Net
Neutrality
Net neutrality can broadly be understood as the
principle of non-discrimination which in practice allows the internet to be
free and open by preventing service providers from slowing or interfering with
the transfer of data. Net neutrality has risen as a global policy issue, yet
cultural, political, commercial, and economical factors influence how net
neutrality is understood and addressed in a particular context. Indeed, the
factors driving the net neutrality debate, the way in which governments are
addressing net neutrality, the role and response of industry, the public
response, and the role of civil society has been varied across contexts. The
topic of net neutrality is not limited to a technical debate and brings
together a number of issues including the right to access, the right to freedom
of expression, fair competition practices, and privacy.
The
Debate in South Asia
The
debate on network neutrality in south centers largely on the conflicting
private interests of Internet Service Providers and public interest in a
competitive and innovative Internet. Governments can also have an interest in
regulating certain types of data packets and regulating certain services and
defining the permissible interference of service providers. Discrimination of
data packets can be based on different criteria - communications protocol, IP
addresses, favoring private networks and enabling through different practices
such as access-tiering, zero-rating, blocking and throttling of content.
Proponents
of net neutrality argue that it will prevent cable and telecommunications
companies from assuming the role of gatekeepers who control the flow of data
and stifle innovation by providing a preference to content providers or
customers who can afford to pay or those affiliated to the Internet Service Providers
(ISPs). Whereas, opponents of net neutrality claim that it will allow ISPs to
check for overuse of bandwidth by services such a video streaming and peer to
peer file sharing, potentially leading to increased taxes, over-regulation of
the Internet, and a reduction in their capacities to effectively manage their
networks.
Net
Neutrality across South Asia
In
South Asia, due to limited connectivity to the Internet and growing digital
divide, the debate on net neutrality assumes another dimension. The principle
of net neutrality is seen in conflict with the initiatives like zero rating
that may provide free and greater access to the Internet, albeit in a truncated
form. Most South Asian jurisdictions do not have any regulations on net
neutrality. India is in the process of formulating a policy around net
neutrality and it has been a subject of widespread debate. On the other hand
Singapore has developed a regulatory framework nationally establishing the principle
of net neutrality while Bangladesh has no regulation and though civil society
actors have called for regulations that govern net neutrality, no steps towards
formulating regulations have been taken by the government as yet.
Virtues
of net neutrality
Proponents of net neutrality include consumer
advocates, online companies, human rights organizations
and some technology companies. Many major Internet application companies are
advocates of neutrality. Yahoo!, Vonage,eBay, Microsoft, Twitter, Amazon,Tumblr, Etsy, Daily Kos, Greenpeace, along with many other companies and organizations, have
also taken a stance in support of net neutrality.
a.
Removal of gatekeepers
Supporters of net neutrality want to designate cable companies as common carriers,
which would require them to allowInternet Service
Providers (ISPs) free access to cable lines, the model used for dial-up Internet. They
want to ensure that cable companies cannot screen, interrupt or filter Internet
content without court order. Common carrier status
would give the FCC the power to enforce net neutrality rules. Then cable and
telecommunications companies, wanting the role of gatekeepers, being able to
control which websites load quickly, load slowly, or don't load at all, will be
eliminated.
b.
Equality in power
Neutral net will foster free speech and lead to
further democratic participation on the internet. By ensuring that all people
and websites have equal access to each other, regardless of their ability to
pay, proponents of net neutrality wish to prevent the need to pay for speech
and the further centralization of media power. Net neutrality protects innovation and if big companies like
Google and Netflix could pay to get exceptional treatment, more bandwidth,
faster speeds, the new start-up firms would be at a disadvantage.
c.
Non-discriminative
The
big telecom companies can provide the ways but don’t have any right to direct
how the people should walk on them. They cannot differentiate between the
different groups. Net neutrality has remained a core democratizing tenet of the
internet since the time it came into existence.
d.
User
intolerance for slow-loading sites
Proponents of net neutrality invoke the human psychological
process of adaptation where when people get used to something better, they
would not ever want to go back to something worse. In the context of the
Internet, the proponents argue that a user who gets used to the "fast
lane" on the Internet would find the "slow lane" intolerable in
comparison, greatly disadvantaging any provider who is unable to pay for the
"fast lane".
e. Ensures robust
competition
Before taking
any steps towards the regulation of OTT services however, those in charge must
consider their rationale in the prevailing context, and that of the internet in
the broader scheme of things: it is to connect as efficiently as possible, the
users of these facilities, creating a network to enable communication and
exchange of information in a manner unprecedented in history, and with enormous
repercussions to the exchange and cultivation of ideas; a neutral internet
supports free speech, democratic participation, and empowers citizens. By
facilitating permission‐free
innovation at the edges of the network, it ensures robust competition amongst
service providers.
