TRAI and Net Neutrality: Courts must weigh public interest that have shaped this order

Trai does well to safeguard net neutrality. But a legal challenge can’t be far behind

Written by Apar Gupta | Updated: February 10, 2016 8:56 am
trai, net neutrality, safeguard net neutrality, FCC, telecom companies, data tarrif On Monday, TRAI made the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016

Within two weeks of the Federal Communications Commission’s (FCC’s) “open internet order”, a consortium of telecom and cable companies challenged it in court. The FCC, the US telecom regulator, had made the open internet order to protect network neutrality. Usually restrained in regulating internet services, it cited the overwhelming public interest from regulation.

On the face of it, India seems to be following a similar trajectory. On Monday, TRAI made the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016. By preventing telecom companies from charging different prices for accessing different parts of the internet, the regulation protects net neutrality. Now, telecom companies cannot shape consumer behaviour by giving free access to certain websites and then charging the website owner. The internet has been protected — data must be treated equally and user choice prevails.

Telecom companies and some large internet firms had argued against this regulation in TRAI’s consultation process. After losing this bout, it’s reasonable to apprehend that they will challenge the regulations in court. Legal challenges to a regulation made by TRAI in consumer interest are regular. At this point, differences between the TRAI regulation and the FCC’s order can be marked. While clear authority exists under law for TRAI to make the regulations, the FCC made its rules on a shaky statutory foundation.

Though the TRAI statute is close to 15 years old, it provides several express powers to make rules in defined categories. Two of these categories were mentioned by Trai in the recital of its regulation and the explanatory memorandum that contains a detailed background. The first is the power to ensure compliance with the terms and conditions of the licence and the second is to notify rates at which telecommunication services can be offered. The first power comes into play as the telecom licences state that telecom users should have unrestricted access to the internet. The second is at the core of the regulation as it prohibits discriminatory pricing of tariffs.

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Further assurance can be derived from the fact that our courts are usually wary of stepping into the domain of policy formation and defer to expert regulators such as TRAI. TRAI’s explanatory memorandum refers to Secretary, Ministry of Information and Broadcasting vs Cricket Association of Bengal (1995) to state that airwaves and spectrum are a public resource. It further links this to the constitutional guarantee of freedom of speech and expression, stating how network neutrality will maintain the plurality of the internet, necessary for achieving this right. These fundamental precepts of law have been evolved by our courts by interpreting the Constitution. It’s only natural to expect the judiciary to apply them.

It’s easy to blame the telecom industry or make polemical arguments against it. To be clear — it’s no one’s case that telecom operators cannot and should not make a profit. Further, it’s unreasonable to punish them in the mistaken pursuit of anti-corporatism. Private industry has been instrumental in building networks and ushering in connectivity. The internet boom can be credited partly to it. But ultimately, it serves an interest much larger than shareholder profit. As licensees of spectrum, a public resource, the ultimate interest should be of the public.

TRAI has clearly indicated that the public interest is served by its network neutrality regulations. It has even taken a lead by completely prohibiting zero-rated services that the FCC permitted on a case-by-case basis. As appreciation flows in from abroad for Trai becoming a world leader in network neutrality regulations, moderation is important, given the certainty of a legal challenge. It’s hoped that any court determining a challenge weighs the considerations that have shaped this regulation. In doing so, it will provide the necessary confidence to a maturing regulator that’s expected to deal with increasing issues of regulating the internet as communication convergence becomes a reality.


The writer is a lawyer and is associated with the ‘Save the Internet’ campaign. The story appeared in print under the headline: In Public Interest

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  1. K
    Feb 10, 2016 at 11:24 am
    TRAI has done well to give importance to public interest over corporate interests in dealing with net neutrality. But the problem is far from over. Corporates have eleborate designs to counter the decision. Hence, a strict law is necessary to protect the interest of large sections of people as more and more are being connected to the internet for many purposes.
    1. A
      ak dev
      Feb 10, 2016 at 2:09 pm
      I call differential pricing a corrupt business practice which is used by big companies to cheat public. Thanks to TRAI for uphelding the right of internet users.
      1. J
        Feb 10, 2016 at 2:20 am
        The only way legal challenge could be avoided is for TRAI to insist on a re-write of the terms of agreement with telcos in the grant of license and for all future agreements to have the specific clauses included. This should state, unambiguously, that the licensee agrees to forfeit all legal recourse in the matter of net neutrality rules and regulations for all forms of carriage - ie, wireless, over-the-wire, and any future forms that technology might herald.
        1. T
          T.V. SIVAKUMARAN
          Feb 10, 2016 at 5:17 am
          This is yet another case of corporate and MNC phobia that we Indians suffer from. If the kind of argument about 'net neutrality' is extended to other area, I can be barred from subscribing to a newspaper that offers an annual subscription that is way less than what it costs in the news stands. The neighbouring super market can be prohibited from offering one packet of a detergent free, if I purchase one. Offering discounts and freebies, is a part of compeion inA FREE MARKET and preventing this will only harm the customer. As it is, access to internet via smart phones is practically denied to the poor , as they can't afford the cost of data ( though the prices of smart phones are very affordable). This fiat of the TRAI tend to make this permanent. It could have at least made exceptions to certain services like telemedicine, tele banking, etc. which the weaker sections need at affordable price. If someone is trying to monopolise, what prevents someone else, of even the Government from starting a social media of their own offering similar free data access to whomever they want?