The struggle to keep the Internet freely accessible to all got a welcome shot in the arm on Tuesday. The T elecom Regulatory Authority of India (TRAI) finally came out with clear guidelines in favour of Net neutrality that are consistent with its earlier stand on Facebook’s Free Basics proposal. After consultation papers issued in May 2016 and this January, the regulator reiterated that there cannot be discriminatory treatment of websites on the Internet by service providers. In particular, TRAI warned providers against the practice of blocking certain websites and tinkering with content speeds. This, in a nutshell, means that service providers such as telecom companies cannot stand in the way of a consumer’s access to content that would otherwise be provided to her without any undue hindrance. They cannot, for instance, charge consumers for access to certain content, or receive payment from websites promising greater promotion of their product over the rest. Quite notably, TRAI’s decision comes in the wake of international focus on the U.S. Federal Communications Commission’s decision to scrap regulations on service providers imposed during the Obama administration. While batting for the right to an open Internet, however, TRAI has been careful to allow some exceptions that allow companies to discriminate between content if it helps them regulate the flow of traffic or offer “specialised services”.
While TRAI’s new guidelines will help the cause of building the Internet as a public platform with open access to all, the concerns of service providers should not be dismissed altogether. The Internet has spread all over the world, so widely that many believe it is now an essential good. But the infrastructure that serves as the backbone of the Internet has not come without huge investments by private service providers. So any regulation that severely restricts the ability of companies to earn sufficient returns on investment will only come at the cost of the welfare of the public. In this connection, TRAI has been open to adopting a nuanced view that differentiates between various forms of content instead of imposing a blanket ban on all forms of price differentiation. The new policy, for instance, will still allow companies to justify the costs incurred in providing niche content to consumers. At the same time, TRAI’s measured response is likely to effectively address the problem of anti-competitive practices adopted by certain providers. Interestingly, it has left it, with important caveats, to the government to decide on services that count as “specialised” and deserve exceptional treatment by regulators. To this end, a proper mechanism needs to be instituted to make sure that the exceptions are not used as loopholes by the big Internet players. Policymakers will also need to think hard about creating an appropriate legal framework to prevent the capture of regulation by special interests.
