Draft Briefing Paper on Network Neutrality
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29.12.2014
Briefing Paper – Network Neutrality
Index:
What is Net Neutrality
The Need for Regulation
Arguments against Net Neutrality
Foreign Approaches to Net Neutrality Regulation
The Indian Scenario
What Should a Proposed Regulation Cover?
…1
…3
…5
…6
…7
…12
Annexure – I: Net Neutrality Regulation in Select Jurisdictions
Annexure – II: Indicative List of Net Neutrality violations in India
Annexure – III: List of Policy and Legal Instruments Dealing with Net Neutrality in India
1)
What is Net Neutrality?
All content on the Internet travels in the form of data packets across the
telecommunication networks around the world.
Network Neutrality refers to the principle that service providers should treat all data
packets on the Internet without discrimination 1 . Simply stated, the principle prevents
Internet providers from speeding up or slowing down content based on its source,
ownership, or destination.
Our current Internet is, generally speaking, built on this principle of paying Internet
service providers a subscription fee for freedom to go wherever you want on the Internet.
Users do not pay more for accessing one website in preference to another, and all content
is equally accessible.
The principle ensures a diversity of online applications and services i.e. the presence of
competition in the online world, protects emerging and smaller players in the online
market place and ensures improvement of Internet infrastructure as well as equitable
access to technical development.
The term ‘net neutrality’ was coined by Columbia professor Tim Wu in 2003 who stated:
“Network neutrality is best defined as a network design principle. The idea is that a
maximally useful public information network aspires to treat all content, sites and
platforms equally. This allows the network to carry every form of information and
This is an explanation also used by the ITU – notably in its 2012 discussion paper on the issue available at
http://www.itu.int/ITUD/treg/Events/Seminars/GSR/GSR12/documents/GSR12_Webb_NetNeutrality_1.pdf
1
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support every kind of application.”2
The term has thereafter also been defined as follows:
8
(a) Hahn and Wallsten explain that net neutrality ‘usually means that broadband
service providers charge consumers only once for Internet access, don’t favor one
content provider over another, and don’t charge content providers for sending
information over broadband lines to end users.’3
(b) ISOC defines the term as “a variety of policy issues that address the utilization of
network traffic management techniques and similar strategies that could
potentially jeopardize the Internet as a medium for free expression, user choice,
and innovation” but prefers to use the term “open internetworking” to refer to “a
set of operational principles that support transit of network data irrespective of
source, destination, or purpose as well as an expectation of good-faith effort on
the part of network operators to achieve best transmission of traffic within and
between networks (also known as best-effort transmission). Open internetworking
also speaks to transparency of delivery, operations, and governance of Internet
traffic.”4
(c) BEREC defines the term as “A literal interpretation of network neutrality, for
working purposes, is the principle that all electronic communication passing
through a network is treated equally. That all communication is treated equally
means that it is treated independent of (i) content, (ii) application, (iii) service,
(iv) device, (v) sender address, and (vi) receiver address. Sender and receiver
address implies that the treatment is independent of end user and
content/application/service provider”5.
(d) Some argue that net neutrality means ensuring that all services are provided to all
parties over the same quality of Internet pipe, with no degradation based on the
service chosen by the end user and at the same cost. This definition is based on
the assumption that data is transmitted on a “best efforts” basis, with limited
exceptions.6
There are possibly three ways of looking at a definition of network neutrality:
Wu, T (2003) ‘Network Neutrality, broadband discrimination’, 2 Journal on Telecommunications and
High-Tech Law 141.
2
3
Chris Mardsen, Net Neutrality Law, Past Policy, Present Proposals, Future Regulations?, Dynamic
Coalition on Net Neutrality, IGF 2013, October 25.
4
ISOC, Tools for Unraveling the Net Neutrality / Open Internetworking Debate, 2010.
5
BEREC, ‘Response to the European Commission’s Consultation on the Open Internet and Net Neutrality
in
Europe’,
BoR
(10)42,
September
2010,
2-3,
cf.
http://www.itu.int/ITUD/treg/Events/Seminars/GSR/GSR12/documents/GSR12_Webb_NetNeutrality_1.pdf
European Union, ‘Legal Analysis of a Single Market for an Information Society – Net Neutrality’
(November
2009),
3,
cf.
http://www.itu.int/ITUD/treg/Events/Seminars/GSR/GSR12/documents/GSR12_Webb_NetNeutrality_1.pdf
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First, ensuring absolute non-discrimination (an ideal situation as this ensures a
plurality of content and services on the Internet, without artificial barriers to entry
being created in the form of any preferential access deals etc.).
Second, permitting limited discrimination i.e. allowing service providers to
implement some levels of QoS related discrimination as long as no special fee is
charged for access to higher quality service. This would see a prohibition on
discrimination intra service, though there could be discrimination inter service
(though the permitted discrimination must be on a needs basis, based solely on
network management concerns – an issue which could potentially lead to problems
with defining exceptions); and
Third, permitting only limited discrimination and tiering whereby service providers
can charge higher fees for quality of service, provided there is no exclusivity in
contract (though this would defeat the purpose of ensuring small players have equal
access to the market or consumers have equal access to smaller content providers,
as it would create an environment where richer content providers will be able to
enter into deals for preferential access to their content, while smaller players will
not).
The concept of network neutrality relates in some ways to but is not a direct synonym of
the term ‘open Internet’ – which may depending on context be used to refer to whether
particular services are open to public access or not, the issue of interoperability of
technical standards (used to create and service the Internet), transparency and
inclusiveness of governance processes, lack of censorship and respect for civil liberties in
the online context, low barriers to entry to the Internet or shared global ownership of the
Internet. The scope for misunderstanding occurs as the principle of net neutrality ensures
that the Internet is kept ‘open’ to all sorts of applications and services, by virtue of nondiscrimination (by service providers). The principle of network neutrality could therefore
be seen as a subset of the broader term ‘Open Internet’.
2)
The Need for Regulation

Net neutrality laws prevent users from being restricted to certain specific
content determined by commercial agreements between content providers
and access providers. Such agreements restrict consumer choice,
competition and plurality in the online space.

The possibility of unrestricted implementation of traffic management
practices7 by an access provider acts as a disincentive towards expansion
7
Traffic management can be broadly defined as a collection of techniques that may be used by an ISP to
plan and allocate available resources to attain optimum performance for diverse classes of users across a
network. These techniques will often include the use of performance measures to define optional service
levels tailored to different user needs, and to assure appropriate quality of service. Traffic management is
said to be critical for the proper functioning of the Internet, but it can also be misused by an ISP to create
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of infrastructure and creation of more bandwidth for users. It is in the
access provider’s interest to limit the total bandwidth available so as to
create an artificial scarcity of bandwidth thereby increasing the price of
the product/service. Not only does this affect the customer – who may end
up paying higher rates for lower speeds and lower quality of service, but it
can also result in anti-competitive practices in the market.8
The US is a prime example of how limited investment in infrastructure has
led to low bandwidth speeds and high costs to users.9 In fact, research
demonstrates that it is actually more efficient to upscale capacity than put
in place traffic management measures (which are often backed by software
companies and access providers).

Packages for specific content are sold as “Internet packages” – which is
clearly a case of misleading consumers.

The principle protects smaller content providers who will not be able to
pay access providers to have their content delivered on high-speed lanes.
This is particularly important in the case of a developing country like India
– where the amount of content created domestically is still very low, and
must compete with content provided by more established foreign players.

