Across the aisle: Crouching tiger vs hidden dragon

By: | Published: February 14, 2016 1:09 AM

How quickly an idea or a word or a phrase can spread across a country! In a matter of weeks, the phrase ‘net neutrality’ went from a term used by a small group of tech industry insiders and academics to a phrase of common usage.

How quickly an idea or a word or a phrase can spread across a country! In a matter of weeks, the phrase ‘net neutrality’ went from a term used by a small group of tech industry insiders and academics to a phrase of common usage. The phrase means that the Internet will treat all content it carries equally, indifferent to the nature of the content or the identity of the user.

It was as if there was an election. There was a high decibel campaign between December 9, 2015, and February 8, 2016. There were two parties. In a sense, there was voting, where people were asked to respond to a consultation paper put out by the Telecom Regulatory Authority of India (TRAI). The only thing missing was the election symbols. Crouching Tiger and Hidden Dragon would have been apt symbols for the two sides.

The hidden dragon argued for allowing service providers to be able to give free access to certain websites and to price access to other content differently. The face of the campaign on this side was Facebook and its founder, Mark Zuckerberg. The crouching tiger argued for net neutrality. There was no identified face on this side, but there was NASSCOM, there were many passionate individuals, and there was a hashtag #SavetheInternet. Government was a silent, but somewhat wary, player.

Net neutrality wins

Had it not been for the citizens’ movement, the net neutrality consultation held by the TRAI may have ended differently. TRAI and the government made confusing noises last year. The consultation paper on over-the-top services sent mixed signals. Initially, the government did not make any commitment to protect net neutrality. When a committee of the department of telecommuni-cations supported net neutrality, the ministry did not fully own the committee’s view. However, when TRAI published the Regulations on February 8, net neutrality was the winner.

The Regulations are categorical: “No service provider shall offer or charge discriminatory tariffs for data services on the basis of content.” They also prohibit service providers from entering into agreements with any person that could lead to discriminatory tariffs. The only exceptions will be content related to some emergency services and closed electronic communication networks.

Rival arguments

Common protocols bind the Internet as a network of networks. In the early 1980s, the pioneers of Internet sent a tough command that required everyone to implement common protocols or risk going off the Internet. That fiat enabled the open nature of the network and laid the foundations for the Internet’s rapid growth. If service providers get to slice and package Internet content, this principle would be compromised, and they would have excessive power to influence consumer behaviour. This is especially relevant in the case of persons who have never used the Internet before. On the other hand, those who favour giving service providers freedom to package and price content differently make the ‘free market’ argument—let them provide the service in any way they want, and competition will take care of everything. They also argue that free access to the Internet will lead to inclusion of those—two out of three Indians today—who do not have access. They point to the US and many countries of Europe that have not opted for a blanket ban on differential pricing and to many countries who have not yet taken any regulatory decision.

Classification vs discrimination

TRAI has recognised that restricted access is not a solution and also that inclusion does not mean poor quality access for poor people. But is the debate settled finally? I doubt it.

There are two, if not more, hurdles. The first is because TRAI does not have the final word. Its decision can be appealed to the Telecom Disputes Settlement Appellate Tribunal (TDSAT). Its Regulations can also be challenged in the High Court and the Supreme Court, and in all probability will be.The second hurdle is the Constitution of India. TRAI has equated ‘differential tariffs’ with ‘discriminatory tariffs’. The Constitution permits classification based on intelligible differentia. A case of permissible ‘classification’ will not be a case of impermissible ‘discrimination’. Suppose a user has no interest in any content except limited content (contained in certain websites). Cannot a service provider offer a package of content that would be directly useful to a farmer or a student or a homemaker, justify that package as a separate class of content, and offer it free to the user in order to retain the custom of the user? TRAI has not addressed this question.

Debate not over

I broadly support TRAI’s decision. My worry, however, is that the Regulations are too definitive and categorical and allow no room for innovation or experimentation. The US and some European countries allow or disallow models on a case-by-case basis.

The full consequences of TRAI’s blanket ban will play out in the months and years to come and I hope that, in due course, TRAI would amend the Regulations suitably to allow for exceptions in public interest. Net neutrality is not a slogan and Regulations are not slogans written into the law; they need to have more nuance. Net neutrality is a larger concept than the differential pricing issue addressed in the new Regulations. India may need a parliamentary law on the subject. The debate and the policy process on net neutrality are far from over.


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