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LIVE: TRAI’s Net Neutrality open house discussion on traffic management practices

TRAI is holding a Net Neutrality open house discussion online today on Net Neutrality enforcement; the discussion will discuss traffic management practices by internet providers, and the creation of a multistakeholder body to oversee Net Neutrality violations. Live updates are below.

Read our summary of the arguments made in written filings for this consultation here.

Live Update

2:09pm: Advisor Asit Kadyan gives a vote of thanks. The open house discussion has ended. Written submissions to TRAI on this consultations can be sent till June 29.

2:06pm: TRAI chair RS Sharma: It has been an extremely interesting conversation. A lot of thoughts have come. We should be able to frame recommendations to the DoT as they have asked. One clarification: when I talked about MSB, we think that detecting violations or deviations will require certain technological tools. We were very clear in the beginning, an MSB does not mean just ISPs. It means all stakeholders in the Net Neutrality arena. And therefore it cannot just be one-way. Therefore, the concern that MSB will do what is in the interest of main stakeholders is not correct. We have MSBs in our country in different sectors, and there’s always convergence and divergence in interests, so checks and balances work there also. We are now debating on the issue of what should be the composition and nature of the body.

We have no bias towards a particular type of arrangement. What we are interested in is that the principles of Net Neutrality are upheld in letter and spirit.

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2:03pm: Prof. van Schewick: I have concerns on the MSB. If traffic management rules are enforced without public participation and comments, proceedings would not be inclusive. Based on my experience with varying Net Neutrality proceedings around the world, it’s only the regulator who can resolve contradictions between different interests. I would be worried that even if MSB has an advisory role, ultimately, the idea of giving one recommendation to the regulator hides a lot of complexity that it’s the job of the regulator to make trade-offs based on the broadest possible input.

If you do want an MSB, I would support the comments by the public interest and civil society groups that say that broad stakeholder participation happens. I would be opposed to fees, especially for non-profit organisations. Voting rights should not be tied to fees. The best approach is to put complaints out for notice and comment.

1:59pm: IFF: We believe that civil society, legal groups, and people from the public should be participating in these conversations. Segregation should be avoided in our opinion. It may be a good idea to consider bringing the MSB under overarching regulatory framework to bring accountability to the institution itself. Which part is easier I leave to TRAI and DoT.

1:56pm: Nikhil Pahwa, MediaNama: I’m fundamentally opposed to a new organisation being created. I think that these decisions need to be taken by the DoT, creating a body would add another power structure.

Industry bodies cannot head this process. Every industry body here has opposed Net Neutrality in the past. There is a risk of regulatory capture here. On a fee, if there is an advisory body, it is providing a public service. I don’t see why they should be charged a fee for providing a public service.

1:54pm: Tishi Tejpal, Times Internet: There needs to be mandatory requirement of participation from other stakeholders. There shouldn’t be tiering. Fees should be charged at par and only administrative in nature. Academia should also be involved.

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1:45pm: Raman Chima, Access Now: It is the need of the hour to have a multistakeholder body. It should be an advisory body so that requisite enforcement happens through TERM cells, TRAI, or appropriate division. An MSB is extremely useful. The advantages of having stakeholders that are not licensed entities and give answers on problems that are software-related would be useful, not one that goes into implementation. Policy development and discussion may be a place for it.

Having TERM cell members be members will help them understand if they missed any concerns. It’s a replication of this open house discussion model. It’s having everyone under one roof. It should have wide representation, without a membership fee model. All such bodies globally are not membership fee based, unless they are industry led.

1:40pm: VIL: If monitoring and enforcement is DoT, we need to think about what this MSB would contribute. I’d like to raise an issue: ultimately it’s a Quality of Service issue. If it is of that nature, then this particular issue, is it a QoS issue, or an issue with DoT?

SK Gupta, TRAI Secretary: There is a requirement of monitoring, probing networks, logs, and based on that a framework has to be created. In this regard, DoT, may be doing the work of enforcement or monitoring, but there has to be a body that describes what should be done across all telcos. There can be a multi-stakeholder body, with representation from OEMs. Just think in a broader sense and give comments instead of just talking about TERM cells. Have wider deliberations of the issue.

