The Department of Telecommunications will soon be forming a committee (circular from 31 July, available yesterday) to advise the government on issues of monitoring compliance with Net Neutrality. The committee will have an advisory role, and its membership will be decided in consultation with the TRAI.

The circular provides details of the Telecom Commission’s acceptance of TRAI’s recommendations on Net Neutrality, which were issued last November. While the circular largely brings TRAI’s net neutrality recommendations into force verbatim, the committee’s advisory role is a new detail.

“DoT shall establish a multi-stakeholder body with framework for collaborative mechanism among the stakeholders. The body shall have an advisory role,” the circular says. “The monitoring and enforcement functions with respect to Net Neutrality shall rest with DoT.” The rest of the circular’s implementation matches exactly with TRAI’s recommendations.

On a multistakeholder committee

From MediaNama editor Nikhil Pahwa’s post on TRAI’s recommendations last November:

Someone asked me whether such a [multistakeholder] committee can hold a statutory position. While terms and conditions have not been defined by the TRAI, it has essentially accepted something that NASSCOM was pushing for. They had done the same in case of the differential pricing regulation, wanting a greater say in the regulation process. I find it difficult to trust a multi-stakeholder committee or an organisation, over a regulator which can be held to higher governance standards, in terms of transparency, accountability, choice of participants, among other things. It is expected to be “led by industry” and include ISPs and TSPs, which is a problem by itself. We need an entity independent of TSPs and ISPs, and not led by industry. We need the TRAI to perform this role, with its own committee, led by TRAI officials, because they can be held to greater standards of accountability, and in general, they have been the most transparent of regulators in the past.

(emphasis added)

TRAI’s recommendations were issued on the caveat that it is not giving up its right to issue regulations on its own with regard to Net Neutrality.

Some problems remain

Further issues from our July post on the Telecom Commission’s approval of TRAI’s rules:

1. Specialised services: TRAI says Specialised Services can’t be a replacement for Internet Access Services, and their provisioning shouldn’t be detrimental to Internet Access. To a TV channel last year, TRAI Chairman RS Sharma said that these may include autonomous cars, remote access surgery. However, a more thorough reading of the TRAI recommendations suggests that IPTV (video streaming?) and VoIP, which are in some cases licensed services, may be exempt.

“The license agreement identifies the categories of services that can be offered by licensed service providers. This includes the provision of VoIP and IPTV services, which may also qualify as specialised services under the suggested definition. In the event that a service provider proposes to carry out any other categories of specialised services an enabling provision relating to the same may need to be introduced in the license. Accordingly, the DoT may amend the license from time to time to specify the categories of services permitted to be carried out by licensed service providers. To the extent that such services are permitted under the license and also fall under the definition of specialised services, they would not be subject to the principles of non-discriminatory treatment.

What this means is that VoIP and IPTV (video streaming?) services operated by ISPs under a license may be given a discriminatory preference over other services. Thus, an Airtel Talk VoIP app might perform better than, say, Whatsapp. However, there is still some consolation here. The recommendations also emphasise that:

“the provision of such services should not be detrimental to the availability and overall quality of Internet Access Services. This could be monitored using various quality of service parameters.”

This means that prioritisation of an Airtel Talk should not lead to the deprecation of overall quality of Internet Access, and thus other services. All in all, this is not great, but it’s not as bad as it could have been.

This will, of course, have to be monitored.

2. Where’s the monitoring? The TRAI recommendations do not cover transparency and disclosure norms for telecom operators, saying only that “The Authority proposes to supplement its existing disclosure and transparency requirements by framing additional regulations in this regard.”

The TRAI has also been unable to define any means of monitoring and enforcement of these recommendations. It has passed that buck on to the DoT, saying that it may establish a multi-stakeholder body “with framework for collaborative mechanism among the stakeholders. The multistakeholder body, not for profit, led by industry may comprise members representing different categories of TSPs and ISPs, large and small content providers, representatives from research and academia, civil society organisations and consumer representatives. The terms, conditions and governance structure etc. would be recommended by TRAI once this recommendation is accepted by the Government in principle.”

So, the TRAI’s work is still not done.

Download: TRAI’s Net Neutrality recommendations

Disclosure: Nikhil Pahwa is a co-founder of the SaveTheInternet campaign for Net Neutrality, and founding member and chairman of the Internet Freedom Foundation.