Kartik Chawla^*

Introduction

Throughout its short but powerful history, the Internet has been known by many, many names. It has been referred to, in different contexts, as ’the harbinger of the Networked Information Economy’,¹ ‘the foundation of the Independent Cyberspace’,² ‘one of the greatest facilitators of innovation’,³ ‘the Information Superhighway’. Crucially, the common thread that underlies these terms is that the Internet has been considered one of the greatest and widest platforms for innovation, with an immense amount of potential – and at the same time, it has been an independent platform, free from many of the restrictions we see on a daily basis, including allowing enormous levels of autonomy to users.

The potential of the Internet to facilitate innovation is amazing.⁴ But this potential, this dream of independent innovation, is not unique to the cyberspace. The same dream was entertained by the proponents of almost every form of media over the last century, starting right from the telephone, to the cinema, the radio and the television.⁵ At the end, sadly, all of these technologies ended up hampering innovation rather than supporting it, throttling ingenuity rather than nurturing it.⁶ It has been a very real, valid and terrifying concern for a while now that the Internet shall end up the same way.

In order to maintain the Internet as the free and open resource it currently is, one of the most crucial factors to consider, as this paper establishes, is Network Neutrality. The principle behind Network Neutrality is essentially quite simple. According to this principle, all Internet Service Providers (‘ISP’s), such as Verizon, Vodafone, and O2 are required to treat every entity that provides a service over the Internet, referred to as Over-The-Top Service providers (‘OTT’s), such as Netflix, Hulu et al., equally. They are, consequently, not allowed to charge them for providing faster speeds for the provision of their services.⁷ The separation of these two markets is an extremely crucial issue, discussed herein. The principal concern here is that the ISPs, in the first market, should not engage in practices such as bandwidth throttling, moral policing, curbing free speech, et alia.8 This principle allows even the smallest of innovators, lacking capital, resources, labour, and all other necessaries, to go up against giants of the cyber-realm such as Google and Microsoft. If you have an idea, an innovation, you put it on the Internet, and let the netizens finally decide its fate. These examples have been considered in greater detail in the coming chapters.

Therefore, an Internet without the principle of Network Neutrality is one that goes against the very core idea of innovation that it is supposed to embody. This paper establishes arguments as to why Network Neutrality is so crucial, taking into account the arguments of both, the proponents and the opponents of the concept. It also conducts an analysis of the various methods of ensuring Network Neutrality employed in different countries, thereby making recommendations regarding the best methods for its enforcement for all countries, though with a specific focus on India.

This paper is divided into six sections. The first section is a detailed introduction to Network Neutrality, which covers the technical and non-technical concepts in relevant detail. It also includes an analysis of the concepts of Joseph Schumpeter’s theory of Innovation and Creative Destruction, insofar as it is relevant for understanding the various approaches to a Network Neutrality regime. There is a distinction here between the two levels of operation of the related markets. The first level, the ‘primary market’, is the market for the framework of the internet itself, i.e., for its provision to consumers. This is where the ISPs, such as Verizon and Airtel, operate. The second level, the ‘secondary market’ or the ‘network market’, is the market created on top of the internet itself. The services which occupy this market are sometimes referred to as ‘Over-the-top’ services or OTT services.⁹ This is where companies such as Facebook and Google operate.

This secondary market here is entirely dependent on the primary market – and this is exactly where the principle of Network Neutrality comes in. Network Neutrality ensures that the primary market is not monopolised, and actually remains a separate, independent market. The Schumpeterian theory here explains why exactly Network Neutrality makes the internet an exception to the rule.

The second part discusses the arguments for and against Network Neutrality. The first and second parts, therefore, together explore the details of the very concept of Network Neutrality in detail. The third and fourth parts of the paper analyse and critique the approaches that have been taken to its enforcement across the world. The former critiques the debate on Network Neutrality currently underway in the United States of America, in the context of role of the Federal Communication Commission (‘FCC’), which is the apex regulatory body for telecommunications in the US and the arguments used by the ISPs against Network Neutrality, and the latter analyses the specifics of the regimes in South Korea and Japan. These three countries have been chosen for separate reasons, and have therefore been analysed separately. The US has been chosen as it has had one of the most contentious experiences with this issue quite recently, leading to a rich, varied and excellent public and academic discourse on the issue. South Korea and Japan have been chosen as they are two of the top three states on the ‘State of the Internet’ survey by Akamai, along with Hong Kong as the third, with their internet services infrastructure and regulation receiving wide acclaim.¹⁰

The fifth part comments on the Indian perspective, in the context of its lack of Network Neutrality and its effects, along with an analysis of the broadband rules and regulations that currently exist here. The sixth part is the conclusion of the paper, which summarises the arguments made in this paper about the importance on Network Neutrality, and, on the basis of the analysis, makes recommendations regarding the enforcement of the same.

