Facebook’s Free Basics has been permanently banned in India! The Indian telecom regulator, TRAI has issued the world’s most stringent net neutrality regulation! To be more accurate, there is more to come from TRAI in terms of net neutrality regulations especially for throttling and blocking but if the discriminatory tariff regulation is anything to go by we can expect quite a tough regulatory stance against other net neutrality violations as well. Even the regulation it cites in the Explanatory Memorandum don’t go as far as it does. The Dutch regulation will have to be reformulated in light of the new EU regulations and the Chilean regulator has opened the discussion on an additional non-profit exception by allowing Wikipedia to zero-rate its content in partnership with telecom operators.
Bravo to Nikhil Pahwa, Apar Gupta, Raman Chima, Kiran Jonnalagadda and the thousands of volunteers at Save The Internet and associated NGOs, movements, entrepreneurs and activists who mobilized millions of Indians to stand up and petition TRAI to preserve some of the foundational underpinnings of the Internet. And finally bravo to Facebook for having completely undermined any claim to responsible stewardship of our information society through their relentless, shrill and manipulative campaign filled with the staggeringly preposterous lies. Having completely lost the trust of the Indian public and policy-makers, Facebook only has itself to blame for polarizing what was quite a nuanced debate in India through its hyperbole and setting the stage for this firm action by TRAI.
And most importantly bravo to RS Sharma and his team at TRAI for several reasons for the notification of “Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016” aka differential pricing regulations. The regulation exemplifies six regulatory best practices that I briefly explore below.
Transparency and Agility: Two months from start to finish, what an amazing turn around! TRAI was faced with unprecedented public outcry and also comments and counter-comments. Despite visible and invisible pressures, from the initial temporary ban on Free Basics to RS Sharma’s calm, collected and clear interactions with different stakeholders resulted in him regaining the credibility which was lost during the publication of the earlier consultation paper on Regulatory Framework for Over-the-top (OTTs) services. Despite being completely snowed over electronically by what Rohin Dharmakumar dubbed as Facebook’s DDOS attack, he gave Facebook one last opportunity to do the right thing which they of course spectacularly blew.
Brevity and Clarity: The regulation fits onto three A4-sized pages and is a joy to read. Clarity is often a result of brevity but is not necessarily always the case. At the core of this regulation is a single sentence which prohibits discriminatory tariffs on the basis of content unless it is a “data service over closed electronic communications network”. And unlike many other laws and regulations, this regulation has only one exemption has been provided for offering or charging of discriminatory tariffs and that is for “emergency services” or during “grave public emergency”. Even the best lawyers will find it difficult to drive trucks through that one. Even if imaginative engineers architect a technical circumvention, TRAI says “if such a closed network is used for the purpose of evading these regulations, the prohibition will nonetheless apply”. Again clear signal that the spirit is more important than the letter of the regulation when it comes to enforcement.
Certainity and Equity: Referencing the noted scholar Barbara Van Schewick, TRAI explains that a case-by-case approach based on principles [standards] or rules would “fail to provide much needed certainty to industry participants…..service providers may refrain from deploying network technology” and perversely “lead to further uncertainty as service providers undergoing [the] investigation would logically try to differentiate their case from earlier precedents”. Our submission from the Centre for Internet and Society had called for more exemptions but TRAI went with a much cleaner solution as it did not want to provide “a relative advantage to well-financed actors and will tilt the playing field against those who do not have the resources to pursue regulatory or legal actions”.
What next? Hopefully the telecom operators and Facebook will have the grace to abide with the regulation without a launching a legal challenge. And hopefully TRAI will issue equally clear regulations on throttling and blocking to conclude the “Regulatory Framework for Over-the-top Services” consultation process. Critically, TRAI must forbear from introducing any additional regulatory burdens on OTTs, a.k.a Internet companies based on unfounded allegations of regulatory arbitrage. There are some legitimate concerns around issues like taxation and liability but that has to be addressed by other arms of the government. To address the digital divide, there are other issues outside net neutrality such as shared spectrum, unlicensed spectrum and shared backhaul infrastructure that TRAI must also prioritize for regulation and deregulation.
Without doubt other regulators from the global south will be inspired by India’s example and will hopefully take firm steps to prevent the rise of additional and unnecessary gatekeepers and gatekeeping practices on the Internet. The democratic potential of the Internet must be preserved through enlightened and appropriate regulation informed by principles and evidence.