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Support for Net Neutrality in India’s Draft National Digital Communications Policy

The Government of India is looking to institute statutory support for Net Neutrality, as per its first draft National Digital Communications Policy. In fact, Net Neutrality makes it to the Indian governments 7 goals till 2022, which, among other goals, states:

Ensure that net neutrality principles are upheld and aligned with service requirements,
bandwidth availability and network capabilities including next generation access technologies

A slightly more detailed note in the draft policy document indicates that the government intends to amend the ISP and telecom operator license agreements to ensure Net Neutrality in India:

Provide Autonomy and Choice for every citizen and enterprise
(a) Recognising the need to uphold the core principles of net neutrality:
i. Amending the license agreements to incorporate the principles of non-discriminatory treatment of content, along with appropriate exclusions and exceptions as necessary
ii. Ensuring compliance with net neutrality principles, by introducing appropriate
disclosure and transparency requirements

Note that India has among the strongest Net Neutrality regulations in the world, preventing differential/discriminatory pricing of Internet access, and the TRAI has made recommendations to the Department of Telecom regarding institution of strong rules related to throttling of Internet access.

License amendments expected

In its ruling on the differential access aspect of Net Neutrality, the TRAI had recommended an amendment of license agreements. We quote:

“The Authority recommends that the terms of various license agreements governing the provision of Internet services in India (UL, VNO license, UASL and CMTS) be amended in order to incorporate the principles of non-discriminatory treatment of content by Internet Access Services along with the appropriate exclusions and exceptions. This will also help in building uniformity in the terms governing the provision of Internet services by different categories of licensees. The specific amendments recommended to be made in each of the license agreements are listed in the table below.

Subjects:

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  • Principle of nondiscriminatory treatment
  • Definition of specialised services
  • Reasonable traffic management and other exceptions

Licenses:

  • UL – Insertion of new Clause 2.3 in Chapter IX
  • VNO License – Insertion of new Clause 2.3 in Chapter IX
  • ISP License – Insertion of new Clause 2.5
  • UASL – Insertion of new Clause 2.7
  • CMTS – Insertion of new Clause 2.4

Proposed Text:

  1. A Licensee providing Internet Access Service shall not engage in any discriminatory treatment of content, including based on the sender or receiver, the protocols being used or the user equipment.
  2. The Licensee is prohibited from entering into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that has the effect of discriminatory treatment of content.
  3. Nothing contained in this provision shall restrict:
    • the provision of any Specialised Services by a Licensee, provided that:
      • the Specialised Services are not usable or offered as a replacement for Internet Access Services; and
      • the provision of the Specialised Services is not detrimental to the availability and overall quality of Internet Access Service.
    • any measures adopted by the Licensee that are proportionate, transient and transparent in nature and fall under any of the following categories:
      • Reasonable traffic management practices, as may be further specified by TRAI from time to time;
      • Provision of emergency services or any services provided during times of grave public emergency, as per the process laid down by the Licensor/ TRAI;
      • Implementation of any order of a court or direction issued by the Government, in accordance with law;
      • Measures taken in pursuance of preserving the integrity and security of the network and equipment; and
      • Measures taken in pursuance of an international treaty, as may be specified by the Government.
  4. For the purposes of this provision:
    1. “Content” shall include all content, applications, services and any other data, including its end-point information, which can be accessed or transmitted over the Internet.
    2. “Discriminatory treatment” shall include any form of discrimination, restriction or interference in the treatment of content, including practices like blocking, degrading, slowing down or granting preferential speeds or treatment to any content.
    3. “Specialised services” shall mean services other than Internet Access Services that are optimised for specific content, protocols or user equipment, where the optimisation is necessary in order to meet specific quality of service requirements. Provided that the Licensee is authorised to provide such services in accordance with the provisions contained in this License, as modified from time to time.

Definition of Internet Access Service

Licenses

  • UL – Insertion of new Clause 44A in Annexure- I
  • VNO License – Insertion of new Clause 45A in Annexure- I
  • ISP License – Insertion of new Clause 16A in Annexure – I
  • UASL – Insertion of new Clause 26A in Annexure- I
  • CMTS – Insertion of new Clause 16A in Annexure- I

Proposed text

  • Internet Access Service is a service to access the Internet that is: i. generally available to the public; and ii. designed to transmit data to and receive data from all or substantially all endpoints on the Internet Explanation: Any service that offers capabilities that are incidental to or provide the functional equivalent of Internet Access Services, shall also be included within the scope of this definition.

MediaNama’s Take

1. Details will matter. In the statement above, it’s worth noting that the government mentions principles of non-discriminatory access to “content”, and thankfully, the TRAI text expands to include “all content, applications, services and any other data, including its end-point information, which can be accessed or transmitted over the Internet.” However, the part worth noticing is that it allows for “appropriate exclusions and exceptions”. There has been a push from telecom operators to treat Internet based communications services separately, so it’s not clear whether this refers to such services. On the Internet, it is near impossible to distinguish between communications, services and content, since they are mashed up as a part of many key user experiences.

2. Does this mean that there will be a delay in the DoT ratifying the TRAI recommendations on Net Neutrality? The TRAI recommendations were made in November last year (our analysis here), and the Department of Telecommunications is yet to approve of the TRAI’s recommendations, even after five months. Can license conditions be amended just via an order from the DoT, or will this require approval from Parliament? In any case, telecom operators are likely to challenge any amendment to license conditions.

3. This is a draft policy, and not the final version of the National Digital Communications Policy. Many a slip between the cuff and the lip.

*

Disclosure: I was a co-founder of the SaveTheInternet.in campaign for Net Neutrality, and MediaNama took an editorial stand in favour of Net Neutrality.

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Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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