Understanding Network Neutrality

The debate around Network Neutrality is decades old, but it is not any less relevant for it. Simply put, the idea of ‘Network Neutrality’ is that ISPs do not price-discriminate between their consumers.¹¹ Thus, under the Network Neutrality regime, an (ISP) cannot charge different consumers different prices for different speeds, by shifting those that pay more to the ‘fast lane’ and the others to a ‘slow lane’. This is especially relevant in the case of OTTs which rely on the internet to reach their customers, such as Google, Amazon, YouTube, Hulu, and Netflix.

Before proceeding further, it would be useful to note here that competition between ISPs tends to be quite limited, leading to a monopolistic or an oligopolistic market structure, and all the drawbacks that follow the same. Due to the investment required to set up the infrastructure that is necessary to set up an ISP service, especially when it comes to setting up the transatlantic cables that are, as of now, extremely crucial for internet services,¹² the number of ISPs in most countries is quite limited. Thus, the ISPs that have managed to set up their services do not really face much competition.¹³ Case in point, we have Verizon and Comcast in the US, and Reliance and BSNL in India, all of which enjoy dominant positions.¹⁴ Interestingly enough, when ISPs in the US actually faced competition in the form of the Google Fiber initiative, their services showed a sudden and easily noticeable improvement.¹⁵ There are actually rather notable parallels between the existing oligopoly of the ISPs and the absolute monopoly enjoyed by the Bell companies for a period of seven decades due to their proprietary ownership of the long distance telephone lines, but that topic is beyond the scope of this paper.

The following are certain crucial aspects of the Network Neutrality principle. Although these points may overlap substantially, each is important in and of itself.

1. Network Neutrality quite majorly concerns itself with, as its name would imply, the neutrality of networks, i.e., that the network itself does not affect or influence the data that travels over it. This is one of the singular most important points of Network Neutrality. One crucial point related to this is the broad version of the end-to-end network design principle versus the narrow version of the same, detailed below.

2. As a corollary of the previous point, another crucial aspect of the Network Neutrality principle is that of non-discrimination between the connections it supports. That is, it treats all its connections in exactly the same manner, and does not give any one connection or group of connections better quality of service than the others. This point again ties up with the end-to-end design principles, discussed in the fourth point below.

3. Looking at the other end of Network Neutrality, the third principle is that it ensures that all of the consumers connected to the network have equal access to all services. This ties up with the non-discrimination principle insofar as it implies that such access will be given to every connection regardless of who owns it. This is an extremely crucial principle, as it ties into some of the core benefits of Internet, that is, equal dissemination of information.

4. Finally, on the technical side of things, we must consider the broad version of the end-to-end design principle. There are two versions of the end-to-end design principle, both presented by Jerome Saltzer, David Reed, and David Clark. The first version was presented by these authors in a conference paper they presented in 1981, and is called the ‘narrow version’, while the latter version was developed in their later works, and is called the ‘broad version’.¹⁶ While these two principles seem to be similar at first glance, they are actually quite different.¹⁷ The broader version of the end-to-end principle directly bans the use of application-specific functionalities at the network-level. Thus, an implementation of the broader principle in the network architecture inherently means that the application-discrimination simply cannot take place at the network-level.¹⁸ The narrow version, on the other hand, has no such restrictions.¹⁹

That being, essentially, the definition of Network Neutrality, the following is an analysis of what the practical consequences of the same are, in terms of how it actually affects monopoliesin the primary market of the Information and Communications Technologies (‘ICT’s) industry, the true ‘mediums’ of communication. Schumpeterian Innovation imagines a cycle of ‘creation’ and ‘destruction’, in which an ‘innovation’ disrupts a pre-existing monopolised model of industry, but is itself monopolised at a later point of time. This new innovation is itself disrupted by a new innovation in due time, and thus the cycle continues.²⁰ The ‘primary market’ goes through this cycle, and the ‘secondary market’ is destroyed or maybe even never comes into existence due to the monopolisation of the same. This is what happened with the Telephone, the Radio, the television, and the cinema.²¹ To quote Schumpeter himself, “The opening up of new markets, foreign or domestic, and the organizational development from the craft shop to such concerns as U.S. Steel illustrate the same process of industrial mutation—if I may use that biological term—that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one. This process of Creative Destruction is the essential fact about capitalism.”²²

The Internet, as noted above, is a bit of an oddity here, a fact that is credited to Network Neutraliy.²³ The monopolisation of content provision, which is on the secondary market, has not happened with the Internet, despite the fact that it was actually attempted, in part, with the Time Warner-AOL merger of 2000.²⁴ The merger, and any such attempts at monopolising the Internet, failed, and the main cause of their failure is the principle of Network Neutrality.²⁵ The idea behind the merger was that Time Warner had the content, and AOL had the users. AOL would advertise Time Warner content to its users in whatever form it chose, and since the advertisements would be ubiquitous, they would buy Time Warner products.²⁶ This approach would have only worked if AOL was able to control the behaviour of its users and direct them to the Time Warner web pages – which would have worked partially at an earlier point of time, when the Internet was still slow, and users still had to go through the AOL web pages before they could browse the rest of the internet.²⁷ This had changed by the time of the merger, though, and AOL’s content provision services were no longer used by its users, and AOL could not force its users to watch such content because Network Neutrality inherently means that such ‘walled gardens’ cannot be created, and the users were free to choose whatever content they wanted.²⁸ Therefore, it inherently allows for equal competition between various services, and means that just because someone owns the pipelines that bring the content to the users does not mean that they get to control that content as well.