1:37pm: TRAI is moving on to these questions on a multi-stakeholder body to oversee Net Neutrality implementation. BIF reads from their submission:

1:34pm: Airtel: All inclusiveness has already been ensured in terms of interference and application and content providers being included in this TMP process. Knowing all the discussions that have happened, disclosure from the content providers are needed. The content provider, caching, should be disclosed.

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1:33pm: Vodafone-Idea: We support Jio and Airtel’s submissions. This is a technical issue and it should remain a technical issue. If there is a complaint, it should be evidence based. It should be filtered and brought for discussion. If it is discussed in an unfiltered manner, it will lead to too many complaints with TSPs where very little action is required at the end of the day. It’ll be a lot of unnecessary work for all of us.

Consumers need to be properly educated on factors beyond the control of TSPs. There has to be a mechanism which won’t burden others unduly.

1:30pm: Airtel: As far as question 3 is concerned, TRAI has established principles of self-regulation and compliance over the years. I’d like to raise a flag on crowdsourcing. Such things have been highlighted to TRAI. In that sense, maybe a controlled environment would be more helpful to find violations.

1:25pm: Jio: We believe that a web link can be provided where consumers can access details beyond basic description if they’d like.

On question 3, we submit and suggest that the role of MSB should be beyond advisory, and should be active.

1:11pm: Udbhav Tiwari, Mozilla: Consumers should be allowed to complain about perceived complaints for Net Neutrality. Quantitative measures should also apply in parallel to access providers. BEREC has a great assessment methodology that lays down how to gauge whether Net Neutrality is being violated.

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On measurement, we need to involve stakeholders and the government. With regard to consumers, publicly available tools, including the Net Neutrality measurement tool that BEREC has a tender for.

1:07pm: Prof. van Schewick: In the US, we have found that it is important to find detailed information about how ISPs are managing their networks. In the US, the FCC pointed out that different audiences have different needs. The final point on disclosure is that it might be worth thinking about how good and detailed disclosure requirements are for small ISPs.

In terms of monitoring enforcement, it’s not clear how people can submit complaints, and that is a critical element.

1:01pm: Siddharth Deb, IFF: With respect to monitoring and detection, it is important to highlight that industry suggested a light touch approach since licensing obligations are already there, and propensity to comply is more.

We did crowdsourced studies at IFF, and ISPs were committing NN violations in different parts of the country in different circles. We received a list of 300 alleged complaints of throttling and blocking.

Disclosures should be in a standardised format. In the guise of comprehensibility we shouldn’t lose sight that we need detailed disclosures. The information should be made available to the public.

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We believe that TRAI could take advantage of its MOU with BEREC on Net Neutrality enforcement, and use those learnings and open source it in India to find out where in the internet delivery value chain there is degradation of performance. Certain models cited include OONI, Glasnost, and M-Labs.

12:54pm: Discussion has moved on to questions 2 and 3. BIF representative is again reading out from their filing.

12:45pm: Professor van Schewick: There is no Net Neutrality left at the federal level in the US. I don’t think any of you is looking at the current US system as a model. The chairman said he’d love an industry-led model for traffic management. While I understand the sentiment, when we allow ISPs to regulate themselves in terms of TMPs, we got results that were bad for consumers. The UK is a key example. In my submission I cited a paper by two scientists who studied what happened in the UK. Even though the UK is a great competitive market with disclosure, ISPs opted for discriminatory TMPs that singled out specific applications and classes of applications, causing problems for gamers, and others who were not intended to be affected. The job of a private company is to maximise profits, and not to do what is in public interest. I’m glad that DoT left this job with TRAI. We don’t want to burden ISPs with prescriptive regulation. But right now, the current framework adopted is under-specified. You should look back at how many pages have to be laid out. In the US, traffic management is about thirty pages.

