A Critical Analysis of the Concept of Net Neutrality

Net Neutrality refers to the idea that Internet Service Providers (ISPs) should treat all the content flowing through their networks equally and, without any kind of unseemly discrimination favouring particular apps, sites and services. This principle essentially stops the providers from exercising arbitrariness in prioritizing and blocking the content thereby ensuring that the consumers have access to any legal content they want.[1] Existence of laws on net neutrality prohibits differentiated treatment of online traffic (i.e. providing ‘fast lanes’ to data from certain sites and slowing it down for the others), price discrimination (i.e. charging higher prices to prioritise/access certain content)and also, the combination of both.[2]We may perceive this idea casually but the fact is that having proper laws on net neutrality benefits us all equally, whether it be the ones putting the content or the ones accessing the content. With increased use of the internet and growing sense of awareness amongst us, the debate around net neutrality has spread to all parts of the world, though our focus chiefly remains on the state of affairs in the United States of America where the principle of net neutrality has had its fair share of ups and downs. In this article, we aim to explain with clarity the often-misinterpreted term of ‘net neutrality’ covering all its aspects and then look upon the case of the United States of America before finally moving to the situation in India.

The Emergence of Net Neutrality

‘Network neutrality’, as a term, was coined by Tim Wu, a Columbia University Media Law Professor in 2003. This came at the time when broadband providers like AT&T and Comcast had engaged in discriminatory practices by banning users from accessing wi-fi routers and Virtual Private Networks respectively. These actions were seen as hurting innovation in the long run by Wu and hence, he called for anti-discriminatory practices.[3]Since then, net neutrality has become a topic of continuous discussion with viewpoints emerging both in favour of this principle as well as against it.

Why Support Net Neutrality?

Imagine a situation wherein your internet service provider asks you to pay extra for accessing the popular video streaming service- YouTube while charging the same prevailing amount for accessing all the other services. Or imagine the case when the provider altogether blocks YouTube, for he has been paid hugely by the other streaming company- Daily Motion. In such a situation, we will be forced to switch to Daily Motion even if we want that or not. For even more clarity, let’s say the provider deliberately slows the working of Facebook because he wants the consumers to use the other social media site- Twitter which has promised him massive profits. In such a scenario, we’ll be in a helpless state with no option but to start using Twitter. Apart from the above-mentioned possibilities, there could arise numerous other instances as well, all of them, in one way or the other, promoting the interests of the Service Providers. One major issue that most scholars discuss is that of the creation of monopolies of big enterprises in different fields.The ability to pay to the ISPs provide established companies with advantages in terms of the competition level as the newly built start-ups are mostly not able to afford the hefty amounts that service providers usually ask for. This, in turn, discourages healthy competition by erecting the structures of monopoly. The capacity to develop new applications, new solutions, new services and new technologies is what has been largely responsible for all the progress that we have made in the world of internet. Not having net neutrality norms in place thus will keep the internet closed to the innovation which is vital for its evolution.[4] At this point of time, our objective should be to preserve the ‘openness’ of the internet, for restricting it and not allowing space for competition, innovation, and consumer welfare could potentially lead to limited accessibility and ultimately result in its downfall.

What do the Opponents have to say?

The opponents of net neutrality argue that prioritisation of bandwidth is necessary to promote future innovation in the world of internet. One major point that they always cite is that of regulation of pirated content. It is often said with conviction time and again by the Internet Service Providers that they should be given the right to sacrifice the bandwidth provided to the pirated content downloads from clients like BitTorrent and allocate the same to the streaming of genuine content on other websites as Netflix or HBO. Some of the opponents go on to the extent of saying that introduction of net neutrality would make it difficult for the Internet Service Providers to recover their investments in the broadband market. Also, it has been claimed that the harms to the consumers anticipated by net neutrality proponents would get resolved if we allow space for the competition between broadband providers so that a consumer who is not necessarily satisfied by the service of one provider always has the option to shift to the other one.[5]Though, this argument does not hold much significance for, in many localities, especially in the small cities, there exists only one particular provider who is relied upon by everyone there for availing the net facilities which implies that there does not exist any scope for competition between broadband providers in those areas leaving consumers prone to exploitation.

