The TRAI Regulations, 2016 – One step closer to #NetNeutrality?

In a step towards achieving net neutrality in India, the Telecom Regulatory Authority of India (TRAI) recently released the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2006.

. The Regulations, released on Monday, will effectively put paid to differential pricing initiatives such as Facebook’s Free Basics and Airtel Zero.

. The regulator had initially released a Consultation Paper on December 9 last year. This was followed by sixty days of deliberations with with telcos, policy organisations, and other interested parties. The final decision: a ban on differential pricing for internet services.

. Regulation 3 expressly prohibits telcos from charging different prices for access to different parts of the internet. It states,

. “(1) No service provider shall offer or charge discriminatory tariffs for data services on the basis of content.

. (2) No service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that has the effect of discriminatory tariffs for data services being offered or charged to the consumer on the basis of content.”

. A contravention of this Regulation would result in a fine of Rs. 50,000 per day, subject to a maximum fine of Rs. 50 lakh.

. More interestingly, clause (3) states that the TRAI’s decision as to whether a service provider is in contravention of Regulation 3 will be final and binding, leaving little scope for challenge in the courts.

. Whether or not the Regulations itself will be challenged by the telecom operators is of course an entirely different matter. Supreme Court Advocate Apar Gupta writes in this article ,

. “After losing this bout, it’s reasonable to apprehend that they will challenge the regulations in court…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.”

. For the time being, the telecom regulator’s stance has garnered support from various quarters, including Raman Jit Singh Chima , Policy Director of Access Now, an organisation that advocates digital rights.

. A statement shared with Bar & Bench says,

. “We applaud the Telecom Regulatory Authority of India for taking strong action in protecting Net Neutrality, by laying out clear regulations outlawing discriminatory telecom service provider practices such as ‘zero-rating’…

. …This historic decision comes at a time where the EU is finalising its own rules on Net Neutrality, in particular around zero rating services, and the US faces legal challenges to its rules. We encourage lawmakers from all around the world to follow India’s lead by protecting access to the full unfettered internet.

. It is also imperative for Indian policymakers to act on their earlier promises to implement comprehensive Net Neutrality rules to safeguard against abusive behaviour such as throttling or blocking of lawful Internet services”.

. And these are aspects that the TRAI intends to focus on in the near future. In this interview with ET , TRAI Chairman RS Sharma says,

. “…But I think there are some aspects which are not tariff related, but which are also relevant in this context. One is the throttling and another is fast lane.”

. However, civil society is not entirely chuffed with the Regulations; organisations like the Internet and Mobile Association of India (IAMAI) have expressed concerns regarding the exceptions to Regulation 3. The proviso in that Regulation states that it would not apply to closed internet communications networks, “unless such tariffs are offered or charged by the service provider for the purpose of evading the prohibition…”

. Those reservations aside, it seems that the TRAI has made a statement of intent in the fight to “save the internet”. It has also left these Regulations open to review after two years, or “earlier as it may deem fit”.

. The telcos and TRAI have been at loggerheads over another issue as well – call drops. That matter was recently concluded in the Delhi High Court , with a Bench headed by Chief Justice G Rohini reserving judgment last month.

. Read the TRAI Regulations:

The TRAI Regulations, 2016 – One step closer to #NetNeutrality?

Aditya AK

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