Introduction
The telecommunications regulatory landscape in India has seen substantial revisions, notably in combatting unsolicited communications and “specified messaging.” Unsolicited communications refer to unwanted messages or calls lacking prior consent, while “specified messaging” encompasses promotional communications regarding goods, services, property interests, business, employment, or investment opportunities, regardless of legality or authenticity.
These changes underscore the government’s commitment to tackling spam-related issues, evident in the implicit declaration of illegality under Section 28(2)(a) of the Telecommunication Act, 2023 (“Telecom Act”). By outlawing spam communications, the government’s endorsement of Network Neutrality (“Net Neutrality”), signifies a significant shift, highlighting a pivotal direction for the regulatory framework.
This article delves into the implications of these regulatory changes on India’s telecommunications sector. We examine the key provisions of Net Neutrality, ensuring fair access to internet content and services. Additionally, we evaluate the roles of regulatory bodies such as the DoT and TRAI in ensuring compliance. Our objective is to provide a comprehensive understanding of India’s evolving telecommunications laws and their ramifications for stakeholders.
What is Net Neutrality?
Telecom Regulatory Authority of India submitted its Net Neutrality recommendations to the Government of India on November 28, 2017. Subsequently, the Department of Telecommunications accepted the majority of these recommendations and issued principal directives on Net Neutrality on July 31, 2018. According to the report, Net Neutrality is the foundational principle that mandates equal access for all end users to Internet content, applications, and services, ensuring consistency in service quality, velocity, and cost irrespective of individual preferences. It prohibits discriminatory practices or degradation in service quality based on the nature or origin of accessed content, advocating for data transmission to consistently adhere to a “best effort” standard, with exceptions clearly defined. Additionally, this principle mandates that internet service providers refrain from creating privileged “fast lanes” or obstructing access to certain platforms through bandwidth throttling. Upholding net neutrality is crucial for fostering innovation by preventing larger corporations from leveraging financial resources to secure preferential access agreements, thereby safeguarding fair competition and innovation in the online marketplace.
Roles of DoT & TRAI
Within the Indian telecommunications landscape, the Department of Telecommunications (“DoT”) oversees licensing and spectrum allocation, while regulatory functions are entrusted to the Telecom Regulatory Authority of India (“TRAI”). Operating under the TRAI Act of 1997, TRAI is vested with direct responsibilities such as tariff determination and quality of services, alongside recommendatory powers across other regulatory domains. Additionally, Section 7 of the Telecom Act empowers the Central Government to facilitate the flexible and “technologically neutral” utilization of radio frequency spectrum. This authority ensures impartial spectrum usage across diverse technologies, subject to predefined terms, conditions, fees, and charges, with the overarching aim of fostering innovation and efficiency while maximizing spectrum resource utilization.
National Frequency Allocation Plan-2022 (“NFAP-2022”)
NFAP-2022 establishes a comprehensive regulatory framework, delineating the available frequency bands for various services such as cellular mobile service, Wi-Fi, sound and television broadcasting, radionavigation for aircrafts and ships, defense and security communications, disaster relief and emergency communications, satellite communications, satellite broadcasting, and amateur service, among others. Internationally, the utilization of radio-frequency spectrum and satellite orbits is governed by the Radio Regulations, an international treaty endorsed by India and other Member States of the International Telecommunication Union (ITU). The Radio Regulations (Edition of 2020) serves as the foundational text for formulating the NFAP-2022. The overarching theme of NFAP-2022 revolves around the strategic allocation of radio-frequency spectrum to diverse radiocommunication services, as delineated in the “India” column of the Table of Frequency. This plan ensures a coordinated and efficient use of spectrum resources in accordance with international regulations and domestic requirements.
Need for Frequency Allocation
Frequency allocation, the initial step in ensuring efficient and interference-free use of radio-frequency spectrum and satellite orbits, represents the prudent management of these natural and limited resources. To guarantee fair access for all forty-one radiocommunication services, the spectrum is systematically divided into frequency bands. Each band is then assigned to one or more radiocommunication services or other Telecom Service Providers (“TSP”), a process referred to as frequency allocation. This allocation involves categorizing the global domain into three Regions—Region 1, Region 2, and Region 3, as specified in the Radio Regulations.
Need of Traffic Management Practices by TSPs
In scenarios where a frequency band is utilized by multiple telecommunication services, each service is designated as either “primary” or “secondary.” Secondary service stations are prohibited from causing harmful interference to primary service stations and are not shielded from interference originating from primary service stations, regardless of the commencement date of primary operations. Entities, including public and private organizations and individuals seeking to utilize the radio frequency spectrum in India, can identify available frequency bands through the Frequency Allocation Table in Section B of Chapter 3. In instances where a spectrum band is shared among multiple telecommunication services, such sharing leads to internet traffic managed by TSP, including other access providers. This necessitates the implementation of Traffic Management Practices (“TMP”) that are “non-interfering” with user choice while avoiding being “unreasonable“. This underscores the principle of Net Neutrality, which advocates for equal treatment of all Internet traffic by TSPs. According to this principle, TSPs must treat all Internet traffic impartially, regardless of the content’s type, origin, destination, or means of transmission. In essence, Net Neutrality implies that every point in a network should seamlessly connect to all other points, without any discrimination by the TSP concerning speed, access, or price. Adhering to the principles of Net Neutrality is arguably crucial for preserving the open and non-discriminatory nature of the Internet, characteristics that have been pivotal for the remarkable growth of the Internet over the past decades.
