The new TRAI regulations are good, but what about tackling violations of Net Neutrality?

By Asheeta Regidi The new regulations by TRAI are a very welcome step towards preserving net neutrality. However, with differential tariffs being effectively barred by these regulations , it will not be long before a shift is made to other practices that violate net neutrality. This is bound to happen, and there are several reasons for this ranging from service providers’ loss of revenue due to a shift in user behavior (loss of SMS and call revenues due to services such as Whatsapp), or whether it is an attempt to control and monopolise the online behavior of users in favour of a few stakeholders. Practices which violate Net Neutrality Differential tariffs are a price-based mechanism to regulate data accessed. There are several non-price based mechanisms that telecom operators can resort to: Data Throttling This involves slowing down the access speed of a particular website. This greatly affects the quality of the website’s service on that particular network, which in turn, affects the usage of the website.The most famous example of this is throttling of Netflix by service providers like Comcast and Verizon. Comcast and Verizon found that Netflix’s video streaming services were affecting their cable revenues. Comcast’s throttling, in fact, resulted in the cancellation of several subscriptions to Netflix . Paid Prioritisation This usually involves large companies paying service providers to speed up the access to their websites and apps. The ease of access, naturally, makes such websites preferable for users. This will put new, upcoming companies at a disadvantage. An example of this is again Netflix, which paid several data service providers to provide smooth access to its website . Blocking This refers to the outright blocking of access to certain websites and apps. The reason given may be that the app competes with the service provider’s in-house app or service, such as blocking of Voice-over-IP to force customers to make regular calls, or that the app hogs too much of the network bandwidth, such as video streaming, or simply to force the app providers to pay to enable access on that particular network. Websites may also be blocked for social or political reasons. Data Caps This is the practice of allowing normal internet access until a certain pre-defined limit on data used is reached. Thereafter, practices like blocking, data throttling and higher tariffs are used to control customer usage. Discrimination in Traffic Management Service providers are generally given the right to take certain measures to manage data traffic and prevent congestion. This includes steps like slowing down internet speeds. Instead of managing traffic on a fair basis, service providers can resort to discriminatory tactics, such as prioritising websites which have paid the service provider for this purpose. Other Practices Several other practices are used, such as delaying interconnection requests and requiring customers to go through additional procedures to decrease the application’s brand value. Principles for Net Neutrality Regulations Attempts have been made in other countries to create a regulatory framework that will ensure net neutrality, with varying degrees of success. Some basic principles have been set forth for this purpose: Transparency All service providers will be required to disclose all network management objectives, practices and methods to the public. This ensures that the public make an informed choice while selecting a service provider for themselves. No blocking The blocking of lawful content, services or apps will be prohibited. This will prevent any unreasonable or biased blocking, though blocking will be permitted for traffic management purposes. No unreasonable discrimination Discrimination on any basis between lawful content applications and services will be prohibited. This will also put a stop to practices like data throttling and paid prioritisation. Reasonable traffic management will not be unreasonable discrimination. Reasonable traffic management Network operators may adopt trafficmanagement practices for network security and stability, to avoidnetwork congestion and for protecting end users. TRAI’s Consultation Paper on OTTs TRAI issued a consultation paper in 2015 for the regulation of Over-the-top services or OTTs, i.e., the apps and websites which are accessible over the internet, such as Skype, Amazon, Facebook, etc . This OTT Consultation Paper also sought to address the issue of net neutrality. Several of the concerns ifpractices such as those discussed above go unregulated were acknowledged in this paper. For example: 1 Service providers may discriminate against certain types of content and political opinions. This may hurt consumers and also diminish innovation in sectors like app development. 2 Discriminatory pricing raises several anti-competitive concerns. 3 Service providers, if left unrestrained by non-discrimination rules, will have incentive to favour their own services, applications, and content and tokill competing services. 4 Service providers can lower or restrict traditional internet access, to force the use of service providers’ new, in-house, ‘premium’ service. 5 Allowing service providers to charge fees from content producers, may result in the charging of different fees and bargaining to reach exclusive arrangements with the content producers. This will not only restrict access to such content, but will also lower creativity. While comments on the OTT Consultation Paper were closed on May 8th, 2015, regulations have not been issued by TRAI on either the subject of regulation of OTTs, or on net neutrality . TRAI has taken the first step by issuing regulations on differential tariffs. Having dealt with this issue so effectively, it is hoped that TRAI will soon issue regulations along the same lines to ensure net neutrality. The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.