Digital dispute

The usage of and access to the Internet hang in the balance as the government and TRAI are yet to come out with a firm policy on the issue of net neutrality.

A protest in support of net neutrality in New Delhi on April 16.

The publication of a consultation paper of the Telecom Regulatory Authority of India (TRAI) on March 27 titled “Regulatory Framework for Over-the-Top Services” led to a public outcry against what was perceived as an assault on the seamless access to information in a democratic manner on the Internet. The paper, which was seen as echoing the concerns of major telecom operators, proposed that over-the-top (OTT) services be charged. OTT services are Internet applications and services provided to consumers through telecom operator networks, including free messaging services such as WhatsApp and free voice telephone services such as Skype and Viber. At present, consumers pay for the data consumed through the network operator for these services but incur no extra charges for them. The TRAI paper argued that these applications were eating into the revenues of traditional telecom companies providing voice and messaging services and therefore needed to be regulated. The paper posed a number of questions on Internet policy in India for public consultation, including the following: Should OTT players pay for use of the telecom service providers’ (TSPs) network over and above data charges paid by consumers? What are your views on net neutrality in the Indian context? How should a balanced environment be created such that TSPs are able to invest in network infrastructure and communication service providers (CSPs) are able to innovate and grow?

This consultation paper has led to a heated debate on the significance of network neutrality and on affordability and access to the Internet in India. Network neutrality is the principle that says that all electronic communication on the Internet should be treated equally irrespective of content, application, service, device and the sender’s and the receiver’s address. The principle advocates the democratisation of the digital space whereby users have access to Internet applications at the same price irrespective of content. This is fundamental to preserving the public character of the Internet as a democratic medium for the dissemination of information.

On July 19, the Department of Telecommunications (DoT) came out with its “Net Neutrality: DoT Committee Report”. The report supports the cause of net neutrality in principle. However, its recommendations fall short of formulating a robust framework to ensure a level playing field for all players on the Internet, and it fails to come up with substantive solutions to the problem of the monopoly of larger corporations on the Internet. Some of the report’s conclusions and recommendations do not follow from its own findings. The report has evoked varied reactions from telecom providers and activists advocating Internet freedom. Representatives of the telecom industry have welcomed some of its recommendations, such as the one that domestic VoIP (Voice over Internet Protocol) calls to be charged. Activists working on Internet freedom, while acknowledging the valuable observations of the report about the rights of users, felt that several sticking points about the dominance of larger players remained unresolved.

Zero rating

Since the publication of the TRAI paper, one of the most contentious issues in the debate on net neutrality has been the implications of zero rating on Internet freedom. Zero-rate packages are offers where TSPs or Internet service providers (ISPs) get into mutual agreements with content providers, either on an exclusive or non-exclusive basis, to offer content free of cost to the end user. Although the customer incurs no data charges, the content provider has to pay the TSP for the usage of applications. Internet freedom activists deem this as working against the principles of net neutrality. Speaking to Frontline , Chinmayi Arun, research director of the Centre for Communication Governance, National Law University, Delhi, explained the potential impact of zero rating on Internet access: “The right of users to access information on the Internet also includes the right to a diversity of information. Zero-rating schemes lead to the creation of a monopoly of players with deep pockets who can afford to pay the Internet service provider. The content provider controlling the sphere of information available to users is problematic.” This works against the principle that the Internet functions as a democratic and public forum. In April, Airtel announced the launch of Airtel Zero, a platform where customers could access applications of content developers without incurring any data charges. This led to a public outcry about the scheme potentially leading to violations of the principle of net neutrality.

The issue of zero rating is being debated internationally. In January, the Canadian Radio-television and Telecommunications Commission termed the TSP Bell Mobility’s practice of exempting its mobile TV service from data charges unlawful. Also in January, Slovenia’s regulators found that the carriers Telekom Slovenjie and Si.mobil were violating net neutrality principles. The Dutch consumer protection agency ACM slapped a fine of €200,000 on Vodafone for its zero-rating application HBO Go app. In Chile, mobile operators cannot offer zero-rated social media applications through a deal with the carriers.

