At a time when the US Federal Communications Commission is to vote on a rollback on the Net Neutrality Rules notified during the Obama administration, the Telecom Regulatory Authority of India (TRAI) has published its recommendations on the subject. Making headlines during the days of Zero Rating and products of the kind, and coming after nearly three years of setting up of a committee by the TRAI to make recommendations in this regard (January 2015), the document attempts to balance the interest of the general public by including ‘internet access services’ within the regulation of net neutrality and excluding “specialised services” that are “optimised for specific content, protocols or user equipment where optimisation is necessary in order to meet specific quality requirements.’’
Net neutrality, in theory, is a laudable concept. It also finds mention in the UL, VNO and ISP licensing terms notified by the Department of Telecom. The specific mention is absent from the UASL and CMTS licenses. However, this principle can nevertheless be read into the obligation to provide non-discriminatory access even by the telecom service providers. In this background, what is to be considered is whether net neutrality, with its basic principle already enshrined in the law and some contours such as specialised services yet to be clearly defined, is even required to be separately regulated.
First, net neutrality is, as stated in the recommendations, primarily to address and ensure “public internet access”. Importantly, what has not been considered is how much of this “public” of the country actually has access to broadband. The answer would be in the vicinity of 15 per cent. Of this “preferred public population,” many would be multiple connection/access holders and, hence, the effective penetration of broadband would be less than 12 per cent. With this background, the debate, rather than focusing on net neutrality, should focus on access to broadband for all. It is only when such a objective is achieved that the issue of whether or not we have a neutral internet would really need to be studied.
Second, OTT, which is one of the aspects central to the debate on net neutrality, has been currently left out for separate consideration. It is unclear, therefore, as to what position is taken vis-à-vis this very important piece of the net neutrality puzzle.
Third, it is strange that the document should pluck out internet of things, a concept and technology so nascent in India that even its mention in this document makes it conspicuous by its presence. Why is there a need for identification of such detail of a technology still under development, not only in India but in most parts of the world?
Having said the above, all the right words have been used in the recommendations–non-discriminatory access, non-provision of fast lanes, etc. All or most of these recommendations are great in theory. However, and especially with the carving out for specialised services, the workability of these recommendations, if they are to be accepted and converted into regulations, is suspect. We need to have enough cars (population access to broadband) before we can deride the provision of fast lanes.
(Abhishek Malhotra is a partner at Bharucha & Partners)
