Trai’s free data for rural areas paper has scope for net neutrality violations

By Asheeta Regidi The Telecom Regulatory Authority of India (TRAI) issued Recommendations on Encouraging Data usage in Rural Areas through Provisioning of Free Data recently. The recommendation raised concerns among net neutrality activists regarding possible violations. In response to these concerns, Trai stated that the recommendations will not violate net neutrality principles or the Discriminatory Tariff Regulations issued earlier this year.However, while Trai’s new recommendations may not allow violations of net neutrality by the telecom service providers (TSPs), it leaves scopefor violations by other entities. Trai’s new recommendations Trai’s recommendations lay down two proposals. The first is to create third party aggregators, to facilitate the provision of free data in a TSP agnostic and non-discriminatory manner. Trai makes it clear that the schemes adopted by the aggregators must not violate the Discriminatory Tariff Regulations in any form.  Trai also states that all such aggregators must be registered with the Department of Telecom. The second proposal is to create a scheme which provides 100 MB per month to rural subscribers for free. Trai proposes that the costs of this scheme should be met from the Universal Service Obligation Fund. This second proposal is an extremely welcome move for increasing internet penetration in rural India. The first proposal, however, raises net neutrality concerns. Content based data rewards model suggested Trai had released a Consultation Paper on Free Data  earlier this year in May. This paper had suggested three models for the provision of free data within the norms of the Discriminatory Tariff Regulations- the toll free model, or zerodata rates for certain websites; the direct money transfer model, or refundof cost of data consumed to users; and the rewards model, or providing data rewards for access of certain sites. While Trai rejects the first two models for provision of free data, it supports the rewards model. This model permits content providers and app publishers to reward their customers for accessing their sites with data recharge packs. Trai suggests that neutrality can be maintained by creating an aggregator. For instance, the aggregator will be allowed to distribute the awarded recharge packs. The aggregator would ensure that there is no arrangement made with the TSPs, and no restriction on the content that can be accessed using such rewards. TSPs aren’t the only potential net neutrality violators The issue with Trai’s approach is in assuming that only TSPs pose a threat to net neutrality. This approach can also be seen in Trai’s Pre-Consultation Paper on Net Neutrality, also issued in May this year. This paper is also entirely centred around preventing TSPs from gatekeeping. The same can be seen in the Discriminatory Tariff Regulations, which forbids only TSPs from charging different data rates on the basis of content.Violations of net neutrality, however, encompasses any discrimination based on content, be it by the TSP, the aggregator as suggested by Trai, the content provider, or any other player. Any content based discrimination violates net neutrality The core of net neutrality is that there should be no discrimination on access to content, even if it is in an indirect form. This includes the provision of a reward for the access of certain content. Such a scheme directly encourages users to access that content more often than others. This will prevent a level playing field between larger corporations, and start-ups and other small businesses,which lack thethe financial backing to provide similar incentives to their users. Any step which allows such a monopoly to be created is a violation of net neutrality. Users must be free to choose whatever content they want to access, and any free data provided must be completely independent of content. Trai, in the Explanatory Memorandum attached with the Discriminatory Tariff Regulations, notes that practices which make certain content more attractive to consumers, can result in altering a consumer’s online behaviour. This, Trai notes, could lead to a severe distortion of consumer choice and the way in which users view the internet. Trai needs to realise that this same distortion can be created through any entity adopting such practices, be ita TSP, an aggregator or anyone else.It makes no sense to prohibit one entity from violating net neutrality, and then permit another entity to do the same. Trai should look at alternative solutions There are methods apart from content based data rewards to achieve free data for people. The stakeholder’s responses to Trai’s paper on free data contained some excellent suggestions to increase internet penetration  while maintaining net neutrality. Among these were to allow to TSPs to provide free internet to everyone, at a lower speed, in exchange for financial incentives to the TSPs. Another suggestion was to create a larger number of public Wi-Fi spots to enable free access. It is hoped that Trai will look into these suggestions as alternative methods to increase internet penetration. Trai’s aim to protect net neutrality, andto increase internet penetration, is very welcome. However, Trai needs to amend its approach to net neutrality and adopt measures that will prevent violations in any form, and not just by the TSPs. The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.