The sequence of events in the United States of America

As already mentioned, the developments in the U.S. have been able to catch most of the world’s attention. The state of affairs with regards to net-neutrality in the States has been fluctuating for years now. It was in 2005 when the Federal Communications Commission (FCC) for the first time brought some kind of anti-discriminatory laws to prevent the ISPs from blocking legal content. In 2008, broadband company Comcast was asked by the FCC to stop slowing Bit-Torrent connections. The matter went to the court where FCC failed to make the case that it had legitimate authority to enforce the 2005 Policy Statement.[6] The FCC, in 2010, under President Obama went on to constitute detailed orders regarding net neutrality in order to bypass the judicial scrutiny but it did not happen as per their expectations. Verizon sued the agency this time and the court ruled in 2014[7], that the agency was not authorised to implement net-neutrality regulations on those services that did not come under the category of ‘common carriers’ under Title II of the Communications Act,1934.[8] Thomas Wheeler, the then chairman of the FCC, later on, reclassified broadband companies as Title II Carriers hence passing a strong net-neutrality order in 2015. This too went to the court but the verdict was different this time as the federal court ruled in favour of the FCC declaring 2015 net neutrality rules as legal.[9] The ruling was seen as a victory by all the proponents but the desirable run ended too soon with the arrival of the new government. Ajit Pai, the new chairman of FCC overturned the Wheeler era decision that had classified broadband providers as ‘common carriers’ and also removed the restrictions on blocking and slowing down of content.[10]Since then, the U.S. has been caught in an imbroglio where despite the popular demand, they have not been able to restore themuch-desired net neutrality measures.

The Situation in India

The struggle for net neutrality began in the year 2015 in our country. It was then that the government decided to block Facebook’s Free Basics Program, for it was deemed to be violating the rules of net neutrality. Even Airtel’s platform called ‘Airtel Zero’ had to be shut downfor the same reason and the telecom major was also forced to take back its plan that charged extra for internet calls. Additionally, in 2018, the Telecom Regulatory Authority of India (TRAI) came up with supposedly the world’s strongest net neutrality norms deviations from which would lead to strict penalties.[11] This was in accordance with the recommendations provided by the A.K. Bhargava Committee, a six-member grouping that was formed in January 2015 to examine various aspects of net neutrality.[12]Thus, it would be safe to conclude that the situation with respect to the implementation ofnet neutrality norms in India has been managed quite strongly with the government being in full support of the necessary measures.

What should be the way forward?

In the course of this article, we tried putting out the arguments of both the proponents as well as the opponents of net neutrality. ‘Openness’ of the internet being crucial for its evolution, it is the responsibility of each of us to preserve the same. Net Neutrality serves exactly the purpose, for it takes away the excess powers from the hands of Internet Service Providers (ISPs) and restricts them from exercising discriminatory practices. It has been argued several times that competition and innovation are intrinsic for the development of this vast world of internet. Providing unnecessary freedom to broadband providers would mean an end of such essentials only to hamper consumer welfare in the end. We need to understand the fact that the internet is all about new ideas and the way the new emerging enterprises present themselves in this competitive virtual world. Not having a level playing field only for the sake of profits of broadband providers and big established enterprises would surely not be in our best interest. Hence, the way forward for all of us should be to actively participate in ensuring that the principles of net neutrality remain in existence in our country and not be the prey of politics as they did in the case of the U.S.

[1]HavishMadhvapaty& Shiva Goyal, Net Neutrality- A look at the future of Internet, 16 (4) II IOSR     Journal of Computer Engineering 71-77 (July-Aug. 2014).

[2] Katerina Maniadaki Dr, Net Neutrality Regulation in the EU: Competition and Beyond, 10 (7) Journal of European Competition Law and Practice 479-488 (2019).

[3]Pablo Bello & Juan Jung, Net Neutrality-Reflections on the Current Debate in The Shifting Geopolitics of Internet Access, 6 Global Commission on Internet Governance 61-72 (July 26, 2017).

[4]Id., 3.

[5]Federal Trade Commission, FTC to host Workshop on Broadband Connectivity Competition Policy, December 7, 2006, available at https://www.ftc.gov/news-events/press-releases/2006/12/ftc-host-workshop-broadband-connectivity-competition-policy (Last visited on July 1, 2020).

[6] Chris Marsden, Net Neutrality:Measuring the Problem, Assessing the Legal Risks, 42 Institut Barcelona  d’EstudisInternacional 1-24 (2013).

[7] Verizon Communications Inc. v. Federal Communications Commission, 740 F.3d 623 (D.C. Cir. 2014).

[8]The Communications Act, 1934, Title II.

[9]Ben Scott, Stefan Heumann& Jan-Peter Kleinhans, Landmark EU and US Net Neutrality Decisions: How might pending decisions impact Internet Fragmentation in The Shifting Geopolitics of Internet Access, 6 Global Commission on Internet Governance 73-86 (July 26, 2017).

[10] The New York Times, FCC Repeals Net Neutrality Rules, December 14, 2017, available at https://www.nytimes.com/2017/12/14/technology/net-neutrality-repeal-vote.html (Last visited on June 30, 2020).

[11]BBC News, India adopts ‘world’s strongest; net neutrality norms, July 12, 2018, available at https://www.bbc.com/news/world-asia-india-44796436 (Last visited on July 1, 2020).

[12]Department of Telecommunications, Net Neutrality Committee, 2015, available at https://dot.gov.in/sites/default/files/Net_Neutrality_Committee.pdf (Last visited on July 1,2020).