Without net neutrality, those who pay control what we see and what is
shared online. Without net neutrality there will be an Internet for the rich
and an Internet for the poor.

The principle prevents the emergence and consolidation of vertical
monopolies in the Internet economy.

The Internet economy is highly prone to monopolization due to its nature /
inherent characteristics – for instance due to the existence of network
effects and large economies of scale. The effects of agreements that
violate net neutrality can be disastrous, particularly for small players and
can therefore curtail innovation and competition in the market.
unfair access or use of the Internet. See IEEE, ‘Network Traffic Management and the Evolving Internet
(White
Paper)’
(2
November
2010),
4,
cf.
http://www.itu.int/ITUD/treg/Events/Seminars/GSR/GSR12/documents/GSR12_Webb_NetNeutrality_1.pdf
8
The ITU notes that the internet service provider industry in this sense does not function as a normal
industry would – which would be very happy at an increased demand for a good or service. “ISPs are
suppliers in a market where prices have dropped over time even as demand and quality has improved;
leaving ISPs in the somewhat unique position of facing strong growth forecasts, not with anticipation but
with
an
apparent
air
of
trepidation.”
http://www.itu.int/ITUD/treg/Events/Seminars/GSR/GSR12/documents/GSR12_Webb_NetNeutrality_1.pdf
9
It may be noted that even the Canadian traffic management practice regulations specify that such practices
cannot be at the cost of investment in infrastructure and capacity building.
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
Creation of monopolies in the online space affects customer choice,
increases prices for users, and is a security threat (due to the centralization
of services and data collection).

At the root of the issue of how the Internet is viewed – is it seen as a
public utility (much like say, electricity) or as a club good (like say cable
television). Given the numerous benefits of the Internet – towards
development, promoting social and economic justice, information
dispersal and transparency, it could be argued that the Internet must be
treated as a public utility. It could be seen as being essential for a full
exercise of one’s citizenship rights – in particular given the plans of the
Government of India to ensure multiple channels of service delivery over
the Internet.

Protection of this principle is essential in working towards Internet as a
right.

Traffic management practices are a violation of privacy rights. “In
particular, the use of DPI seems to generate prima facie privacy concerns,
as data about a users' behavior on the Internet (which will often include
sensitive data) is monitored and used for various purposes, such as traffic
management or advertising.”10

Lack of regulation leads to a lack of transparency in the practices of
service providers leading to poor quality of service to the user.

Convergence may lead to a drop in profits for service providers of
traditional services (for instance voice services) as they are over taken by
VoIP based services. There is therefore an incentive for service providers
to discriminate against such new services (particularly where the same
service provider provides both voice and internet services).
Arguments Against Network Neutrality:
Arguments posed (generally by service providers) in order to avoid any regulation on the
issue are usually a variation of the following:
(a) The service providers own the pipes and therefore should have the ability to
control what content passes through and the manner in which this occurs. Net
neutrality regulation is therefore tantamount to ‘forced anti-discrimination’
that violates first and fifth amendment rights (in the US);
Angela Daly, ‘The Legality of Deep Packet Inspection’ (June 2010), 8 cf http://www.itu.int/ITUD/treg/Events/Seminars/GSR/GSR12/documents/GSR12_Webb_NetNeutrality_1.pdf
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(b) It is inefficient to build capacity, instead traffic management practices are
required to be put in place to enable a smooth flow of data packets;
(c) An increase in users and particularly usage of data heavy services and
applications bring with it a consequent need for traffic management practices
by service providers;
(d) Permitting differentiated access enables service providers to charge more from
customers who are able to pay, and they can use this revenue to expand the
capacity of the networks. There is no incentive for service providers to invest
in infrastructure if they cannot charge for preferential services;
(e) The Internet is not neutral anyway (for instance Tim Wu, though a proponent
of net neutrality, has pointed out how the current Internet is not necessarily
neutral “among all applications”, its implementation of best efforts practices
generally favours file transfer and other non time sensitive traffic over real
time communications11 ), and any attempts at regulation are attempts to fix
something that is not problematic;
(f) It is better to have free/cheap access to a limited selection of content than no
access at all;
(g) Content / applications providers make use of the pipes provided by carriers
without contributing (towards infrastructure development etc): This ignores
the fact that ignores the fact that users already pay the service providers for
access to the Internet whilst content and application providers have to
undertake investments in high capacity access to the Internet backbone in
order to be reached by users around the world.12
(h) Traffic management is required to prevent a small number of their customers
from clogging up access to the Internet by using a disproportionate share of
the available bandwidth. Service providers are therefore justified in
controlling the flow of data because it is necessary to maintain the quality of
service to all users.
(i) Prioritisation of data packets is required to ensure that key services have
reliable access to the network.
(j) Prioritisation of data packets is required for the provision of certain specific
services say where latency/jitter are problematic (for instance in the case of
VoIP).
11
http://www.freepress.net/resource/32944/network-neutrality-broadband-discrimination
http://www.intgovforum.org/cms/documents/dynamic-coalitions/dynamic-coalition-on-networkneutrality/309-dc-network-neutrality-report-of-the-igf-2014-meeting/file
12
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(k) Network Neutrality regulation may prevent service providers from engaging
in legitimate practices that are required to deal with spam, denial of service
attacks, and preventing computer viruses.
4)
Foreign Approaches to Net Neutrality:
There are many regulatory models used across the world when it comes to the issue of
network neutrality.

Chile, the Netherlands, Brazil, Slovenia etc. use statute to enshrine the principle.

