There is a growing fervor around the world over the control of what is now considered to be one of the most basic and essential technologies which pervades just about every aspect of our daily professional and personal life. Unless you have been living under a rock, you would be aware of the growing debate in relation to maintaining the “neutrality” of what we call the Internet. Intrinsic to the idea of net neutrality (the definition of this term is open to debate) is that all traffic on the Internet should be treated equally thereby meaning that any broadband service provider which controls your access to the Internet, should not be allowed to block or slow down the ability to use services or applications or view websites. In other words, the triumvirate of blocking, throttling and paid prioritization are concepts which are at the core of the debate around net neutrality. Given the dynamic nature of this medium, policymaking in relation to the same has been precariously balanced between protecting the rights of consumers while encouraging innovation and investments and the culmination of more than a decade of fierce debate, legal jousting and political organizing has now resulted in the Federal Communications Commission (“FCC”) of the United States of America taking steps to apply net neutrality principles in the form of rules, much to the dismay and chagrin of Internet Service Providers (“ISPs”) in the United States.

The new rules as they currently stand, prohibit ISPs from blocking or slowing traffic on wired and wireless network while banning paid priority services. This essentially means that ISPs cannot create so-called fast lanes for certain content providers while charging them a fee for this service.

The controversy over the new rules, however, lies in the reclassification of the Internet as a utility. Earlier, the Internet was classified as a Title I informative service under the Communications Act, 1934 which has now been reclassified as a Title II telecommunications service. According to the FCC, the reclassification gives it a legal basis to apply these rules. In other words, the new definition of Internet broadband will allow the US government to regulate Internet infrastructure as a public utility which has led to an outcry from big boys of the ISP world such as Comcast, Time Warner Cable, Verizon and AT&T who argue that the reclassification will subject them to onerous regulations and reduce their appetite for infrastructure investment.

The dispute between the FCC and the ISPs has been festering for some time now and can be traced back to the year 2007 when reports suggested that the broadband provider Comcast, the largest cable company in USA, was blocking and delaying traffic using Bit Torrent file sharing protocol on its network. This was considered to be a violation of the FCC’s Open Internet principles and an investigation was launched against Comcast. In 2008, Comcast was found to be in violation of net neutrality principles and was handed a cease-and-desist order by the FCC. Pursuant to the FCC being sued by Comcast, the US Court of Appeals for the DC Circuit vacated the order of the FCC in 2010 stating that while the laws relied upon by the FCC might give them some jurisdiction to regulate broadband services, but that the law didn’t confer enough authority on the FCC to take the action which had been initiated against Comcast.

In the same year i.e. 2010, the FCC adopted the Open Internet Order that prevented throttling i.e. willful slowing or blocking access to legal content on the Internet while requiring broadband providers to be transparent about their network management practices. These rules, however, did not prevent the ISPs from charging content companies an additional fee for priority services.

It is interesting to note that the FCC is not alone in trying to regulate Internet service providers. Various countries such as the Netherlands, Chile, Slovenia, Chile and others have already taken steps to codify net neutrality principles within their jurisdictions bringing a global dimension to this debate.

India’s had its first real brush with the concept of net neutrality in late 2014 when Bharti Airtel, which is India’s largest telecom service provider, decided to charge its customers a higher tariff for VoIP services such as Viber, WhatsApp and Skype also known as Over The Top (OTT) services raising questions over whether Bharti Airtel had any legal basis to charge extra for what were essentially free services used over the Internet since customers were already paying for data services to Internet providers. The argument made by ISPs such as Bharti Airtel is that platforms and applications such as WhatsApp, Skype, Viber and other of their ilk use their telecom networks to deliver services without paying the network operators thereby eating into their revenues by offering competing but free services. The proposed rollout by Bharti Airtel as mentioned above was subsequently aborted after it received extremely negative responses from its consumer base. It is however important to note that in the absence of any regulatory framework or law surrounding the concept of net neutrality in India, Bharti Airtel’s decision, whilst seemingly not being consistent with net neutrality principles, may not necessarily fall within the domain of illegality.

Taking a cue from the abovementioned developments, the Telecom Regulatory Authority of India (“TRAI”) has released a consultation paper which calls for comments on the need to regulate “Over the Top” or OTT players. OTT players are engaged in providing services such as messaging and voice calls eating into the traditional revenue stream of telecom service providers who argue that OTT players do not invest in telecom infrastructure. One of the important questions that has been posed in the TRAI consultation paper is whether the increase in data usage revenues of ISPs would constitute sufficient compensation juxtaposed against the increasing encroachment of traditional ISP services by OTT players.

TRAI’s consultation paper has caught the imagination of the general public in India with over one million emails being sent to TRAI already with even political parties weighing in what seems to a popular refrain that the “freedom of internet” must be preserved at any costs.

It bears mentioning that the concept or definition of “net neutrality” which TRAI has itself categorized as a “slippery concept”, other than the elusive and illfitting definition, requires to be weighed/ appreciated in the “Indian context” and not purely in the context of other economies/ jurisdictions which are not confronted with the same development choices or challenges that burden India at this time. Quite simply, while India’s own peculiar economic, social needs should be the context in which policies are assessed, it is but logical that care should be taken to ensure that lessons, guidance emerging from the development of data networks and policies regulating such networks in other developed jurisdictions is assessed in India carefully in order to formulate development oriented and investment friendly policies. India’s development needs and objectives dependent to a certain degree on international investments must work to balance domestic priorities with assuring the world that India’s policies / regulatory framework works aim to incentivize such investments and ensure India remains an active investment destination. Consequently, the need to ensure that policies will be predicated on economic principles and not on superficial or simplistic slogans.

Given the magnitude of the goals/objectives which face India in the context of development of a “Digital Bharat”, the ability to ensure “broadband access” to the Indian population will additionally demand investments from Telecom Service Operators. These investments will not only be required to ensure access but also to ensure that networks in India are capable consequently of accommodating demand in terms of data speeds and capacity. Unless India’s policies allow for the making of a conducive environment which allows for private investments in infrastructure, these costs will have to be shouldered by the Government. In the present context, this would divert resources from other pressing development priorities, not to mention that the Government’s role in infrastructure development will often be at the cost of keeping pace with technological developments as opposed to private investments which will be alive and aware of the need to constantly upgrade such infrastructure.

It would be interesting to note the stand, post consultation, taken by TRAI in relation to OTT services and the concept of “net neutrality” which shall hopefully create a system of checks and balances between government regulations, interests of consumers and the business of ISPs in India which would in no uncertain terms, have a direct bearing on the way we access and pay for one of the most essential and intrinsic innovations of the modern age.