The distinction between the Internet-related primary and secondary markets has been discussed above. What Network Neutrality does not do is that it does not prevent monopolisation in the secondary market itself – examples of those are rampant, ranging from Google’s near-monopoly on search to Facebook’s near-monopoly on Social Media. The monopolies being discussed herein must be distinguished from the sort of monopoly that Google currently commands. These come into place simply because a single entity or groups of entities regulates and controls the primary market itself.

Network Neutrality means, essentially, that this ownership of the network of pipelines that bring the content to the users is irrelevant.²⁹ What matters is the quality of the content, or of the service. Thus, it results in the creation of immense amount of competition between the various content- or service-providers (OTTs), focused on providing better content and services to its consumers. It also means that the fact that a service is dominant in one sector is irrelevant – any new OTTwho does the job better can come in and directly compete with the dominant service, such as when Facebook came in and started competing with MySpace.³⁰ Being dominant, by way of service or by way of owning the pipelines, gives no benefit. The crucial factor, then, is the quality of the service that is being provided.

The argument made in favour of Network Neutrality is that this model is the only way to ensure the innovation and openness that the internet is known for. Network Neutrality, it is argued, is one of the core ideologies that stand in the way of the internet becoming an integrated and essentially monopolised and commercialised technology, like the phone, the television and the radio before it.³¹ The argument made by the ISPs, against Network Neutrality, is that without the freedom to charge higher prices for faster services, they have no incentive to upgrade their infrastructure.³² Over and above that, they argue that the Network Neutrality system does not allow them to fully capitalise on their existing infrastructure itself, something they have expended immense amounts of capital on.

On the other hand, Network Neutrality advocates disagree with the relevance of these arguments, and stress on the importance of the principle of Network Neutrality as their counterargument. The first and most important objective that Network Neutrality is necessary for is innovation. Network Neutrality in all of its forms, is one of the most crucial factors standing in the way of the monopolisation of the internet, and hence one of the most crucial factors preventing the inevitable restriction of innovation that would follow. The second factor is that of Internet-based content providers. The birth of the internet has resulted in the creation of an entire market, the secondary market referred to above,, which is entirely reliant on the internet for reaching their customers. Any changes to the core principles of the internet, of which Network Neutrality is indubitably one, would directly affect this market, and indirectly affect many others. This would in essence change the entire internet-based economic model as it currently exists. As with the case of the AOL-Time Warner merger, removing network neutrality would give immense power to the ISPs over the regulation of the content the users have access to.³³ It would mean that the ISPs can then charge the prices they deem best to all consumers, not the optimal price as determined by competition. Furthermore, this would mean that the content providers (OTTs) themselves would have to pay the ISPs to be able to provide their services on the ‘fast lane’ or ‘a faster lane’, as users would not have the patience to regularly use a website in the ‘slow lane’. This stacks the game against small-scale internet-based companies which, crucially, includes start-ups, a category that includes some of the most innovative companies in the world, why by definition focus on innovation. It would mean, essentially, that there would be no new start-up stories of the likes of Google, Microsoft, or even Netflix.

The third factor is that of freedom of speech on the internet. Along with the development of the various industries, the internet has also directly affected the ability of diverse individuals and groups to make their voices heard. The lack of a Network Neutrality regime could potentially smother such free speech at the behest of either the service controllers or the government by giving the ISPs control over the ‘voices’ of bloggers, activists, non-profit organisations, and Internet user in general. An instance of this occurred in Canada, where the Canadian ISP Telus throttled the connection to a pro-Union website run by its locked-out employees, and at the same time inadvertently blocking 766 other websites before the Network Neutrality policy was implemented there in 2009.

In the author’s opinion, this, in and of itself, is enough of an argument to make an extremely strong case to preserve Network Neutrality. The Internet has sparked an information revolution, making unprecedented strides towards providing for access to information, bringing within its ambit a vastness and immensely diverse cornucopia of information. This can be clearly seen in the example of Wikipedia and Google Books. The fame of the former speaks for itself, and the relevance of the latter’s initiative to digitize and make accessible as many books as possible is also self-explanatory. The Internet is one of the greatest and most crucial facilitators of the Right to Information, and it could not have been so without Network Neutrality.

