Net neutrality and antitrust: Options for India

By most indications, India has arrived at a principled affirmation of net neutrality; the country must now turn its attention to its regulatory aspects. This essay examines whether the Competition Commission of India (CCI) can assume the primary role in enforcing net neutrality. It will trace the Commission?s short history to determine whether it has adequate jurisdiction and the strength of precedent to regulate the internet.

Long before an Englishman on prime time American television issued a call to arms to the internet citizenry with the now laconic phrase, “fly my pretties,” net neutrality had been embedded in the basic architecture of the internet. The term ‘net neutrality’ was coined by Prof. Tim Wu in 2003. The issues surrounding net neutrality are generally traced back to Lawrence Lessig’s seminal book, The Future of Ideas, published in 2001. However, the end-to-end principle espoused by net neutrality formed one of the foundational ideas behind the invention of the internet itself. In 1972, a Frenchman named Louis Pouzin developed a network system called CYCLADES which was meant to be an alternative to the now popular ARPANET, the predecessor of the internet. One unique feature of the CYCLADES was that packets of information would be transmitted end to end, i.e., from the host computer to the end user without depending on the network for arranging the packets. This would restrict the interference from telecom networks in the transmission of data. This is the only feature of the CYCLADES that was incorporated into the internet. Net neutrality, therefore, predates the internet itself.

In India, net neutrality continues to remain at the centre of a highly complex policy debate. It defies definition and throws up difficult questions over substantive as well as implementation-related aspects of access to the internet. Until recently, the country had not had the opportunity to display public support for the principles enshrined by net neutrality. That changed when the Telecom Regulatory Authority of India (TRAI) released a consultation paper seeking public comments about the regulation of over-the-top service (OTT) providers. By April 23, 2015, less than a month after the release of the consultation paper, reportedly a million Indian internet users had pledged support for the adoption of net neutrality rules. Having seemingly arrived at a principled affirmation of net neutrality, the country must now turn its attention to its regulatory aspects.

Unsurprisingly, these issues will be informed by the debate in the United States. In the US, industry, academia and the administration have had longer to dwell on questions surrounding the enforcement of net neutrality. Yet, a fundamental question remains unresolved: Which regulatory body and framework are best suited to help enforce net neutrality? Free market advocates have argued that the Federal Trade Commission (FTC), the antitrust watchdog in the US, is in a better position to keep a check on network neutrality violations than the Federal Communications Commission (FCC). They argue that net neutrality violations are quintessentially practices borne out of abuse of dominant position, market foreclosure and creation of entry barriers. The antitrust regulatory body has decades of experience in empirically investigating such practices and imposing proportionate penalties. Therefore, it is argued, if competition policy were to be enforced properly, the need for sectoral regulation would be eliminated.

This essay examines whether the Competition Commission of India (CCI) can assume a similar role in enforcing net neutrality. It will trace the Commission’s short history to determine whether it has adequate jurisdiction and the strength of precedent to regulate the internet.

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Bedavyasa Mohanty