Trai seeks inputs on apt compromises in consultation proving absolute net neutrality is disastrous

The Telecom Regulatory Authority of India (Trai) has released a consultation paper on net neutrality , and there are several reasons why internet access is not going to be made up of neutral data pipes. IoT, Smart Cities, Connected Cars and the next generation of internet services will require some compromises on net neutrality. The problem is worldwide, and EU carriers have promised faster 5G rollout if there are relaxations on net neutrality regulations. It might be sensible for example, to open up bandwidth for remote surgery while throttling the speeds of hospital employee browsing through cat videos on Facebook. Stakeholders and the public are being invited to give inputs to help decide where the compromises should be made and by how much.

The consultation paper on net neutrality is a follow up on the pre-consultation paper on net neutrality, which made a pretty strong stand in favor of net neutrality . As part of the arguments that emerged from the pre-consultation process, Trai banned differential pricing , where service providers allowed access to some applications and services at a reduced rate, or no rate. The ruling was strongly in favour of net neutrality.

Although differential pricing is banned in India, zero rated schemes are one of the most common ways that users in developing nations get access to the internet. Trai has recommended provision of free data to rural India to bridge the digital divide . The free data provided by is going to be within the framework of net neutrality regulations in the country, and does not circumvent the ban on differential pricing. The recommendation for providing free data to rural areas does have scope for net neutrality violations .

One of the problems is that there is no universally accepted definition of net neutrality. Net neutrality stands for network neutrality, and not internet neutrality, an important distinction. There is a requirement for approaching net neutrality within the Indian context, keeping in mind the local conditions. The level of development, the reach of internet services, the state of evolution of the local content and services, and the regulatory framework within which local businesses operate are all required to be factored in. Most of the internet connectivity in India is wireless , which puts additional strains on the available bandwidth, requiring for more traffic management practices during times of peak activity.

The phrase “net neutrality” was coined by Tim Wu in a 2002 essay titled “ A Proposal for Network Neutrality .” According to a net neutrality FAQ hosted on Wu’s site, net neutrality is “best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites and platforms equally”. In the essay, Wu noted that a total ban on discrimination of data would be counter-productive, and that regulators must approach the problem by deciding what kinds of discrimination is not allowed. This is the approach being followed by Trai in the net neutrality consultation paper. The consultation paper poses fourteen questions.

Q.1 What could be the principles for ensuring nondiscriminatory access to content on the Internet, in the Indian context? 

Trai will formulate broad principles for ensuring net neutrality in India. The regulations, rules and monitoring activities will follow once the principles are established for the Indian context.

Q.2 How should “Internet traffic” and providers of “Internet services” be understood in the NN context? 

While the open internet is the primary reason for setting up network infrastructure, the networks could be used to access specialised services that are not part of the internet at large. This includes enterprise solutions, connected cars, IoT, and content delivery networks. For example, an ISP can host content from a particular content service provider, allowing for better access to that content on that network. The question posed is an attempt to define what does and does not come under net neutrality regulations.

Q.3 In the Indian context, which of the following regulatory approaches would be preferable: (a) Defining what constitutes reasonable TMPs (the broad approach), or (b) Identifying a negative list of non reasonable TMPs (the narrow approach).

TMP stands for traffic management practices. Different kinds of content require different kinds of connectivity. For example, video or VR content needs a high speed connection. Gaming content does not require high speeds, but low latency and constant connectivity are important. Internet service providers can manage the traffic in various ways to ensure that all the users are getting a uniform quality of service, despite consumption of different kinds of content.

A broad approach to regulations would codify what kind of TMPs are permissible. A narrow approach specifies what kind of TMP practices are illegal. The second approach is preferred by ISPs as that would give them freedom and agility to adapt to changing requirements with novel TMP approaches. However, a negative list would allow for TMP that is unreasonable, but not explicitly banned.

While the approaches have to safeguard the interests of the user, if the regulations are too restrictive, then the service providers will not be able to genuinely handle the loads. Designing the network for peak use throughout would mean a lot of wasted capacity most of the time. At the same time, TMP cannot be used as an excuse to set up sub par networks. Considering that most of the connectivity is provided over mobile networks, a situation that can rapidly and dynamically change, additional challenges are posed. The conditions are very different from normal at mass gatherings such as a major concert or the Kumbh Mela.