Therefore, keeping both the sides of the argument in mind, one of the best articulations of the types of discrimination that Network Neutrality allows and bans comes from Dr. Barbara van Schewick, wherein she states that Network Neutrality should ban application-specific discrimination, but allows application-agnostic discrimination.³⁴ That is, an ISP cannot discriminate against any data on the basis of the application (for example, specific newspapers like New York Times) or class of applications (for example, any applications that enable VoIP calls, or stream videos) that the data is meant for, but can discriminate against data for the very narrow purpose of ensuring quality of service as a whole, such as the fact that a person might be given a larger share of the bandwidth because he has paid for the same.³⁵

Network Neutrality in the US

Recently, the Network Neutrality debate in the US had taken the world by storm. It not only sparked off an intense debate within the US, bringing forth diverse voices from all walks of life, but also caused a similar furore the world over, setting in motion similar debates in other jurisdictions as well. . This issue first came under scrutiny with the 2010 ruling of Comcast v. FCC.³⁶ In this case, Comcast was accused of interfering with its consumers’ peer-to-peer (P2P) programs, and a Federal Appeals Court had then ruled that the FCC lacked the authority to force ISPs to keep their network open to all forms of content. The Court considered the extant law, stating that: “In the Order, the Commission does not assert ancillary authority based on this narrow grant of regulatory power. Instead, the Order rests on the premise that section 1 gives the Commission ancillary authority to ensure reasonable rates for all communication services, including those, like video-on-demand, over which it has no express regulatory authority. As explained above, South Western Cable, Midwest Video I, Midwest Video II, and NARUC II bar this expansive theory of ancillary authority”.

On the basis of this, it goes on to note that: “It is true that ‘Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies.’ It is also true that ‘[t]he Internet is such a technology,’ id., indeed, ‘arguably the most important innovation in communications in a generation’,”.

But it concludes by noting that: “Yet notwithstanding the ‘difficult regulatory problem of rapid technological change’ posed by the communications industry, ‘the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammelled freedom to regulate activities over which the statute fails to confer . . . Commission authority.’ Because the Commission has failed to tie its assertion of ancillary authority over Comcast’s Internet service to any ‘statutorily mandated responsibility,’ we grant the petition for review and vacate the Order.”

After this setback, the FCC made a second attempt at Network Neutrality, setting up the Open Internet Rules. These rules were challenged again, this time by Verizon in Verizon v. FCC,³⁷ where the United States Court of Appeals for the District of Columbia Circuit found parts of the FCC Open Internet Rules to be ultra vires. The Court held that unlike older telecommunications providers, ISPs do not qualify as Common Carriers. Thus, the essential effect of this partial ruling was that until the FCC came up with a new regulation, its Network Neutrality rules stood nullified.

Crucially, in Verizon v. FCC, the Court did not state that the FCC has absolutely no powers to regulate the ISPs, only that the Open Internet Rules do not have any legal footing, and that ISPs do not qualify as Common Carriers, thus excusing them from the extensive regulation that comes with that categorisation.³⁸ It is this technicality which forms the core of the FCC’s third attempt, which differs from the second by grounding the Rules in Section 706 of the Telecommunications Act which “vests [the Commission] with affirmative authority to enact measures encouraging the deployment of broadband infrastructure and therefore may ‘promulgate rules governing broadband providers’ treatment of Internet traffic."³⁹

The new draft Open Internet Rules which had been proposed by the FCC themselves came under attack, as they allowed ISPs to discriminate between content, and prohibited only ‘commercially unreasonable practices’.⁴⁰ This implicitly allowed practices that discriminate between traffic on the internet, as long as they are found to be ‘commercially reasonable’. This bit of legalese worried Network Neutrality advocates across the US, and resulted in an extremely strong backlash against the FCC. A backlash so strong, in fact, that it resulted in the most comments the Commission has ever seen for a policy proposal, which resulted in crashing the FCC website due to an “overwhelming surge in traffic”,⁴¹ and even had the President of the United States commenting on the issue⁴² . Perhaps as a result of the public feedback, the FCC pulled through with its plans, and actually put into force a stronger Network Neutrality regime by declaring ‘broadband Internet access services’ as a telecommunications service under Title II of the Communications Act, thereby making it a ‘common carrier’.⁴³ But the FCC's actions themselves are now facing a concerted challenge from the ISP lobbies through the Courts⁴⁴ and through Congress.⁴⁵

The deal between Comcast and Netflix is an indicator, and perhaps even a consequence, of this uncertain situation. Currently, Netflix accounts for about thirty four percent of the internet traffic in North America.⁴⁶ This resulted in an argument about who should pay for the increasing loads that the video-streaming service requires – Netflix or the ISPs. After weeks of connection issues and deteriorating quality, Netflix finally signed an official deal with Comcast, which gives Netflix an almost direct connection to the ISP’s cable and broadband services, and which will in turn give the Comcast’s customers better access to the video-streaming service.

Though it is against Network Neutrality in principle, this deal does not directly violate the principle of Network Neutrality as enshrined in the FCC’s Open Internet Rules, as it concerns paid peering and transit, rather than consumer ISP to home customer network connections which are covered by the Rules.⁴⁷ Furthermore, Comcast is still governed by the Open Internet Rules as parts of the conditions it had agreed to when it purchased NBC Universal in 2011, and will continue to be governed by them until 2018.⁴⁸ At the same time, the DC Circuit Court ruling and the Netflix-Comcast deal together with the continued challenges the FCC’s ruling is facing present a grim picture of the future of Network Neutrality in the United States.

