Some people argue that Trai should have stayed off the issue since the Competition Commission of India (CCI) is sufficient to tackle Net Neutrality harms. However it is unclear if predatory pricing by Reliance, which has only nine per cent market share, will cross the competition law threshold for market dominance? Interestingly, just before the Trai notification, the Ambani brothers signed a spectrum sharing pact and they have been sharing optic fibre since 2013.
Will a content sharing pact follow these carriage pacts? As media diversity researcher, Alam Srinivas, notes: “If their plans succeed, their media empires will span across genres such as print, broadcasting, radio and digital. They will own the distribution chains such as cable, direct-to-home (DTH), optic fibre (terrestrial and undersea), telecom towers and multiplexes.”
What does this convergence vision of the Ambani brothers mean for media diversity in India? In the absence of net neutrality regulation could they use their dominance in broadcast media to reduce choice on the Internet? Could they use a non-neutral provisioning of the Internet to increase their dominance in broadcast media? When a single wire or the very same radio spectrum delivers radio, TV, games and Internet to your home — what under competition law will be considered a substitutable product? What would be the relevant market?
At the Centre for Internet and Society (CIS), we argue that competition law principles with lower threshold should be applied to networked infrastructure through infrastructure specific non-discrimination regulations like the one that Trai just notified to protect digital media diversity.
Was an absolute prohibition the best response for Trai? With only two possible exemptions — i.e. closed communication network and emergencies — the regulation is very clear and brief. However, as our colleague Pranesh Prakash has said, Trai has over-regulated and used a sledgehammer where a scalpel would have sufficed. In CIS’ official submission, we had recommended a series of tests in order to determine whether a particular type of zero rating should be allowed or forbidden. That test may be legally sophisticated; but as Trai argues it is clear and simple rules that result in regulatory equity. A possible alternative to a complicated multi-part legal test is the leaky walled garden proposal. Remember, it is only in the case of very dangerous technologies where the harms are large scale and irreversible and an absolute prohibition based on the precautionary principle is merited.
However, as far as network neutrality harms go, it may be sufficient to insist that for every MB that is consumed within Free Basics, Reliance be mandated to provide a data top up of 3MB.
This would have three advantages. One, it would be easy to articulate in a brief regulation and therefore reduce the possibility of litigation. Two, it is easy for the consumer who is harmed to monitor the mitigation measure and last, based on empirical data, the regulator could increase or decrease the proportion of the mitigation measure.
This is an example of what Prof Christopher T. Marsden calls positive, forward-looking network neutrality regulation. Positive in the sense that instead of prohibitions and punitive measures, the emphasis is on obligations and forward-looking in the sense that no new technology and business model should be prohibited.