We don’t need to produce thirty pages, but the discussion has shown that there are critical aspects that we remain uncertain about. It seems people are not sure whether TRAI actually believes TMPs should be as application-agnostic as possible, and are wondering if class-based TMPs are possible. There is room for very targeted specification. The other gap I’d point out is the line between specialised services and the open internet.

Specialised services should only have permitted differentiation if such differentiation is actually necessary.

When Comcast was instructed to manage their traffic in an application-agnostic way, other providers followed suit. Clear rules lead to compliance, while gray areas allow ISPs to test regulations.

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12:44pm: Sumit Monga, Unlimit IoT: Under the garb of TMP, telco denies bulk connectivity to a digital provider, we feel that access to network tends to get negated. This can be in terms of denying SIMs, delay in configuring network resources and APIs, and denial of getting into commercial contracts. Anyone requisitioning a million subscriptions is keen that services will last for the period they are asking for.

Any digital provider requisitioning bulk connectivity in the same space of the telco, there should be neutrality. Telco should not provide connectivity to its own client and deny it to others.

Right from device providers to application providers, we need to have representation in the Multi-stakeholder body. On monitoring TMPs with audits, in case some connections are denied to digital service providers, there should be scrutiny and a cogent reason provided.

12:35pm: Rajan Mathews, COAI: We absolutely support what the chairperson said. We are more inclined to look at it ex-post. Net Neutrality is about the internet, and it now encompasses every aspect of the network, which I don’t know if it was the intent. It has started contaminating the other areas of the network.

In the US, where it was not applied to mobility carriers. The courts held that mobility carriers were not common carriers.

We must begin to do the enforcement under existing rules and regulations. We need flexibility, and not more and more reporting and costs. Let’s make rules and regulations that already there clearer.

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Therefore let’s focus on the approach in the US, Scandinavian countries, and the UK. We have overburdened the industry. Net Neutrality is a part of the law of the land, and we can’t have ex-ante approaches burdening the industry.

Sharma, in response: Typically, something that is not forbidden is allowed in law. Licensing conditions describe what you cannot do and what your responsibilities are. Now, how you comply with these conditions is what is under consultation here. TRAI thought that the industry-led body is the way forward to do this. DoT has a different view, they want it in the advisory capacity. We are not reopening that discussion.

We have said implicitly and explicitly that it is application-agnosticism. DoT will be able to specify the applications which are in the nature of emergency applications and exceptions, where we will be able to exempt. There could be certain applications where we provide exemptions. Again, that is something which is pragmatic. It is not sweeping, and at the same time there is scope for specific applications.

I’m still noticing that the discussion is happening all around the Net Neutrality, larger principles, how Net Neutrality will be in 5G… They’re relevant, but we have made these principles generation-agnostic. They’re larger principles which say that internet is a platform which should be kept free and access to it should have no restrictions or discrimination of any kind.

12:30pm: Raman Chima, Access Now: We have concerns about follow-through and implementation of the license conditions on Net Neutrality that were added. I would say that DoT and TRAI should be clear that their approach is not to whitelist TMPs. Instead, you should require at a minimum that operators disclose what they are trying to adopt in terms of TMPs. You have consistent support from that on public and private sector telcos.

You should go further. Beyond that you should require that TMPs are not used for commercial considerations. We also want clearer guidance on what are discriminatory practices. TRAI’s existing position is already to support that any TMP should be as application-agnostic as possible. I’d say on top of that, what would be very useful is directions from DoT based on existing license terms to make it clear. These are things we already decided.

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This would perhaps be the best outcome.

On 5G, BEREC said 5G network slicing should be compliant with net neutrality. There should be clear guidance on TMPs, and should not interfere with content or class.

12:25pm: Nikhil Pahwa, MediaNama: A number of telecom stakeholders said that browsers and handsets affect Net Neutrality. I think this is the same old same service same rules argument. They are not the same service. What we are trying to regulate for is discrimination and prioritisation that discriminates against some players in favour of others. Trying to bring this into the mix is to distract the discussion, and this should not be considered.

