In this rapid advancement of technology, the telecommunication sector has played an important role in connecting the economies of the world and bringing people and communities together. With the advancement of technology, telecommunication has been superseded by Over-the-Top (hereinafter referred to as the “OTT”) services that provide a wide range of communication services like messages, voice calls and video calls over a network.
Therefore, in the light of newer technologies and making India digital ready for the 21st Century, the Department of Communications (hereinafter referred to as “DoT”) under the Ministry of Communications, Government of India, on 21.09.2022, has proposed to replace the Indian Telegraph Act, 1885, the Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950 (collectively, “Telegraph Laws”) with the Indian Telecommunication Bill, 2022 ( hereinafter referred to as the “Bill’).
This Bill is an attempt to comprehensively regulate and govern the entire Telecommunication sector, including the OTT market in India and provide a secure market in order to encourage further developments and advancements and to avoid malpractices in this sector.
TELECOMMUNICATION REGIME IN INDIA
India is the World’s second largest telecommunication ecosystem and the sector employs more than 4 million Indians. Despite the rapid advancements in this sector in the form of 4th Generation and 5th Generation, Internet of Things, Industry 4.0, M2M Communications, Mobile Edge Computing among other things. The Indian telecommunication sector is at present governed by Indian Telegraph Act, 1885, The Wireless Telegraphy Act, 1933 and the Telegraph Telegraph Wirers (Unlawful Possession) Act, 1950 and the Telecom Regulatory Authority of India Act, 1997, which were legislated in the colonial era.
It is in the light of these laws that the Centre is proposing for a new act which shall replace the older ‘Telegraph Acts’ and establish a legal framework for India which is attuned to the realities of the 21st Century.
THE INDIAN TELECOMMUNICATION BILL, 2022
The Bill has extended the scope of the term Telecommunication services to include OTT services like online messaging, voice calls, video call amongst others.
Under the guise of the Bill, the Central Government has been granted the exclusive power to deal with all telecommunication services and can further grant any other entity such powers. A clear licensing, registration, authorization, and assignment procedure been laid down, which will help bring procedural clarity for development of Telecommunication Sector in India and with the introduction of 5G Spectrum in India, the Telecommunication Sector will play a key role in the development of overall economy of the country.
The procedures have been setup unambiguously and a strict vigilant mechanism has been set up. The following are the salient features of the Bill: –
1. Regulation of Modern Telecoms
The DoT focuses on expanding the scope of regulation of the telecommunication sector and includes all newer modes. The expanded definition of Telecommunications includes a wide range of services including OTT Communication services like electronic mail, video and data communication services, internet, and broadband services among others.
This means that all the social media applications and the other electronic service application would also be regulated under this Bill. Thus, the OTT platforms which were so far independent would also have to meet the regulatory compliances under the Bill.
2. Spectrum Allocation
Spectrum being a scarce natural resource and also having a dual nature of economic and public good should be used efficiently in public interest. The Bill lays down an explicit statutory framework for the Central Government for Spectrum Assignment as it provides assignment of spectrum primarily through auctions and administrative processes for the Governmental Organizations
It further empowers the Central Government to take back the Spectrum of an Insolvent Service Provider in case of non-continuance of service. However, an Insolvent Service Provider shall be allowed to provide service if he continues to do so during the insolvency.
3. Licensing Regime
The Bill provides for Telecommunication services to obtain a license to provide services in India. While for Telecom infrastructure only registration with the Central Government is sufficient.
Whereas, the OTT platforms have to obtain a license from the Central Government in accordance with the licensing requirements as prescribed. In order to prevent harassment to users and protection of data, a legal framework is enabled.
The Bill also provides the consequences in case of breach of the terms and conditions, which may result from revocation of license to penalty being imposed on the service provider. This suggests that there is a comprehensive regulation for the Service Providers.
Moreover, the Bill provides for the further remedies to a Service Providers in case the license is cancelled, and also incorporates an alternative dispute resolution clause for speedy redressal of grievances.
