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Net Neutrality: What's the problem?

Earlier this week, the Telecom Regulatory Authority of India (TRAI) published a set of regulations titled “Prohibition of discriminatory tariffs for data services regulations-2016”. The result of a consultation process that was initiated in December 2015, the regulations are aimed at curbing the growing trend among service providers to charge customers content-based tariffs for their data services- a practice in deep disagreement with the idea that all data bytes are equal and must be viewed and charged as such.
The regulation has drawn praise from the all quarters for being as powerful as it is and India certainly deserves a pat on the back. The guys at deserve special mention for their relentless efforts but as they’ll tell you only too happily, that this was the result of a mass movement of an unprecedented scale. In fact, as Nikhil Pahwa narrated, even their own submission to TRAI was almost crowdsourced in the sense that there was an open google doc in which people were free to comment, add and edit thereby making a spectacular case worth emulating elsewhere in the world. Kudos to the team and India’s netizens for standing up to the almighty telecos and corporations like Facebook.

So what’s the problem?

Apart from the fact that India needs a regulation with a much wider gambit to cover all aspects of Net Neutrality (not just pricing but also things like throttling) and thereby put to bed all possibilities of a violation, there are a few issues in this rather specific regulation itself.
Firstly, the regulation at first glance and at subsequent glances seems rather skewed to one side. In this case, that side is the good side so nobody is complaining. Erring on the side of caution is not a bad thing but I wonder if the opposing lawyers have an opinion about that. The regulation accepts most of the submission made by the guys for net neutrality and almost abides by their definition of Net Neutrality which is,
That a service provider will not provide a competitive advantage to anybody either through pricing or Quality of Service(Qos).
- Vishal Mishra, Professor at Columbia University and leading expert on Net Neutrality
In the context of Facebook’s (or Free Basics- which is neither free nor basic nor the internet nor, as Prof. Vishal Mishra points out, not even Facebook), there is a very clear violation of any definition of Net Neutrality. Once on their platform, the user has access only to a subset of selected websites. The rest of the internet lies beyond the walls of that garden, inaccessible to the user.
Service providers reducing the cost of accessing certain website on the other hand, is slightly different. If you’re paying Rs. X for your data pack to access the entire internet, and you’re offered the chance to access a few websites for cheaper rates, in my opinion, shouldn’t be considered a violation of net neutrality. Primarily because the user has access to the entire internet- she just gets to pay less for some parts of it. But the proponents of Net Neutrality and the regulation, differ here. They say this too violates net neutrality because by providing cheaper access to some websites, the service providers are influencing user choice and eventually, by some economic theories I don’t fully grasp, people will be unwilling to pay for websites that cost more (effectively giving the cheaper access websites a competitive advantage).
This is where my disagreement with the regulation and some of the submissions to TRAI’s consultation paper starts. My contention is that this submission has one major flaw. It assumes that people’s choice is determined by pricing alone and not by quality. Websites, e-commerce ventures and other examples have repeatedly shown that while cheaper service might draw customer attention, eventually only the services that are genuinely good survive in the long run. Besides, Net Neutrality is about access. Interfering in user choice is not (or at least should not be), the prerogative of a regulation. In times when number portability is easy, if one service provider doesn’t provide the cheaper service you desire, another one will. This is especially important because it is an incentive for service providers to partner with more and increasingly popular services (most often smaller players) to attract subscribers from other networks on to their own. Killing of the possibility of a vibrant eco system with effectively a constant pricing may not yield the benefits we’re hoping for.
A few good alternatives have been proposed. Aircel’s plan of providing 64kbps access to the internet for free for a limited period is one. Mozilla’s idea of providing 100mb of free data for a limited period is another good option. The third is a service called Gigato which will provide data refunds to the user for using certain sites. These are the 3 alternatives suggested by the torch bearers of this net neutrality movement in India. The third one now becomes controversial because the regulation has banned any form differential pricing or even, specifically, refunds. When the guys who are in support of net neutrality suggest an alternative and the regulation finds that alternative to be in violation of the same definition of net neutrality, it begs the question- is the definition of net neutrality well understood by all parties? Indeed, what is the definition of net neutrality? If the argument is that gigato provides the refunds and not the service provider and therefore it does not violate net neutrality, does that mean that if Facebook made the service free and not reliance communications, Free basics also does not violate net neutrality? This is a very slippery slope to go on and we must be careful.
I am in awe of the strong stance taken by the regulator. It is, without a doubt, a step- no, a leap- in the right direction. But what we need isn’t a draconian law that ironically, restricts user choice in the name of net neutrality. This consultation paper comes 8 months after another one that looked to regulate, what TRAI calls, Over-The-Top (OTT) services such as Skype and Whatsapp. These are all important debates and regulations to have. But these fragmented pieces of regulations don’t solve the problem in its entirety. So with an eye on the long term, I hope TRAI brings out a regulation specifically to deal with Net Neutrality and takes an equally strong stance with it. 



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