INTRODUCTION
The past few decades have witnessed the transformation of the entire globe into a giant device that is governed by various intertwined and interdependent networks of communication. – every country is in a race to become a superpower in every aspect including, in particular, the telecommunication sector. As per the study, India has reported a robust demand of 14.1 GB of data subscribers per month in 2021.
India constitutes the second-largest market in the world, in terms of total internet users. In the year 2021, the digital market generated a revenue of INR 21,31,730 crore. In light of such skyrocketing growth of the telecommunication sector, the introduction of 5G technology has added a glorious new feather to the cap of the Indian economy.
Even aside from the infrastructural importance, it will also, overall, bring India in line with the global mainstream, especially since 5G is intrinsically linked with and demonstrates the advancement in the ‘Internet of Things’ (hereinafter abbreviated as “IoT”).
5G DOMINANCE
Some of the most anticipated benefits of 5G are expected in relatively newer technologies of Virtual Reality (VR), Augmented Reality (AR), robotics, smart cities, smart households, etc. 5G is expected and known to consume less energy yet portray more efficiency.
However, the benefits of 5G are much more far- reaching than just being with respect to certain technological features. Some of the major sectors that seek to fully utilize the potential of 5G to their advantage are healthcare, education, automobile and electronic industry, etc.
LEGISLATIONS GOVERNING 5G
Presently there are no specific laws or legislation relating to 5G technology, but the 5G market is expected to broadly continue to be regulated by the currently- established system for telecommunication governance in India.
- The India Wireless Telegraph Act,1933
The Act was passed mainly for controlling and monitoring the possession of wireless telegraphy apparatus. The Act makes the possession of any wireless telegraphy device permissible only when the license is issued by the Telecommunications Authority and levies penalty on systems without valid license. The similar system shall also be followed for 5G networking.
- Telecom Regulatory Authority of India Act, 1997
The Telecom Regulatory Authority of India Act, 1997, set up Telecom Regulatory Authority of India (hereinafter referred to as “TRAI”) as a quasi-judicial authority to settle and adjudicate disputes in the telecommunication sector, and, in effect, provide for an atmosphere of holistic growth thereof. It is the sole independent regulator of the Telecom Sector. Hence, the 5G system will also be regulated by TRAI
TRAI exercises mandatory, advisory, regulatory as well as judicial powers. TRAI also has sole jurisdiction in determining tariffs in the telecommunication sector. Further, in areas where it exercises advisory jurisdiction, it is compulsory for the Department of Telecommunications (DoT) to seek TRAI’s recommendations. TRAI released recommendations on 11.04.2022 known as “Auction of Spectrum in frequency bands identified for IMT/5G” which were issued pursuant to DoT’s request to provide recommendations on the quantum of spectrum band that can be earmarked for private captive/isolated 5G networks.
- Information Technology Act, 2000
The Information Technology Act, 2000 (hereinafter referred to as the “IT Act”) is the primary piece of legislation governing the information and communication technologies sector in India. While the purpose of the legislation, per se, was neither to govern the telecom industry, nor did it formally refer to the same, it inevitably is applicable to the telecom sector substantially, because of the telecom and the IT sector being closely intertwined and interdependent. The IT Act was amended in 2008 to reflect this interdependence, whereby it was made applicable to telecom service providers and ‘communication devices’.
The IT Act refers to telecom service providers as ‘intermediaries’ since they, ‘on behalf of another entity’, receive, store, and/or transmit data, and they are protected in the capacity of such ‘Intermediaries’ security laws, by data protection and for the protection of confidential and sensitive personal data or information.
Thus due to advanced technology and telecommunication in 5G system, the IT Act will also govern 5G System.
- The Department of Telecommunications
The Department of Telecommunications (hereinafter “DoT”) is an Indian governmental agency primarily responsible for issuing licenses for the service of telegraphs under the law. Some of its main roles include (a) licensing and regulation; (b) ensuring international cooperation in telecommunications-related matters; (c) promoting private investment in the Indian telecommunications sector; and d) promoting telecommunications standardization, research and development.
The DoT has issued guidelines for Captive Non-Public Network (hereinafter referred to as “CNPN”) and CNPN licensee, (hereinafter referred to as “CNPN Guidelines” ). It is anticipated that CNPN can play a significant role in providing secure, reliable, low latency, and high throughput communication to enterprises, especially for emerging technologies such as Long Range and machine-to-machine. The 5G System should be pursuant to the CNPN Guidelines.
- Ministry of Electronics & Information technology (MEITY)
The Ministry of Electronics & Information Technology (hereinafter referred to as “MeitY”) is deals with any and all matters pertaining to Information Technology Policy Matters, IT Act, and other related laws, electronics, as well as the Internet, and all pertinent matters except the licensing of Internet Service Providers.
The matters related to the Internet that fall under the purview of MeitY include the issue of data security and data privacy. However, it is the DoT that imposes privacy obligations and responsibilities on telecom service providers, through the issuance of a Single Certificate.
