By: Vibodh Parthasarathi

It is perhaps the only principle nurturing both equal availability of diverse content and parity in accessing this

Speaking at IIT Delhi, Facebook founder Mark Zuckerberg drew attention to countries devising their own regulatory frameworks on net neutrality. This seems as much a desire as a compulsion, since net neutrality moves beyond traditional communication policy concerns of free speech in TV, cinema and newspapers that have focussed—often rather narrowly—on the legal and extra-Constitutional blocking of content. It highlights the less-explicit discrimination in the conditions of the passage of content, thereby invoking a granular picture of the governance of information flows.

Perhaps Zuckerberg could have shared something else in the same breadth: National regulatory configurations of net neutrality are being derived from a number of universal principles of non-discrimination concerning the commercial, technological and financial architecture of digital flows. First, internet service providers (ISPs) should not hinder the provision of any website so we can avail all content/services, unless there is a clear “show of harm”. Despite the legacy of debates in India on what may be considered “publicly detrimental”, this principle is widely held high by Internet users and policymakers globally. Second, the principle of conditional non-interference in availing all content is extended to ISPs neither prioritising nor throttling the flow of certain data over others. Otherwise, these amount to a technological form of preferential availability and/or access. Such discriminatory prioritisation commonly surfaces in protocols enabling access to certain content at higher speeds than others—what has come to be called “fast lanes”. Third, where availability and access are uniformly unfettered, discrimination at the supply-side tends to creep in by offering certain content or services at comparatively lower costs. This discrimination reaches an extreme when connectivity to a site is made available without any data charges—commonly referred to as “zero-rating”. Providing access at zero cost would theoretically make the demand infinite—which, in practical terms, would congest traffic in our frail networks.

More importantly, in violating net neutrality principles, all such mechanisms pose risks for the unprecedented diversity of opinions and experiences available on the internet. By maintaining parity of availability (no preferential content/service), uniformity of affordability (no zero-rating) and equity of access (including through technological standards), net neutrality protects diversity online in two minimal ways. First, it demands ISPs make available all types of services and content on equal footing, thereby preserving Source Diversity. However, like all marketplaces, there is a gap between what is on offer and what is actually consumed online. With this nuance net neutrality warrants, secondly, we are empowered to choose equally between comparable, and comparably offered, services/content. This preserves Exposure Diversity, or the diversity actually incurred at the user-end. Extensive research in both television and internet has shown diversity of source and exposure are not always positively correlated.

The abundance of the internet is conditional to our being provided and accessing all sites equally, i.e., without being technologically hindered (including through proprietary formats), financially biased (through differential pricing or speeds) or commercially limited (by constricting offerings). Invariably, these hurdles work together—differential pricing tends to de jure result in preferential offerings. Net neutrality is perhaps the only principle nurturing both, the equal availability of diverse content and the parity in accessing such diverse content. Consequently, questioning net neutrality implicitly questions the value of diversity which resides at the heart of the internet, as much as at that of our human experience.

The founder of Facebook reiterated where connectivity is a challenge, access could be widened by offering some services gratis. The very thought of “some services” conjures a risky trade-off—where diversity takes a hit. This risk is compounded without any end-user involvement—an increasingly common in governance tool—in deciding the composition of “basic” services. Bundling, including, distorts information flows at the supply and demand sides by respectively limiting competition among online services and by pre-determining the choice of services being used. How would Zuckerberg react to users being empowered to choose what their basic services is composed of? If not, then we are effectively being asked to choose between no access and access to an oligopoly of ideas.

This carries another important message for policymakers: While the principles of net neutrality and universal connectivity must necessarily coexist, they should not be deliberately confused. Practices of bundling, fast-laning and zero-rating signify implicit and explicit forms of architectural data rationing—thereby directly posing grave risks to online diversity.

Fortunately, the DoT has been vocal against, at least, till date. A selective gateway through is akin to Facebook being an aggregator in the distribution chain; and therefore DoT’s opposition to it is consistent with Trai disallowing aggregators in cable TV distribution. However, DoT has not been so vocal against Airtel Zero, viz. access bereft of data-charges to certain sites that it picks who remunerate the telco. A constituent principle of Net Neutrality demands delinking connectivity with applications/content. Experiences of networked infrastructure like cable show ample instances of market foreclosure—a carriage-provider barring content produced by an affiliate of its rival carriage provider—when carriage is linked with content. In the early 1990s, TCI and Comcast, owners of the shopping network, QVC, were found to be less likely carrying the rival Home Shopping Network.

DoT’s opposition to but ambiguity on Airtel Zero pipes out inconsistent signals—as in the latter case, the telco-ISP itself acts as the discriminatory gateway. Such a practice by the country’s largest and oldest telco has encouraged smaller and newer players to follow suit—such as Uninor, which offered access to Wikipedia without data charges for three months starting April 2015. Intriguingly, while Uninor, where the Norwegian government has majority stake, offers zero-rating in India, the regulator in Norway found zero-rating violating their national guidelines on net neutrality.

Besides bundling and zero rating, impediments to data agnostic flows stem from fast-laning, i.e.,  comparable content provided to users at different speeds. This results in drastically different user experiences of often competing content/services; those paying a fee to the ISP enjoy their content being, so to say, “fast-laned”. Such paid prioritisation greatly dents exposure diversity on the internet, as it did earlier with cable TV. During the decades of analog cable, some TV channels appeared full of “snow” and/or with poor sound. Since these channels did not, or were unable to, pay a placement fee to cable operators, their relay was demoted to non-prime bands—and hence, our poor viewer experience. Placement fee in cable, which discriminated against smaller, stand-alone channels, has been severely criticised by both TRAI and the Ministry of Information & Broadcasting. Thus, a regulatory framework conversant with varied avatars of paid prioritisation would not permit similar practices online, on at least two counts: breaching the principle of carriage-operators being agnostic to data flows and, in doing so, signalling an anti-competitive practice.

Prioritisation may also work through uneven exemptions from data caps. This would not be discriminatory if the reduced speed, when user data caps are crossed, is equally applicable to all. But if certain sites are exempt from reduced speed—say, a music site owned by an affiliate of a telco-ISP—then neutrality is breached. Net neutrality guidelines in Norway, alluded to earlier, had their genesis in 2006 when NextGenTel, an ISP, sought to cap the bandwidth for users’ accessing the site of NRK, the country’s public broadcaster—because its free TV streaming attracted tremendous traffic, something unimaginable with Doordarshan. With such a profound legacy, we would expect Indian arms of telcos from “developed” countries to raise the bar on the core principles of diversity and net neutrality—and enhance the robustness of national regulatory frameworks.

But then, as Zuckerbeg explained, countries are figuring out on their own what regulations for net neutrality ought to be.

The author teaches and researches media policy at the Centre for Culture, Media & Governance, Jamia Millia Islamia.

Note: The article first appeared in The Financial Express ( on 30 October 2015.