Net neutrality takes a right turn again

Led by Biden’s commitment to protecting the Open Internet, the recent FCC decision has brought the Net Neutrality debate back to the front.

The Federal Communications Commission, the US communications regulator, voted and announced on 25 April 2024 that it is restoring Net Neutrality (NN) and re-establishing the national Open Internet (OI) standards. It has re-classified broadband services as common carriers under Title II of the Telecommunications Act and will regulate them as essential services.

The announcement unambiguously states that the FCC will ensure that the Internet is fast, open, and fair and will exercise its authority to protect the OI by “prohibiting ISPs from blocking, throttling, or engaging in paid prioritisation of lawful content, restoring the rules that were upheld by the DC Circuit in 2016.”

Both OI and NN are understood differently by different people in different contexts.

In simple terms, the term Open Internet emanates from the engineering design of the Internet itself. Unlike traditional telecom infrastructure, any network or its part, wired or wireless, such as devices, equipment, applications and users, can physically connect or interconnect by adhering to specific TCP/IP protocols and standards. As some say, the Internet has been a permissionless network (arguably) meant to move ‘all information’ as data from origination to destination.

NN technically flows from the OI design. It is more of a techno-socio-economic principle since no technical or commercial discrimination is allowed between the class of users and traffic (with exceptions), thereby leading to ‘the network effect’ (where the more the users, the more the network value gets enhanced).

It is a public network, and in plain terms, NN principles seek to prohibit blocking and filtering lawful content, applications, and services, irrespective of priority or fast lanes, paid or otherwise, to any preferred content and traffic and throttling of speeds. They also seek transparent disclosure of ISP’s policies, freedom to use equipment of choice, access to fair and competitive pricing, and a zero-price access rule.

All this is subject to local jurisdictions and prevailing laws and is enforced accordingly.

FCC has had a see-saw battle on NN for over two decades. Hence, the announcement brought a sense of Déjà vu, a feeling of seeing and experiencing this development all over again.

The Beginning of the Battle

I had written about the NN battle in late 2014, tracing its history from Al Gore’s Vice Presidency to the FCC classifying cable operators as information services in 2002. Tim Wu coined the term NN, followed by the FCC Chair setting Four Non-Discrimination principles in 2004. The Brand X vs NCTA lawsuit was a landmark case for Network Freedom, spurring consumer and advocacy groups’ support for NN, culminating in the FCC’s Internet Policy statement.

In 2008, the FCC came down heavily against an ISP inhibiting users from file sharing and throttling bandwidth to degrade video file sharing. Two rules to the existing four principles were added to prevent ISPs from discriminating against content and applications and ensure transparent disclosure of policies by ISPs.

Net Neutrality seeks to prohibit blocking and filtering lawful content and services, irrespective of priority or fast lanes, paid or otherwise.

In 2009, the Chair suggested preventing content blocking, like Skype. In 2010, the FCC enacted the Open Internet Order with six neutrality principles: transparency, no blocking, a level playing field (no paid fast lanes or priority content), reasonable network management, consistent rules for mobile devices and services, and vigilance through an OI Advisory Committee to monitor the state of openness and effects.

In 2014, a DC Circuit Court ruled that the FCC lacked authority to enforce specific rules for NN rules. Public outcry prompted the FCC’s call, and President Obama advocated reclassifying the Internet and broadband as a telecom service. This helped the FCC restore NN in 2015, prohibiting site blocking, speed throttling, and paid prioritisation.

Meanwhile, the European Parliament passed its Telecom Rules in 2014, which included strict NN rules. In 2017, the Body of European Regulators for Electronic Communications (BEREC) published comprehensive Guidelines on the Implementation by National Regulators of European Net Neutrality Rules. Brazil, too, joined the bandwagon with its Marco Civil (Internet Bill of Rights).

In the US, the tide changed again in 2017. With President Trump in the saddle, the FCC Chair undid the NN rules through the Restoring Internet Freedom Order, effectively removing any oversight over the ISP’s business conduct. Even the Appeals Court upheld the order.

