What TRAI passed is an ORDER not LAW that enforces Net Neutrality — The Battle has not Finished but just Begun! Dheeraj DeeKay Follow Feb 10, 2016 · 5 min read

The Telecom Regulatory Authority of India’s (TRAI’s) much awaited Prohibition of Discriminatory Tariffs for Data Services Regulation, 2016, is being hailed for its support of Net Neutrality. In fact, some have gone on to christen it as the law that is all powerful than what the FCC passed in the US.

The order comes nearly two months after TRAI floated a paper asking whether differential tariffs should be allowed for data services linked to specific content. This paper was linked to one of the key principles of Net Neutrality — that all data should be treated equally, with no preference in speed of pricing to any particular set of contact. But does it achieve all that, and is it really that strong a law as few want us to believe it to be?

First and foremost, sorry, hold your horses, it is just an order not law and in the absence of law the aggrieved parties (read telcos) can question the order in High Court under section 227 of the Constitution. And for it to become a law like we have our right to life (You see, you can’t kill yourself, it’s against the law!), Parliament has to pass one. So technically the fight is not yet over. We have just climbed the step one albeit an important and big one at that. Does that mean, we have achieved nothing so far? Certainly not, we have achieved big but not enough to call it over. The immediate impact of the order will be that Facebook won’t be able to go forward with its ‘Free Basics’ (earlier called ‘internet.org’), Airtel can’t continue with Airtel Zero and other telcos have to stop those plans where they give importance to few apps over the others; like those plans that offer unlimited access to WhatsApp or Facebook for a minimal fee while charge others heftily, all have to go. They are illegal now. People who have already subscribed need not worry for they can continue for at most six months from now. The order effectively bans Zero Rating platforms which was the biggest adversary of Net Neutrality. And this is where US telecom regulatory board, FCC has fallen short and why the TRAI order is hailed worldwide.

The fine print reveals that the regulation has made an exception to this order in times of ‘grave emergency’. In situations of public calamity, a TSP can introduce reduced tariff for providing emergency services. However the same has to be reported to regulator within seven days on which regulator will decide if the tariff qualifies under the exception. Also, the intranets and closed communication networks are allowed to have differential data pricing. Here again, if this exception is used to evade prohibition then the clause would be considered void. Further, regulator has left the right with itself to review this order if needed in February 2018,after two years. For those who violate this order, TRAI will impose a fine of Rs. 50,000 per day with maximum amount capped at Rs. 50 lakh.

So we almost have a new law on Net Neutrality! No, we don’t! Net Neutrality can be compromised in many ways — like throttling data speeds which Indian ISPs often practice. This is just the beginning. The debate will widen from here on with more and more people get on the internet bandwagon till 2018. The real fight begins from here.

Take for instance the case from United States. Their telecom regulator The Federal Communications Commission’s (FCC’s) “Open Internet Order” was challenged in court by group of telecom and cable companies within two weeks of passing. US or Indian regulator are doing what is for larger good — to treat data equally and to arm consumers with choice, and not feed them without their wishes. In coming future expect some telcos to question this order. Do they have stronger case? Unlike FCC, TRAI has clear authority to make the regulation in India. It has to be noted here that TRAI has leaned on fundamental precepts of law which have been evolved over time through our courts by interpreting our Constitution. For instance, TRAI links Network Neutrality to our constitutional right of freedom of speech and expression,that this order will maintain the plurality of Internet, necessary for achieving this right. So it is sort of natural for our judiciary to apply them henceforth if someone questions TRAI order in courts.

Focus now is on key concerns which is at the heart of Net Neutrality debate — ability of telcos to slow down or speed up access to websites, said TRAI chairman RS Sharma.

Here’s where the jugaad industry will up its ante. Rumour mills are already ripe with rumours that telco’s war rooms are busy brainstorming over ways to bypass or at least mitigate the effect of TRAI order. You may soon notice hefty bills as WhatsApp, Twitter, Facebook’s usage will be charged at par with other internet usage if it was not done before (few people were using plans where it was charged differently). But there are also talks that telcos will soon roll-out plans that are charged differently during peak hours and time after 10 PM to reduce burden on entry level customers. The biggest worry and blow to net neutrality however is with TRAI’s decision to keep out closed-environments from its new order as exceptions. Telcos are thinking of running their own apps from local servers and by passing Internet so as to come under that ‘exception’ bracket. In all possibilities, expect some changes soon!

All these doesn’t mean we can’t celebrate — we certainly can and we should for this is by far the strongest endorsement of Net Neutrality from TRAI. And people in TRAI and you all who supported this battle against bigwigs to restore network freedom deserve an applause. Cheers!