-Tony Verghese & Arjun Krishnamoorthy
In January 2015, the Department of Telecommunications (DoT) constituted a committee on net neutrality, which submitted its recommendations in May 2015. These included, amongst others, a requirement that telecom service providers follow core principles of net neutrality. In March 2015, the Telecom Regulatory Authority of India (TRAI) issued a consultation paper relating to the regulatory framework for OTT services, which also went into the questions of net neutrality, and traffic management. Following a pre-consultation paper in May 2016 to identify key issues regarding net neutrality, and taking into consideration the comments received from the stakeholders, including telecom service providers who were in favour of net neutrality, TRAI issued a detailed consultation paper in January 2017 that focused on the requirements for implementing a framework for net neutrality. Following a series of open house discussions, TRAI, on November 28, 2017, issued its ‘Recommendations on Net Neutrality’ to DoT.
In July 2018, the Telecom Commission, the highest decision-making body of DoT, approved the recommendations and has required the licence agreements with service providers, to subject these to the recommendations.
Following the approval of the Telecom Commission, internet service providers will not be able to deploy any discriminatory practices, to provide any preferential treatment to any specific services, at any point in time.
The recommendations set out to amend the various licence agreements and suggest that internet service providers should not engage in discriminatory treatment of content. This includes any discrimination that may be based on sender/receiver, user equipment, amongst others. Internet service providers are also prohibited from entering into any form of arrangement that may be deemed to be discriminatory in nature. The recommendations define ‘discriminatory treatment’ to mean any form of discrimination, restriction or interference in the treatment of content, including practices like blocking, degrading, slowing down or granting preferential speeds or treatment to any content.
However, notwithstanding the above, certain services that are provisioned for specific content, and require a minimum quality of service, are exempt from the regulations on net neutrality. These ‘specialised services’ include any service other than an ‘internet access service’ and which are optimised in order to meet specific quality of service requirements, and include any Internet of Things services that satisfy the definition of a ‘specialised service’. TRAI suggests that Voice over Internet Protocol (VoIP) or Internet Protocol television (IPTV) may fall under the definition of a ‘specialised service’.
Internet service providers may engage in discriminatory treatment provided these fall under (a) reasonable traffic management practices as may be specified by TRAI from time to time; (b) provision of any emergency services, such as those provided during public emergency; (c) implementation of any court orders or government directions; and (d) measures taken in pursuance of any international treaty or may be required for preserving the security of the equipment. It is understood that DoT would be formulating a policy setting out the reasonable traffic management practices.
Following any amendment of telecom licences, any internet service provider not complying with the net neutrality requirements is likely to have such licence cancelled, and it appears this may be the only means of enforcement, if not possibly the best means, given the absence of recommendations on how discriminatory practices could be monitored. Also, more transparency may be sought on what would constitute a ‘specialised service’, as there is lack of clarity on the definition to ensure there is no misuse of this exception.
While this is a start in the implementation of the net neutrality framework in India, we need to wait and see how the government will go about amending licences to implement the framework, and also transparency on how it intends to regulate the services (if any regulation is proposed).
-Verghese is Partner and Krishnamoorthy is Senior Associate, J Sagar Associates. Views are personal