There can be exceptions for emergencies, but those need to be based on evidence.

On class-based TMPs, we need to keep in mind that we don’t want zero rating of telecom services themselves and their prioritisation. These restrictions will provide incentives to give consumers better connectivity and expand bandwidth and encourage WiFi.

On 5G, Prof. van Schewick covered it very well. It’s a fundamental problem about whether the ability of a technology to discriminate should let it discriminate. Our regulations clearly say that discrimination should not be in place. The same principles that were outlined for zero rating should apply for 5G as well.

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12:19pm: Professor Barbara van Schewick: I really think that TRAI is at a crossroads right now. India has led the world with respect to differential pricing practices. You are being admired around the world for that. The question is now whether you want to maintain a similarly high standard for technical practices as you have for pricing practices.

The first thing is that when we think of TMPs, it’s easy to think it’s just wonky, who cares, it’s just technical. At a very high level, traffic and congestion management happens when everyone wants to use the internet. The rules for TMPs will decide internet users’ internet experience. From 5pm to midnight is when ISPs would use TMPs.

It’s obvious that you’d want to be as non-discriminatory and open as possible. If I want to use a specific online video application, and my application is singled out for discrimination, I can’t use the app in a way that’s best for me, and that provider is disadvantaged. That would undermine the values we are trying to protect.

As the chairman said, ISPs need to manage their networks. Fortunately, we have precedent for what a good Net Neutrality compliant exception looks like. That’s what Europe and Canada have done, which is to say that we will require network management to be as application-agnostic as possible. As I said, the Europeans are very explicit about that.

You have already built in application-agnosticism into your guidelines, it’s just not mentioned explicitly. To be proportionate, traffic management has to be as application-agnostic as possible. We know this approach that has worked. In the US this had been the approach from 2008 to 2017. Similarly this governs Canadian operators. You’d be in very good company.

TMPs will evolve, but you just set the guidelines by saying that they need to be as proportionate and application agnostic as possible.

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Second, when ISPs talk about class-based TMPs, from a technical perspective it is very hard and creates a lot of problems. Even if you have the best of intentions, you can’t do that very well. The internet was not built to identify applications. We have seen this in Europe in the context of zero rating. Zero rating has the same problem, as you can only zero rate applications you have identified.

In Europe, they said we zero rate all music, but they only do so for five services, because they can’t identify the rest. India avoids this problem by prohibiting discriminatory data pricing.

It sounds deceptively interesting, but it is not in practice.

Finally, I’d like to comment on the idea that we need to throw net neutrality out the window because of 5G. If you think about it, what is 5G? 5G on the one hand gives you more capacity and faster speeds. If you have that, there is less need for discrimination. There is this real irony that because there is 5G we need to allow discrimination. 5G reduces the need for discrimination.

If you think about it, you already allow ISPs to sell different access with different speeds and caps. My neighbour and I might have different speeds. But that’s not a net neutrality problem, because all my and my neighbour’s data packets travel at the same speed in each connection.

We know that as a business you might be more interested in reliability than a casual internet user. Continuing that thinking, an internet service provider may be using network slicing to provide a kind of service that has high reliability and one for casual internet providers. But within the plan, if the business gets the same reliability for all data packet, and the casual user gets the same for their plan. That would be a way to use 5G to use a new and innovative service the market might like. But it wouldn’t violate Net Neutrality.

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On specialized services: the Indian framework allows specialised services for services that don’t work on the normal internet. The specialised services shouldn’t be used to bypass paid prioritisation. You should not allow ISPs to offer specific treatment to some applications.

It becomes less necessary to application-discriminate in a 5G world. You should not fall for this idea that 5G makes discrimination necessary.

12:04pm: Siddharth Deb, Internet Freedom Foundation: A couple points I’d like to emphasise: there may be a need to consider amendments within the licenses to clarify what constitutes reasonable TMPs. We found models in Europe and California, and this approach has been approved by Dr. Barbara van Schewick. This looks at TMPs from the lens of application-agnosticism. Without this principle, there can be risks of greater amounts of disputes and litigation, and that can create undue burden on TRAI and TDSAT. Bright line standards on reasonable TMPs should be had.