4. Right of Way for Telecom Infrastructure
It is an established fact that even at this stage of technological advancements and progress, there are still wide ranging delays on the part of the Government for the development of Network and Infrastructure. The Bill attempts to address this issue and focus on clearing the delay and have a well-equipped infrastructure. Moreover, it also establishes designated Authorities, who would specifically look into these matters. Thus, the Bill takes into consideration, the smallest issues and redresses them.
5. Government Interception
The Central Government has been provided a substantial power for the regulation and supervision of the telecommunication services in the country. The Government has been conferred the power of fixing standards and revising it from time to time for the infrastructure, distributors as well as service providers.
Moreover, the State Government or Central Government may overtake all the Telecommunication services, if a need is emergent. Moreover, the Government in case of public emergency or in public interest can even intercept the messages of persons or class of persons for the national security and public safety.
The Government can also shut shutdown Internet access or suspend any all-telecom operations at its discretion on the ground of national security and public safety.
The Bill has an enabling provision for the Government to set up an Alternate Dispute Resolution mechanism such as arbitration, mediation or other process of dispute resolution. The Bill permits the service providers to conduct live testing of products and services in controlled environment under the supervision of the Government and in this regard the regulatory framework shall be created by the Government (Regulatory Sandbox). The Government has also opened the scope for the further developments and innovations in the telecom sector.
Prior permission from DoT for mergers, demergers and acquisitions has been dispensed with and only a notice/intimation has to be given to the Government.
DRAWBACKS OF THE BILL
The Bill has been formulated to change the colonial laws which had been enacted with a colonial mindset, but it in turn strengthens the colonialist and draconian provisions due to such regulation. The privacy of the OTT users have been taken away and the Central Government can look into the communications between persons on the OTT services. The Bill also establishes designated Authority that would consider the matters relating to the Telecom Infrastructure and hence, it would also burden the Central Government with an additional cost and vigilance.
The inclusion of OTTs under the licensing regime of this Bill as well as regulation under the Information Technology Act, 2000 (hereinafter referred to as the “IT Act”), leads to a regulatory overlap. This regulatory overlap would create further confusions, which regulation would supersede the other.
Furthermore, the Bill has failed to differentiate OTTs and Telecom Service Providers and have kept both under the same regulation. Moreover, governing Internet Services is a complicated task, and hence, though the Bill that seems so easy to enforce, would be a herculean task for the enforcement authority.
The Bill has the diluted the role of Telecom Regulatory Authority of India (hereinafter referred to as “TRAI”), which has been governing the telecommunications sector so far, would create a regulatory vacuum and would disturb the existing ecosystem.
The new licensing regime which has complexity and strict regulation, would limit the new stakeholders entering in the market and would also discourage the foreign investors entering the market. This would lead to a long term loss to the Indian Telecommunication Market.
The introduction of the Bill is a step forward towards comprehensively regulating and governing the entire Telecommunication sector, including the OTT market in India, to provide a secure market in order to encourage further developments and advancements and to make India digital power house of the World.
The Bill although have been framed with the intention of revamping the Telecommunication Sector of India, the Central Government under this Bill has been conferred with exclusive power to regulate the Service Providers and also to set up the Authorities for the same. The Central Government is empowered to shutdown data and even encrypt messages on its own discretion, which is overarching and dangerous since, in the absence of a robust framework for Data Privacy in India, it can result into unimaginable consequences.
Further, the inclusion of OTTs under the ambit of Telecom Services is misled as they are a completely different group and should not be put in the same basket as Traditional Telecom Service providers and further, the provision of assignment of spectrum through auctions and administrative actions needs to be made equal to ensure there is a fair competition to make the Telecom Sector more telecom sector more investor friendly.
Though, the Bill is a step forward towards advancement, but there are inherent ambiguities and shortcomings that need to be addressed to make the Bill effective, as with the introduction of 5G Spectrum in India, the Telecommunication Sector will play a key role in the development of overall economy of the country.
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