International Perspective on Network Neutrality

After the ruling in Verizon v. FCC,⁴⁹ Andrew McDiarmid, a senior policy analyst for the Centre for Democracy and Technology had noted that while the absence of Network Neutrality in the US could deter American innovation, it could actually help start-ups outside the US by moving innovators and investment dollars abroad. He also notes that it could also reduce the amount of content available to start-ups outside the US, thereby limiting innovation internationally.⁵⁰

To take an international perspective on the question at hand and alternatives to it, the examples of Japan, South Korea become relevant. Here, we consider the position of Network Neutrality in South Korea, and Japan. South Korea has been chosen here as it ranks first on the ‘State of the Internet’ survey by Akamai. Japan has been chosen because while it ranks as the second, it also has the third largest number of unique IPv4 addresses according to the same report, after US and China. South Korea ranks eighth on this list.

Both of these countries do not enforce Network Neutrality per se, but they have faster and less expensive broadband networks. One of the reasons for this is said to be that both of them have retained the bandwidth sharing rules that the US discarded in 2005.⁵¹ Under these bandwidth sharing rules, telecom companies were mandatorily required to allow ISPs to buy space on their Digital Subscriber Line (‘DSL’) networks for discounted prices.⁵² Some analysts have argued that the former regime was actually a better option, with Network Neutrality being the second-best alternative. Lawrence Lessig has similarly commented that the wholesale model of providing Internet access is responsible for creating the fierce competition in the aforementioned countries, thereby ensuring more efficient services.⁵³

Similarly, the governments in Japan and South Korea have made deals with incumbent carriers wherein they agree to help them set up their networks in high-cost areas. Not only does this provide an incentive for ISPs to expand into such areas, it also means that they can’t argue that they must throttle connections to increase speed for consumers when they already have a high speed infrastructure set up.

The South Korean government claims to fully support Network Neutrality and has done quite a lot to encourage the policy, although it does not have any direct regulations enforcing Network Neutrality. The South Korean government has strategically invested eight hundred million dollars in the development of various broadband technologies including DSL and fiber optic connections, leading to a healthy level of competition among these technologies.⁵⁴ The South Korean government believes this situation discourages monopolistic behaviour, since the customers can always very easily switch over to alternative broadband providers.

In addition to the above step, the South Korean Government also forcibly decoupled telecommunication network companies from ISPs when the broadband networks were first established, ensuring a healthy competition within single networks, even in the absence of any specific policy enforcing the separation of the companies.⁵⁵

At the same time, the South Korean government has also been noted to act contrary to the policy of Network Neutrality. For instance, it has blocked all Voice over Internet Protocol (‘VoIP’) carriers that are not federally licensed, including Skype and Vonage.⁵⁶ In another case, they delayed the intervention of the government when several ISPs blocked Haana TV, an online video-on-demand service rather similar to Netflix. The ISPs claimed that the service used too much traffic, while the opponents of the block argued that the existing infrastructure of most South Korean ISPs was capable of handling the traffic, and that the block was aimed at preventing competition between Haana TV and cable television.⁵⁷ Thus, in a situation similar to what the US government is facing today with Netflix, even the South Korean government’s structure proved unsatisfactory.

The Japanese government has also chosen to regulate their telecommunication sector closely, but they have taken a rather different approach, as compared to the South Korean approach. While the South Korean government has created laws and regulations to monitor the sector, the Japanese approach is a bit lacking in the hard law department. The main difference between the Japaneseand the American situation is perhaps the level of control the respective governments exercise over the market. While the US government has been attempting to maintain a ‘hands-off’ approach, the Japanese government’s approach is very much hands-on. In Japan, the incumbent telecommunications carriers, Nippon Telegraph and Telephone East (‘NTT East’) and Nippon Telegraph and Telephone West (‘NTT West’), dominate the market, and play the part of government regulated monopolies in the same sense that the Bell companies once did.⁵⁸ The difference here is that the Japanese government actually monitors the Nippon Telegraph and Telephone’s (NTT) actions quite closely, and NTT falls into line, ostensibly in the spirit of nationalism.⁵⁹

Thus, even though NTT East and NTT West together own about 92.5% of the broadband capable lines and as of September had a 78.6% share in the broadband access line wholesale market, from which broadband access line providers acquired their inputs, it does not have a similar dominance over the ISP market. The Japanese Ministry of Internal Affairs and Communications (‘MIC’) practices strong supervision over the NTT’s bottleneck business, and prevents it from vertically integrating its ISP services.⁶⁰ Therefore, even though the NTT group has its broadband ISP companies such as the NTT Plala and NTT Communications, the close eye of the MIC ensures that the NTT East and West do not discriminate against other ISP services, and that purely service-based ISPs can utilise the NTT’s national framework, thereby removing infrastructure costs.⁶¹ This system has led to healthy competition among the ISPs, and a high quality of service.

