FREEDOM OF COMMERCE

A campaign by Internet Freedom Foundation If you thought the fight over net neutrality was over with the sending of 1 mln emails to the TRAI two years ago, think again. The telecom service providers, who lost out that in the first round, are back. This time, however, their demands are more subtle, and focused on getting specific services exempted from net neutrality regulations that are now seen as inevitable. THE BACKGROUND The Telecom Regulatory Authority of India had awarded the first round of the net neutrality fight in favor of the start-ups, small businesses and content creators last year. Via its Prohibition of Discriminatory Tariffs for Data Services Regulations, it prohibited telecom companies from charging different prices for data based on end-use, forcing Bharti Airtel to roll back a plan that charged a higher price if customers used their data to make calls over WhatsApp and other apps. UNFINISHED AGENDA However, the 2016 regulations addressed only the pricing side of the net neutrality debate, while leaving the 'speed up/slow down' aspect of net neutrality for later. Specifically, the regulation did not prevent big corporations from paying telecom companies to have traffic to their websites speeded up or to have the traffic to their rivals slowed down or blocked. In other words, the question of neutrality in network management was left for later. That later is now, and the topic is currently under discussion at the TRAI. Dozens of companies, organizations and individuals have given their feedback to the regulator. As expected, there is a big difference between what telecom companies want and what the others want. Given that the regulator indicated that it would implement anti-speedup/anti-slowdown rules, the telecom operators seemed to be focused on getting certain types of lucrative services exempted from these rules. EXCUSE ME The key battle lines in the second phase of the war over net neutrality is drawn on whether or not to allow telecom service providers to 'speed up' or 'slow down' certain classes of services under a 'specialized services' provision. Their rationale for asking for the exemption is that many services -- such as video streaming -- cause 'network congestion', which impacts other services such as hospital data, which cannot be delayed. So, these services should be considered 'special' and therefore net neutrality rules -- which prevent any kind of speeding up or slowing down of traffic -- should not be applicable to them, they said. "Any service that is not a public Internet service should be considered a specialized service," pointed out Bharti Airtel in its official response on TRAI's net neutrality consultation, asking for exempting a clutch of services from the anti-slowdown, anti-speedup rules. "Such services include Virtual Private Networks (VPNs), enterprise solutions, Internet-based video, Internet of Things (IoT), M2M (machine to machine communication) and a whole range of innovative services for enterprises and consumers, such as remote healthcare and surgery, distance learning, and connected vehicles," it said. Vodafone added connected cars, smart grids, video games, live broadcast events, emergency services and "others which have specific quality of service needs" into the 'special' category. IMPACT OF CARVE-OUTS Acceptance of such suggestions could have far reaching impact on the growth of these emerging areas in India, especially since many of them already enjoy an exemption to the differential pricing rules under a closed user group provision. If for example, the TRAI accepts Airtel's proposal and exempts 'Internet-based Video' services from net neutrality requirements, that would mean that players like Netflix and Youtube would suddenly find themselves at the mercy of telecom operators who could restrict these services almost at will. These operators could then slow down or even block these apps and push their customers to use their own offerings such as Wynk, Idea Live, JioTV, Vodafone Play etc.. Similarly, if 'Internet of Things' is exempted from net neutrality regulations as suggested by the telcos, private companies that provide services such as payment services using swipe machines, automatic power-meter reading, navigation and fleet services, camera-based surveillance solutions and so on could all find themselves at the operators' mercy. If these smaller companies are blocked, then customers will have no option but to go for similar solutions provided by telecom companies. An example of such a service is Unllimit from Reliance Communications. On the other hand, if the TRAI refuses to exempt these services from net neutrality requirements, the telecom operators will have to fight it out with other app makers to get customers. The demand by telcos was opposed by consumer and user rights organizations and content makers. NASSCOM "We believe, Net Neutrality is important for IoT solutions to succeed, and traffic from IoT solutions should not be discriminated against on a licensed network," said Nasscom, an umbrella body of India's software and BPO companies, while