Canada and the US use sector specific regulation (till struck down by the Courts
in the US) while Norway uses a co-regulatory model (non-binding guidelines
formulated by a regulator and adopted voluntarily by market players). Selfregulation is followed in countries such as the UK and Japan.
The types of laws used to deal with the issue of net neutrality may be grouped into three
broad categories:
(a) generic competition laws – which most jurisdictions have in place, that prohibit
activities that prevent competition in a particular market;
(b) regulation of traffic management practices – certain countries such as Canada and
Japan have in place regulations/guidelines that relate primarily to traffic
management practices by service providers, without specifically dealing with the
term network neutrality.
(c) Specific laws dealing in a ‘holistic manner’ with network neutrality are in place
in a handful of countries such as Chile, Peru, the Netherlands, Brazil and
Slovenia.
A brief examination of Net Neutrality regulation in various jurisdictions is contained in
Annexure – I to this paper.
5)
The Indian Scenario:
The debate around net neutrality is still very much in its infancy in India (despite the
TRAI having noted the issue as far back as 2006 13) and various alleged violations of the
principles having been reported for quite a few years now. The increasing use of the
Internet and provision of a greater number of services online has however ensured that
the issue has reared its head with increasing frequency over the last couple of years.
As in other jurisdictions, in general violations of the principle in India are of three types:
In a consultation paper on Internet Services TRAI noted that, “3.6.2 the situation may also arise in India
as Internet access providers may use their market power to discriminate against competing applications
and/or contents.” http://www.iltb.net/2010/09/traiing-keep-it-neutral/
13
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(a) throttling: traffic management practices are commonly used by access
providers in India, though often these are discriminatory, arbitrary and at any
rate lack transparency.
(b) agreements between content providers and access providers for preferential
access to specific content (cheaper access, exemption from data caps etc):
there are numerous examples of tie-ups between content providers and access
providers whereby certain content is provided at reduced rates or is not
counted towards data cap limits by the access provider to the user.
(c) a general lack of transparency in so far as services of access providers are
concerned, as illustrated by the numerous instances of service providers
offering specific content / service as ‘Internet’ access.
See Annexure – II for an indicative list of violations of the principle.
The most commonly seen violation appears to be of ISPs seeking payments 14 from
content providers for:
(i) providing higher speeds to specific services / throttling other services;
(ii) permitting differentiated data plans for users (for instance company x may offer
an ISP a certain sum of money to ensure that data caps do not apply to its
content);
(iii)provision of over the top services (such as free sms and VOIP)
In India, often ISPs also enter into agreements with content providers to ensure that
customers get limited Internet access i.e. they get access to only the specific content
provided by a specific content provider. For instance, Facebook may enter into an
agreement with a service provider to sell packages to consumers that permit only use of
Facebook and no other Internet services or applications.
Action against practices indicated above is virtually non-existent and it is only a small
section of civil society that is actively involved in highlighting such issues and / or
advocating for consumers.
There has been some debate on online forums and in traditional news media surrounding
issues of net neutrality – with a large number of online participants appearing to favour
introduction of some regulation in this respect (to ensure protection of the principle /
consumer interest). Interestingly, Google, which has been guilty of some violations of the
principle, has also apparently written to the TRAI seeking introduction of a legal
framework to protect net neutrality.15
14
See for instance http://www.medianama.com/2012/07/223-trai-needs-to-take-note-of-airtels-anti-netneutrality-statements/
15
http://www.thehindubusinessline.com/todays-paper/tp-info-tech/article1000154.ece
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Service providers – in particular Airtel16 and Vodafone17 – have been pressurizing TRAI
over the last few years to put in place regulations that will ensure that certain practices
(that would notionally violate the principle of net neutrality) are given legal sanction. For
instance, there have been reports of service providers lobbying to push for a regulation to
get websites and over the top service providers to pay to allow consumers to access
them.18 At the same time, they are launching their own over the top services with offers
such as reduced data caps.19
Numerous content / service providers too are guilty of eagerly entering into deals with
telecom service providers to ensure easier / cheaper / faster access to their content and
services. The most common justification for deals of this sort are that it will improve
Internet penetration and promote digital literacy amongst the general populace (though
these arguments ignore the anti-competitive effects of such practices on the market and
consumers in the medium and long run).
Regulatory authorities such as TRAI have generally washed their hands of the issue –
preferring to delay making any recommendations in this regard.
It is likely however that the issue will have to be addressed sooner rather than later due to
the numerous ‘violations’ of the principles seen in practice as well as the Government’s
plans of developing the Internet sector in India. 20 The Department of
Telecommunications has also reportedly sent a letter to the telecom regulator TRAI,
seeking its recommendations for “delinking licenses for networks from the delivery of
16
http://www.medianama.com/2014/03/223-telecom-vs-internet-whatsapp-voice/
http://www.medianama.com/2013/03/223-vodafone-launches-wireline-services-for-businesses-airtelpartnership/ and http://www.medianama.com/2013/02/223-vodafone-india-net-neutrality/
18
ISPs point to the fact that they purchase spectrum, over which these OTTPs provide ‘free’ services to the
public, thereby cutting into their earnings. It is estimated that telecom operators have lost close to 42% of
SMS revenue and 19% of voice revenue to OTTPs over the last four quarters (industry estimates claim a
loss of about 5000 crores annually, due to rise to about 16,000 crores in the next two years).
17
OTTP players have of course attempted to stem the efforts of the telcos stating that any such share of
revenues would increase costs to the consumer.
TRAI has so far rejected calls to either regulate these OTTPs or carry out consultations on the issue inter
alia stating that the rise in data charges and fees on this account is sufficient to offset the losses faced due
to dropping numbers of smses and voice calls. See generally http://businesstoday.intoday.in/story/traifloats-plan-to-put-fee-on-free-apps-whatsapp-viber/1/208856.html,
http://www.financialexpress.com/news/why-telcos-charging-for-whatsapp-skype-services-a-badidea/1278386,
http://techcircle.vccircle.com/2014/08/19/trai-rejects-telcos-proposal-to-charge-fee-onservices-like-whatsapp-viber-skype/ and http://www.medianama.com/2014/06/223-india-net-neutrality/
19
http://www.medianama.com/2014/09/223-airtels-music-wynk/
20
This is particularly important given the government of India’s plans to create smart cities / generally
increase Internet penetration in India. We have seen Facebook offering to partner with the Indian
government in this regard, possibly through the Internet.Org project. However, projects like this (where
Facebook will act as a carrier/ISP) raise questions of neutrality – for instance whether users will have
restricted access to the Internet (so as to only view Facebook approved content). See generally,
http://www.medianama.com/2014/10/223-zuckerberg-india-internet-org/
and
http://www.ibtimes.com/mark-zuckerberg-meets-narendra-modi-facebook-ceo-assures-contribution-digitalindia-1703358
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services by way of virtual network operators (VNOs)” (which may touch upon the issue
of net neutrality).21
While TRAI has scuttled talk 22 of a consultation paper on the regulatory framework
concerning online services23 it does appear that some regulations on the issue will need to
be put in place given the increasing importance of this sector from an economic
perspective.
The primary authorities / regulators in India (who could take up the issue of net
neutrality) are:
(i) The Department of Telecommunications, Government of India: which is the
authorizing agent for provision of services and lays out terms and conditions for
provision of telecom services in the form of orders, notifications, guidelines,
policies and through the licenses signed with ISPs. Notably, the TRAI Act
empowers the Central Government (acting through the DoT) to issue directions to
TRAI (and TRAI is bound by such directions, concerning matters of policy), the
TRAI Act also empowers the Central Government to request a non-binding
reference from TRAI. The Central Government (Acting through the DoT) may
also conduct inquiries into the affairs of licensees inter alia to ensure licensing
conditions are being fulfilled.
(ii) The Telecom Regulatory Authority of India, a statutory regulator, empowered
under Section 11 of the Telecom Regulatory Authority of India Act, 2007 to inter
alia:
a. Make (non-binding) recommendations to the government on amongst
other issues - terms and conditions of license to a service provider,
measures to facilitate competition and promote efficiency in the operation
of telecommunication services so as to facilitate growth in such services,
measures for the development of telecommunication technology and any
other matter relatable to telecommunication industry in general, etc.
b. Inquire into and ensure compliance with the terms of the licenses granted
by the Government of India
c. Regulate revenue sharing agreements between service providers
d. Lay down standards for Quality of Service and ensure maintenance thereof
(so as to protect consumer interest)
e. Notify rates for provision of telecom services
21
http://www.medianama.com/2014/09/223-india-internet-regulation-mvno/
http://techcircle.vccircle.com/2014/08/19/trai-rejects-telcos-proposal-to-charge-fee-on-services-likewhatsapp-viber-skype/
23
http://www.bgr.in/news/trai-paper-on-broadband-next-month-whatsapp-skype-viber-wechat-and-othersin-queue/
22
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TRAIs key functions therefore involve ensuring orderly development of the
telecom sector inter alia through the promotion of competition and facilitating
efficiency.
The TRAI has the authority to call for information in writing (from service
providers), conduct inquiries into their affairs, and issue directions to service
providers as it considers necessary to promote their “proper functioning”. It also
has the power to punish violations of the TRAI Act as well as of its directions.
TRAI may also make regulations to give effect to the TRAI Act and carry out its
purposes.
The TRAI is essentially the agency that regulates all telecommunications in India.
It can (and has) regulated broadcasting in addition to telephone, Internet services,
etc. In theory, the TRAI could also regulate content (though this is not something
that has been done, or it appears there are plans to do).
Given TRAI’s mandate to ensure competition in the online marketplace, and the
wide scope of its regulatory powers, this is the authority best placed to make
regulations or suggest the implementation of guidelines regarding net neutrality.
(iii)The Competition Commission of India, the statutory authority charged with
enforcing the provisions of the Competition Act, 2002, which aims to prevent
practices that have an appreciable adverse effect on competition, to promote and
sustain competition in markets, to protect the interests of consumers and to ensure
freedom of trade carried on by other participants in markets, in India.
The Competition Act therefore:
a. Prohibits agreements that are likely to cause an appreciable adverse effect
on competition.24
b. Prevents firms from abusing their dominant position in a market.25
24
Certain agreements are considered by the Act to carry a presumption of having an appreciable adverse
effect on competition, including agreements that: Directly or indirectly determine purchase of sale prices;
limits or controls production, supply, markets, technical development, investment or provision of services;
shares the market or source of production or provision of services by way of allocation of geographical area
of market, or type of goods or services, or number of customers in the market or any other similar way;
directly or indirectly results in bid rigging or collusive bidding. The Act also proscribes tie-in
arrangements, exclusive supply agreements, exclusive distribution agreements, agreements constituting a
refusal to deal, agreements for resale price maintenance if they are likely to cause an appreciable adverse
effect on competition.
25
Including by (a) directly or indirectly imposing unfair or discriminatory conditions or prices in the
purchase or sale of goods and services; (b) limiting or restricting: the production of goods or provision of
services or market for the same, or technical or scientific development relating to goods or services to the
prejudice of consumers, or indulges in practice or practices resulting in denial of market access, or makes
conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their
nature or according to commercial usage, have no connection with the subject of such contracts, or uses its
dominant position in one relevant market to enter into, or protect, other relevant market.
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c. Permits the regulation of combinations (mergers and acquisitions).
While the TRAI is a specific regulatory agency that deals with telecom issues
(including issues of competition in the telecom market place), the Competition
Commission is a general authority to look into competition / anti-trust issues
across India. Both have concurrent jurisdiction over issues that affect the
telecommunication space when it comes to anti-competitive practices (an issue
which has caused some friction in the past26).
(iv) Dispute Resolution Forums such as TDSAT (which is empowered to adjudicate
disputes between licensors/licensees, between different service providers and
between a group of consumers/service providers as well as hear appeals from
orders or directions of the TRAI) and Civil Courts27.
An examination of the legal and policy instruments that cover the issue of net neutrality
in India is included in Annexure – III to this document.
6)
What should a proposed regulation cover?
Any method of regulating the issue of network neutrality should contain the
following:
(a) An appropriate definition of the principle
(b) A prohibition on discrimination of data packets except in specific, strictly
construed and narrowly defined circumstances (possible exceptions could be for
emergency services and for genuine traffic management and security / network
management reasons - though the scope of these exceptions must clearly defined);
(c) A prohibition on deep packet inspection for the purpose of applying
discriminatory traffic management practices;
(d) A prohibition on throttling of specific services;
(e) A prohibition of anti-competitive deals – an appropriate definition of the scope of
an anti competitive agreement in this context will have to be provided;
26
http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1068&context=law_globalstudies
and
http://nujssitc.wordpress.com/2013/11/06/interface-between-the-jurisdiction-of-the-competitioncommission-of-india-cci-and-the-telecom-regulatory-authority-of-india-trai/
27
Subject to statutory exclusions of jurisdiction as seen for instance in the case of the TRAI Act in Section
15 and Section 27 and the Competition Act in Section 61.
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(f) Provisions mandating greater transparency in the provision of services to a user
and preventing false advertising;
(g) Prohibition against any measures taken by a service provider to limit use of any
specific hardware / end point devices.
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Annexure – I
Net Neutrality Regulation in Select Jurisdictions