The DoT report on net neutrality does not provide a robust mechanism to prevent monopolisation of the Internet through zero-rating schemes. The committee merely suggests that tariff plans be submitted to the TRAI within a reasonable period prior to their launch so that it can be checked whether anti-competitive measures to distort markets have been included. But it also says that the filing requirement would include a deemed approval clause if the regulator does not decide within a reasonable period.

Rishab Bailey, legal director of Society for Knowledge Commons, felt that allowing TRAI to decide on issues of anti-competitive measures would not be appropriate as its views are known to be skewed towards the interests of the telecom industry. TSPs, however, argue that zero-rating practices work in the interest of consumers as they get discounted tariffs on the basis of what applications they want to access. When Airtel was in the middle of the controversy following the announcement of its zero-rating platform, Bharti Airtel CEO Gopal Vittal said that the aim of the platform was to ensure that “every Indian is on the Internet by making data access free”.

VoIP calls

The recent DoT report also stresses the need to regulate domestic VoIP calls as they affect the revenues of the telecom companies. Bailey said: “The report makes a false distinction between application and communication OTTs. At a time when you have converged services coming up all the time, making a practical differentiation between an application and a communication OTT may be very difficult. For example, Facebook can provide both application and communication services. Amongst communication services, the report recommends that domestic services be charged, whereas international ones not be charged. The logic behind this does not necessarily hold up to scrutiny.”

In fact, the report contradicts its own findings as it recommends protection for the interests of telecom companies even though no real risk to their revenues is apparent. Bailey observed: “Although the report conclusively states that the telecom companies are in good financial condition with an annual rate of growth of revenues at about 10 per cent, it nevertheless recommends that incumbent telephony providers need protection from competition of Internet-based calling services, at least as far as domestic VoIP is concerned. Clearly, this recommendation is based on the apprehension of a future loss rather than on evidence indicating actual losses.”

The proposal to regulate domestic calls and exclude international calls has also led to legitimate questions about privacy violations of consumers. Sarvjit Moond of the Centre for Communication Governance said: “If the government has to obtain information about domestic and international VoIP calls, it will lead to a violation of the privacy of users.” Bailey concurred: “The licensing of domestic VoIP service providers may make it easier for the government to get access to information about users when they want to.”

There are other ways in which the report aligns with the interests of the industry. Bailey pointed out: “Also, enterprise management solutions —specific enhanced services that an ISP may provide for a higher cost to a private entity—are proposed to be kept out of the purview of net neutrality norms. This is problematic, for reasons recognised in the report itself. For instance, how do you ensure appropriate delineation of Internet services as private and public, and could telcos use this exception to circumvent applicable net neutrality regulation? The report doesn’t address such questions.”

Industry response

The industry body the Associated Chambers of Commerce & Industry of India (ASSOCHAM) welcomed the move to regulate the domestic VoIP calling services offered by communication applications. In fact, it has demanded that all kinds of communication services be regulated by the government. ASSOCHAM Television Council chairman T.V. Ramachandran said: “While ruling that domestic calls by OTT communication service players would be regulated, they [DoT] have most illogically exempted both international VoIP calling by OTT CSPs as also all messaging by these players.”

Government stand

Speaking in the Lok Sabha on July 23, Minister of Communications and Information Technology Ravi Shankar Prasad said that the government would take a final view on various aspects of net neutrality after TRAI had made its final recommendations. He said: “The government is committed to the fundamental principles and the concept of net neutrality and strives for non-discriminatory access for all citizens of the country. The Telecom Regulatory Authority of India is also engaged in a consultation process covering issues relating to net neutrality. The government, based on the telecom regulator’s report, will take a considered view on various aspects of neutrality.”

A Parliamentary Standing Committee headed by Bharatiya Janata Party MP Anurag Thakur is also examining aspects of net neutrality. He had earlier taken a public stance favouring it. Among other members of the Standing Committee, Trinamool Congress MP Derek O’Brien has been vocal in his support for the cause of net neutrality.

Prime Minister Narendra Modi’s ambitious Digital India campaign relies heavily on increasing Internet penetration and making it affordable for the common man across the country for better governance. The report of the DOT, a Union government body, does not provide solutions to problems of dominance and monopolies on the Internet which in the long run work to the disadvantage of the common man. With TRAI’s recommendations yet to come out, it remains to be seen what direction the government will take on this issue that affects Internet users across the country.