Whither net neutrality? On the urgent need to implement the TRAI’s recommendations on net neutrality

tl;dr

The fight for net neutrality is not over, yet. In September 2020, TRAI forwarded a set of recommendations to the Department of Telecommunications(DoT) regarding the enforcement of net neutrality principles by Internet Service Providers (ISPs) and telecom networks, which included the establishment of an independent Multi Stakeholder Body (MSB) to play an advisory and a regulatory role over the ISPs, by overseeing the Traffic Management Practices (TMP) by the ISPs. More than a year and several representations later, these recommendations have still not been implemented. We wrote to the Minister for Telecommunications, Ashwini Vaishnaw to highlight the lack of implementation of TRAI’s recommendations by the DoT despite our repeated efforts.

Background

The battle for net neutrality was hard-won through the #SaveTheInternet.in campaign. Through it, the public petitioned the Telecom Regulatory Authority of India (TRAI), a regulatory body which was instrumental in making rules and recommendations, to protect the open internet. As a result, TRAI released the Net Neutrality rules, which prevent ISPs from choosing to charge you additionally or slow down your access to your favourite websites because their owners do not pay such ISPs extra money. In short, this was a massive win for internet users and the open internet.

Despite this, there have been various net neutrality violations reported by our community through a reporting form available on our SaveTheInternet.in platform. We have also filed complaints with the Department of Telecommunications (DoT) and TRAI on reported net neutrality violations by licensed internet access providers across the country.  This has brought to light a concerning pattern of internet access providers discriminating against certain types of internet traffic in derogation of their licensing obligations. For example, in March 2020, IFF received multiple complaints of “www.bbc.co.uk” being blocked by internet providers in Bengaluru, and the website “www.getbootstrap.com” being blocked in Hyderabad. These crowd sourced reports make it evident that net neutrality violations exist in India.

While Indian authorities incorporated net neutrality within legal and licensing systems, the actual implementation of the framework remains largely non-existent. To remedy this, the TRAI commenced a consultation on the scope of reasonable traffic management practices and a proposed Multi Stakeholder Body (MSB) for net neutrality on January 2, 2020. The process is meant to define acceptable instances where your internet provider is allowed to block, slow down (throttle) or prioritise certain types of internet traffic. If not carefully crafted, it can lead to wide exceptions and inadvertently leave the net neutrality principle impotent.

We have previously shared:

  • comments, counter comments, and a supplementary submission on TRAI's public consultation on traffic management practices (TMPs) and a MSB for net neutrality;
  • recommendations to the DoT regarding steps to operationalise the TRAI’s recommendations in ‘Traffic Management Practices and Multi Stakeholder Body for Net Neutrality’;
  • a representation dated August 24, 2021 regarding the lack of implementation of the TRAI’s recommendations.

Why do the TRAI recommendations matter ?

As per TRAI’s recommendations, the creation of a MSB is essential to safeguard citizens’ rights to access to the internet and it requires further support from DoT for its meaningful implementation. Managing the TMPs and updating them continually requires a framework, regulated by a functionally independent MSB, which would have agility and would be able to react fast and evolve with the changes in time, technology, services and other factors, without falling prey to industry capture. The MSB will also be responsible for enforcing standards for technical and operational procedures for monitoring and enforcement of Net Neutrality. Further, an inclusive MSB will effectively raise institutional capacity within the state to catch and punish net neutrality violations.

The need for a strong and independent MSB is further illustrated by the repeated instances of licensees discriminating against certain types of internet content and blocking it with impunity. These instances conform with observations from a larger study published by the Centre for Internet and Society on January 17th, 2020, wherein they found that the website blocklists of licensed internet service providers (ISPs) across India are widely inconsistent with one another, suggesting that a larger pattern wherein internet providers are either a) not complying with blocking orders or b) arbitrarily blocking websites without legal orders. Any blocks which occur without legal orders are a clear violation of Net Neutrality principles now codified within the User Agreement License terms. In order to strictly enforce net neutrality, a strong and independent MSB is of crucial importance.

Net neutrality and market concentration

The benefits of Net Neutrality are far reaching. Net neutrality acts as a necessary safeguard in telecom markets that have become increasingly concentrated in the hands of a few players. Dominant market players are less likely to maintain Net Neutrality in the absence of a strong regulatory body to enforce net neutrality.

As per TRAI’s Telecom Subscription Data as on August 31st, 2021, 95.53% of the all-India market share for broadband services is captured by 3 service providers - Reliance Jio Infocomm Ltd (447.57 million), Bharti Airtel (205.96 million), Vodafone Idea (123.53 million). The telecom sector is already showing signs of further stress, as even existing players such as Vodafone Idea are unable to raise funds. Indeed, Vodafone Idea itself posted further, though significantly reduced, losses in Q1 of FY 2021-22, in addition to existing debts which it is unable to repay.

Meanwhile, Bharti Airtel, the second large operator by market share, has had to raise tariffs in recent times due to declining average-revenue-per-user, which, as per TRAI data has fallen to Rs. 9.8 per GB in  Apr-Jun 2021 from Rs. 11.23 in Jan-Mar 2020. In addition to this, BSNL faces further delays in the rollout of its 4G network (at a time when other service providers are preparing to provide 5G services). The recent asset monetisation of BSNL assets also engenders fears about BSNL being sold. This is an issue because while the larger operators may be able to deal with lower revenues in the short to medium term, smaller players may not have the financial capacity to digest the same.

Taken in conjunction, the ’ill health’ of the 3rd and 4th largest players in the sector raises the spectre of duopoly control over the Indian telecom sector, a situation which may lead to the irregular implementation of net neutrality.

Earlier this year, DoT had exhibited hesitancy towards instituting a MSB . We had learnt, in response to an Right to Information request filed with them, that DoT has requested TRAI to reconsider their recommendations, and had cited COVID-19 related budgetary concerns and other feasibility concerns related to the implementation of MSB, among reasons for lack of establishment of an MSB.

However, these constraints no longer apply as the Ministry of Finance on September 24th, 2021 has removed the expenditure curbs that were imposed on various Ministries/Departments, including the DoT, for the July-September quarter.

Thus, we have requested Minister of Communications Ashwini Vaishnaw to operationalize the TRAI’s recommendations at the earliest, especially by establishing the multistakeholder body as recommended by TRAI. The recommendations from TRAI come at an opportune time to avert the massive damages caused by internet shutdowns upon the fundamental rights as well as the economic opportunities of the citizens. It now remains up to DoT to take this fight to its logical conclusion and act on the recommendations decisively in order to assist in public advocacy for vital information.

Important documents

  1. Representation to Mr. Ashwini Vaishnaw dated 23.11. 2021 (Link)
  2. Representation to DoT regarding the lack of implementation of the TRAI’s  Recommendations dated 24.08.2021 (Link)
  3. TRAI’s Consultation Paper on Traffic Management Practices and a Multi-Stakeholder Body dated 02.01.2020 (Link)
  4. IFF’s 6 page summary of TRAI’s consultation paper (Link)
  5. Representation to DoT regarding operationalising TRAI’s recommendations in ‘Traffic Management Practices and Multi Stakeholder Body for Net Neutrality’ dated 17.05.2021(Link)

(This post was drafted by IFF intern Simrandeep Singh and reviewed by IFF staff).