Government upholds core principles of net neutrality

New Delhi: The Department of Telecommunications (DoT) has upheld the core principles of net neutrality in India.

Releasing its final report on Net Neutrality on the DoT website on Thursday, the panel headed by A K Bhargava, also recommended that users must have the right to use the Internet as and when they want, so that TSPs/ISPs do not restrict the ability of the user to send, receive, display, use, post any legal content, application or service on the Internet, or restrict any kind of lawful Internet activity or use.

Talking about Over-the-top content (OTT) services like WhatsApp, Viber, Facebook Messenger, the panel also said that such application services should be actively encouraged and that regulatory norms are not required for messaging OTTs.

In its report, the panel has listed 24 recommendations, which are as follows:

1) The Committee unhesitatingly recommends that 'the core principles of Net Neutrality must be adhered to.'

2) The international best practices along with core principles of Net Neutrality will help in formulating India specific Net Neutrality approach. India should take a rational approach and initiate action in making an objective policy, specific to the needs of our country. The timing for this is apt, taking into consideration the exponential growth of content and applications on the Internet.

3) Innovation and infrastructure have both to be promoted simultaneously and neither can spread without the other. The endeavor in policy approach should be to identify and eliminate actions that inhibit the innovation abilities inherent in an open Internet or severely inhibit investment in infrastructure.

4) The primary goals of public policy in the context of Net Neutrality should be directed towards achievement of developmental aims of the country by facilitating 'Affordable Broadband', 'Quality Broadband' and 'Universal Broadband' for its citizens.

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5) User rights on the Internet need to be ensured so that TSPs/ISPs do not restrict the ability of the user to send, receive, display, use, post any legal content, application or service on the Internet, or restrict any kind of lawful Internet activity or use.

6) OTT application services have been traditionally available in the market for some time and such services enhance consumer welfare and increase productivity. Therefore, such services should be actively encouraged and any impediments in expansion and growth of OTT application services should be removed.

7) There should be a separation of 'application layer' from 'network layer' as application services are delivered over a licensed network.

8) Specific OTT communication services dealing with messaging should not be interfered with through regulatory instruments.

9) In case of VoIP OTT communication services, there exists a regulatory arbitrage wherein such services also bypass the existing licensing and regulatory regime creating a non-level playing field between TSPs and OTT providers both competing for the same service provision. Public policy response requires that regulatory arbitrage does not dictate winners and losers in a competitive market for service provision.

10) The existence of a pricing arbitrage in VoIP OTT communication services requires a graduated and calibrated public policy response. In case of OTT VoIP international calling services, a liberal approach may be adopted. However, in case of domestic calls (local and national), communication services by TSPs and OTT communication services may be treated similarly from a regulatory angle for the present. The nature of regulatory similarity, the calibration of regulatory response and its phasing can be appropriately determined after public consultations and TRAI's recommendations to this effect.

11) For OTT application services, there is no case for prescribing regulatory oversight similar to conventional communication services.

12) Legitimate traffic management practices may be allowed but should be 'tested' against the core principles of Net Neutrality.

a. General criteria against which these practices can be tested are as follows: a) TSPs/ISPs should make adequate disclosures to the users about their traffic management policies, tools and intervention practices to maintain transparency and allow users to make informed choices

b. Unreasonable traffic management, exploitative or anti-competitive in nature may not be permitted.

c. In general, for legitimate network management, application-agnostic control may be used. However, application-specific control withinthe 'Internet traffic' class may not be permitted.

d. Traffic management practices like DPI should not be used for unlawful access to the type and contents of an application in an IP packet.

e. Improper (Paid or otherwise) Prioritization may not be permitted

f. Application-agnostic congestion control being a legitimate requirementcannot be considered to be against Net Neutrality. However application-specific control within the 'Internet traffic' class may be against the principles of Net Neutrality.

g. Mechanism to minimize frivolous complaints will be desirable.

13) Traffic management is complex and specialized field and enough capacity building is needed before undertaking such an exercise.

14) CDN is an arrangement of management of content as a business strategy and does not interfere with others business. Making available one provider's CDN to others on commercial terms is a normal commercial activity. It should at best be covered under law related to unfair trade practice.

15) Managed services are a necessary requirement for businesses and enterprises, and suitable exceptions may be made for the treatment of such services in the Net Neutrality context.

16) This Committee refrains from making any specific recommendation on search-neutrality, however, flags this issue as a concern for public policy.

17) Tariff plans offered by TSPs/ISPs must conform to the principles of Net Neutrality set forth in guidelines issued by the Government as Licensor. TRAI may examine the tariff filings made by TSPs/ISPs to determine whether the tariff plan conforms to the principles of Net Neutrality.

18) Content and application providers cannot be permitted to act as gatekeepers and use network operations to extract value in violation of core principles of Net Neutrality, even if it is for an ostensible public purpose.

19) A clause, requiring licensee to adhere to the core principles of Net Neutrality, as specified by guidelines issued by the licensor from time to time, should be incorporated in the license conditions of TSP/ISPs. The guidelines can describe the principles and conditions of Net Neutrality in detail and provide applicable criteria to test any violation of the principles of Net Neutrality.

20) New legislation, whenever planned for replacing the existing legal framework, must incorporate principles of Net Neutrality. Till such time as an appropriate legal framework is enacted, interim provisions enforceable through licensing conditions as suggested by the Committee may be the way forward.

21) National security is paramount, regardless of treatment of Net Neutrality. The measures to ensure compliance of security related requirements from OTT service providers, need to be worked out through inter-ministerial consultations.

22) Suggested enforcement process is as follows:

(i) Core principles of Net Neutrality may be made part of License conditions and the Licensor may issue guidelines from time to time as learning process matures.

(ii) Since Net Neutrality related cases would require specialized expertise, a cell in the DoT HQ may be set up to deal with such cases. In case of violations, the existing prescribed procedure may be followed. This would involve two stage process of review and appeal to ensure that decisions are objective, transparent and just.

(iii) Tariff shall be regulated by TRAI as at present. Whenever a new tariff is introduced it should be tested against the principles of Net Neutrality. Post implementation, complaint regarding a tariff violating principle of Net Neutrality may be dealt with by DoT.

(iv) Net Neutrality issues arising out of traffic management would have reporting and auditing requirements, which may be performed and enforced by DoT.

(v) QoS issues fall within the jurisdiction of TRAI. Similarly reporting related to transparency requirements will need to be dealt with by TRAI. TRAI may take steps as deemed fit.

23) Enforcing Net Neutrality principle is a new idea and may throw up many questions and problems as we go along. For this purpose, an oversight process may be set up by the government to advise on policies and processes, review guidelines, reporting and auditing procedures and enforcement of rules.

24) Capacity building through training, institution building and active engagement with stakeholders is essential. In order to deal with the complexities of the new digital world, a think-tank with best talent may also be set up.

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