Australia
No legislative or any regulatory measures taken as of now, though the
government is apparently actively monitoring the issue.28

Brazil
Brazil has enacted legislation in 2014 known as the Marco Civil da Internet that inter alia
covers the issue of net neutrality.
The legislation, which takes the form of a rights-based framework attempts to ensure
“free enterprise, free competition and consumer protection” while ensuring “pluralism
and diversity” in the online economy.
The legislation specifically notes the need to preserve and safeguard network neutrality
(Article 3) and ensure free business models promoted on the Internet (as long as they do
not conflict with other legal principles).
In the context of net neutrality, all Internet users in Brazil have a right:

To the maintenance of the hired quality of Internet connection;

To clear and complete information contained in the services contracts,
with details on the arrangements for protecting the connection logs and
access records to Internet applications, as well as network management
practices that can affect its quality;

To the application of consumer protection regulations in transactions
conducted on the Internet.
Chapter III, Article 9 of the legislation deals specifically with network neutrality and
requires all Internet / telecom service providers (‘agent in charge of transmission’) to
treat all data packets equally (‘with isonomy’) regardless of content, origin and
destination, service, terminal or application. Service providers are also barred from
blocking, monitoring, filtering or analysing the contents of data packets in a way that
would result in a breach of the principle of network neutrality.
Exceptions to this general rule are permitted (i.e. discrimination between packets and / or
degradation of certain services is permitted) only in the following circumstances:
(a) Technical requirements to ensure adequate provision of services
(b) For prioritization of emergency services
28
http://www.oecd.org/sti/broadband/2-9.pdf
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The executive is empowered to make rules in this regard (and in the context of the limited
exceptions mentioned).
Even in such exceptional circumstances however, the service provider is required to:
(a) Act proportionately, with transparency and without unreasonable
discrimination against specific services (‘isonomia’)
(b) To inform its customers in advance of the practices followed for management
and traffic mitigation purposes, including those related to network security
(c) To provide services on non-discriminatory commercial conditions and refrain
from practicing anticompetitive behaviors
(d) Refrain from causing damage to consumers within the parameters of the strict
liability provision of the general civil law statute in Brazil.

Canada
The Canadian Radio Television and Communications Commission has issued a
Telecommunication Regulatory Policy (CRTC 2009-657) known as the Internet Traffic
Management and Net Neutrality (Telecom Regulatory Policy that creates a framework
regarding traffic prioritization.
The framework attempts to balance the freedom of users to use the Internet for various
purposes with the legitimate interests of ISPs to manage traffic on their networks, and
emphasizes the need for ISPs to be more transparent about the measures that they are
using to manage congestion. The policy establishes a framework which allows the CRTC
to determine whether or not specific traffic management principles are in compliance
with subsection 27(2) of the Telecommunications Act, which prohibits unjust
discrimination and undue preference.29
The Policy also includes provisions relating to Section 36 of the Act, which governs the
carriage of content. ISPs are not allowed to degrade real-time or time-sensitive traffic
(e.g. voice-over-Internet protocol or video conferencing) without prior CRTC approval.

