04/12/2017
CLC NEWS ALERT: SUMMARY OF TELECOM REGULATORY AUTHORITY OF INDIA (“TRAI”) RECOMMENDATIONS ON NET NEUTRALITY
The Telecom Regulatory Authority of India (TRAI ) has backed the basic principles of an open and free internet in its recommendations on Net Neutrality released on 28.11.17. A summary of TRAI’s key recommendations is as under:
1. Recommendations on principle of non- Discriminatory treatment, application, exclusions and exemptions.
As per TRAI, discriminatory treatment would include any form of discrimination, restriction or interference in the treatment of content and would include practices like blocking, degrading, slowing down or granting preferential speeds or treatment to any content. The principle of Non-Discriminatory of Content would apply specifically to Internet Access Services and in order to remove any ambiguity the term “Internet Access Services” have been defined by the Authority. TRAI has exempted Specialized Services that is services other than Internet Access Services from principles of discriminatory treatment of telecom operators. The subscribers have a unrestricted right to access content in context to Unified License (UL), Virtual Network Operator(VNO) license and Internet Service Provider (ISP) license.
As per the licensing terms and conditions applicable to service providers in India, TRAI explicitly mentions that “The subscriber shall have unrestricted access to all the contents available on the Internet except for such contents which is restricted by the Licensor/designated authority under law”. The licensing term should be expanded to provide explicit restrictions on any sort of discrimination in Internet access based on the content being accessed, protocols being used or the user equipment being deployed.
2. Recommendation on applicability of Internet of Things (IoT) and Specialised Services:
TRAI states that, IoT as a class of services should not be specifically excluded from the scope of the restrictions on non-discriminatory treatment. However, those critical IoT services which may be identified by DoT as satisfying the definition of specialised services would be automatically excluded.
TRAI further recommends that specialised services should be provided only if such services are not usable or offered as a replacement for Internet Access Services and the provision of such services should not be detrimental to the availability and overall quality of Internet Access Services also Content Delivery Network (CDN) should not be included within the scope of any restrictions on non-discriminatory treatment, which are designed specifically to cover the providers of Internet Access Services.
3. Recommendation on Reasonable and Permitted Traffic Management
TRAI finds that allowing Telecom Service Providers (TSPs) to carry out reasonable traffic management practices is necessary so as to optimise overall network performance and offer satisfactory quality of services to the users of a diverse variety of content. In order to preserve integrity and security of network, the Authority recommends that the Internet Service Providers may take reasonable measures for provision of emergency services, implementation of Order of Court or direction of Government, or in pursuance of an International treaty. It further states that the authority may, from time to time frame appropriate regulations to specify reasonable traffic management practices. The authority recommends that the terms of various license agreements governing the provisions of Internet Services in India (UL, VNO license, UASL and CMTS) need to be amended in order to incorporate the principle of non-discriminatory treatment of content by Internet Access Services along with the appropriate exclusions and exceptions.
4. Recommendation on Transparency and Disclosures :
TRAI imposes a no. of transparency obligations on TSPs, including those pertaining to disclosures of data limits, performance characteristics, price information etc. However, disclosures pertaining to TMPs implemented by TSPs, the impact of such TMPs on user experience, the impact of critical services on user experience are not mandated by the authority but it has proposed to supplement the transparency and disclosures requirements by framing additional regulations in this regard.
5. Recommendation on Monitoring and Enforcement:
For monitoring and enforcement, TRAI recommends that DoT may establish a multi-stakeholder body with the framework of a collaborative mechanism to deal with the issues relating to traffic management, implementation of exceptions, implementation of transparency measures and other relevant aspects. This body would be responsible for developing technical standards pertaining to monitoring of TMPs and enforcement of principles on non-discriminatory treatment. The terms, conditions and governance structure etc. would be recommended by TRAI once this recommendation is accepted by the Government.