India and Network Neutrality

India, on the other hand, has never had a Network Neutrality regulation. The closest that it has ever had is the “must provide” clause under the Telecom Regulatory Authority of India Act, 1997.⁶² It has already seen instances of agreements between ISPs and Internet content providers, the most notable of which was the agreement between Airtel Telecom and Google, wherein all Google services were available for free to Airtel’s mobile internet subscribers. This agreement was all the more interesting because Google is one of the biggest supporters of the Open Internet policy.⁶³ This presents a worrying picture, not only for Indian consumers, but also for various Indian start-ups. As noted earlier, innovation is one of the most crucial reasons for the promotion of Network Neutrality regimes. The absence of such measures has the potential to stifle innovation in all sectors that rely directly or indirectly on the internet. At the same time, the risk of stifling free speech in such a situation is also worrying. All this would indicate that India gravely needs a Network Neutrality regime before this ‘risk’ becomes a reality.

In this regard, the following rules, regulations and authorities currently in place in India are important:

1. Internet Service Guidelines, 2007 and the Internet Service License

Internet Services can be provided in India only by entities which have a valid Internet Service License (hereinafter ‘License’), the licensing process being governed by the Internet Service Guidelines, 2007 (hereinafter ‘Guidelines’). The guidelines are, in a way, pro-competition, as the sixth regulation states that there will be no limit on the number of Licenses that are granted in one service area.⁶⁴ The Scope of Services under the License, as provided by the thirteenth regulation, is broad with regards to Internet Services as a whole, but places certain restrictions on IPTV and Internet Telephony, and bans PSTN/PLMN connections outright.⁶⁵ The seventeenth regulation requires the ISP in question to test its equipment and ensure that it is compatible with the equipment of other service providers in the area, and the twentieth regulation allows direct interconnection between separately licensed ISPs.⁶⁶ Though this regulation also requires that the ISP connect to a ‘gateway’ owned by a licensed internet gateway provider for routing international internet traffic, they are allowed to set up their own ‘International Internet Gateway’ after obtaining the relevant permissions.⁶⁷ At the same time, the twenty-second regulation of the guidelines, regarding sharing of resources for the interconnection of an ISP’s network with upstream internet access providers or any other licensed service provider leaves the specifics of such agreements in the hands of the parties in question, creating the possibility of the ISPs refusing to share their networks.⁶⁸

Despite the provisions discussed above, the Guidelines and the License do not address any of the provisions necessary for Network Neutrality directly, and nor do they address competition among ISPs on the whole.

2. Broadband Policy, 2004

The Broadband Policy (hereinafter ‘Policy’) states the following with regards to infrastructure and competition:

“Spread of infrastructure is a must for healthy competition and therefore it would be the endeavour of the Government that the telecommunication infrastructure growth in the country is not compromised in any manner.”⁶⁹

The policy also states with regards to DSL services that broadband service providers shall be free to enter into mutually agreed commercial agreements for unitisation of available copper loop set up by other parties for expansion of broadband services.⁷⁰ With regards to Optical Fiber, the Policy states that the spread of optical fiber networks will be emphasised keeping in mind a long-term perspective.⁷¹ The Policy also notes the use of Cable TV Networks and Satellite Media for the penetration of broadband services, the former being considered last-mile infrastructure, and the latter as being useful for providing access to remote and inaccessible areas, along with its potential for furthering Broadband penetration.⁷² It makes provisions for commercial Very Small Aperture Terminal (‘VSAT’) service providers with ISP licenses to set up their services, and for Direct-to-home (‘DTH’) service providers to provide Receive Only Internet Service, subject to the DTH provider obtaining a license.⁷³ DTH service providers are allowed to provide bidirectional internet services only after obtaining VSAT and ISP licences and for downloading of data by their customers only after obtaining necessary permission from the competent authority.⁷⁴ The policy also makes provisions for Terrestrial Wireless and Future Technologies, though it does not go into much detail regarding them.⁷⁵ Crucially, the policy notes that the “cost of bandwidth constitutes a major cost component for Broadband services. Government and TRAI would address this issue on priority”. It also mandates that the Department of Telecommunications (‘DoT’) assign high priority to indigenous manufacture of Broadband related equipment in order to ensure that Broadband services are available to urban and rural consumers at affordable and easy terms.⁷⁶

Thus, though the policy is ambiguous in some regards, and does not directly address any of the issues central to the Network Neutrality principle, certain elements such as promotion of competition, development of the necessary infrastructure, and sharing of bandwidth are still present. At the same time, the ambiguities are quite worrisome, especially since the provisions of the policy do not make provisions for setting up the type of competition that is necessary for Network Neutrality, nor do they make any mention of the extremely crucial principle of Neutrality itself. No mention has been made of vertical integration of services either – in fact, the enfranchisement of cable TV networks has even been recommended by the Policy, and the section regarding DSL copper loops leaves quite a lot in the hands of the owner of the local loop, such as choosing whether to upgrade the infrastructure or not, whether to enter into contracts for sharing the loop for broadband services or not, and the terms under which such an agreement is to be made. The owner of the local loop can thus entirely refuse to share the loop, or refuse to upgrade it, or charge exorbitant fees for it.