Now, in 2024, the Biden administration has decided to restore the core principles of NN again. Like every previous instance, FCC rulemaking on NN has typically led to lawsuits, and it may not be any different this time. However, the outcome of the upcoming elections later this year could influence it.

Where does India Stand?

India has experienced numerous policy, legal, and regulatory challenges regarding open and free Internet and net neutrality principles. Unlike the US, however, the country managed it more effectively, settling the NN policy conundrum way back in July 2018, well, almost. India’s NN policy, termed one of the strongest by BBC then, was backed by penalties for violations.

The country’s story dates back to 1997-98 when the decision was made to open the Internet sector to competition. The first license conditions announced in January 1998 defined and restricted the scope of Internet services to “...access to search engines like Archies and Gopher...” Promptly, ISPAI obtained a Stay Order on this license, citing serious flaws, unfair terms, and lack of public interest.

Soon, the government set up committees to review the license conditions. Discussions, debates, negotiations, and media coverage followed this. New License terms were negotiated, and after some last-minute interventions to rewrite and rectify some crucial clauses, the PMO approved them before the final ISP policy and license were announced in November 1998.

Between 1998 and 2002, India pursued and adopted the principles of Network Neutrality in some form or another, much before the term was formally coined.

Remarkably, the Internet services scope was redefined as “…access to all content and services on the Internet…” Exceptions included the ban on Internet Telephony, although it was allowed in a restricted manner from April 2002. Concurrently, the government was persuaded to break the VSNL monopoly on overseas communications, enabling ISPs to connect more freely with global networks and improve consumer choices and experiences.

Meanwhile, TRAI significantly reduced national and local bandwidth prices from previous extortionate levels, assisting ISPs in acquiring more competitive network infrastructure elements and enhancing interconnectivity.

Unbeknownst to many at the time, between 1998 and 2002, India pursued and adopted the principles of Network Neutrality in some form before they were formally coined. I hadn’t heard of these principles until later.

Two major events between 2014 and 2017 tested the country on this policy front. Firstly, a telco announced premium rates for VoIP services like Skype. Secondly, Facebook attempted to introduce Free Basics/internet.org. These served as the watershed moments, alarming and mobilising ordinary people, industry professionals, civil society groups, and even some within the government into mass protests. In hindsight, these proposals, though controversial, led to positive outcomes.

In 2015, a DoT Committee Report committed to “unhesitatingly adhere to the core principles of NN.” This was followed by TRAI’s Notification on Prohibition of Discriminatory Tariffs for Data Services Regulations in 2016 and TRAI’s Recommendations on Net Neutrality in 2017. Free Basics exited India in 2017. In 2018, DoT issued a notification emphasising the adoption of NN principles as policy, followed by an amendment to the Service Provider’s Licenses to incorporate NN clauses.

The National Digital Communications Policy (NDCP) 2018 reiterated “adherence to the principles of Net Neutrality” as one of its goals. While the country may celebrate the OI and NN win, the battle is not over. The issue resurfaced with the EU Commission floating a CP on Network usage charges in early 2023. However, by October 2023, it was thankfully made clear that it was a bad idea to consider Content companies to pay Telcos to access the later networks.

Indian telcos, too, mooted a similar proposal, but as of now, it seems the government is disinterested in the proposal and stands firm on its NN principles. A 2022 Press release by the Government of India has reaffirmed that the NN principle will not be compromised.

The National Digital Communications Policy (NDCP) 2018 reiterated “adherence to the principles of Net Neutrality” as one of its goals.

Not all is hunky dory, though. Concerns persist, including India’s high number of Internet shutdowns and frequent content and site blockings. These actions raise eyebrows due to their perceived lack of transparency and justification in the name of public order, safety, and security. Accusations are rife about the curtailment of free speech and privacy, particularly through restrictions on apps like VPNs and demand to access plain texts of encrypted information.

But for now, Long live net neutrality. Rest time will tell.

By Amitabh Singhal

The author is the former President of ISPAI and the Founder/CEO of NIXI. He was deeply involved in the privatisation process of Indian ISPs.

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