Bright-line rules of Net Neutrality
The core principles of Net Neutrality, as proposed by the DoT Committee, remain inviolable against unreasonable traffic management practices. The principles of Net Neutrality emphasize the equitable and non-discriminatory treatment of internet traffic. These principles include:
- User Rights: Users enjoy free expression and fair internet access within legal limits.
- Content: Individuals can freely create and access legal content, apps, or services without restrictions.
- Devices: Users can connect non-harmful devices to the network.
- Harmful Practices: Blocking, throttling, or improper prioritization (paid or otherwise) is prohibited, ensuring a just and unbiased internet experience.
Similarly other countries have also established the core principle affirming the right of end-users to send or receive information and content, irrespective of the nature, source, or destination of the transmitted packets. In the European Union, the principle entails “treating all traffic equally” and “without discrimination,” while in the United States, it manifests as a broad obligation not to unreasonably interfere with or disadvantage the ability of users and edge providers to utilize Internet access services for mutual communication, safeguarding the integrity of the open Internet.
Managing Internet Traffic Surge
The exponential surge in Internet traffic and the evolving nature of the content comprising this traffic can potentially overload networks. Consequently, TSPs may not always achieve an adequate level of Quality of Service (“QoS”) delivery, posing challenges from both a regulatory compliance standpoint and for competitive reasons. Primarily, the regulations established by the Authority necessitate TSPs to adhere to specific QoS benchmarks considered fundamental indicators of satisfactory network performance. Consequently, TSPs often implement diverse traffic management techniques on their networks to fulfil the demands for delivering satisfactory QoS. This is frequently done by considering the particular nature and requirements of the data packets being transmitted. As a result, TMPs are employed to optimize overall network performance and maintain a consistent QoS for users while accommodating a diverse variety of traffic over the networks.
QoS Challenges
Ensuring that internet usage remains free from anti-competitive and non-discriminatory practices is essential. However, it becomes equally crucial to avoid instances where differential QoS is granted based on content, thereby restricting user choice. The Federal Communications Commission (“FCC”), acknowledging the policy goal of maximizing end-user control, emphasizes that allowing users to determine how they utilize the network contributes more value to both individuals and society compared to if network providers make these choices on their behalf.
Acknowledging the imperative to prevent anti-competitive practices and uphold non-discriminatory access to the internet, it is essential to ensure Net Neutrality by enforcing reasonable network management by TSPs. To achieve this objective, a viable approach could involve the establishment of a comprehensive regulation on Net Neutrality. This umbrella regulation could encompass subsections dedicated to tariff considerations, incorporating existing regulations on discriminatory tariff, as well as addressing QoS and associated transparency requirements.
Transparency in Net Neutrality Framework
Emphasizing transparency stands as a cornerstone in upholding the principles of non-discrimination within any Net Neutrality framework. In order to efficiently oversee TSPs networks, a substantial regulatory capacity is imperative. The thorough disclosure of details concerning TMPs and network performance characteristics plays a pivotal role in empowering both users and regulatory bodies to identify potential violations. Furthermore, the widespread dissemination of information pertaining to TMPs serves as a catalyst in mitigating information asymmetries within the market. This, in turn, fosters a competitive market environment and encourages consumer-centric behaviour.
In the context of Net Neutrality, the extent of transparency encompasses a range of obligations, ranging from obligations imposed on TSPs to divulge technical details concerning QoS parameters to providing comprehensible high-level information. Such information aims to empower consumers for more informed decision-making and the identification of potential violations. The disclosed information covers pricing details, performance characteristics, and insights into TSPs’ traffic management practices, including specialized services or enterprise solutions. Both the FCC Transparency Notice of 2016 and the Body of European Regulators for Electronic Communications (BEREC) Transparency Guidelines of 2011, which complement the disclosure requirements outlined in the Universal Service Directive of 2009, advocate for the disclosure of such information.
Conclusion
In summary, ensuring fair distribution of telecommunication services mandates addressing internet traffic management. Net Neutrality principles embody fundamental Internet rights for users, a concept the current law should embody in upcoming Telecommunication rules. Alternatively, TRAI can propose the long-anticipated Net Neutrality regulation to the government, emphasizing explicit rules against blocking, throttling, or preferential treatment and advocating for non-discriminatory QoS requirements. It could also set minimum QoS standards for TSPs, irrespective of content. Crucially, a monitoring committee should oversee Net Neutrality violations, establish detection criteria and necessary tools, and be empowered to take swift actions, fortifying the commitment to a fair and unbiased telecommunications landscape.
(This post has been authored by Shiekhar Panwar, an Independent Transactions Lawyer.)
CITE AS: Shiekhar Panwar, ‘Telecom Transcendence: Navigating Net Neutrality in the Wake of India’s Telecommunications Act of 2023’ (The Contemporary Law Forum, 24 March 2024) <tclf.in/2024/03/24/telecom-transcendence-navigating-net-neutrality-in-the-wake-of-indias-telecommunications-act-of-2023/>date of access.