3. Department of Telecommunications and the Telecom Regulatory Authority of India

Since the issuance of ISP Licenses and the Broadband policy is almost entirely regulated by the Department of Telecommunications (‘DoT’), it is evidently the body that is the most capable of creating and implementing a Network Neutrality regime. It is also one of the most important regulators of competition among ISPs in India. Thus, for the purposes of Network Neutrality perspective, the DoT is one of the most important regulatory bodies in India. The second extremely crucial authority for this context is the Telecom Regulatory Authority of India (‘TRAI’), which is the independent regulator for telecommunications businesses in India.⁷⁷ And the TRAI seems to be leading the charge here – in December 2014, the Indian telecom service provider Airtel announced that it was going to charge for VoIP services on its mobile network separately.⁷⁸ In response to the huge public uproar that followed, the TRAI had announced that though there are no specific laws on Network Neutrality in India, it would be starting a public consultation on Network Neutrality, and releasing a consultation report on the topic soon.⁷⁹ It therefore released, in March 2015, a consultation paper on the licensing of Over-The-Top services, which includes a section on Network Neutrality.⁸⁰ It is crucial to note here that this paper is not law.

4. Competition Act, 2002

The ambit of the Competition Commission of India (‘CCI’) as established under Section 18 of the Competition Act, 2002, which speaks of the Duties of Commission, is quite broad.⁸¹ Since the Commission is tasked by this Section to “eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants”, it is quite clear that anti-competitive practices even among ISPs would come under the ambit of the CCI. This contention is further supported by the fact that before the proposed merger of Wireless Broadband Business Services Delhi (‘WBBS Delhi’), Wireless Broadband Business Services Kerala (‘WBBS Kerala’), and Wireless Broadband Business Services Haryana (‘WBBS Haryana’) into Wireless Business Services Private Limited (‘WBSPL’) in 2012 could be put into effect, the companies in question were required to obtain CCI’s permission. The CCI had to ensure that there was no “appreciable adverse effect on competition in India” before the merger was approved.⁸² This is all the more relevant since the CCI’s order also notes that the DoT had ordered that the ISP license be issued to WBSPL rather than each of the WBBS iterations separately, and that the four would be merged into WBSPL after the license were granted. The power of the DoT to regulate the ISPs has already been noted, but this would indicate that along with the DoT, the CCI can also play a leading role in the regulation of ISPs and the promotion of competition among them. The relevance and potential benefit of this role is clear from the benefits that the healthy competition in Japan accrues to its citizens.

Conclusion

Network Neutrality is, therefore, the lifeblood of a healthy, innovative internet, and a healthy, innovative society. It is a concept that must necessarily be preserved in order to ensure that the internet does not become monopolised, and go the way that all of the technological mediums of communication that came before it have gone.

In this context, the most crucial period of time is right now. Network Neutrality is currently under attack from multiple sectors, especially in the US, and India. It is an even more crucial concern for India, as the Indian government stands at that crucial juncture where it is finally starting to dip its toes into the murky waters of Network Neutrality. As the above analysis has shown, the basic aspects that come together to create a Network Neutrality regime are already enshrined in the various internet policy documents and structures. We even have case-laws that arguably support the Network Neutrality principles,⁸³ and a Supreme Court that a very short while ago upheld free speech on the Internet.⁸⁴ All that is needed is to connect the dots, and establish a proper structure for the purposes of ensuring that the Internet remains open and free of monopolisation in India.

But even so, putting this structure into place requires a careful and in-depth consideration of the concept of Network Neutrality. Thus, on the basis of the analysis of the multiple structures discussed above and of the central theories of Network Neutrality this paper conducts, the following is a list of independent but interconnected recommendations regarding the steps any government, including the Indian government, can take to put a strong Network Neutrality regime into place.

To start off, the clearest method for this purpose is strict regulation, following the Japanese model. As is clear from the examples of the US and Japan, regulation of the ISPs is a strong method for the enforcement of a Network Neutrality regime, especially in the case of monopolistic ISPs. The American FCC has failed in properly enforcing such a regime yet, but the Japanese MIC has succeeded because of its slightly differing approach.⁸⁵ Thus, regulation, if properly implemented, can be used to enforce a strong Network Neutrality regime, which if the Japanese example is anything to go by, is likely to result in great quality of service and healthy competition among ISPs. Where the nationalistic feeling that the Japanese regulators benefit from is lacking, a strict, active regulator empowered to actually take action for violations can take its place. That should ideally not be an issue in India, where the ISP with the highest market share, BSNL, is a state-owned entity.⁸⁶

In case direct regulation of the companies that control the infrastructure is not possible, as would seem to be the case in the US, the second step that the government can take is to promote healthy levels of competition among ISPs by mobilising the competition regime in the country. This method differs from the above insofar as this approach aims to foster the market conditions which would promote competition among ISPs, resulting in a Network Neutrality regime through free-market forces without much by way of regulatory intervention, while the previous method requires an active watchdog which directly enforces strict regulatory measures to create the same regime. Such competition ensures that the end consumers will always have a choice of switching their ISP in case they believe their ISP is acting against their interests. Since no ISP would like to lose its customers, such competition ensures that they do not indulge in such behaviour. This is a good policy to have even if the government regulates the ISPs.