Then there is of
course harnessing the benefits of the net for education, health care, and the
society at large - the power of a tool with the capacity to penetrate
geo-political borders as the web does, is integral to the development process.Net neutrality supports competitive
marketplace and provides chance to every firm, from big companies to small
start-ups to take part in it.
f.
Reducing
cost
In
favour of regulation, a paper published by the Telecom Regulatory Authority of India
(TRAI) mentions that Over The Top
Content (OTT Content) service providers fall under the Indian telecom licensing
regime whereas Telecommunication Service Providers (TSPs) operate under a
separate regime wherein voice and messaging services can be offered only after
obtaining a license. TSPs have claimed that many OTT services are similar in
nature to what the TSPs have been catering to, but remain
unencumbered by the licensing agreements that the TSPs have to abide
by while providing those services. In doing this, OTT service providers
essentially piggyback over the infrastructure provided by the TSPs, which
enables them to offer similar services at drastically lower costs.
As
a result, there is the absence of a level playing ground for the two competing
products same consumer services segment. Thus, it would be worthwhile to
reorganize the services provided by OTT service providers in terms of the
consumer services segment they cater to, rather than blindly classifying them
as data services.
Vices
Of Net Neutrality
a.
Loss
of revenue
The loss of
revenue caused to telecommunication companies due to the rapidly increasing use
of OTT services such as popular instant messaging applications [WhatsApp,
Snapchat, Google Talk], e-commerce sites [Flipkart, Amazon], video aggregation
and sharing [YouTube, Vimeo, Netflix], etc., which have come to span almost the
entire spectrum of the web, and all of which consume significant amounts of
bandwidth without having to share their earnings with the ISPs that establish
the infrastructure through which they operate. It is these services that have
come under the purview of regulatory authorities in order to decide on
alternative revenue-sharing models, such as those proposed by Airtel Zero.
b.
Reduction in innovation and investments
Opponents of net neutrality argue that
prioritization of bandwidth is necessary for future innovation on the Internet.
Telecommunications providers such as telephone and cable companies, and some
technology companies that supply networking gear, argue telecom providers
should have the ability to provide preferential treatment in the form of tiered services. net neutrality would make it more
difficult for Internet service
providers (ISPs)
and other network operators to recoup their investments in broadband networks.
c.
Market
alienation
Broadband
connectivity in India is very low at present, and there is a huge need [and
potential] for increased network creation. The next huge wave of internet users
will be arriving mostly armed with low-end smart phones; it is imperative to
keep in mind here that this dynamic creates a different relationship to the
internet from traditional connections at home or work. In such a scenario,
licensing OTT services, as the TRAI has in its consultation paper proposed to
introduce, will have the obvious impact of a drop in existing users due to an
increase in the prices of such services, possibly also alienating markets that
have not even been tapped yet. The combination of increased costs and the
monopolistic powers of ISP might make it more difficult for low-cost innovation
for sustain itself, something that the internet has been especially valuable in
fostering since its inception. The idea, then, of strict regulation is one
which could be put in storage till such time as when India has achieved such
basic goals as improved access.
d.
Hamper
Growth
Theneutrality
can come in the way of the growth of quality services, when elastic
applications in the nature of peer-to-peer file sharing or video sharing
platforms are likely to crowd out quality-sensitive services due to congestion.
This does not have to have negative connotations - benefits are optimized in a
network organization in which quality of service differentiation is acceptable
as long as it serves a reasonable purpose and discrimination is avoided.
In determining which behaviors are tolerable
and which are not, regulators should be looking at not whether the practice is
unfair, but rather at the potential harms, such as the extortion of rents,
tying and bundling, etc.Users can select intelligently the mobile products and
services suited to their budget; if users feel zero rated programs are
discriminatory, they can simply choose not to buy them – it is not uncommon to
see operators failing due to lack of consumer interest. It is obvious that
telecom companies should not be allowed to engage in illegal discriminatory
activity, but some commentators have pointed out that neutrality proponents are
displaying a troubling pattern of wanting to eschew existing law [such as the
Competition and Information Technology Acts] in favour of inventing new laws
and increasing regulatory burden.
e. Restrictive dimension
Times have changed. Today YouTube and Netflix clog the pipes with huge amounts of data. The users download insane amount of software, music and movies illegally. The changes will put a restriction.