ADVERSITY IN THE COMFORT OF 5G
While India’s biggest private sector telecom operators – Reliance Jio, Vi and Airtel – had submitted their plans for the 5G rollout to the Government back in January 2020 itself, the efforts to deploy 5G have, to quite some extent, been affected by the Covid-19 pandemic as well.
In fact, the Parliamentary Standing Committee on Information Technology of the Lok Sabha had also released a report that was highly critical of the “cavalier” attitude that the Central Government has displayed in the matter of timely deployment of 5G in India. The report, inter alia, also highlights the fact that China had already deployed 5G for over 8% of its population at the time.
i. Spectrum Pricing
The issue of lack of affordability in spectrum- pricing has been widely recognised, including by the GSMA which, in its report titles ‘Spectrum Pricing in Developing Markets’, has acknowledged the fact that probably the biggest issue in deployment of 5G is the prevailing high spectrum prices in developing countries.
This issue has also been brought to light by the report titled ‘India’s Preparedness for 5G’, recently presented by the Standing Committee on Information Technology, which highlights the wide chasm between the prices of spectrum bands between other countries such as Italy, UK, Australia and Spain on the one hand, with the prices in the aforementioned countries per MHz being 182 crores, 70 crores, 35 crores and 14 crores respectively, with the base price recommended in India by TRAI on the other hand, which is a whopping 492 crores.
The Standing Committee has also noted that the current conditions prevailing in the sector, in light of the Covid-19 pandemic, as well as the fact that the 5G ecosystem in India still has a long way to go in terms of development should be taken into consideration properly, and that the recommended pricing suggests that this has not been done.
Further, the Committee has opined that the guiding principle for massive inroads in a new arena should be ‘long term consumer benefit’ and not ‘short term revenue maximisation’. The most prominent giants of the telecommunication industry, such as Reliance Jio, VI, and Bharti Airtel are also firm on their stance that the spectrum price being sought by the DoT and TRAI are too high.
ii. Right of Way (ROW) and Absence of Uniform Policy Structure
Infrastructural changes required for proper implementation of 5G are currently a major concern, not just in terms of structuring finance and development, but also with respect to the existing regulatory framework needed for installing such network infrastructure.
Complicated procedures that vary across different states, as well as the prevailing non- uniformity in levies and requisite administrative approvals have already caused massive delays in rolling out Optical Fibre Cables (OFC) and the installation of telecom towers, which have caused adverse impacts on practically all telecom service providers.
While 2016 witnessed the introduction of new RoW Rules and standardized procedures, along with appropriate charges, there are several obstructions that have still hindered proper implementation thereof. Such persisting inconsistencies and delays in securing RoW further causes improper and delayed deployment of extensive infrastructure, as well as complicates the issue of network densification which is already being intensified with the number of 5G use cases increasing day by day.
iii. Licensing & Regulatory Issues
It is to be expected that the entirely new Licensing Requirements and Regulations to be formulated categorically for 5G will entail additional costs as well as procedural requirements for major telecommunication companies in the country.
At such a juncture, it is crucial that the formulation of new policies is done with the end goal of easing out the task at hand in the long run, and not creating more impediments just in view of short-term enrichment.
The National Digital Communication Policy 2018 (hereinafter referred to as “NDCP”) highlights the importance of new and improved infrastructure.
The NDCP thus, reflects India’s aims and ambitions and shows great initiative, but the same will go in vain if not followed up with equal intent and consistency by the Government.
iv. Data Privacy
Securing data and protection thereof in such a scenario has, thus, become the most important concern which must be addressed from both, a policy as well as an industrial perspective. Companies, in particular, will have to weigh in on several important considerations while formulating a separate set of policies for the implementation of 5G, and secure data privacy for their end-users.
Faster speeds and higher frequencies will also cause manifold more data to be generated, in terms of location data, GPS, navigation, website tracking, etc. and the Personal Data Protection Bill would, therefore, seek to bring in new sets of Rules to address such issues separately.
AMLEGALS REMARKS
From a technological perspective, the boost that 5G has brought increasingly widespread application of IoT devices. Such provision of billions of interconnected devices will create ample opportunity for growth in various sectors of the Indian economy, such as electronics, healthcare, education, manufacturing, etc.
The pivotal importance that 5G holds, thus, necessitates initiative and strong support from the Government, in terms of regulatory framework, research and development, addressing data security and privacy concerns, promoting a more digital and technologically integrated business climate which will, in turn, encourage domestic as well as foreign players to invest in Technology. Probably the biggest balancing task, with the rollout of 5G, will be between the increased levels of connectivity and communication, on the one hand, and data privacy and network security, on the other hand.
The introduction and implementation of 5G across sectors, especially in a post pandemic world, is likely to bring in a paradigm shift for the telecommunication sector and for the Indian economy as a whole, provided we are able to grapple with the new areas of concerns that come with it, through a comprehensive and pragmatic set of policies and regulations.
-Team AMLEGALS
For any queries or feedback, please feel free to get in touch with tanmay.banthia@amlegals.com or mridusha.guha@amlegals.com
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