accepting that certain traffic, such as those from driverless cars and heart monitors can be 'speeded up' irrespective of origins. Internet Freedom Foundation, which includes 'SaveTheInternet' campaign, was unwilling to make any exemptions. It said anything sent over a limited public resource like spectrum was bound to observe the regular traffic rules and could not be allowed to overtake other traffic. "Public resources such as spectrum and right-of-way should only be utilised for providing the public with access to open and public communication media, such as the global voice telephony network and the global Internet. The universal access services license should not permit any proprietary specialised services to be provided over public resources," it said. It also opposed giving exemptions to 'enterprise plans' from the anti-slowdown, anti-speedup rules. If the enterprises need very high quality linkage, they should opt for non-Internet methods of connectivity like leased lines, the foundation said. "These restrictions are necessary to prevent TSPs from using “enterprise plans” and “specialized services” as loopholes to violate net neutrality rules," it said. TIMES GROUP Times Internet, one of the biggest online companies in the country, said telecom operators should not be allowed to slow down, block or throttle services like Youtube and Netflix, and that net neutrality regulations must cover all services including video and Internet-of-Things. It pointed out that if a telecom provider sells its customer 100 GB of data at 10 Mbps, it should have the capacity to deliver that 100 GB, whether the user watches a video, or surfs the web or listens to music. Blocking or slowing down a video service such as Youtube or Netflix in the name of congestion after selling such high capacity packs to customers would be unfair and unethical, it said. "If telecom service providers are not having sufficient capability in its network or not investing/upgrading it’s network to overcome the problem of traffic congestion to meet the demand, they don’t have moral right to acquire new users," it said. "In such a situation, TRAI should also take note of inconvenience and hardship to end-users/ consumers, who have been paying the TSP’s for the service but not getting the quality of services and/or desired content." CONTROLLED INTERNET The Times Group also warned of allowing telecom companies to prioritize their own traffic over public Internet traffic. It pointed out that just the top three telecom operators in India control 75% of the Internet users in the country, and if they were to set up an 'intranet' or walled garden Internet -- as TRAI has allowed them last year -- it would create a huge platform with no net neutrality requirements or pricing rules at all. This would not only hamper competition, but also allow telecom providers to play the role of content gatekeepers -- deciding which newspaper people should read, which shopping site they should buy from and so on. Under last year's differential data rules, TRAI allowed telecom operators to set up their own mini Internets -- called Closed Electronic Communication Networks -- and said the telcos are free to charge whatever they want from consumers and websites for inclusion in such networks. They could also exclude or include whoever they wanted from such networks as well. In other words, net neutrality related safeguards don't apply inside these 'walled gardens' set up by the telcos. To make sure these proprietary networks are popular, telecom companies can push their adoption using two persuasive arguments -- price and speed. On the price front, they could make their own mini internet cheaper or even completely free for customers, while recovering the cost of running it either from the users of the open Internet or the owners of websites and apps that are 'admitted' into their proprietary network. Secondly -- and this is the point being agitated in the current consultation -- they could reserve a large part of their bandwidth for their own network, starving the real Internet of bandwidth. This would severely impact the quality of experience for those trying to use the regular Internet and force these users to switch to the telco's proprietary network. In such a situation, Youtube and Netflix may not work, but the telecom company's own video app will work. Similarly, WhatsApp may not work, but the telecom provider's messaging app will. Having already exempted such private networks from differential pricing rules last year, if TRAI goes ahead and also exempts them from the speedup/slowdown rules as well, it could mean the death knell of the open Internet, Times warned. The option preferred by Times Internet is for telecom providers to treat all traffic equally, and not give priority to their own services under the guise of closed groups or special services. In fact, the Times Group went a step further and asked the TRAI to relook at the exemption it has already provided to telco services under last year's differential pricing rules and put in additional safeguards. For a start, it suggested that telcos should