Times have changed. Today YouTube and Netflix clog the pipes with huge amounts of data. The users download insane amount of software, music and movies illegally. The changes will put a restriction.
f. Injustice
The various companies like Google have created services that allow people to make calls for free on networks that telecom companies have spent billions to build. Net neutrality is injustice to these companies. Some level of prioritization or restriction is essential to support the best interest of consumers as a whole.
The various companies like Google have created services that allow people to make calls for free on networks that telecom companies have spent billions to build. Net neutrality is injustice to these companies. Some level of prioritization or restriction is essential to support the best interest of consumers as a whole.
Given
the internet’s rate of growth in India, it is not too early to develop policies
that will affect a large number of people – policies and regulations which can
be updated as the market expands. Any regulation which might discourage
creators and users should be discouraged. OTT services form a large part of
internet use generally, and act as incentives to connect to the internet.
Regulations already exist for the internet at large (such as the IT Act 2000)
and they should apply to mobile internet services as well.
Regulatory
framework on Net Neutrality in India
The
very nascent net neutrality regime in India, with no set regulations in place
as yet, leaves a lot of ambiguities as to what is and isn't permissible in the
transmission of data through the Internet. The (in)famous Airtel Zero plan17
has brought attention to the issue of discrimination favouring certain traffic,
while the Internet.org scheme18 has brought to the fore issues of providing
access to limited content, thereby blocking certain content. While both issues
have been addressed by the TRAI and the DOT, even if not comprehensively, there
is still a lack of clarity on the parameters within which to assess such
agreements. Further, there is no deliberation on the Commission's jurisdiction
to consider these issues. Moreover, Mr. M.S. Sahoo, a Member at the Commission,
has recently stated that the issue of net neutrality is 'not yet on the
Commission's radar', and it is 'awaiting the TRAI's decision in this regard'.19
The
TRAI Paper, which invited public comments for a regime for internet regulation,
has engendered high levels of skepticism20 for closely following Airtel's
controversial proposal to charge higher data usage rates for the use of Voice
over Internet Protocol (VoIP) services.21 The TRAI Paper has largely been
perceived to favour the practice of discriminatory transmission of content by
telecom companies.22 As such, the TRAI Paper has merely raised questions on the
possibility of data/price discrimination by ISPs without providing clarity on
the manner of regulation.
The
DOT Report adopts a more concrete albeit conflated approach towards net
neutrality, by calling for a 'flexible' policy involving an adoption of the
'core principles of net neutrality' while simultaneously excluding the prospect
of actually defining 'net neutrality'.23 Replete with contradictions, the DOT
Report entirely rejects the internet.org scheme (which is but a form of zero
rating),24 while maintaining that the practice of zero-rating25 must be
afforded by a case-by-case evaluation.26 The DOT Report confines its evaluation
to the role of the TRAI in adjudicating the matter, without affording due
consideration to the Commission as an appropriate authority to review the
competitiveness of the agreements.
The
entire debate overlooks the fact that the crux of the issues being debated lies
in different types of agreements executed between ISPs and content providers.
Indeed, it may be argued that the entire debate can be reduced simply to the
impact of these agreements on the markets in which the parties operate, and on
the customers of the services offered by them. The Commission is likely to have
a more nuanced perspective to this debate, through a comprehensive
consideration of the market effects. Moreover, it appears to overlook the
necessity of tailoring the net neutrality regime to suit the needs of the
Indian market, such as the pressing urgency to improve internet penetration in
India.27
An
assessment accounting for these factors may lead to the conclusion that the
internet need not necessarily be strictly 'neutral'. In India, the Commission
is well-equipped to conduct this assessment in a wholesome manner.28 The
Commission has the powers to effectively rule on the competitiveness of non
neutral platforms such as internet.org and Airtel Zero on the basis of their
actual and/or likely effects on the Indian market and consumers. Arguably,
zero-rating platforms such as internet.org, though ex facie rejected by DOT
Report, may be found to have some efficiencies and benefits in India upon an
assessment of the operation of the vertical agreement. This evaluation would,
however, call for the Commission to exercise its jurisdiction over the matter.
