#NetNeutrality: This is what TRAI’s latest consultation paper discusses

The Telecom Regulatory Authority of India (TRAI), in its most recent consultation paper, has sought stakeholder’s views on governing Net Neutrality (NN) and allied issues..This ‘consultation paper’ comes based on the responses received on the ‘pre-consultation paper’, issued in May last year, which discussed issues of NN and traffic management. Among other things, the paper proposes a legislation for NN, and/or an umbrella regulation on NN..As far as the wider issue of NN is concerned, there have been several rounds of discussions, this being the fifth one, and also a regulation to ban discriminatory pricing. While the issue of pricing has been dealt with, traffic management is a sensitive issue, which gives service providers the power to slow down and speed up certain websites/ application, and thus requires further discussion. Here is timeline of the events:.19 Jan, 2015: Creation of Department of Telecommunications (DoT) committee on NN.27 March, 2015: Consultation on regulatory framework for Over The Top (OTT) services.May 2015: Release of DoT committee report on NN.9 Dec, 2015: Consultation on differential pricing for data services.8 Feb, 2016: Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 (Feb Regulations).3 March, 2016-: DoT sought TRAI’s recommendations on NN.19 May, 2016: Consultation on free data.30 May, 2016: Pre-consultation on NN.19 Dec, 2016: Recommendations on provisioning of free data..The most recent paper, has studied in detail the approach followed in jurisdictions like the United States, the European Union, Australia, Japan, and Brazil..A brief summary of the issues enunciated in the paper is as follows:.1. As the paper suggests, the primary issue for consideration is the very definition of NN. As suggested by the DoT and adopted by many other jurisdictions, instead of giving a rigid definition to the term ‘NN’, what is desirable is a list of core principles and shaping of actions around these principles. Additionally, prohibiting certain practices that are regarded as being violations of such core principles, such as blocking and throttling has also been suggested..2. Closely linked, or rather an exception, to the principle of NN is the issue of Traffic Management Practices (TMP). Reasons for adoption of TMPs are many. For instance, to maintain a service provider’s obligations under the TRAI Quality of Service (QoS) Regulations, TMPs may be required to control traffic congestion to deliver the desired QoS to consumers..However, where does one draw the line? It has been suggested that ‘reasonable’ TMPs be adopted but the line between what is ‘reasonable’ and what is ‘discriminatory’ is a fine one..To that extent, two approaches have been suggested for TMPs:.Broader approach, which seeks to define ‘reasonableness’, guided by two concurrent grounds: (a) The TMP in question should be technically motivated to address network congestion and; (b) it should not be based on commercial considerations/ practices..However, it has been widely agreed that discrimination based on ‘features’ must be discouraged, for example, encrypted traffic should not be discriminated against, since it would create perverse incentives to avoid such a privacy and security enhancing technology..Narrow approach: While one may call the broader approach as ‘overregulation’, the narrow approach submits that instead of defining what is reasonable, it would be more targeted to define what all practices would constitute as ‘unreasonable’- practices that would have the ability to impede user choice and deter innovation. This, of course, also comes with it’s own set of challenges, by giving service providers a chance to develop a type of business practice not explicitly covered in the enlisted restrictions..3. The issue of ‘transparency’. The primary focus of most transparency obligations is to ensure that consumers have sufficient information in relation to the services being purchased at the time of signing a contract with the service provider. However, the manner of information disclosure might need to vary depending on the intended audience i.e. consumers or the regulators..The paper has also provided a ‘Information Disclosure Template’ which may be adopted by service providers. However, the paper also accounts for costs associated with such disclosure, that such transparency requirements should not impose disproportionate costs on the service providers either..Based on several responses, it would also be considered useful by users in making informed decisions, without being overtly technical and granular. That, however, is still up for discussion..4. What’s next is the policy or regulatory approach in this regard. While the Feb Regulations have codified TRAI’s intention to maintain the open and non-discriminatory character of the internet, the next suggested course of action could be of two kinds. One, a ‘wait and watch’ approach, which allows providers to develop their offerings keeping in mind TRAI’s watchdog powers. Or two, a ‘self-regulation’ approach which will require setting up of a voluntary mechanism adhering to the core principles of NN..This also comes with its own set of shortfalls, such as TRAI’s inability to identify practices in violation, and absence of an empowering legal framework..5. All of the above obviously requires a robust ‘monitoring’ mechanism. This requires TRAI or another newly constituted body to be able to supervise any NN violations which requires tests, thresholds and technical tools that may be adopted in order to detect such violations. This also, is a technically challenging task and will resultantly require powers at the hands of such body to be able to take action against the defaulting service providers..Stakeholders may submit responses to the issues raised in the paper by 15 February 2016, and counter comments by 28 February, 2016.