Chile
Chile was the first country in the world to legislate on the issue of network neutrality
when it amended its General Telecommunications Law in 2010 to state: “No [ISP] can
block, interfere with, discriminate, hinder, nor restrict the right of any Internet user of
using, send, receive, or offer any content, application, or legitimate service through the
Internet, as well as any activity or legitimate use conducted through the Internet”.30
29
www.crtc.gc.ca/eng/archive/2009/2009-657.htm
30
https://openmedia.ca/plan/international-comparisons/chile. For the Official Notification in Spanish see
http://www.doe.cl/fsumarios/2010-08-26/z2601001.pdf
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The law also has articles that force ISPs to provide parental control tools, clarify
contracts, guarantee users’ privacy and safety when surfing, and forbids them to restrict
any liberty whatsoever.31
The Chilean regulators have issued various rulings to ensure ISP transparency, to forbid
companies from entering into discriminatory agreements (such as for zero rating
services)32 and to reinforce the non-discriminatory traffic management principle.33
Interestingly Chile has been cited as an example of a regulatory regime that has not hurt
or stalled the growth / development of the telecommunications industry, but has in fact
promoted competition in the market.34
Israel
Mobile operators are required by law to act in a neutral manner, not to block or limit
applications, and not to bar equipment features. The Ministry of Communications intends
to extend this framework to all operators.35

Japan (Self regulation)
Japan follows a self-regulatory model under which the telecommunications carrier
organisations developed and adopted the “Guidelines for Packet Shaping” in early 2008
as the minimum necessary rules to avoid arbitrary operations of packet shaping. The
guidelines have subsequently been revised at least twice - in June 2010 and March
2012.36

Mexico
Alejandro Pisanty in his paper “Network Neutrality debates in Telecommunications
Reform”, which presents a summary of the net neutrality debates in the legislative
process of Mexico in 2013-2014.

Netherlands
31
https://openmedia.ca/plan/international-comparisons/chile and http://blogs.oii.ox.ac.uk/cobo/?p=1
Chile Bans Free Delivery Of Social Media Services To Uphold Net Neutrality
https://www.techdirt.com/articles/20140603/05442127439/chile-bans-free-delivery-social-mediaservices-to-uphold-net-neutrality.shtml
32
33
https://www.derechosdigitales.org/wp-content/uploads/igf_2014.pdf
AlbertoCerda,AnevaluationoftheNetNeutralityLawinChile(2013)http://www. digitalrightslac.net/en/unaevaluacion-de-la-ley-de-neutralidad-de-la-red-en-chile/
34
35
36
http://www.oecd.org/sti/broadband/2-9.pdf
http://www.oecd.org/sti/broadband/2-9.pdf
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The Netherlands enacted a law dealing with net neutrality in June 2012, becoming the
second country in the world to do so. The law, known as the ‘Telecommunicatiewet’ or
the Telecommunication Act, is in general an attempt to ensure the protection of civil
liberties in the context of the Internet (the Act contains provisions regulating internet
disconnection, protecting users against surveillance etc.) and also contains a provision on
net neutrality.
Article 7.4a(1) requires “Providers of public electronic communication networks which
deliver Internet access services and providers of Internet access services” to not “hinder
or slow down” applications and services on the Internet unless one of the following
conditions is satisfied:
(a) it is an attempt to minimize the effects of congestion, but even in such
situations, equal types of traffic should be treated equally;
(b) it is necessary to preserve the integrity and security of the network and
service of the provider or the terminal of the end user;
(c) it is done so as to restrict the transmission to an end user of an unsolicited
communication, (provided that the end user has given prior consent);
(d) it is done to give effect to a legislative provision or court order.
The legislation further requires the service provider to give a user notice in the
event any network/security breach is emanating from the users computer before
taking any measures to hinder or slow the traffic to or from that user (so as to
permit the user to stop the infraction). In emergency situations (or where the user
is not a customer of the relevant service provider), notice must be given as soon as
possible.
Crucially, Article 7.4(3) specifies that access providers cannot make the rates of
accessing the Internet dependent on the services and applications which are
offered or used via these services. The executive is empowered to frame
regulations in this regard (though any regulations must first be placed before
Parliament).
The Act also states that service providers may be regulated with respect to quality
of service parameters with a view to prevent “degradation of service and the
hindering or slowing down of traffic” on public electronic communication
networks (by mandating minimum requirements).
The explanatory memorandum to the Act inter alia clarifies that service providers
are not allowed to offer a service consisting of access to (certain) web pages,
services or applications, where the use of certain applications or services are
blocked or priced differently. This means that providers may not offer packages to
access a part of the Internet. Service providers may however differentiate their
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subscriptions for Internet access in other ways - such as bandwidth and data
limits. 37

Norway
The Norwegian Post and Telecommunication authority (NPT) has published
“Guidelines for Internet neutrality”38 in February 2009 which have been agreed to
by major Internet service providers, some major content providers, industry
organisations, the Consumer Ombudsman and the Norwegian Consumer Council.
These guidelines are unenforceable and have no formal legal status.39
The guidelines define three principles that describe how net neutrality can be
achieved, so as to ensure Internet users’ determination over their own Internet
access, as well as the ways by which different providers can compete freely to
offer content and applications over the Internet. The three principles are:
1. Internet users are entitled to an Internet connection with a predefined capacity
and quality.
2. Internet users are entitled to an Internet connection that enables them to send
and receive content of their choice, to use services and run applications of their
choice, and to connect hardware and use software of their choice that do not harm
the network.
3. Internet users are entitled to an Internet connection that is free of discrimination
with regard to type of application, service or content or based on sender or
receiver address.

Peru:
Article 6 of Law No. 29904, titled "Law for the Promotion of Broadband and the
Construction of Fiber Optic Backbone" or “Ley de Promoción de la Banda Ancha
y Construcción de la Red Dorsal Nacional de Fibra Óptica”40 states that Internet
service providers are to respect network neutrality and can not arbitrarily block,
interfere with, discriminate against or restrict the right of any user to use an
application or protocol, regardless of origin, destination, nature or property.
37
https://www.bof.nl/2011/06/27/translations-of-key-dutch-internet-freedom-provisions/
and
http://wetten.overheid.nl/BWBR0009950/Hoofdstuk7/Artikel74a/geldigheidsdatum_10-02-2014 (in dutch).
For a note - https://www.eff.org/deeplinks/2012/05/netherlands-passes-net-neutrality-legislation, wiki page
: http://en.wikipedia.org/wiki/Net_neutrality_in_the_Netherlands
38
www.npt.no/ikbViewer/Content/109604/Guidelines for network neutrality.pdf
39
https://wiki.laquadrature.net/Overview_of_Net_Neutrality_Regulations#Norway
40
http://www2.congreso.gob.pe/sicr/cendocbib/con4_uibd.nsf/ECC8807B858DE05F05257C3D00620E04/$F
ILE/Ley_29904.pdf
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The Supervisory Agency for Private Investment in Telecommunications OSIPTEL is the regulatory agency charged with determining what activities
constitute a breach of the principle.41

Slovenia:
Slovenia enacted a new Electronics Communications Act in 2012, and as per
Article 203 of this legislation,42 the regulatory authority is required to promote
and preserve an open and neutral Internet and the possibility of access to
information / applications per the free choice of end users. The Article also
requires network operators and access service providers to strive for the
preservation of an open and neutral Internet – specifically they should not limit,
hold or slow down traffic at the level of individual service or application or
execute any measures for its depreciation, except when required in the case of:
(a)
necessary technical measures to secure undisturbed activity of networks
and services (e.g.: avoiding the traffic congestion),
(b) necessary measures to secure integrity and security of the networks and
services (e.g.: an elimination of unauthorized excessive seizure of
transmission medium – channel),
(c)
necessary measures for limiting unsolicited communications.
All measures must be proportionate, non-discriminatory, limited in time and to
the necessary extent.
(5) Services of the network operators and internet access service providers should not be
based upon the services or applications that are offered or used by Internet access service.
– WHAT DOES THIS MEAN?

