Even as India’s telecom regulator TRAI looks to find ways to detect and prohibit behaviour that violates Net Neutrality, the FCC said that it would reclassify mobile Internet providers as “private mobile services”. This reclassification is designed to give mobile Internet operators much more freedom in how they operate their networks and manage traffic in them compared to wireline broadband operators, and could protect them from any regulatory measures related to the Internet. Since 2014, Indian telecom operators have also argued that mobile Internet needs to be treated differently from wireline networks.
This move is a part of a wider FCC vote to begin a process to undo similar rules in the US that prohibited such discriminatory behaviour by Internet providers. Ajit Pai, the FCC’s chairman, said that these “utility-style” regulations had led to a decrease in broadband infrastructure investment in the billions of dollars. Pai’s efforts are likely to succceed, notwithstanding any legal challenges that are likely to come up when the new rules (or the lack thereof) are implemented.
What the FCC is repealing
The Open Internet rules by the FCC in 2015 were the culmination of a long and vocal campaign by Internet companies and Net Neutrality activists in the US. The rules put major restraints on how broadband providers were able to discriminate among traffic that went through their networks. For instance, a video company would now not be able to pay for Internet providers to put their traffic on a ‘fast lane’ where Internet traffic was artificially sped up — this practice, known as paid prioritization, was prohibited by the Open Internet ruling. Also outlawed by this ruling were blocking and ‘throttling’ or slowing down, of select parts of the Internet.
Even then, the Open Internet rules did not completely restrain abuse. For instance, discrimination in how different parts of the Internet are priced was not sufficiently addressed. As a result, some wireless telcos were able to offer some services for free, while charging for others. T-Mobile’s Binge-On program, for instance, does not meter data usage from video services like Netflix, HBO Now, Amazon Prime Video, and YouTube, while usage of the rest of the Internet is charged. This practice, known as zero-rating, was prohibited last year in India, leading to the ouster of Facebook’s Free Basics, which mounted an expensive campaign against a prohibition on discriminatory pricing of data. The FCC closed an investigation into whether such zero-rating is harmful last month. That investigation was started by the FCC under the Obama administration.
What the FCC’s alternative is
The FCC is saying that it will return to a Bill Clinton-era ‘light-touch’ regulatory framework that will entail fewer regulatory responsibilities on Internet providers. This means that Internet providers may have significantly more leeway to favour some websites and services over others. Time Warner, which owns both HBO as well as Internet provider TWC, may be allowed to speed up content from the streaming service HBO Now while slowing down (or not attempting to improve the speeds of) competing streaming services. As media ownership in the US gets more and more consolidated under large conglomerates that also own or have interests in ISPs, it’s possible that the level playing field that defined the Internet may be undermined, at least in the US.
While Comcast, one of the US’s largest Internet providers, said in a statement that they would “not block, slow down or discriminate against lawful content,” ISPs have been unclear on whether they will take advantage of paid prioritization. ISPs’ opposition to Net Neutrality in the US has been, much like in India, characterised by a proclaimed support for Net Neutrality and an “open Internet”. But the definitions and founding principles on which these two concepts should be implemented have differed widely between activists and ISPs, with the latter seeking more leeway in how they manage their networks and interact with content providers on the Internet (read: allowed to maintain fast lanes).
How FCC’s approach compares to TRAI’s
TRAI prohibited discriminatory tariffs for data last year, but it’s still in the process of framing rules for paid prioritization, blocking and throttling (here’s their consultation paper). Unlike last year, this consultative process is much more subdued and low-profile than it was last year, even though it is going on literally as we are writing this (it is so low profile, in fact, that searching for “net neutrality India” throws up more news mentioning how Ajit Pai is Indian-origin than anything about TRAI’s consultation). Since India has no regulations for paid prioritization and throttling, ISPs have been found to engage in both behaviours — in some cases, they advertised preferential treatment given to select websites. The outcome of TRAI’s current consultation on blocking, throttling and paid prioritization may result in recommendations against discriminatory behaviour. An open house discussion on this subject has been announced by TRAI in Mumbai this month, and a few more on Net Neutrality are expected subsequently.