The third most crucial aspect of the Network Neutrality debate, especially from the perspective of the ISPs, is addressing the concerns about the cost of the network infrastructure required for the provision of internet. The Japanese and South Korean governments have subsidised and supported the ISPs in expanding their networks into high-cost areas, thereby taking some burden off of them. Not only does this bring internet access to remote areas, it also takes the sting out of the ISPs’ argument for abolition of Network Neutrality in order for them to capitalise on their investment in the infrastructure.

Finally, to ensure competition among ISPs, especially in the case of monopolistic cable or telecommunication service providers as seen in the US and Japan, it is essential that the vertical integration of these companies with ISPs is prevented. This step is crucial not only to ensure competition among the ISPs, but it is also necessary to ensure that the companies in question do not gain excessive control and influence over the network. In case this is not prevented, the integrated service providers can easily muscle out all competing ISPs by refusing to share their infrastructure or charging exorbitant rates for the same.

On the basis of the above discussion, the following are some recommendations to ensure the existence of a healthy Network Neutrality regime, locally and internationally, which would benefit all the stakeholders in the debate, i.e., the ISPs, the government, and the end consumers, including the internet-based services providers and the home consumers:

1. Vertical integration among ISPs and cable or telecommunications providers should be avoided as much as possible, and at the same time, competition among ISPs should be heavily encouraged. This would have to be implemented and regulated in India by the DoT, the CCI, and/or the TRAI.

2. The government should subsidise and support the development of infrastructure necessary for the provision of internet services wherever necessary. The necessity of such a measure can be based on the difficulty of establishing network infrastructure in certain areas or on the basis of the ISPs refusing to upgrade or establish networks since they cannot get returns on it owing to the existing Network Neutrality regime. In the Indian context, a provision for this already forms part of the Indian Broadband Policy.⁸⁷

3. Drawing on the arguments made by Lawrence Lessig in his seminal work, Code v 2.0, it is here that we must very seriously consider the concept of “Lex Informatica”, i.e., “Code is Law”.⁸⁸ Drawing on his experiences as a Constitutional law jurist, Lessig creates the image of the software and hardware architecture of the internet as being the ‘law’ of the internet. In a sense, he imagines the architecture of the internet being a sort of Constitution of the internet, from which the laws of the internet are derived. Thus, the broad version of end-to-end design principle⁸⁹ should be implemented in the changes and upgrades made to the architecture of the Internet. As mentioned earlier, the broad version is more conducive to the principles of Network Neutrality than the narrow version and their myriad adaptations. Making the broad version a core part of all the upgrades and changes brought to the architecture of the internet will ensure that the Network Neutrality regime becomes a part of the internet itself.

Finally, the proposition that Network Neutrality be made a Global Principle should be considered quite seriously, perhaps as a part of the much discussed Right to Internet Access.⁹⁰ It has been argued in some avenues that Network Neutrality might be an issue specific to the US, since it is one of the few countries that do not require incumbent telephone and cable companies to share their local facilities with competing ISPs, giving them more market power allowing for vertical integration.⁹¹ But Network Neutrality is more than just a connection issue faced by the US. It is a global right, the right of an internet user to access and provide content, services and applications on the internet without interference from network operators or overbearing governments. It thus acquires importance not only as a normative guide to national policy, but also, keeping in mind the borderless nature of the internet, as a global principle that should guide internet governance. Thus, it has been argued that it should be accepted as one of the “globally applicable principles on public policy issues associated with the coordination and management of critical internet resources” that are recognised in paragraph 70 of the Tunis Agenda.⁹² For all the reasons given above, Network Neutrality is extremely crucial to the current status of the internet as an innovation- and information-sharing platform. Furthermore, due to the borderless nature of the Internet, it would be simpler, more effective, and more productive to implement it at a global level than it would be to implement it separately in each nation.

As noted at the beginning of this paper, the internet has had many names and roles given to it at many points of time, ranging from ‘the harbinger of the Networked Information Economy’, to the foundation of the Independent Cyberspace⁹³ . But all of these names, all of their implications, all the advances that it has brought to human society as a whole, would perhaps be for naught, if not for the principle of Network Neutrality. It is time we recognised this simple but crucial fact, and made our best efforts towards preserving it.

Bibliography

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