LEGAL ANALYSIS OF THE DRAFT INDIAN TELECOMMUNICATION BILL, 2022 – LIBERATIVE OR OBSTRUCTIVE?
Sara Suresh
Associate, Surana & Surana International Attorneys
On September 21, 2022, the Department of Telecommunication under the Ministry of Communication released the Draft Indian Telecommunication Bill, 2022 along with an explanatory note into the public domain for the people and the stakeholders to accord their comments. The Bill intends to consolidate the existing legal framework of telecom industry in order to make them future-ready to keep up with the innovations and technological advancements in the sector.
Primarily, the Bill seeks to repeal the three existing laws – the age old British era Indian Telegraph Act, 1885; Indian Wireless Telegraph Act, 1933 and the Telegraph Wire (Unlawful Possession) Act, 1950. The Bill was received with immense criticism over certain dynamics that it intends to make in the telecom regulatory sector.
As averred in the explanatory note of the Bill, India is the second largest telecommunication market in the world with 1,170 million subscribers and with a contribution of about 8% to our GDP. Let’s see what’s new in the Bill and what does it underscore.
Inclusion/Elimination of Definitions
Chapter 2 of the Bill, which deals with definitions has ousted the outdated concepts such as ‘Telegraph’, ‘Telegraph Officer’, ‘Post’ and ‘Telegraph Line’ and has incorporated certain modifications to the existing definitions. The Bill has further defined the terms ‘Telecommunication Services’ and ‘Broadcasting Services’ distinctively unlike the present Indian Telegraph Act, 1885 which is quite welcoming. Besides, the term ‘Telecommunication Services’ was further expanded to included OTT (Over-the-Top) Communication Services.
Sovereign’s Exclusive Privilege
The delivery of Telecommunication services has been the Central Government’s exclusive privilege since 19th century, which is reiterated under Section 3 of the Bill (similar to Section 4 of the present Indian Telegraph Act, 1885). In practise, this sovereign’s privilege is delegated to private sector vide licenses, registrations and authorizations. This legal arrangement makes the Telecommunication sector one of the most regulated markets in India.
Licensing OTT communication services
Chapter 3 of the Bill deals with licensing and registration of entities, which now mandate the entity providing OTT communications services to obtain telecom license. In my perspective, subjecting the OTT entities to strict license regime with criminal penalties amounts to excessive regulations which might curb the innovative advancements in the sector. Rather than that, the Government could incorporate specific rules and regulations which the entities must adhere to. However, the explanatory note to the Bill states that the existing entities providing telecommunication services or network under the present law shall continue its services till such entity alters its existing terms and conditions. Though such move is laudable, this dual regulatory system might lead to ambiguities and conflict since the Bill has new definitions of Telecommunication Services. Additionally, under section 3(3) of the Bill, the Central Government is empowered to exempt requirement of licenses at its discretion if deemed necessary in the public interest to do so.
Clearing the cloud over spectrum assignment
In my view, the Bill provides much clarity on allocation of spectrum thereby enabling hassle-free allocation of spectrum. The prime way for allocation of spectrum is auction, but in case, where spectrum needs to be allocated for certain functions or purposes of the Government such as National Security, defence, Community Radio Stations, BSNL, MTNL and others as provided in Schedule-I of the Bill, due administrative process as laid down in the Bill needs to be followed. The Bill reasserts the authority of the Government in assigning spectrum irrespective of the auction process and the Bill states that common good and wide spread access to Telecommunication Services shall be the objectives of the spectrum allocation.
Provisions for consumer protection
In order to prevent the rising occurrence of cyber-frauds such as Identity theft, phishing, etc., and to prevent harassment of consumers from unsolicited calls and messages, Section 4(8) of the Bill stipulates that the identity of the person sending any messages through the Telecommunication Services shall me made available to the user at the other end. Section 4(7) and 34 of the Bill obligates all the license holders to identify all the persons to whom it provides services vide a verifiable mode of identification and entails a duty on every citizen to not furnish any false information or suppress any information or impersonating another person while providing identity for Telecommunication Services respectively.
Position and correspondence of other agencies
Quite interestingly, the Bill does not make any reference to Telecom Regulatory Authority of India (TRAI) and has watered down its existing powers. Presently, the Central Government has to mandatorily seek the recommendations of TRAI with respect to the need and timing of new service provider and terms and conditions of the licence to be granted to the service provider and the TRAI is obligated to forward the recommendations to the Central Government[1]. The TRAI also has the power to deal with unsolicited commercial communication (‘spams’) vide its Telecom Commercial Communication Customer Preference Regulation, 2018. Currently, the license required for broadcasting is provided by the Ministry of Communication and Information and Technology, while the permission agreement is granted by the Ministry of Information and Broadcasting. Howbeit, the current Bill is silent on the powers and functions vested with the other related departments, which paves way for ambiguities on the same. Thus, though consolidating various provisions is useful for the productivity of the Sector, relevant consultations should be conducted between the related departments and other regulatory bodies to prevent overlap in laws and to achieve the intended object without any internal impediments.
Surveillance
The Bill allows the Central/State Government, in the event of a public emergency, to direct suspension on transmission of messages or delivery of telecommunication network/services and/or to intercept and disclose any message or communication made through Telecommunication Services. It clearly shows that the powers of the Central Government under the Bill are much broader than the existing legal framework. The Bill is devoid of the parameters regarding what kind of messages and under what circumstances such messages can be revealed. The wider criticism is that these provisions are in contravention with the fundamental right to privacy of the people and puts mass surveillance at risk and needs to be reanalysed.
A closer look – Whether the Bill is future-ready?
From my point of view, the present Bill provides a legal framework facilitating innovation and technology development through the incorporation of provisions such as regulatory sandbox and promotes the ease of doing business by mitigating criminal penalties and introducing voluntary undertaking by entities. However, other shortcomings as already stated above, needs to be relooked into, in order to achieve the objectives of the Bill in an extensive manner and at the same time, to protect the rights of the people.
In my opinion, the Bill is trying to achieve its objectives by bringing the entire telecommunication service providers, including the OTT platforms under its ambit. While doing so, it is the duty of the Government to ensure that such inclusion is in consonance with the rules of the International Telecommunication Union, as its member state and it needs to obtain more clarity on the emerging international jurisdictions. Furthermore, the Government needs to re-analyse the impact of such inclusion of OTT services over the economic and security aspects of such services. Moving forward, from a legal outlook, it can be said that the Bill is only ‘present-ready’. Practically, taking a look at the past century, it can be said that the telecom industry in India progresses by leaps and bounds as the demand for quality services is ever-booming. Thus, there shall be a dire need to revise the provisions of the Bill within a few years, to keep up in pace with new advents, developments and ever-expanding expectations of service providers.
[1] Section 11, Telecom Regulatory Authority of India Act, 1997.