Meanwhile in India… the TRAI Continues Progress Toward Net Neutrality Regulation

As the United States once again slips back into battle mode over the preservation of an open internet through regulation, India continues its efforts to develop a thoughtful and effective regulatory approach to the concept of net neutrality. These efforts began in 2015, but net neutrality writ large was not the focus until 2016, when the Telecom Regulatory Authority of India (TRAI) asked the public for comments on what that concept meant in the Indian context and how they might go about preserving it through regulation.

After its initial bouts with a couple of more specific issues (regulating over-the-top (OTT) services and zero-rating) and some criticism for its approaches to them, the TRAI’s pre-consultation paper on net neutrality started again on a (mostly) blank slate and asked broad questions about the core principles of net neutrality, traffic management, transparency, security, and privacy. More recently, the TRAI followed up with a more detailed set of questions about core principles, traffic management, and transparency. CDT submitted brief comments to, and blogged about, that initial inquiry last July, and filed comments on the follow-up consultation today.

Our most recent filing focuses on three issues: the scope of regulatory coverage, the type of regulatory approach, and reasonable traffic management. The TRAI’s consultation paper referred extensively to the US and EU net neutrality regulations and, although neither the FCC’s Open Internet Order nor the EU’s Telecom Single Market regulation may fit perfectly in the Indian context, both offer many strong points for regulators considering a new regime. CDT’s comments highlight those strengths in light of our three focal issues.

We note that both the US and the EU look at internet access from the consumer’s point of view when defining who and what should be covered by regulation. For example, the FCC’s definition of Broadband Internet Access Service (BIAS) is a “mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints,” or any service providing a functional equivalent thereof. This allows for a relatively simple, yet broadly inclusive definition that preserves the intent of net neutrality regulation: protecting those at the edges of networks from unfair practices of access providers.

However, this does not mean that all uses of networks are covered. Both the US and the EU regulations exclude some services that provide only limited kinds of network connections, such as dedicated telemedicine services or e-reader connectivity. The exceptions for these kinds of services, called “specialized services” in the EU and “non-BIAS” services in the US, preserve the freedom to develop new network-dependent technologies, but are limited to protect against substitutes for internet access that evade regulation.

In a completely neutral network, Internet Protocol (IP) packets would simply be processed through network junctions on a first-in, first-out basis. Not only would this produce sub-optimal network performance, it would fail to address the problem of packets arriving at a junction simultaneously. So network operators need some other way of deciding how to prioritize packets for processing. Even though this means that not all packets are treated equally, we still want network operators to be able to implement some traffic management policies because they can improve both overall network performance and end-user experiences without negatively affecting the experiences of others. For example, some kinds of internet traffic (like live video chat) are more sensitive to time delays than others, such as web searches, email, or content streaming. If network operators can prioritize packets in a way that produces better experiences for users of latency-sensitive applications, without detracting from the experiences of other users, then they have improved network performance at no one’s expense.

Unfortunately, some traffic management practices are not so benign. For instance, prioritizing one company’s traffic or deprioritizing another’s are exactly the kinds of practices that net neutrality regulations seek to prevent, which is why both the US and the EU exceptions for network management practices are conditioned on their reasonableness. In this context, unreasonable practices might be those through which network operators attempt to leverage their positions in the network to exert influence in other areas of the network or outside of it. Equally important to the traffic management exception’s limitations is the requirement that network operators be transparent about their traffic management policies and practices.

These core issues, and many others, were subject to long and rigorous deliberations among regulators in the US and the EU. That the TRAI is so thoroughly considering the respective approaches of these two net neutrality regimes speaks well of both the regimes themselves, as models, and India’s careful assessment of its own unique circumstances.