Net neutrality means service providers must treat all traffic equally, and not charge differently based on content. The net neutrality principle is considered a cornerstone of a free and open internet that provides equal access to all and bans "any form" of data discrimination. The idea of Net Neutrality started flowing in December 2014 in India, after telecom operator Bharti Airtel (Airtel) decided to charge extra for making Internet calls. This led to widespread protests, which forced Airtel to roll-back its plan. In order to maintain an open and non-discriminatory character of the Internet, it was decided to have some norms in place to ensure Net Neutrality to Indian Citizens.
There are different participants in the internet space that may be affected by the issue of net-neutrality. They are the consumers of any internet service, the Telecom Service Providers (TSPs) or Internet Service Providers (ISPs), the over-the-top (OTT) service providers (those who provide internet access services such as websites and applications), and the Government, who may regulate and define relationships between these players. Telecom and Regulatory Authority of India (TRAI) is an independent regulator in the telecom sector, which mainly regulates TSPs and their licensing conditions, etc.
The mechanism for establishing guidelines ensuring Net Neutrality in India are at present mainly enforced by TRAI. In India, TRAI released a formal consultation paper on Regulatory framework OTT services, in March 2015, seeking comments from the public at large. In June 2015 DoT constituted a six-member committee on Net Neutrality to recommend overall policy Regulations and Technical responses. Finally, TRAI released the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 on 08.02.2016. These Regulations state that no service provider is allowed to enter into any agreement or contract that would result in discriminatory tariffs being charged to a consumer on the basis of content (data services). It further provides that such tariffs will only be permitted in closed electronic communications networks, which are networks where data is neither received nor transmitted over the internet. Further, a service provider may reduce tariff for accessing or providing emergency services. In case of contravention of these Regulations, the service provider may have to pay Rs 50,000 per day of contravention, subject to a maximum of Rs 50 lakh, etc.
In a nutshell, as per the said Regulations, no service provider can offer or charge discriminatory tariffs for data services on the basis of content.
Secondly, no service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that the effect of discriminatory tariffs for data services being offered or charged by the service provider for the purpose of evading the prohibition in this regulation.
Thirdly, reduced tariff for accessing or providing emergency services, or at times of public emergency has been permitted.
Fourthly, financial disincentives for contravention of the regulation have also been specified.
Finally, TRAI may review these regulations after a period of two years.
In November, 2017, TRAI recommended that the license agreement entered into between the Government and ISPs should be amended to clarify that ISPs are not permitted to discriminate between different types of content on the Internet, including based on factors such as the sender or receiver of the data packets, the protocols being deployed or the equipment being used. This recommendation came to be known as TRAI, 2017.
Finally, DoT on 31.07.2018 released the Regulatory framework on "Net Neutrality". The said Regulations provide for principle of non-discriminatory treatment, as per which, DoT has decided to amend the terms of various licenses governing the provision of Internet Service in India.
The principle behind the policy framework was to restrict any form of discrimination, restriction or interference in the treatment of content, including practices like blocking, degrading, slowing down or granting preferential speeds or treatment to any content.
In light of strengthening India's Net neutrality norms, Telecom operator Airtel was forced to withdraw a plan to charge extra for internet calls, and shut down a platform called Airtel Zero, which allowed customers to access a few mobile applications for free. Some operators call this "toll-free data", but it's popularly known as "zero rating".
Others, including Facebook and Google, were also forced to abandon their zero-rating platforms and deals. The most visible casualty was Facebook's Free Basics service, which offered Indians free access to a limited number of websites.
On 01.05.2018, DoT rolled out the draft National Digital Communications Policy, 2018 ("Draft Policy"). Following a round of public consultations on the draft policy, the Union Cabinet approved the final National Digital Communications Policy, 2018 ("Policy"), on 26.09.2018. This Policy, which is largely seen as an initiative aimed at providing 'broadband to all', will replace the National Telecom Policy, 2012. The said policy aims to:
a) Establish a strong, flexible and robust data protection regime;
b) Introduce appropriate disclosure and transparency requirements to ensure compliance with net neutrality principles;
c) Address security issues of digital communications and develop security standards for equipment and devices;
d) Formulate a policy on encryption and data retention;
e) Develop a comprehensive plan for network preparedness, disaster response relief, restoration and reconstruction.
The said policy focuses on creating a roadmap for emerging technologies such as 5G, Artificial Intelligence, Robotics etc. by simplifying licensing and regulatory frameworks and ensuring appropriate security frameworks. It seeks to remove regulatory challenges and create attractive investment opportunities in new technology segments and stimulate the deployment of new technologies in India.
However, thus far there is no legislation in place qua Net Neutrality in India except the aforesaid Regulations and Policy. India still needs to wait for a legislative intervention in this field, till then these Regulations and Policies would provide ample guidelines for ensuring net neutrality in India.
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