New Freedom, New Equality

Intro : In tussle between telecom companies and start-ups, consumer rights of netizens and cyber security are turning out to be crucial issues which TRAI and the Govt. will have to address.

As the country will celebrate 30 years of public internet in India, with 30 crore internet users, netizens are making another history by ensuring 10 lakh online petition in 10 days as part of “Savetheinternet” digital activism campaign to support net neutrality.

The medium of internet whose growth and popularity has been fundamentally possible because of the openness of the medium, suddenly finds this controversy raging, where efforts are being made to subjugate this openness with some prioritised and packaged accessibility whereby traffic would be subject to some groupings and commercial interests. The Telecom Service Providers (TSPs) on whose backbone and infrastructure, the over-the-top application providers (OTTPs) offer their popular services, now want more realisation from the data platform they provide. Considering the fact that two thirds of the current users use internet through mobile devices, they see an opportunity to bolster their sagging revenues in a regime of highly acquired spectrum to run these networks.

Net neutrality

Net neutrality refers to the principle of availability of all data packets in the form of content and applications and their uniform accessibility by the service providers without favouring particular applications or websites. The issue is being debated in many other parts of the globe also and while the most optimal situation is yet to emerge as the best working model, users have consistently maintained that accessibility and availability of content has to be uniform and universal.
In India, the debate around net neutrality gained strength after the Telecom Regulatory Authority of India (TRAI) published on March 27, 2015 a ‘Consultation Paper on Regulatory Framework for Over-the-top services’ to which public views are sought till the April 24, 2015 to its proposal to allow TSPs to charge differently for different uses of data. This followed the rumblings among many TSPs seen in the past one year regarding the OTTPs around voice and SMSes which were a strain on the TSPs revenues. The OTTPs competition on Voice over IP solutions and messaging services like WhatsApp, Viber and Skype were severe and premised on newer technology but with least investments in laying infrastructure. So the TSPs wanted to offset their costs either by charging differently from these OTTPs or having a revenue arrangement with them.

In this direction Airtel launched the ‘Airtel Zero’ on April 6, 2015 which was a new marketing platform allowing customers to access content of participating OTTPs at zero data charges. This was seen as a major premise of violation of net neutrality and popular ecommerce site Flipkart supported the initiative but in a matter of 5 days backed out of the arrangement under netizens pressure. Likewise, the initiative of Facebook launched in India with Reliance Communications on February 10, 2015 to provide free access to 38 websites through an application was severely criticised and Cleartrip, Times group and a few other OTTPs left the initiative in mid April.

So while TRAI definitely knows which side the wind is blowing, the issue needs a much wider understanding and application. The fundamental premise of internet remaining free is never questioned, the issue that comes is who pays for what and what is the right balance between the TSPs investments and revenues and also those of OTTPs. Also what are the current technical and legal ramifications of the move and how the regulator and government can be fair to all parties?

The Stakeholders

At a time when the Narendra Modi-led government has taken a major initiative called ‘Digital India’ that purports to connect the whole country with broadband to the last mile and bring in applications that make life easier for citizens, both the interests of TSPs and OTTPs have to be carefully considered. Investments are huge in the deployment of the technical infrastructure and realisation in revenue and a rationalised tax regime will have to be set in before the parties in contention can accept a justifiable arrangement. Likewise the growth of applications have to be fostered so that citizen centric approach of the government gets better boost and in turn enhance the scope of innovation and better applications.

It is pertinent to note that the whole net neutrality debate has many stakeholders – the users, the TSPs, the OTTPs and various shades of content and application providers, the government, and also the regulators. At one go the interests of these stakeholders have to be aligned and this approach always will remain a dynamically evolving ecosystem as technology and usage patterns and interest change and evolve.

With more and more users joining the Internet medium and local content comes in, this is definitely a challenge, but has to be delicately understood and honoured by the stakeholders. It is interesting and helpful to see all the above stakeholders already are conscious of the efforts and thus have already made their positions known.

Technical Dimensions

Internet traffic follows the path of least resistance and data packets don’t have a fixed path. It is a distributed network with no centralised management. However traffic shaping to optimise or guarantee performance of certain content is possible and provides a means to the TSPs to control the extent of content being sent to a medium in a specified time frame or even rate limiting as also bandwidth throttling which is allowed in many countries.

The famous incident of the US TSP Comcast deliberately slowing down internet traffic to customers who were downloading large files using peer-to-peer file sharing services like BitTorrent is a classic case which has resulted in the whole net neutrality debate in the US way back in 2007 and ultimately resulting in the DC Circuit Court in January 2014 ruling that US telecom regulator Federal Communications Commission (FCC) doesn’t have the power to require internet service providers to treat all traffic equally. However in March this year, the FCC has again come up with net neutrality rules which espouse open internet. While the US debate on the subject has now almost become a Democrat versus Republican flight; luckily in India almost every shade of political spectrum supports internet openness.

Minister for Communications and IT Shri Ravi Shankar Prasad has openly backed open internet and in turn net neutrality, and so have the major Opposition parties. However a much informed discussion on the medium is crucial before getting swayed into taking positions as practically it is impossible to ensure 100 per cent net neutrality.

The Legal Angle

As for the legal dimensions, there is no direct reference and provision for the net neutrality in the Licensing conditions for TSPs or even in the Information Technology Act 2008. However going by the provisions that regulate the roles of intermediaries as defined in the IT Act, the TSPs are intermediaries and hence subject to the provisions of Section 79 of the IT Act. So their conduct would be guided by this provision and as such if they are involved in the inception, transmission and reception of a communication, they are liable if they tweak or tamper the bandwidth. However as issues of internet technology and laws need regular harmonisation, it will be prudent to arrive at a clear legal position on this issue. Consumer and corporate interests have to be well understood and guided by practical techno-legal provisions.

While the matter will come up in the consultation process in greater details and every stakeholder will present their positions, what will be crucial will be to have a clear understanding of the respective positions. Internet is a global commons today and citizens will demand availability access always but the interests of the TSPs have to be considered also. Can that come only from the data usage billing or revenue sharing arrangements with the vast content providers as TSPs are also required to share revenue with the government besides the highly competitive spectrum costs. At the same time monopolistic and cartelistic tendencies both on the TSPs and OTTPs sides have to be prevented.
While it is common knowledge that many of the OTTPs of foreign origin are generating huge revenue out of the applications being used in the country and with no separate taxation regime for internet still, there has to be an understanding that apart from revenue considerations there are strategic concerns also. E-commerce and e-governance applications have still to grow much in India; it can change the very face of business and bring in products and regions to economic prosperity because of the reach of the internet medium. For these interests to thrive and mushroom in far flung areas, they also need oxygen to grow to come up to comfortable levels before we can see more of the likes of Flipkart or Snapdeal.

Definitely the debate has started in right earnest and the ‘Savetheinternet’ campaign has shown the power of digital reach out and consumer activism on the subject. But what remains in the months ahead is a balanced consideration so that the stakeholders can all ensure a sustainable ecosystem.

Subimal Bhattacharjee (The writer is a globally recognised analyst on cyberspace policy issues, and is currently a member of the Research Advisory Network of the Global Commission of Internet Governance. The views expressed are personal)

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