The Department of Telecommunications’ (DoT) Net Neutrality report is finally out with the committee underlining that the core principles of Net Neutrality must be adhered to” and that user rights on the Internet need to protected so that the service provider cannot restrict their ability to use any service or app on the Internet.
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This is important because the DoT’s recommendations ensure that access to any legal online service cannot be restricted by the service provider as was feared by advocates of Net Neutrality.
There’s also good news for OTT (Over the top) messaging application users. The report says OTT messaging services “should be actively encouraged and any impediments in expansion and growth of OTT application services should be removed”. The recommendations reject the demands of telecos that OTTs which provide messaging services should be regulated. So messaging apps like WhatsApp or Viber or Hike or Telegram cannot be stopped from transmitting text messages.
But the report makes a distinction between OTTs offering VoIP (Voice over Internet Protocols) communication services and points out that “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”.
So the committee recognises that VoIP has the potential of disrupting current voice-calling models and it calls for their regulation. VoIP includes Skype to mobile calls (which is a paid service) or calls via WhatsApp, Viber or Facebook Messenger. But the point is that many of these apps also offer full fledged messaging services and it might become difficult to demarcate their services. In fact, WhatsApp started with messaging and has only recently introduced voice-calling.
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The committee report adds that the current situation in VoIP needs a “graduated and calibrated public policy response” and that in case of “OTT VoIP international calling services, a liberal approach may be adopted”.
It adds, “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…”
While the committee is calling for a more liberal approach on international calls, it is okay with regulation on VoIP calls made within the country. Effectively it means that a WhatsApp to WhatsApp call or even a Skype to Skype call inside the country could face regulation if an appropriate regulation policy is constituted in the near future.
The report is also in favour of “Legitimate traffic management practices” but adds that they “should be ‘tested’ against the core principles of Net Neutrality.”
It calls for TSPs/ISP to 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.” The report also notes that if TSP/ISP promote content based on exclusive arrangements, then that too could harm innovation and newer start-ups in the country.
Traffic management that is “exploitative or anti-competitive” should not be allowed, it adds. Essentially, this can be taken to mean that if a TSP tomorrow starts a video-streaming or music service, it cannot slow down the speed of a competing service of a similar nature on its networks.
The report says no to”improper (Paid or otherwise) prioritisation.” It also calls for the need to build a mechanism to minimise frivolous complaints over traffic management.
Where ‘search neutrality’ is concerned, the Committee did not make any recommendations, other than flagging this as a concern for public policy. Search Neutrality calls for complete impartiality in search rankings and results and says that search results should be based on any “editorial policies.” As an example, Google has faced several issues over its search engine rankings, in Europe and even in India, with some companies alleging that the search giant’s rankings are biased.
The Committee’s recommendations also say that “Tariff plans offered by TSPs/ISPs must conform to the principles of Net
Neutrality”. Additionally TRAI will have the power to examine these tariff plans. This could mean that a special tariff plan for WhatsApp or even Wikipedia which offers the service for free, will be seen in violation of the principle of Net Neutrality.
The report also says that “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.” The committee’s report notes that the content market sees the emergence of some clear leaders and that if these end up leading to “specific content”, then it is a violation of Net Neutrality. Based on what the committee is recommending, Facebook’s Internet.org or even Airtel Zero rating app, will be seen as violating the principle.
The committee also recommends adding a Net Neutrality clause in the license terms and it should be “specified by guidelines issued by the licensor from time to time”.
The committee also talks of National Security as well and says that irrespective of Net Neutrality if the government feels that OTTs have to comply with certain security related requirements, then they must.
In the end, the DoT report says that “a cell in the DoT HQ may be set up to deal with” Net Neutrality cases and adds that there will be more questions and problems on Net Neutrality along the way and the government should set up a process to deal with these. It should not be forgotten that these are recommendations by the Department of Telecommunications and are not yet legally binding. It is only when the government acts on them will they have any meaningful impact.