While
TRAI’s paper has received criticism, it should be noted that the paper does
devote a significant proportion to discussing Net Neutrality and the negative
impact it could have if India overlooks the principle. The paper says, “A policy decision to outright depart from
“NN” (Net Neutrality) raises various antitrust and public interest issues.
There are concerns that TSPs will discriminate against certain types of content
and political opinions. Such practices may hurt consumers and diminish
innovation in complementary sectors such as computer applications and content
dissemination. Discriminatory pricing proposals, if implemented, could raise a
variety of significant anti-competitive concerns.” Discriminatory pricing
proposals are what activists fear could take place if India abandons its stand
on Net Neutrality, and users will be the one to suffer.
What concerns does
Net Neutrality raise? What harms does it entail?
Discriminatory
practices at the level of access to the Internet raises the following set of
concerns:
1. Freedom of
speech and expression, freedom of association, freedom of assembly, and
privacy.
2. Harm to
effective competition
a. This includes
competition amongst ISPs as well as competition amongst content providers.
b. Under-regulation
here may cause harm to innovation at the content provider level, including
through erecting barriers to entry.
c. Over-regulation
here may cause harm to innovation in terms of ISP business models.
3. Harm to
consumers
a. Under-regulation
here may harm consumer choice and the right to freedom of speech, expression,
and communication.
b. Over-regulation
on this ground may cause harm to innovation at the level of networking
technologies and be detrimental to consumers in the long run.
4. Harm to
"openness" and interconnectedness of the Internet, including
diversity (of access, of content, etc.)
a. Exceptions for
specialized services should be limited to preserve the open and
interconnectedness of the Internet and of the World Wide Web.
It might help to
think about Net Neutrality as primarily being about two overlapping sets of
regulatory issues: preferential treatment of particular Internet-based services
(in essence: content- or source-/destination-based discrimination, i.e.,
discrimination on basis of 'whose traffic it is'), or discriminatory treatment
of applications or protocols (which would include examples like throttling of
BitTorrent traffic, high overage fees upon breaching Internet data caps on
mobile phones, etc., i.e., discrimination on the basis of 'what kind of traffic
it is').
Situations where the negative or positive discrimination happens on the
basis of particular content or address should be regulated through the use of
competition principles, while negative or positive discrimination at the level
of specific class of content, protocols, associated ports, and other such
sender-/receiver-agnostic features, should be regulated through regulation of
network management techniques . The former deals
with instances where the question of "in whose favour is there
discrimination" may be asked, while the latter deals with the question
"in favour of what is there discrimination".
In order to do
this, a regulator like TRAI can use both hard regulation - price ceilings, data
cap floors, transparency mandates, preventing specific anti-competitive
practices, etc. - as well as soft regulation - incentives and disincentives.
Any discussion on
the need for net neutrality impugns the human rights of a number of different
stakeholders. Users, subscribers, telecom operators and ISPs all possess
distinct and overlapping rights that are to be weighed against each other
before the scope, nature and form of regulatory intervention are finalised. The
freedom of speech, right to privacy and right to carry on trade raise some of
the most pertinent questions in this regard.
For example, to
properly consider issues surrounding the practice of paid content-specific
zero-rating from a human rights point of view, one must seek to balance the rights
of content providers to widely disseminate their 'speech' to the largest
audiences against the rights of consumers to have access to a diverse variety
of different, conflicting and contrasting ideas.
This commitment to
a veritable marketplace or free-market of ideas has formed the touchstone of
freedom of speech law in jurisdictions across the world as well as finding
mention in pronouncements of the Indian Supreme Court. Particular reference is
to be made to the dissent of Mathew, J. in Bennett Coleman v. Union of India[7] and
of the majority Sakal Papers v. Union of India[8] which
rejected the approach.
Further, the
practice of deep-packet inspection, which is sometimes used in the process of
network management, raises privacy concerns as it seeks to go beyond what is
"public" information in the header of an IP packet, necessary for
routing, to analyzing non-public information. [9]
While the
principles relating to Net Neutrality remain the same in all countries (i.e.,
trying to prevent gatekeepers from unjustly exploiting their position), the
severity of the problem varies depending on competition in the market, on the
technologies, and on many other factors. One way to measure fair or stable
allocation of the surplus created by a network - or a network-of-networks like
the Internet - is by treating it as a convex cooperation game and thereupon
calculating that game's Shapley value:[10] in the
case of the Internet, this would be a game involving content ISPs, transit
ISPs, and eyeball (i.e., last-mile) ISPs. The Shapley value changes depending
on the number of competitors there are in the market: thus, the fair/stable
allocation when there's vibrant competition in the market is different from the
fair/stable allocation in a market without such competition. That goes to show
that a desirable approach when an ISP tries to unjustly enrich itself by
charging other network-participants may well be to increase competition, rather
than directly regulating the last-mile ISP. Further, it shows that in a market
with vibrant last-mile competition, the capacity of the last-mile ISP to
unjustly are far diminished.