South Korea
In December 2011, after gathering opinions from various stakeholders, the KCC (Korea
Communications Commission) announced the “Guidelines for Network Neutrality and
Internet Traffic Management”, which contain basic principles on network neutrality and
traffic management practices. The guidelines include transparency in traffic management
and no unreasonable discrimination or blocking, but also recognise the need for
reasonable traffic management.43
The Telecommunication Business Act also contains some provisions on net neutrality,
specifically Articles 28(3) and (4) which require ISPs to ensure that they do not unduly
41
https://wiki.laquadrature.net/Overview_of_Net_Neutrality_Regulations#Peru . Though it must be noted
that some commentators indicate that “the law leaves it to the ISPs to determine what constitutes
“arbitrary” practices when it comes to the respect of the Net Neutrality principle.” See
http://www.intgovforum.org/cms/documents/dynamic-coalitions/dynamic-coalition-on-networkneutrality/309-dc-network-neutrality-report-of-the-igf-2014-meeting/file
42
43
http://www.uradni-list.si/_pdf/2012/Ur/u2012109.pdf#!/u2012109-pdf
http://www.oecd.org/sti/broadband/2-9.pdf
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restrict the use of telecommunication facilities by users and prohibit discriminatory
treatment of any kind by an ISP. Article 50 prohibits acts that would tend to injure fair
competition and users interests including unfair discrimination in the provision of
telecommunication facilities/information and providing services in a manner different
from the terms and conditions or that significantly undermines the interests of users.

