Facebook’s massive campaign to promote Free Basics has come a cropper with TRAI’s order of February 8, 2016 directing that service providers should not charge different rates for accessing different types of content on the Internet.

This decision, based on the public consultations carried out by TRAI over the past two months represents a huge win for the thousands of people who have been involved with this issue. The incredible response to the TRAI consultations clearly indicates that the public of India is able and willing to engage in critical policy matters — and will not allow a vital resource (the Internet) to be turned into a private preserve of a few companies.

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While this decision does not put a rest to the entirety of the net neutrality controversy – it addresses one of the most pressing and vexatious issues -- whether to regulate zero-rated services (the practice where a content provider and service provider enter into an agreement to provide subsidized access to certain specific content). With this decision, India joins a select group of countries (including Chile, Slovakia, Brazil, the Netherlands, etc.) to ban this practice.

In its consultation paper of December 2015, TRAI had sought public responses on the issue of service providers charging users differential rates to access different content on the Internet. If permitted, this would allow service providers to offer different tariff packages for users accessing different types of content; so notionally, a service provider could charge more for accessing ‘x’ website than ‘y’ website.

The issue raised by TRAI was a fairly interesting one – you have various content and service providers who are coming together to provide subsidized access to certain specific content. Such practices, on the face of it, permit poorer people to access a certain limited range of content at low costs. However, such platforms cause tremendous damage to the Internet economy itself — largely by enabling the perpetuation of monopolies in the Internet space (and the associated problems — ranging from privacy concerns to issues of plurality of media). Further, such platforms affect the basic architecture of the Internet by casting service providers in the role of gatekeepers to the Internet. It must be kept in mind also that every user on the Internet can also be a content creator. Permitting differential pricing would significantly limit the uses to which we could put the Internet — including that small content providers could be completely cut of from their viewing public.

Generally speaking, on the Internet all content is equally accessible. Permitting differential pricing by service provider would essentially turn this resource into a cable TV service. This would mean that you as a consumer would have to subscribe to specific content services or channel bouquets. On the other hand, every content provider will have to negotiate individually with a platform or a telecom operator in order to gain access to the viewing public. This obviously creates multiple barriers to accessing the Internet.

While differential pricing of services is a legitimate market practice – used across numerous industries – the question in this instance was is whether it is fair (or indeed possible) to segregate users based on the content or type of content being accessed or viewed. TRAI has very clearly held that differentiating between types of content on the Internet and charging accordingly is neither desirable nor feasible due to the numerous deleterious effects this could have on the Internet economy as well as the basic architecture of the Internet itself.

Given the reasoned order passed by TRAI — which accepts that protection of net neutrality principles are essential to protect the Internet as a public resource — the onus is now on the Government of India to put in place appropriate high level principles through statute or other equally efficacious means to ensure that the Internet is truly protected as a commons – to be utilized for the benefit of all of India.

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