Q.4 If a broad regulatory approach, as suggested in Q3, is to be followed: (a) What should be regarded as reasonable TMPs and how should different categories of traffic be objectively defined from a technical point of view for this purpose? (b) Should application-specific discrimination within a category of traffic be viewed more strictly than discrimination between categories? (c) How should preferential treatment of particular content, activated by a users choice and without any arrangement between a TSP and content provider, be treated?

If only some kinds of traffic management practices are allowed, Trai is seeking comments on what kind of TMPs should be allowed. A service provider can throttle traffic from competing video content providers, while providing a better experience on a video content platform owned by the ISP, or partnered with the ISP. The question posed is such kind of discrimination a more serious offense, then say just throttling all video content on the network when there is extra load.

New technologies allow for user to notify the service provider when access to a certain service or content is critical. This allows service providers to provide preferential treatment on demand. The consultation asks if such a procedure should be regulated, and if it should be regulated.

Q.5 If a narrow approach, as suggested in Q3, is to be followed what should be regarded as non reasonable TMPs?

The government will have to list all non reasonable kinds of TMPs if there is a narrow approach to regulating how traffic is managed by service providers. The problem here is that the onus is on the telecom watchdog to anticipate all kinds of unreasonable TMPs that may be implemented by service providers. The service providers are bound to be ahead of the game, coming up with new techniques before they are classified as unreasonable. Obvious kinds of unreasonable TMPs include throttling services offered by the competition, blanket filters on some kinds of content (say gaming content), giving preferential treatment to own or partnered applications and services, or penalising power users who utilise the available connectivity to its fullest.

Q.6 Should the following be treated as exceptions to any regulation on TMPs? (a) Emergency situations and services; (b) Restrictions on unlawful content; (c) Maintaining security and integrity of the network; (d) Services that may be notified in public interest by the Government/ Authority, based on certain criteria; or (e) Any other services.

Irrespective of whether the government regulates TMPs with a blacklist of unacceptable practices, or a whitelist of acceptable practices, the watchdog recognises that there are extraordinary situations where practices that are generally not allowed are exempted. These include emergency situations, users accessing banned content, to safeguard the network against malicious attacks, or for services that are exempted by the government. The consultation is asking for feedback on which of these situations should be considered exemptions, and if any other services should also be exempted. If there is a natural disaster for example, the service provider may decide to block most kinds of content and allow only voice calls to go through. As most of the internet connections are through sim cards, such decisions are important in the Indian context.

Q.7 How should the following practices be defined and what are the tests, thresholds and technical tools that can be adopted to detect their deployment: (a) Blocking; (b) Throttling; and (c) Preferential treatment.

An important part of the regulation is identifying when the norms are being flouted. This means that the telecom authority will have to deploy additional technological products on top of networks to monitor them. The consultation paper is looking for the most appropriate approaches to monitor networks. If a service provider is slowing down access to a service owned by the competition, but providing a smooth connection to its own service, the government needs mechanisms in place to detect such throttling.

Q.8 Which of the following models of transparency would be preferred in the Indian context: (a) Disclosures provided directly by a TSP to its consumers; (b) disclosures to the regulator; (c) Disclosures to the general public; or (d) A combination of the above.

As part of an effort to make the TMPs transparent, the government is considering mandating disclosures by the TSPs on how it manages the traffic on its networks. Now the question is who the information is supposed to be disclosed to. Disclosure to the general public is the best possible approach here, but it would be helpful if the regulator provides additional information and context on such disclosures. The consultation paper is also looking for appropriate mode of disclosure, what kinds of activities trigger the disclosures, and the frequency of publication of such information.

Q.9 Please provide comments or suggestions on the Information Disclosure Template at Table 5.1? Should this vary for each category of stakeholders identified above? Please provide reasons for any suggested changes. 

The suggested template for the disclosure document has customary fields such as the name of the plan, the speed provided by the plan, the pricing, the terms and conditions, the data usage limits, additional charges beyond data limits. Service providers are asked to disclosed if any kind of service is given preferential treatment, if any are blocked, and if any service is provided exclusively through that particular plan. In terms of performance details, service providers are asked to provide device compatibility, coverage, typical upload speeds, typical download speeds, typical latency and typical packet loss. Requiring service providers to report only typical performance details does not give the whole picture. It is better to require the disclosure of the limits of these parameters. This means the maximum packet loss, the maximum upload speed, the minimum upload speed, the minimum latency, and the maximum latency.

Q.10 What would be the most effective legal/policy instrument for implementing a NN framework in India?  (a) Which body should be responsible for monitoring and supervision? (b) What actions should such body be empowered to take in case of any detected violation? (c) If the Authority opts for QoS regulation on this subject, what should be the scope of such regulations?