USA
The net neutrality debate is fairly developed in the US, with the FCC, the federal
communications regulator, issuing the Open Internet Order in 2010.
These Rules ensure that broadband providers cannot act as gatekeepers among content,
applications, services and devices, all of which depend on the Internet as an open
platform. The three main principles of the Open Internet Order are:
(a) Transparency: fixed and mobile broadband providers must disclose the network
management practices, performance characteristics, and terms and conditions of their
broadband services.
(b) No blocking: fixed broadband providers may not block lawful content, applications,
services or non-harmful devices; mobile broadband providers may not block lawful
websites or block applications that compete with their voice or video telephony
services.
(c) No unreasonable discrimination: fixed broadband providers may not unreasonably
discriminate in transmitting lawful network traffic.
This set of Rules was however struck down by a Federal Court of Appeals for the District
of Columbia Circuit in January 2014 44 on grounds that as information services (ISPs)
were not considered common carriers rules against blocking and discrimination were
outside the agency’s power to implement. The Court however preserved disclosure
requirements – thereby meaning that while ISPs could slow down some traffic or block
others, they were required to notify consumers of these practices.
In response, the FCC on May 15 launched a rulemaking seeking public comment on
how best to protect and promote an open Internet.
Most recently, President Obama weighed45 in on the debate and called for the FCC to
reclassify Internet services under Title II of the Telecommunications Act and to put in
place strong net neutrality regulation based on the following principles:
a) No blocking. If a consumer requests access to a website or service, and the
content is legal, the ISP should not be permitted to block it.
b) No throttling. ISPs should not be able to intentionally slow down some content or
speed up others—based on the type of service or your ISP’s preferences.
44
hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-325156A1.pdf
http://www.whitehouse.gov/blog/2014/11/10/president-obama-urges-fcc-implement-stronger-netneutrality-rules
45
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c) Increased transparency by ISPs and implementation of net neutrality measures all
the way through the service chain not just in the last mile.
d) No paid prioritization or other restriction that has a similar effect.
The debate in the US centers largely on the fact that information services are
differentiated from traditional telecommunication services – the latter are considered to
be common carriers unlike broadband and cable services. Common carriers, due to the
weight of historical precedent, are regulated in public interest in various ways (for
instance in terms of an obligation to provide services, or obligations pertaining to
interconnectivity). The FCC had however decided to classify these newer services –
broadband and cable – as information services – which it does not have the power to
regulate in the same fashion.
While theoretically, the FCC could indeed regulate Internet service providers simply by
classifying broadband and cable as ‘telecommunication services’ this would appear to be
a tough stance for the FCC to take from a political perspective given the US’ insistence in
various global fora (such as the ITU) that telecommunications services are different from
information services and ought to be governed differently.
UK
The UK employs a self-regulatory model, which is supervised by Ofcom. Ofcom
published a regulatory statement in 2011 setting out its approach to net neutrality and
providing guidance to internet service providers wherein it has stated:
(a) Transparency is key. Consumers should be made aware of any blocked services
before subscribing to a service.
(b) That there are benefits to both “best efforts” Internet access (web traffic conveyed
on more or less equal terms) and the provision of managed services (prioritized
traffic), and that they can co-exist.
(c) Innovation is important for the development of new content and services and
should Ofcom gather evidence that innovation is being stifled, then it may
consider introducing a minimum quality of service.
(d) Blocking of services is undesirable and Ofcom expects market forces to address
this issue, but we will keep this position under review.
Countries such as Argentina, Columbia, Belgium and Mexico are apparently actively
considering introducing statutes or regulations to deal with the issue.46
46
https://wiki.laquadrature.net/Overview_of_Net_Neutrality_Regulations#South_Korea
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Annexure – II
Indicative List of Net Neutrality violations in India
(a) Provision of faster speeds for specific services / exemptions from data caps or fair
usage policies / throttling of certain services and content:
(i)
Bharti Airtel offered preferential (fast) Internet access for people watching the
Indian Premier League on Youtube in early 2010. Airtel’s customers could use an
upgraded speed of 2 Mbps to view the cricket tournament on Youtube’s IPL
channel. This offer of faster speeds was not applicable to any other content
accessed by the customer.47 Google however denies any agreement with Airtel for
provision of such preferential services.
It appears that various other service providers have also made similar offers.
BSNL is reported to have offered to double the bandwidth speed to facilitate
watching the IPL on youtube. It is however unclear if the increased speed would
apply solely to youtube or to other websites as well.48
In June 2013, RCOM partnered with partnered STAR Sports to offer unlimited
live streaming of the ongoing ICC Champions Trophy 2013 tournament on STAR
Sports mobile site to its subscribers.49
(ii)
Reports indicate that some ISPs (such as Airtel and BSNL) throttle certain P2P
applications during peak usage times.50 It is reported that in the first quarter of
2011, Bharti Airtel throttled 8 per cent of the BitTorrent traffic on its network.
The percentage slowly increased throughout the year, increasing to 33 percent in
early 2012. BSNL has reportedly blocked 9 percent of its Bittorrent traffic in 2011
and YouBroadband blocked over 50 per cent in 2009.51
(iii)
Numerous service providers, notably Airtel, have instituted Fair Use Policies that
throttle Internet speeds (by significant amounts) once a predetermined data cap is
reached. It is argued that by controlling access speeds, they will limit the amount
of data that users have access to (and consequently the type of services or
websites the users can access).52 Further, these Fair Usage policies may not apply
to specific services or websites – as in the case of Airtel’s Fair Use Policy – which
47
https://gigaom.com/2010/03/25/youtube-caught-in-net-neutrality-flap-in-india/
http://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/article743519.ece
49
http://www.medianama.com/2013/07/223-wikipedia-partners-aircel-to-offer-free-access/
and
http://www.medianama.com/2013/06/223-rcom-star-sports-live-streaming/
50
https://broadbandforum.co/threads/airtel-violates-net-neutrality-again-with-its-broadband-tv.48700/ and
https://campusdiaries.com/stories/how-indian-isps-are-already-fighting-net-neutrality
51
http://www.thehindu.com/sci-tech/technology/internet/isps-slam-brakes-on-bittorrentspeeds/article3751310.ece
52
http://www.medianama.com/2009/03/223-airtel-to-moderate-user-broadband-speeds-what-of-netneutrality/
48
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does not apply to BigFlix powered Airtel Movies (where a user will therefore
have access to unlimited movies on this one service). Similarly, Vodafone offers a
music streaming service which offers unlimited music downloads, once
subscribed 53 and it appears MTS India offers a similar package for its movie
services.54 Hathway Cable has started a movie service called Broadband Movies
which is exempted from its Fair Usage Policy.55 Certain ISPs are also reported to
have entered agreements to exempt specific Internet TV sites from their Fair Use
Policies.56
(iv)
Tata Docomo entered into agreements to have special Youtube, Apalya Mobile
TV (live TV streaming services) and Saavn (an online music streaming service)
plans57 as well as agreements with WhatsApp for unlimited use of its services.58
(v)
Similarly Times Internet’s video on demand service BoxTV has tied up
with Spectranet Broadband to offer free subscriptions, operator billing and
improved data limits for Spectranet’s fibre customers. “Spectranet is essentially
encouraging customers to use BoxTV by providing free dedicated Internet usage
data to stream movies on the service.”59
Airtel charging pre paid mobile users more for access to VoIP services such as
Skype and Viber.60
(vi)
(b) Agreements that allow users access only to specific content:
There are numerous instances of service providers providing specific packages that
enable access to only limited parts of the Internet – for instance only Facebook or
Youtube or that enable cheaper access to specific content.
(i)
Tata Docomo has put in place pay per site plans that charge customers depending
on which websites they visit.61
(ii)
MTS has reportedly offered packages where its customers can browse certain
selected websites for free (such as Yahoo India, Yahoo Mail, Wikipedia,
Makemytrip, shopping.indiatimes.com and Cricinfo.com.).62
53
http://www.medianama.com/2014/06/223-india-net-neutrality/
http://www.medianama.com/2014/08/223-mts-movies/
55
http://www.medianama.com/2014/07/223-hathaway-eros-now/
56
https://broadbandforum.co/threads/airtel-violates-net-neutrality-again-with-its-broadband-tv.48700/
57
http://www.medianama.com/2014/07/223-tata-docomo-youtube/
and
http://articles.economictimes.indiatimes.com/2014-07-07/news/51133653_1_tata-docomo-gurinder-singhsandhu-online-video-consumption
58
http://www.medianama.com/2013/12/223-tata-docomo-whatsapp/
59
http://www.medianama.com/2014/01/223-boxtv-carrier-billing-for-spectranet-fiber/
60
http://blogs.economictimes.indiatimes.com/et-citings/airtel-shouldnt-charge-for-voip-help-keep-the-netneutral/
61
http://www.medianama.com/2013/12/223-tata-docomo-whatsapp/ and http://www.tatadocomo.com/ppstariff-plans.aspx
62
http://www.medianama.com/2010/04/223-mts-mblaze-net-neutrality-mobile-internet/
54
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(iii)
Content providers (such as Whatsapp 63 , Google 64 , Facebook 65 , Twitter 66 and
Wikipedia67), trying to push for acquiring mobile usage of their services, are tying
up with telecom operators, where, sometimes, users get unlimited bandwidth for
that service68 or are given access only to those specific services / websites.
(iv)
Google has reportedly entered into a deal with Airtel wherein all Google services
were available for free to Airtel’s Internet subscribers.69 Facebook has a similar
deal with Reliance Comunications70 as does WhatsApp.71
(v)
Airtel has also entered into deals with Facebook to allow its services for free in 9
regional languages.72 Uninor has announced deals with Facebook and WhatsApp
to offer these services at specially discounted rates.73 Vodafone has an agreement
with Twitter where its users get free access to the site. 74 Twitter has similar
agreements with Reliance and Airtel. 75 Wikipedia has partnered with Aircel to
offer free access.76
(vi)
In April 2013, RCOM and Twitter entered into an agreement77 where Reliance’s
customers could get free Twitter access for 90 days.
(vii)
In June 2013, Airtel partnered with Google to launch Free Zone service that will
offer Airtel subscribers with free access to Google services such as Google
Search, feature phone friendly version of Gmail and Google Plus.78
(viii) Airtel has announced plans to provide free Internet services to consumers for a
limited period, which will allow users access to specific websites / content /
