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TRAI’s new consultation looks to provide legal framework for net neutrality in India

India’s telecom regulator TRAI is asking how non-discriminatory access to content on the Internet can be ensured in a paper titled “Consultation Paper on net Neutrality”. The regulator discussed about various issues of Net Neutrality including traffic management, throttling of speeds, and preferential treatment of content and apps on the Internet and how these principles are applicable within the Indian context.

Note that this the 5th consultation paper issued under net neutrality in the last two years. TRAI has already passed a regulation in February last year restricting discriminatory pricing of applications, and content. In this consultation TRAI is discussing the following issues to create a legal framework for Net Neutrality in India

Classification of Internet traffic and services

TRAI said the since Internet service providers (ISPs) and telcos have access to multiple licenses in India for providing services, it is important define what kind of services can be treated as an “Internet service” and how should “Internet traffic” be defined in the context of Net Neutrality.

TRAI is also asking how “managed/specialized” services hosted via internet Protocol (IP) can be regulated under a net neutrality framework. The regulator is essentially pointing out to services like VoIP, IPTV, IoT services, enterprise communication services but however classifies this is as services “that are delivered using IP but do not serve the same functionality as the public Internet.”

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 Traffic Management

 Telecom operators and ISPs enforce several traffic management methods to optimize delivery of packets between nodes and how bandwidth is utilized within a network. TRAI mentioned that it is “important to ensure that such techniques are not used by service providers in a discriminatory manner” to benefit certain services or applications. Throttling or prioritizing content through partnership with certain content/application developers can distort competition in the content or application business, the regulator said.

“If permitted, they could tilt the playing field in favor of companies with the ability to form partnerships with TSPs, often on account of their deep pockets, and TSP-owned content,” TRAI said in the paper. It also asks if preferential treatment of content or throttling can be allowed in case a user demands it, although there is no service provider-application developer partnership in the back-end.

The regulator draws a two different methods to ensure that traffic management is not discriminatory:

i) A broad approach which involves defining what would constitutes “reasonable traffic management practices” and what could be examples of “unacceptable forms of interference by a service provider” with its Internet traffic that flows on its network.
ii) The second method is a narrow approach which defines what constitutes “non-reasonable” or discriminatory traffic management practices.

Transparency in regulation

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The regulator said end users should have access to relevant information about the types of traffic management practices being followed by service providers and the reason for which they are being deployed. For this TRAI proposes following disclosure models:

a)Disclosures provided directly by a service provider to consumers;
b)Disclosures provider to the regulator;
c)Disclosures provider to the general public or
d)A combination of the above

“This information may be required by them in their capacity as consumers or potential consumers of a TSP; as producers of content who might want to reach out to a TSP’s consumers; as other TSPs competing in the same line of business; or as members of the general public,” added TRAI.

Monitoring framework

TRAI said that depending upon the legal/statuary framework given to net neutrality in India, there should be an appropriate counter framework to “monitor and enforce the principles on net neutrality”. This can vary from a situation wherein the primary responsibility remains with the TRAI and other governmental agencies, or a collaborative approach with creation of a new committee, industry group, etc.

The regulator proposes the following models for monitoring possible violation of policies:
i) Through disclosures and information from TSPs;
ii) Collection of information from users via complaints, user-experience apps, surveys, questionnaires; or
iii) Collection of information from third parties and public domain including research studies, news articles, consumer advocacy reports.

Policy and regulatory backing

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 The regulator is considering the following “policy” frameworks for enforcing net neutrality principles:
i) Voluntary commitments to be agreed upon by TSPs, under the guidance of the Authority or a regulatory committee
ii) Introducing a legislative clause, or an amendment to existing license held by telcos/ISPs.
iii) By way of amending/ altering Quality of Service (QoS) regulations existing under TRAI’s ambit.

Questions for Consultation

 TRAI has issued a 14-point questionnaire under this consultation. Responses can be forwarded to advqos@trai.gov.in by 28th February 2016.

Q.1 What could be the principles for ensuring nondiscriminatory access to content on the Internet, in the Indian context?

Q.2 How should “Internet traffic” and providers of “Internet services” be understood in the NN context?
(a) Should certain types of specialised services, enterprise solutions, Internet of Things, etc be excluded from its scope? How should such terms be defined?
(b) How should services provided by content delivery networks and direct interconnection arrangements be treated? Please provide reasons.

Q.3 In the Indian context, which of the following regulatory approaches would be preferable:
(a) Defining what constitutes reasonable TMPs (the broad approach), or
(b) Identifying a negative list of non reasonable TMPs (the narrow approach).Please provide reasons.

Q.4 If a broad regulatory approach, as suggested in Q3, is to be followed:
(a) What should be regarded as reasonable TMPs and how should different categories of traffic be objectively defined from a technical point of view for this purpose?
(b) Should application-specific discrimination within a category of traffic be viewed more strictly than discrimination between categories?
(c) How should preferential treatment of particular content, activated by a user’s choice and without any arrangement between a TSP and content provider, be treated?

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Q.5 If a narrow approach, as suggested in Q3, is to be followed what should be regarded as non reasonable TMPs?

Q.6 Should the following be treated as exceptions to any regulation on TMPs?
(a) Emergency situations and services;
(b) Restrictions on unlawful content;
(c) Maintaining security and integrity of the network;
(d) Services that may be notified in public interest by the Government/ Authority, based on certain criteria; or
(e) Any other services. Please elaborate.

Q.7 How should the following practices be de_ned and what are the tests, thresholds and technical tools that can be adopted to detect their deployment:
(a) Blocking;
(b) Throttling (for example, how can it be established that a particular application is being throttled?); and
(c) Preferential treatment (for example, how can it be established that preferential treatment is being provided to a particular application?).

Q.8 Which of the following models of transparency would be preferred in the Indian context:
(a) Disclosures provided directly by a TSP to its consumers;
(b) Disclosures to the regulator;
(c) Disclosures to the general public; or
(d) A combination of the above.Please provide reasons. What should be the mode, trigger and frequency to publish such information?

Q.9 Please provide comments or suggestions on the Information Disclosure Template at Table 5.1? Should this vary for each category of stakeholders identified above? Please provide reasons for any suggested changes.

Q.10 What would be the most effective legal/policy instrument for implementing a NN framework in India?
(a) Which body should be responsible for monitoring and supervision?
(b) What actions should such body be empowered to take in case of any detected violation?
(c) If the Authority opts for QoS regulation on this subject, what should be the scope of such regulations?

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Q.11 What could be the challenges in monitoring for violations of any NN framework? Please comment on the following or any other suggested mechanisms that may be used for such monitoring:
(a) Disclosures and information from TSPs;
(b) Collection of information from users (complaints, user-experience apps, surveys, questionnaires); or
(c) Collection of information from third parties and public domain (research studies, news articles, consumer advocacy reports).

Q.12 Can we consider adopting a collaborative mechanism, with representation from TSPs, content providers, consumer groups and other stakeholders, for managing the operational aspects of any NN framework?
(a) What should be its design and functions?
(b) What role should the Authority play in its functioning?

Q.13 What mechanisms could be deployed so that the NN policy/regulatory framework may be updated on account of evolution of technology and use cases?

Q.14 The quality of Internet experienced by a user may also be impacted by factors such as the type of device, browser, operating system being used. How should these aspects be considered in the NN context? Please explain with reasons.


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