This question is about the mechanism of detection of net neutrality violations and constant monitorring of Quality of Service. The telecom watchdog regularly checks telecom operators for voice based services. Detecting net neutrality violations cannot depend on reports from users alone. The amount of fines for net neutrality violations, or other punishments such as suspension or cancellations of licenses have to be formulated. Gathering information on net neutrality violations is an important part of the process, which ties in to the next question up for consultation.

Q.11 What could be the challenges in monitoring for violations of any NN framework? Please comment on the following or any other suggested mechanisms that may be used for such monitoring: (a) Disclosures and information from TSPs; (b) Collection of information from users; (c) Collection of information from third parties and public domain.

The data for net neutrality violations can be obtained from the disclosures by the service providers themselves. Sourcing information of net neutrality violations from end users can be done through complaints, an app for granular reporting of user experience for various service providers, surveys conducted by the regulatory authorities, or asking consumers to fill out questionnaires. Other options for identifying net neutrality violations include studies, reportage in news channels and consumer advocacy reports.

A technological solution to automatically identify net neutrality violations would allow identifying the violations the fastest. An application where consumers can report net neutrality violations is also a good option, but it will be difficult for the consumer to know if the throttling is selective, and being applied even when the network is not under load.

Q.12 Can we consider adopting a collaborative mechanism, with representation from TSPs, content providers, consumer groups and other stakeholders, for managing the operational aspects of any NN framework? (a) What should be its design and functions? (b) What role should the Authority play in its functioning?

Brazil has in place legislation passed by the Parliament to handle net neutrality violations. EU and US have in place regulatory authoritites who oversee the activities of the service providers. Japan and Norway require adherence to voluntary guidelines. Some countries only lightly regulate service providers, and other have no regulations or oversight in place at all. The question asks which of these approaches are most appropriate for India.

There is a requirement in India to anticipate and prevent net neutrality violations. At present, consumers have no means of detecting such violations, and the authority cannot take any steps against such violations even if they are detected. A wait and watch approach, while allowing the service providers to grow their offerings according to their capabilities and needs of users, introduces uncertainty on what kind of regulations could suddenly come into place and halt the growth of the sector.

Q.13 What mechanisms could be deployed so that the NN policy/regulatory framework may be updated on account of evolution of technology and use cases?

The networks on which the principles and regulations are being applied are rapidly transforming. The relevant best practices now may not be the useful, or may even be counterproductive in the networks of tomorrow. The views of the authority on a subject may change if the prevailing conditions change as well. With the evolution of the technologies, there is a need to update the net neutrality policy as well as the regulatory framework. The policies will have to be updated periodically and regularly to be beneficial to the consumer. For example, if the narrow approach for regulating TMPs are chosen, then there should be a mechanism to rapidly add more restricted traffic management practices as and when they are detected.

Q.14 The quality of Internet experienced by a user may also be impacted by factors such as the type of device, browser, operating system being used. How should these aspects be considered in the NN context?Please explain with reasons.

The problem is that when it comes to quality of service, the experience may vary considerably based on the technology products selected by the user. A particular browser, app or device may perform poorly or have more demanding requirements than another alternative product. To deliver a uniform quality of service to everyone, it might be required to formulate regulations factoring the different requirements of different devices.

The same device may make more requests when juiced up, and shut off access to demanding internet applications when the battery is low. The regulation asks if device neutrality should be a part of net neutrality regulations, where the same quality of service is delivered to all devices, and the service providers do not tune their offerings for use with certain devices.

The major problems for India is that most of the regulations are geared towards telecom service providers, as wireless connections are the most popular way users access the internet in India. In cell phone networks, management of traffic is critical as their can only be so many concurrent connections at a particular cell. The usage is invariably close to the limit of the bandwidth available on a network. This means that service providers will have to smartly implement traffic management practices of one form or another to provide an acceptable quality of service to all its users. Total net neutrality is a pipe dream.

The latest consultation paper shows a major shift in the approach to net neutrality violations. Trai is no longer just talking or debating the issue, and is going ahead with the next step of taking policy decisions, and implementing the required regulatory framework. Comments and responses to the questions can be sent to advqos@trai.gov.in. The last date for comments is 15 February, 2017, and the last date for counter comments is 28 February 2017. Going by previous patterns in the consultation process, the deadlines are expected to be extended after demands by stakeholders to be given more time to formulate responses.