Fleeting neutrality: The inadequacies of the ex-ante net neutrality regulations in India

Abstract

The paper seeks to address the economic and fundamental inadequacies of ex-ante net neutrality regulations in India. The current net neutrality regulations consider the internet service provider (ISP) market in a two-sided spectrum of content and application providers (CAPs) and end-users. However, the rapidly growing internet space has undergone numerous developments in recent years, giving rise to complexities such as vertical partnerships between the ISPs, CAPs and OTT service providers, the use of content delivery networks (CDNs) for the last mile, deployment of 5G on mobile devices, etc. The main hypothesis is that the ex-ante net neutrality regulations lack the tools to combat modern problems with their antiquated approach and measures. Accordingly, to analyse this proposition, the paper considers the existent literature on the fundamental aspects of net neutrality norms, and juxtaposes the economic and empirical findings from a post‐net neutrality regulation stance. The findings reveal that net neutrality measures that prohibit paid-prioritisation and zero-rating services lead to economic inefficiencies. Further, the restrictive net neutrality measures hamper investment and innovation in the market and fall short in dealing with vertical integration and the use of CDNs. Hence, to promote competition and protect net neutrality, especially in the lower layers of the ISP market, the paper recommends measures such as digital dynamism and transparency rules and studies the role of ex-post competition regulations in aiding net neutrality.