In countries which
are remote and have little international bandwidth, the need to conserve that
bandwidth is high. ISPs can regulate that by either increasing prices of
Internet connections for all, or by imposing usage restrictions (such as
throttling) on either heavy users or bandwidth-hogging protocols. If the amount
of international bandwidth is higher, the need and desire on part of ISPs to
indulge in such usage restrictions decreases. Thus, the need to regulate is far
higher in the latter case, than in the former case.
The above
paragraphs show that both the need for regulation and also the form that the regulation
should take depend on a variety of conditions that aren't immediately apparent.
Thus, the framework
that the regulator sets out to tackle issues relating to Net Neutrality are
most important, whereas the specific rules may need to change depending on
changes in conditions. These conditions include:
● last-mile market
○ switching costs
between equivalent service providers
○ availability of
an open-access last-mile
○ availability of a
"public option" neutral ISP
○ increase or
decrease in the competition, both in wired and mobile ISPs.
● interconnection
market
○ availability of
well-functioning peering exchanges
○ availability of
low-cost transit
● technology and
available bandwidth
○ spectrum
efficiency
○ total amount of
international bandwidth and local network bandwidth
● conflicting
interests of ISPs
○ do the ISPs have
other business interests other than providing Internet connectivity?
(telephony, entertainment, etc.)
Conclusion
The
Internet exists as a network acting as an intermediary between providers of
content and it users. Traditionally, the network did not distinguish between
those who provided content and those who were recipients of this service, in
fact often, the users also function as content providers. The architectural
design of the Internet mandated that all content be broken down into data
packets which were transmitted through nodes in the network transparently from
the source machine to the destination machine. The idea was for the protocol
layer to be as simple and feature free as possible such that it is only
concerned with the transmission data as fast as possible (‘best efforts
principle’) while innovations are pushed to the layers above or below it. This
aspect of the Internet’s architectural design which mandates that network
features are implemented at the end points only (destination and source
machine), i.e. at the application level, is called the ‘end to end principle’.
This means that the intermediate nodes do not differentiate between the data
packets in any way based on source, application or any other feature and are
only concerned with transmitting data as fast as possible, thus creating what
has been described as a ‘dumb’ or neutral network. There needs to exist further
policy making to ensure and maintain the efficiency of such policy.
To
begin with, the government might be well-advised to keep indigenously produced
or India-specific apps unregulated and unlicensed for the time being. As stated
above, the Indian market is one that is as yet to achieve anywhere close to its
full potential, and if OTT service providers are made to share revenue as
envisaged by TRAI, or otherwise be circumscribed in any form, this will
discourage entry-level players who are right now are free to experiment in the
web domain and might not possess the wherewithal needed to navigate
bureaucratic procedure.
Refraining
from licensing OTT apps will help Indian creators as much as anyone else.
Following the principles of net neutrality and eliminating zero-rating would
also ensure that there is fair competition in the Indian app market. Other
incentives could also be offered to app-makers under the ‘Make in India’
scheme.
There
is no need for any additional licensing. Indian laws still apply to apps, for
example, companies conducting business including e-commerce. From the telecom
perspective, there is no reason to classify these services in any way other
than to acknowledge that they are part of the internet, and price them
accordingly based on usage.
- There should be a focus on freeing up spectrum space
which is currently lying unused
- If market studies suggest that it is viable, TSPs
should be encouraged to switch entirely to packet-switched networks
- If it is considered that having some internet - in
the form of zero-rated platforms or ‘walled gardens’ - is better than having no
internet at all, which is the case for many in India, steps should be taken to
ensure that the market is eventually balanced. Acknowledging that zero-rating
violates net neutrality, a grace period could be set during which service
providers could team up with certain OTT providers to give customers free
internet access, with the knowledge that such an arrangement would be
time-barred.
