penetration, and the approach to net neutrality could strongly influence this. There are also possible linkages to Digital India, since realising the initiative would be difficult without clarity on open internet or if there is throttling or discriminatory treatment. Thus, the current exercise, to expedite a decision on net neutrality, is certainly laudable and needs to be supported warmly.

First, we need to understand that the concept of net neutrality (first suggested by Tim Wu in 2003), while undoubtedly universally attractive, is also tantalisingly illusory. The term floods one with images of fairness, equality and non-discrimination. Opposing it sounds wrong and improper—almost immoral, like opposing honesty or decency or justice. It was, indeed, a brilliant masterstroke by Wu to have come up with this. There are, of course, some technical voices which try to show that net neutrality is an engineering impossibility and that the internet was never designed to be neutral and that, in fact, right from its inception, the internet design/construct has been based on prioritised traffic delivery. They cite Robert Kahn, a father the internet, who rubbished the demand for net neutrality as mere sloganeering. Nicholas Negroponte, the co-founder of MIT Media Labs is quoted as saying: “..the truth is all bits are not created equal…and so to argue they’re all equal is crazy.. What can assure you on the topic is those of us who were there at the beginning of the internet never imagined that Netflix would represent 40% of it on Sunday afternoons. It was just off the chart.” However, these voices invariably get drowned in the general clamour for the virtuous abstraction of net neutrality.

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Notwithstanding, whether net neutrality is real or illusory, India, with its current priorities, does need to take a quick decision in the matter. Few would dispute that an open internet is essential for society to progress. Hence, it follows that there should be no blocking of sites, no throttling, no fast-lanes and permissions for reasonable traffic management that is followed with transparent disclosures. In fact, the last named is a powerful tool to enhance consumer benefit and needs to clearly be encouraged. While non-discrimination must be strictly followed, the regulator should promote positive differentiation. For example, zero-rating offered by providers which are defined by conditions and benefits, should be available to all on the same terms and conditions and not given arbitrarily to select parties. The FCC noted in its March 2015 rules that “sponsored data plans (sometimes called zero-rating) could “provide benefits to consumers” and that such “new service offerings, depending on how they are structured, could benefit consumers and competition”. Europe also has a flexible approach to it. It has been well-documented that many regimes have benefited from deploying zero-rated platforms. Trai would do well, in this final stage, to clarify that such positive, differentiated offers would be permissible. Ex-ante regulation of these is not required. Tariff offers should mandatorily be filed with Trai, which is anyway fully empowered, even under forbearance, to intervene at any stage if they consider any offer as non-compliant to net neutrality norms. This single measure alone could increase internet adoption exponentially in our acutely price-sensitive country and could be reviewed after three or five years to decide its continuance.

In the current consultation, Trai has also sought responses on the monitoring, regulatory and legislative measures needed for net neutrality. The internet is, today, one of the most powerful tools available to mankind for accelerating socio-economic progress. It has attained this state only because it has remained the cherished incubator of technology and innovation; this has only been possible due to the absence of heavy-handed regulatory and legislative controls. This needs to be protected and nurtured. It is undesirable to hard-code net neutrality; all that is required is to set out broadly the core principles. This is not to say that close regulatory monitoring is not required. Quite the opposite. Like in some other regimes, the regulator should continuously scan the environment using special independent platforms and agencies, big data analysis and other state-of-the-art tools.

Indications are that Trai may evolve a framework of net neutrality core principles customised for India and not blindly follow the approaches of other regimes. This is to be heartily welcomed and supported. India has its own unique set of opportunities, challenges and ambitions, and thus needs to strike its own balance of rules for net neutrality and digital access. Trai also needs to remember that net neutrality inevitably involves some cross-subsidisation—transfer from the relatively poor to the relatively rich. In a fully net-neutral state, the affluent resident of Lutyens Delhi could be happily guzzling scarce bandwidth for his Netflix, subsidised by the middle-class RK Puram web browser. Such an approach would be adverse for the nation. Indian industry—both existing players and the new technology participants/hopefuls—and, most importantly, the real end-users or customers, are surely entitled to early regulatory certainty and a predictable path forward that can take them expeditiously to Digital India.

The author is honorary fellow of IET

(London) and president of Broadband India Forum. Views are personal

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