not be allowed to repackage Internet or third-party content and serve it on their 'intranets'. "Consumers do not understand the difference between Internet and Intranet," it said. "For instance, if a consumer has two apps, and one is on the 'Internet' and one is on the 'CECN/Intranet' without the consumer understanding the difference, except that one has free access and one has paid access. Therefore, CECN/Intranet will defeat the very purpose of the newly introduced Prohibition of Discriminatory Tariffs for Data Services Regulation, 2016 and Net Neutrality Principles. "It is also pertinent to note that the CECN/ Intranet of the top 3 TSPs would hold close to 75% of the total users over the entire Internet. Given the huge number of users, if similar content and services are available over the CECN/Intranet network, a time will come when CECN/Intranet shall easily substitute and finish the Internet. "Therefore, the CECN/Intranet platform should be allowed only to provide consumption and product related informative services like network coverage or services related to connectivity, check my balance etc." It urged the TRAI to make sure that either net neutrality is made applicable to such mini internets or that stricter controls be placed on intranet content. "It is our submission that TRAI must ensure and clarify that CECN (close electronic communication networks) should not be used to create large public intranets to serve content and evade the regulations... (and) telecom service providers must not be allowed to offer third parties content on their CECNs." MOZILLA CORP Mozilla Corporation also warned against allowing telecom providers to speed up certain services under the guise of 'network management'. It warned that operators could try to use such loopholes to hamper apps that compete with their own or that of their 'partners'. An operator, it pointed out, could launch a video app or service that stores content at different parts of its network and then proceed to give this service a higher priority over Youtube traffic, even though both are competing services. "If a provider has entertainment content offerings that are locally cached (stored), the provider may prioritize traffic that’s locally cached over other traffic, and claim that it is doing so for network management, while refusing to allow other service providers to cache traffic locally. "In this case, although the provider is not facially discriminating against or in favor of any specific traffic or categories of traffic, the result is nevertheless intentionally anti-competitive and should not be permitted," it said. As such, it said, it was against allowing telecom providers to slow down or speed up certain categories of traffic over others. The Internet and Mobile Association of India, which represents the interests of many app makers, said giving in to demands to exempt categories such as 'Internet of Things' from net neutrality regulations could have unforeseen results. "For instance the, Internet of Things merely means devices connected through the internet. This definition is so wide that it can be construed to mean anything, therefore it is recommended unless a very specific definition can be attributed to the Internet of Things, it should come within the NN rules." It therefore suggested that exemptions can be given only to enterprise services -- such as corporate VPN services -- and emergency services. FREE SOFTWARE MOVEMENT The Free Software Movement of India too was in favor of allowing certain emergency and time-critical traffic to be speeded up, but it warned that the telecom providers should not be allowed to charge higher tariffs from or otherwise discriminate against companies not owned by them. "Certain specific services may indeed be excluded from the scope of net neutrality regulation.. (but) the purpose of net neutrality regulation(should) not be defeated by overly broad definitions or interpretations of specialised services," it said. "Such services must be demonstrably ‘a specialised service’ requiring differentiated treatment, for specific and established reasons. That said, merely by virtue of being a specialised service, one should not be exempted from any regulatory requirements whatsoever. Certain obligations and regulation, for instance concerning offering of such services in a nondiscriminatory manner must be in place," it added. It also warned about exempting broad categories. "One should refrain from categorising entire (and rather nebulous concepts) such as ‘Internet of Things’ as a specialised service. "However, services where the number of reachable end-points is limited by the nature of the terminal equipment used with such services (eg: services designed for communication with individual devices, such as e-book readers as well as machine-to-machine devices like smart meters etc.) could be outside the scope of net neutrality regulation – unless they are being used to circumvent net neutrality regulation," the Free Software Movement of India added.

Tag: FREEDOM OF COMMERCE

Telcos Change Tack as Net Neutrality Fight Enters Final Round in India