The online symposium on the value of Internet Openness at the time of COVID-19 is a joint outcome of the Internet Governance Forum coalition on Net Neutrality and Community Connectivity. This is the second part of the sixth article in the series. The first part is available here. Read all the articles in the symposium here.

By Smriti Parsheera

In the previous post we traced India’s journey down the net neutrality road, starting from the framing of the Telecom Regulatory Authority of India (TRAI)’s discriminatory tariff regulation in 2016 to the present debate on creation of an advisory multi-stakeholder body. Our focus here is to discuss the ways in India’s net neutrality rules might interact with recent developments surrounding the COVID-19 pandemic.

Traffic management during the crisis

One of the consequences of the lockdown imposed due to the COVID-19 crisis has been the increase in data consumption, leading to increased pressure on the networks. As per reports, there has been a surge of about 30 percent in the average data consumption, a large part of which is said to be on account of video content. This led the telecom industry body, Cellular Operators Association of India (COAI), to write to the Department of Telecommunications (DoT) and various over-the-top video providers like Netflix, Amazon Prime, Disney+ Hotstar and ALTBalaji seeking their co-operation in mitigating network congestion.

Some of the major players in the digital content industry collectively responded to this issue through a press release declaring their decision to take temporary steps to ease the pressure on mobile networks. The measures being adopted by them include reducing the bit-rate of their videos and switching from High Definition to Standard Definition streaming.

Since these actions are taking place at the end of the content providers and not the Internet service providers (ISPs) they do not raise any direct net neutrality concerns. To the contrary, this episode represents a win for the net neutrality rules without which ISPs could have acted unilaterally to degrade the quality of Internet access for a class of applications or even for specific websites. The voluntary involvement of content providers helps ensure that the adopted measures will be transient and proportionate in nature, as it is in their interest is to provide the best possible quality of experience to their customers.

The European Union has also seen similar discussions in the context of their net neutrality regulations. Following a request from the European Commission (EC), Netflix announced that it would reduce its steaming quality in Europe for 30 days. In addition to this, the EC and the Body of European Regulators for Electronic Communications (BEREC) also issued a joint statement on the use of exceptional traffic management practices to tackle network congestion. One of the important elements of this statement is the decision to create a special reporting mechanism to enable effective monitoring of the Internet traffic situation and address any capacity concerns.

Proposal on free access to specific websites

The COAI has also put forth a more controversial proposal suggesting that free access to certain critical websites should be enabled in light of the COVID-19 situation. As per a report by the Economic Times,  the proposed list of websites includes various government services, e-commerce sites and digital payments platforms. However, a copy of the COAI’s letter dated 21 March, 2020 put out by MediaNama indicates a much narrower list. As per this, the COAI has identified nine specific websites belonging to the Ministry of Health and Family Welfare, the World Health Organisation and others that offer information directly connected with the COVID-19 crisis. The distinction between the scope of these two requests is relevant from a net neutrality perspective.

As per Regulation 3 of TRAI’s Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 any kind of discriminatory pricing of data based on content is prohibited, which includes providing free access to specific websites. Regulation 4, however, carves out an exception for any action taken by a service provider to “reduce tariff for accessing or providing emergency services, or at times of grave public emergency”. The provider has to notify TRAI of such an action within 7 days based on which the regulator will then take a final decision on the legitimacy of invoking the exception.

The terms “emergency services” and “public emergency” are not defined under the regulation but their meaning can be inferred from other related instruments. The telecom licence agreements define “emergency services” to mean relevant public, police, fire, ambulance, coast guard or any other services so declared by the licensor. Health and information services that are directly linked to the COVID-19 response could therefore fit well within this definition, if so notified by the DoT. So far, no such declaration is known to have been made.

Similarly, the term “public emergency” also has a very specific meaning that has been set out by courts in the context of its use in the Indian Telegraph Act, 1885. The Supreme Court noted in the PUCL case that “public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action”. Again, one can expect that the COVID-19 crisis could fall within the scope of this definition, if so declared for the purposes of the discriminatory tariff regulation.

While the text of the regulation clearly makes it possible for TRAI to allow free access to specific websites in a situation like the COVID-19 crisis, we caution that any such exception should not be invoked lightly. In particular, any exceptions should only be allowed after paying significant regard to the spirit of the discriminatory tariff regulation, namely its commitment to keeping the Internet open and non discriminatory.

Suggestions on scope of exemptions

Whether or not TRAI decides to allow the present request, this discussion presents a valuable opportunity to examine the principles that should determine the permissible scope of exemptions from zero rating restrictions in an emergency situation. We offer some recommendations in this regard.

  1. Any exception should be designed in a manner that ensures the least possible intrusion into the principle of non-discriminatory pricing and access to data services. One suggestion that has been made is that, instead of invoking the exemption provision, a fixed data allowance can be provided to each subscriber. While this sort of a model could be useful for the general expansion of Internet access there are some limitations in using it to serve a narrower purpose like COVID awareness. This is because subscribers may legitimately choose to use the free data for purposes that are unconnected with the COVID-19 crisis.
  2. Assuming that an exemption is to be triggered, the measures being adopted should be proportionate, transient and transparent in nature. This is in line with the requirements applicable to the exceptions permitted under the net neutrality principles laid down in the telecom licence agreements. Moreover, the proportionality principle should be applied both in the selection of the subscribers as well as the content to be covered by the exemption.
    For instance, telecom providers have already provided low-income consumers with the benefit of extending the validity of their mobile plans and a small talktime credit for the duration of the COVID lockdown. Any exemption in the context of data access should be similarly targeted.
  3. In no event should the provision of an exemption be backed by any direct or indirect commercial arrangements or contract between the ISPs and content providers. Wherever necessary, the costs for provision of the access services covered by the emergency exemption should be borne by the Government using the Universal Services Obligation Fund.

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Smriti Parsheera is a lawyer and technology policy researcher and a current CyberBRICS Fellow.