One comment we observed in industry submission was flexibility for 5G and virtualisation technologies. We did research, and European authorities have said that the linkage between Net Neutrality and 5G is debatable at best, so how about we think about those implications at a later stage.

12:00pm: Rishi Tejpal, Times Internet Telecom Analyst: I’d like to say a couple words around the implementation of NN can be done at an operator level. Operators can split network capacity into two parts, and on the larger pipe they can have net neutrality principles. On the smaller pipe, operators can monetise those investments. Consumers are willing to pay more for premium experiences. If I’m able to monetise my investments on the remaining bandwidth, I think this could be a win-win model for operators as well as the consumer.

11:57am: Praveen Sharma, VP, Tata Communications: We have given a detailed response, including that we can have a list of TMPs that is updated from time to time. There are other ecosystem players that impact Net Neutrality, like browsers, content players. There will be different TMPs for wireless and fixed line connections. Standardise the TMPs to the extent possible and thereafter say that there will be governing principles if more TMPs are added. The governing principles will be non-discriminatory. Just like in tariffs, these are the guiding principles. So they can be fixed and then see what happens later. There can be force majeure which triggers TMPs, and post-facto we can look at the reasonableness.

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11:55am: Sandeep Verma, AVP, Reliance Jio: We’ll jump to the fact that additional position of framework. Since it has been covered that the whole digital ecosystem is dynamic, it won’t be possible for TSPs to give TMP practices in advance. It will evolve continuously. On the framework, we’d like to stress that we submit and suggest that the roaed of the MSB should be much more than advisory. It should be more active in implementing and enforcing. It should serve interest of DoT, and serve as a two way communication channel between industry and DoT.

11:50am: Bhanu Saini, AVP, Internet and Mobile Association of India: Around the three core aspects of reasonableness of TMPs: we have given our detailed submission to TRAI on that subject. As networks graduate to higher speeds, the problems related to latency and congestion control will decline. Hence these practices have to be extremely transient and extremely proportional. We feel that technically similar traffic must be treated similarly by TSPs. Also, TMP policies that arise out of commercial rather than technical considerations should not be considered reasonable. On the fact that there should not be any application discrimination, there are chances of TSP engaging in this. TRAI should lay down basic parameters so that these TMPs should be issued. If and when there is some kind of TMP which is enforced, the TSP should inform as to what was the trigger for this and justify why this kind of TMP was necessitated. Detailed submissions are there with you on this subject.

11:45am: Sharma: As Aroon said in the beginning, there are three features of TMPs. They should be proportionate, they can’t be like a hammer. That means they should be proportionate to the problem. They should be transient, they should only last for the time when the problem lasts. They should also be transparent. Disclosure is important to see what practices are deployed. Similarly, there are also provisions relating to exigencies and exceptions. The nature of TMPs and on the other side there is scope for defining what the exceptions will be. What will be the situations where such things will happen. We can have exceptions and give a go-by to net neutrality, but this go-by will have to fulfill those three features. What is required is to now discuss the mechanism of the organisational architecture which ensures that these principles are enforced. We have moved away from the discussion on the need for TMPs. We are aware of them and have provided for them. It can’t just be plain simple vanilla Net Neutrality. It has to take in account exemptions for emergency and disaster situations. Those are already taken care of. Let’s keep the discussion focused on the issues at hand.

11:44am: Airtel EVP of Network Sandeep Gupta: There are multiple stakeholders which impact consumer access to internet, and those should also be considered. Traffic management is also done for legitimate network purposes.

11:41am: [reacting to an Airtel representative with bad internet] Sharma: If Airtel, Vodafone, the telecom operators’ own internet connections are not good, whose will be in this country?

