Refer net neutrality to Competition Commission

Responses to violation of net-neutrality will highlight our values on non-restrictive practices and free markets.

NEUTRALITY

In just 10 days net-neutrality has become a household word. Neutrality is not a technology idea, it is an ethical idea. It emphasises that access is not unfair, unjust, restricted or monopolised. Protecting neutrality shows the values of a society and the character of business. Neutrality is a non-negotiable to deliver justice and fairness. It is a principle for minimum government.

Almost everyone recognises the absurdity of altering the access, speed or tariff based on the website, service, content or media you consume on internet. It is not only unfair but also unjust, restrictive or monopolistic to do so. Almost everyone would recognise this is just as absurd as your cab wanting to charge you differently to go to work or home, for entertainment or shopping. Almost everyone would be angry if their milkman demanded a different pricing for milk used for tea, for making ice-cream or for milkshake. Would you think it is fair if your bank were to charge you a different fee to pay your phone bills, book air-tickets or to pay for your holiday? Would you think it fair and unrestrictive if your newspaper were to give you zero plans for paid-news? Neutrality is not restricted to a domain, it cuts across domains.

The responses to violation of net-neutrality will highlight our values on fair play, justice, non-restrictive practices and free markets. It will highlight the character of our governments and businesses in not only the digital world but also the physical world.

RESPONDING TO ­VIOLATIONS

Sadly, the reputation of TSPs (telecommunications service providers) after moving from 2G spectrum scam to zero-scam, has taken a huge beating. With it the reputation of the Telecom Regulatory Authority (TRAI) also took a beating.

Citizens responded to the zero-scam with a huge outcry of over 300,000 emails to TRAI and by some reports possibly more than 800,000. The hashtags #netneutrality and #savetheinternet spread virally on social media. Print media wrote many column centimetres and launched campaigns in support of net neutrality. TRPs of news channels shot up as they launched campaigns supporting net neutrality. Clearly, internet users were not pleased with TRAI's failure to protect public interest.

Rahul Khullar, chairman of TRAI, is a 1975 batch Union Territory cadre IAS, who was the private secretary to then Finance Minister Manmohan Singh between 1991 and 1993, before taking up an economist's post in the Manila-based Asian Development Bank. During the NDA regime, he took up various assignments in the Delhi government, and then in May 2004, joined the Union Commerce Ministry as a joint secretary. Khullar is a batch-mate of R. Chandrashekhar, A. Raja's Telecom Secretary during the 2G scam and currently the industry representative as NASSCOM's president. Khullar has reportedly described the citizens' response as a big corporate war between a media house and a telecom operator.

The present telecom minister, Ravi Shankar Prasad (@rsprasad), has already been accused by the Aam Aadmi Party (AAP) of having a conflict of interest with telecom companies. AAP has produced receipts of the minister allegedly receiving retainer fees from Reliance group company Fine Tech Corp Pvt Ltd, between April 2013 and March 2014, when he was a member of the Joint Parliamentary Committee on Telecom. It is surprising that the minister did not recuse himself from the charge of this ministry given his leanings to telecom that are already public knowledge.

Furthermore, instead of referring the matter to the Competition Commission (@CCI_India), the minister took to maximum government by announcing a six-member committee to submit a report on net neutrality by mid May. The minister neither divulged the composition of the committee, the Terms of Reference for the committee, nor offer any immediate response on the part of the government.

Mark Zuckerberg, whose internet.org was among the earliest to violate net neutrality, defended the violation by arguing that net neutrality prevents access of the internet to the most disadvantaged in society. He has avoided pointing out that internet.org offers 38 websites of his choice, not the internet or websites that the disadvantaged would choose themselves to gain advantage from.

Clearly, the government and TSP responses are inadequate and not even the right thing to do. They leave a lot to be desired.

THE WAY FORWARD

The most common reaction is to ask for new laws. Do we really need yet another legislation to deal with neutrality?

The Consumer Protection Act, 1986 (CPA) restricts telecom companies from engaging in unfair and deceptive practices. It prevents falsely representing the 38 websites as the internet or zero plans as free access. It prevents representation that the internet plans have sponsorship of the World Wide Web Foundation or are as per the standards of internet defined by the WWW Foundation. It prevents misleading representations concerning the need for, or the usefulness of, the internet for the disadvantaged. It prevents materially misleading the public concerning the price at which internet is ordinarily sold. It prevents providing false or misleading facts about apps or web services.

CPA also prohibits restrictive trade practice. It prohibits raising the cost for some websites to reach out to the world causing unreasonable costs to consumers to access these sites. It further prohibits plans that would require a consumer to buy, hire or avail of any services as condition precedent to accusing the entire internet. CPA also prohibits manipulation of prices, or conditions of delivery or supply of the internet in such manner as to impose unjustified costs or restrictions on the consumers of internet.

Consumers can file complaints with the consumer court against violating TSPs and ISPs (internet service providers) as they can against anyone violating neutrality in a different space already.

The Competition (Amendment) Act, 2007 prohibits any agreement to produce, supply, distribute, store, acquire or control services, which cause or are likely to cause adverse effect on competition within India. It also prohibits any agreement to produce, supply, distribute, store, sell or price, or trade with a tie-in arrangement, exclusive supply agreement, exclusive distribution agreement, restrict to whom services are sold or from whom services are bought, resale price maintenance if such agreement is likely to cause adverse effect on competition in India. It also prohibits unfair or discrimi ry price or condition in purchase of the internet and its services. It prohibits TSPs and ISPs from using their dominant position as TSPs and ISPs to enter into, or protect, other markets like e-commerce, e-banking or other internet based services.

Instead of forming committees, the government should refer the matter to the Competition Commission to investigate the TSPs and ISPs, if the Commission has not taken suo motu cognisance already.

Under the Prevention of Corruption Act the exercise of influence to favour private interest constitutes an offence. The government should call for investigation by the CAG and CBI of the gross violation of public interest by those who are required to protect it.

ENSURING MINIMUM GOVERNMENT IN DIGITAL INDIA

When net-neutrality was threatened in the United States, President Barack Obama himself took a stand and did all he could to ensure net-neutrality was not compromised.

Violation of net-neutrality is looting India of its entrepreneurship, innovation and digital future. It is excluding India from the internet.

Prime Minister Narendra Modi (@narendramodi and @pmoindia) needs to assert the character of his government by stepping in and referring the matter to the Competition Commission, CAG and CBI. He needs to assert that his government stands for fairness and justice.

The then Prime Minister Manmohan Singh's failing was his silence on matters where his voice mattered the most. If UPA has become synonymous with scams it was because of Dr Singh's silence as the nation watched the loot of the country by private interests.

PM Modi has to show that the NDA is different and not only speaks but acts in public interest. He should immediately reconstitute the TRAI and the Ministry of Telecom and IT to incorporate those who are not burdened with private interests, better still with those who represent and promote public interests. The PM needs to assert that Digital India cannot be a collection of initiatives driving private interests. Digital India has to ensure minimum government and serve the public good. He has risen to many challenges, will he use this to assert fairness and justice?

First published at: http://www.sunday-guardian.com/investigation/refer-net-neutrality-to-competition-commission