services such as Facebook, Youtube, Snapdeal, Makemytrip and Twitter. Airtel
63
http://www.medianama.com/2014/05/223-whatsapp-airtel-50m-india/
http://www.medianama.com/2013/06/223-airtel-partners-google-to-offer-free-google-search-gmailgoogle/
65
http://www.medianama.com/2012/10/223-facebook-starts-offering-free-talktime-with-new-mobile-signups-in-india/
66
http://www.medianama.com/2013/07/223-twitter-vodafone-india/
67
http://www.medianama.com/2011/10/223-size-zero-wikipedia-looks-to-telcos-handset-cos-for-freemobile-access/
68
http://www.medianama.com/2014/06/223-india-net-neutrality/
69
http://www.medianama.com/2014/03/223-de-coding-indian-intellectual-property-law-on-the-need-fornetwork-neutrality-spicyip/
70
http://www.medianama.com/2014/01/223-airtel-facebook-free-hindi/
71
http://www.medianama.com/2013/12/223-tata-docomo-whatsapp/
72
http://www.medianama.com/2014/01/223-airtel-facebook-free-hindi/
73
http://www.medianama.com/2014/03/223-uninor-facebook-whatsapp/
74
http://www.medianama.com/2013/07/223-twitter-vodafone-india/
75
http://www.medianama.com/2013/07/223-twitter-vodafone-india/
76
http://www.medianama.com/2013/07/223-wikipedia-partners-aircel-to-offer-free-access/
77
http://www.medianama.com/2013/04/223-reliance-free-twitter-access
78
http://www.medianama.com/2013/07/223-wikipedia-partners-aircel-to-offer-free-access/
and
http://www.medianama.com/2013/06/223-airtel-partners-google-to-offer-free-google-search-gmail-google/
64
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will then offer specific content based plans once the free period expires (for
instance, per day usage of Facebook at INR 1).79
(ix)
Uninor, the Indian wing of Norway's Telenor, charges 50 paise for an hour of
usage of Facebook, while pricing a day's Whatsapp use for Re 1.80
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Annexure – III
List of Policy and Legal Instruments Dealing with Net Neutrality in India
There are no specific regulations, statutes or policies that deal with the issue of net
neutrality in India. References to the concept can however be found in certain policy and
other documents as highlighted below.
(i)
The Indian Contract Act, 1872: The Contract Act inter alia specifies what
contracts are considered void and voidable in Indian law. Section 23 of the Act
inter alia deems contracts that the Courts regards as being immoral or opposed to
public policy as void. Similarly contracts that are either forbidden by or serve to
defeat the provisions of any existing law.
Section 27 of the Act mandates that agreements that act to restrain lawful trade or
business are void.
(ii)
The Competition Act, 2002: Discussed previously
(iii)
The Telecom Regulatory Authority of India Act, 1997: Discussed previously
(iv)
The Information Technology Act, 2000: The specific legislation that regulates the
online ecosystem and deals broadly with (a) legal recognition of electronic
documents and e-contracts, (b) Legal Recognition of digital signatures, (c)
Defining offenses, (d) Justice dispensation systems for cybercrimes. The Act also
deals with issues such as intermediary liability, surveillance and censorship.
Section 87 of the Act permits the Government of India to make regulations / rules
on matters that it is required to or as may be prescribed in the Act though as the
statute itself contains no provision pertaining directly or indirectly to network
neutrality, it appears unlikely that the Government could use this provision to
notify rules on the subject.
Any statutory protection to the principle of net neutrality (if found necessary by the
Government) would probably take the shape of an amendment to this enactment.
(v)
The Consumer Protection Act, 1986: An Act to protect the interests of consumers
of goods and services in India. It establishes a tiered dispute resolution system for
consumers, consumer organizations and groups of consumers to seek redress
against: (a) an unfair trade practice or a restrictive trade practice adopted by any
trader or service provider, (b) deficiency in services or defective goods being sold,
(c) overcharging, (d) goods or services that are hazardous to life and safety.i
(vi)
National Telecom Policy, 2012: The Policy does not specifically deal with or
refer to the issue of net neutrality, though the principle is touched upon on a few
occasions.
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The Policy inter alia envisions the creation of a national broadband network
including through utilizing the Universal Service Obligation Fund to lay fiber
optic cables to remote areas. Accordingly, the Government of India notes the
importance of formulating policies “to promote competition by encouraging
service providers, whether large or small, to provide value added services under
equitable and non-discriminatory conditions.” The Policy notes that access to the
Optical Fibre Network will be “open, non-discriminatory, and technology
neutral.”
The Policy creates a Unified Licensing Regime to inter alia enable the provision
of converged services. The Policy notes, “this new licensing regime will address
the requirements of level playing field, rollout obligations, policy on merger &
acquisition, non-discriminatory interconnection including interconnection at IP
level etc. while ensuring adequate competition.”
The Policy also:
(a)
envisages the implementation of a framework “to regulate the carriage
charges, which are content neutral and based on the bandwidth
utilization.”
(b)
recommends promotion of an ecosystem for participants in VAS
industry value chain to make India a global hub for Value Added
Services (VAS).
(c)
Mandates the framing of a system to ensure setting up of a common
platform for interconnection of various networks for providing nonexclusive and non-discriminatory access.
(d)
(vii)
Aims to protect consumer interest by promoting informed consent,
transparency and accountability in quality of service, tariff, usage etc.
Telecom licenses: The licenses issued to service providers by the Government of
India (under the provisions of the Telegraph Act) do not contain any provisions
regarding net neutrality. However, the terms of the UASL require licensees to
inter alia:
a) Charge tariffs for services as per directions issued by the TRAI
b) Adhere to technical standards and specifications issued by the Government of
India
c) Maintain Quality of Service standards as mandated from time to time
d) Facilitate priority routing of emergency / public utility or other types of calls as
per directions prescribed by the Government of India
e) Adhere to directions / orders / instructions issued by the Government of India /
TRAI
Note also that:
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a) The UASL requires Access Service Licensees to provide “Voice
Mail/Audiotex/Unified Messaging services, Video Conferencing” on a nondiscriminatory basis.81
b) The license defines the term Point of Presence (POP) to mean an “applicable
system of appropriate capacity set up by the Service Provider to provide, on
demand, service of prescribed quality and grade of service in a non-discriminatory
manner”.
c) The license defines the term Next Generation Network to mean “a packet-based
network able to provide services including Telecommunication Services and able
to make use of multiple broadband, QoS - enabled transport technologies and in
which service-related functions are independent from underlying transportrelated technologies. It offers unrestricted access by users to different service
providers.”
(viii) TRAI Consultation Paper dated December 2006, on “Review of Internet
Services”:
Deals specifically with the issue of Net Neutrality in paragraph 3.6. where the
TRAI specifically recognises the importance of the principle of net neutrality (to
preserve competition in the online marketplace). The authority notes the various
violations of this principle reported in the context of the United States and
therefore concludes that anti-competitive practices as seen in the US market may
also be seen in India “as Internet access providers may use their market power to
discriminate against competing applications and/or contents”.
TRAI notes that network neutrality is an issue that is likely to be of importance in
the future given the slew of new applications and services on the Internet and
therefore recommends soliciting the views of relevant stakeholders before any
policy decisions are made in this regard.
TRAI therefore suggests conducting consultations on whether regulatory
intervention is required to ensure net neutrality or if the same can be left to market
forces.
It appears however that no action was taken to either conduct any consultations on
the issue or to take this proposed policy forward in any other way.
(ix)
TRAI Recommendations on Application Services dated May 14, 2012:
In this set of Recommendations, the TRAI examines the online marketplace with
a view to promote the development of online Application Servicesii. The TRAI
notes that with the roll out of high bandwidth devices and infrastructure, the
demand for such services would rise. Accordingly, “there is a need to develop a
81
Chapter
VIII,
Clause
2.1(a)(vi)
of
the
UASL
http://www.dot.gov.in/sites/default/files/Amended%20UL%20Agreement_0.pdf
available
at
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forward looking harmonised framework for ushering growth in all the segments
of the application services viz content development, content aggregation,
technology platform etc. A well developed framework will enable flow of
investments in the application services industry, benefit consumers, promote
entrepreneurship and at the same time create additional revenue stream for the
service providers.”
The TRAI notes that application services are provided by third party providers,
aggregators as well as the by the telco (service provider) itself. Often these
services / content are provided as part of an agreement between the telecom
service provider and the application service provider. However, these agreements
are often one sided (dictated by the telecom service provider). This amongst other
reasons is why TRAI recommends that all application service providers must be
licensed by the Government (as they would then have the remedies available to
licensees).
The TRAI states that various services are also offered without any control of the
telecom service provider (without the need for carriage negotiations agreement) as
over the top services and notes that telecom service providers “have no control
over the distribution and billing of these contents and also do not get any revenue
share from such services”. The TRAI therefore raises the issue of service
providers giving low priority to over the top content as opposed to content from
application services (from which they derive a revenue in view of their
agreements with these application service providers).
In this context TRAI very briefly examines the regulatory regime in the United
States of America and then concludes that issues “of net neutrality for ASPs
providing services on OTT model will be dealt as and when required.”
i
Note that the TRAI has also mandated a consumer complaints redressal process
specifically for telecom consumers under the Telecom Consumer Complaints Redressal
Regulations, 2012. These regulations set up a two tiered system of resolving customer
complaints that inter alia relate to Quality of Service issues.
ii
The term is used by the TRAI as a catch all phrase to describe all services and
applications provided over the carriers telecom system other than the primary telecom
facility itself. So the term includes everything from music on demand services to ringtone
and caller ring back tones. The term is defined as “enhanced services, in the nature of
non- core services, which either add value to the basic tele services or can be provided as
standalone application services through telecommunication network. The basic services
are standard voice calls, voice/non-voice messages, fax transmission and data
transmission.”
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