11:36am: Rahul, CRO, Bharti Airtel: We fully support unhindered and nondiscriminatory access to internet. We are aware that there is high usage of networks in the country, hence the need to optimise the networks is essential. In 5G, we’ll get into slicing and edge computing, etc. The approach for a one-size fits all may no longer work. The shape of internet and stakeholders has dramatically shifted. We have TSPs, browsers, equipment makers, who impact the experience of the consumer. We think that other stakeholders need to be made a part of this journey. We have been implementing traffic management issues. They are done to manage end-to-end data flow. For network congestion, emergency services, child protections, time delay sensitive services, and security.

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These practices evolve with time. In general, any practice which is meant for QoS should be treated as reasonable traffic management. We have given you a suggestive list in our response, which we have filed. Lastly, I’d like to add that the model we suggest is we create a reasonable intimation practice, under intimation to the licensor, and say this is what we are implementing. If regulator wants more information, that will be an option.

11:33am: SK Gupta, TRAI Secretary: One can say he’s managing traffic fairly, but other may say he is violating Net Neutrality. What should be the methods to identify Traffic Management Practices, and how will consumers know?

11:32am: Aroon Deep, MediaNama:  TRAI is clear that traffic management practices should be proportionate, transient, and transparent in order to be reasonable.

In March, telecom operators requested streaming services to reduce bitrates to help their networks brace for the lockdown. This was a traffic management practice, even though it was not done by the TSPs themselves.

However, wireless data traffic only increased by 15% during the lockdown. In spite of this, a bulk of these restrictions continue to be in place, three months after it was established that they were not necessary.

This was a traffic management practice as it was requested by telecom operators, and didn’t give much choice to content providers. It was a TMP that the wireless telecom industry thrusted on practically the entire Indian internet.

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Principle one, proportionality: Two wireline ISPs told us that these restrictions were not needed, and a 15% surge in traffic is very much manageable.

Was it transient? No, because it is still in place. Weeks after the bitrate limits proved to have been unwarranted, the wireless broadband industry continued to request content providers to continue these restrictions.

On transparency, telecom operators have not provided any details on the impact of these restrictions.

This is timely, as it proves just how reasonable telecom operators are in the absence of enforcement or scrutiny on their traffic management practices. We believe, therefore, that evaluating reasonableness of TMPs should very much involve the authority and should not be left solely to TSPs, as many have suggested.

11:22am: BIF representative is reading out sections of their filings, available here.

11:17am: Broadband India Forum: We at BIF fully laud TRAI for coming up with this consultation paper for Net Neutrality. We fully support Net Neutrality and that access should be made available to all, and that legitimate traffic management practices should be allowed, but that they should be tested against core Net Neutrality principle. Prioritisation is a part of internet access, different services are available under different Quality of Service standards. We believe that traffic management practices that comply with core NN principes should be permitted. Going forward, in complex technological environments like 5G, which require network slices and different QoS, we understand that strict compliance to Net Neutrality could be difficult to observe.

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11:13am: This is how the questions will be batched for the discussion (here is the consultation paper for reference):

11:08am: Principal Advisor Shailendra Mishra lays out the rules of the discussion.

11:00am: TRAI chair RS Sharma: In our view, Net Neutrality was not led by ideology purely, but by practical considerations. In a country like ours, internet will play an important role in deploying our digital services. Many of our services which are not available offline will be online, and India is playing an important role in innovating online. There were a lot of views and counter-views. Many players felt that we should be protecting some stakeholders that are regulatees instead of restricting them. But we went ahead and said that we believe in the principle of Net Neutrality. This was criticised and hailed at the same time. We said we wouldn’t allow gatekeepers. One recommendation was that the mechanism to monitor Net Neutrality violations should be largely industry-led, because we believed that the tools which will be required in terms of software and hardware will not be constant, they’ll continue to emerge. It’s best dealt with by the agility that industry groups will have.

Our other recommendations have been accepted, and this is among the only issues where we got a back reference from the DoT. When the government accepts these recommendations, we can start recommending composition. But now that government is of the view that the DoT would like to enforce these rules as the licensor, the industry body would be advisory. That’s the broad architecture the Department wants.

10:55am: The event is set to start shortly.

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