3 min read

While the proponents of “Net Neutrality” bring out their expensive champagne and caviar, yesterday’s Telecom Regulatory Authority of India (TRAI) regulations actually make it very easy and cheap for service providers to kick net neutrality into oblivion.

Before we get into that, let’s take a quick background check. A 24-year-old security guard in my building used to load his smart-phone with a super cheap data pack for WhatsApp and Facebook. And he was able to meet all his communication needs virtually free. Long chats with his family, living hundreds of miles away, helped him keep his sanity despite a 12 to 16 hour daily shift.

Then a bunch of people decided that this was somehow a bad thing. They huffed and puffed and tried convincing the world that differential pricing of internet data packs was a bad idea.

We live in a world where there is differential pricing everywhere— from electricity bills (residential units are charged at a lower rate that commercial premises) to LPG gas and highway tolls to income tax (the rich pay tax at a higher rate than the poor, and most farmers don’t pay tax at all).

Keeping with that logic, differential pricing of internet packs shouldn’t have been an issue. But net neutrality means that service providers cannot charge different prices based on the content you download. So irrespective of which website or apps you use, your charges would be at the same rate.

In December 2015, the TRAI invited comments on whether service providers should be allowed to have “differential pricing for data usage for accessing different websites, applications or platforms”.

Based on the responses and discussion, the TRAI passed the Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016 which says that:

“No service provider shall offer or charge discriminatory tariffs for data services on the basis of content”.

This means no more schemes like “1 Gb 3G night data packs 12AM to 6AM @ just Rs. 49”. On the face of it, this also means the end of Free Basics and Airtel Zero. Now, if you are a budget conscious college student who primarily needs WhatsApp and Facebook (and maybe a little Wikipedia), this sounds like really bad news.

But don’t worry – there are a bunch of awesome loopholes in this new law.

Firstly, the fine for violating this law is just Rs 50,000 per day of contravention, subject to a maximum of Rs 50 lakh. Let’s take an example of a service provider and a social media site that partner to break this law for a two-year period. They would be liable to pay a total fine of Rs 50 lakh over this two year period – that’s Rs. 6,849 a day. Presuming they have 1 crore customers between them (that’s less than 1 per cent of India’s population), the fine boils down to less than 0.0007 rupees per customer per day! So service providers can consider this a minuscule tax and go right ahead with differential pricing and super cheap data packs.

Secondly, a “service provider may reduce tariff for accessing or providing emergency services, or at times of grave public emergency”. An example: in the midst of the recent Paris attacks, Google offered free international calls, to France, over the Google Hangouts Dialer.

Let’s take a hypothetical situation – a service provider feels that the spread of the Zika virus is alarming enough to be considered “grave public emergency”. So it launches a service, which gives users a health safety tip every day through a WhatsApp message. To receive this tip, users can sign up for a very cheap (or free) data pack, which provides access only to WhatsApp.

Interestingly, these regulations do not apply to tariffs for data services over”closed electronic communications networks” – which is defined as a communications network where data is neither received nor transmitted over the internet.

And, by the way, currently valid data packs, plans or vouchers must be consumed within the next six months.

The next few months will make it clear whether these regulations kill net neutrality or nurture it.

Rohas Nagpal is the co-founder, Asian School of Cyber Laws. The opinions expressed in this article are the author’s own and do not reflect the view of Asian School of Cyber Laws.

Read this at my column for the Mumbai Mirror.

Diploma in Cyber Law

Looking to build your expertise in the cyber laws of India? Check out the Diploma in Cyber Law conducted by ASCL jointly with Government Law College Mumbai.