DOT makes important license amendments acting on TRAI recommendations. The landscape will now shift from rule-making to enforcement.
Hello, Internet freedom fighters, remember sending an email on net neutrality and saving the internet? While we won the policy debate, it took some time for the government to make legally binding rules. This post contains an analysis of the rules, our request to Government to plug loopholes which may undermine net neutrality and exploring citizen reporting models for complaining for any net neutrality violations. This a long post which may take about 6-8 minutes of your time, but then as all of us know net neutrality deserves a thorough and detailed analysis.
The good news
We all have been fighting for net neutrality protections for more than two years. On September 26, 2018 the Department of Telecom (the government department which has licensed private companies to provide internet access) acting on recommendations of the Telecom Regulatory Authority of India (the regulatory body which has powers to make recommendations and in some instances make regulations) which has made license amendments prohibiting discrimination in treatment of content, or entering into any contract to do it.
This by itself, brings a firm legal prohibition that will prevent your internet service providers from speeding up, slowing down (any content-based discrimination) — limiting your choice, bandwidth and ability to choose what you want to access on the internet. Yes, this is a significant victory for net neutrality, which has seen a rollback globally making India assert its leadership on this significant digital rights issue.
It is also significant to remember that the TRAI had in February, 2016, issued the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016, by which it restricted the charging discriminatory prices to consumers based on the content. This price based discrimination would have allowed your service providers to charge you extra, or discount your access, to specific websites — say either making access to Facebook free, but then charging over and above set your monthly bill and data limits for let’s say accessing Twitter. So, some may wonder, with the DOT license amendments plus the TRAI regulations on price discrimination, is the fight for net neutrality over in India? Not quite.
The not-so-good news
Do not get us wrong. The TRAI and the DOT have to a large extent protected the interest of users on the issue of net neutrality. But we think there remain concerns which need to be addressed.
There are some concerns on the form and content on the amendments made by the Department of Telecom which we had earlier pointed out when TRAI had first made its recommendations. Since these recommendations have been carried through as license amendments as they were made, concerns remains especially on the ambiguity of certain definitions and the possibility of intellectual property related censorship. But our larger worry is now shifting from the landscape of rule-making to actual enforcement.
We recommend the following measures which need to be urgently taken up by the DOT:
- Further license amendments: Expand the scope of license amendments and extend it to all licenses. At present the DOT has made amendments in only two license categories [UL and UL(VNO)]. As recommended by the TRAI further amendments are necessary in three additional categories [ISP, UASL and CMTS]. This will strengthen net neutrality and bring consistency in the licensing regime.
- Internet of things: The present action by DOT is limited to license amendments which were recommended by the TRAI in Para 7.1, but were only a part of its recommendations. For instance its recommendations on IOT (Internet Of Things) as mentioned in Para 7.2 need to be followed through as well.
- Exemptions for CDNs: A clear exemption for CDN (Content Delivery Networks) needs to be crafted. The present language may restrict their availability. Specialised services: Process for prior permissions for, “specialised services” which will act as an exemption to the general rule of non-discrimination need to be set out. We urge that any such exemption should only be granted with full transparency, opportunity of public participation and a reasoned order. This will ensure that an exemption does not become a loophole used by internet service providers to circumvent net neutrality rules.
- Enforcement mechanism: The TRAI’s recommendations in Para 7.5 on the creation of a multi-stakeholder body, or any other process which makes it easy for common citizens and the public to make complaints for violations of net neutrality is missing at present. As cautioned by us before, such a body, should not be, “industry lead”, given that it would amount to the fox guarding the henhouse. Even otherwise such a body may over time exercise a gatekeeping role and prevent complaints being made for breaches and thereby act as a barrier rather than a facilitator.
We recommend the following measures which need to be taken urgently by the TRAI:
- Transparency and disclosures: As the TRAI had itself noted, after the DOT would make its license amendments, the TRAI would bulk up its transparency and disclosure regulations to ensure compliance. We hope this is done urgently with prior public consultation.
- A clear enforcement mechanism: The TRAI can also assist and act as a body which receives public information and complaints on the breach of net neutrality rules. We need to move urgently on this given that it has taken already close to three years from the dates of the first consultation for net neutrality rules to be made in India. There are already disquieting voices from the cellular service providers that net neutrality rules should not extend to 5G services. Immediate enforcement actions are needed to prevent the net neutrality rules from becoming an academic exercise.
Now it all comes down to enforcement
While we are thankful to both the DOT and the TRAI, a rule is often only as good as its enforcement. This will not only require subsequent action and penalties which build deterrence but also the interpretations are accorded in line with the intent of the license conditions and the regulations. We at IFF hope in the coming months to build out capacity to help people report any abuses of network neutrality regulations and support compliance.
This will need a process to be built out by regulators as indicated by TRAI’s net neutrality recommendations, however even with the new rules going into effect we can start bringing their attention to any breaches right now. For this we will need to establish both technically and legally any violations of net neutrality.
From Internet Freedom (originally published on 18 October 2018)