Indian Telecom Industry is the second largest in the world and contributes around 8% towards growth of India’s GDP with a subscriber base of 1.17 Billion as of 2022, Although since past few years there is an exponential growth in the industry, which is driven by affordable tariffs, wider availability, roll-out of Mobile Number Portability (MNP), expanding 3G, 4G & 5G coverage, growing consumption patterns of subscribers, Government’s initiatives towards bolstering India’s domestic telecom manufacturing capacity, yet till now the regulatory framework for the telecommunication sector is based on the Telegraph Laws which our country has stopped using in 2013.
It is in this context in order to streamline the legal and regulatory framework for the telecommunications sector the Department of Telecommunications (DoT) and the Ministry of Communications on 21 September 2022 released the draft Indian Telecommunication Draft Bill, 2022 “Draft Bill”, proposing to replace the three existing legislations which govern the telecommunications in India, i.e., Indian Telegraph Act, 1885, The Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950 with the “Draft Bill”, Which is now put on the website of the ministry for recommendations and suggestions from public in general and stakeholders.
The Bill was produced through a public consultation process, wherein a consultation paper named "Need for a new legislative framework governing Telecommunication in India," was published on July, 2022, explaining the existing legal framework and issues associated with it and also highlighted the evolution of telecommunication regulation in other countries. And after taking into consideration the feedback, consultations and deliberations from industry organizations and stakeholders the Ministry of Communications has now prepared the Draft Bill.
- To Reform Existing Telecom laws and regulations to make them future ready.
- To consolidate and amend the existing laws governing the provision, development, expansion and operation of telecommunication services, telecom networks and infrastructure, in addition to assignment of spectrum.
- To ensure availability of affordable, reliable, secure and universal telecommunication services.
- Telecommunication means a transmission, emission or reception of any messages, by wire, radio, optical or other electro-magnetic systems, whether or not such messages have been subjected to rearrangement, computation or other processes by any means in the course of their transmission, emission or reception.
- Telecommunication Services means service of any description (including broadcasting services, electronic mail, voice mail, voice, video and data communication services, audiotex services, videotex services, fixed and mobile services, internet and broadband services, satellite based communication services, internet based communication services, in-flight and maritime connectivity services, interpersonal communications services, machine to machine communication services, over-the-top (OTT) communication services) which is made available to users by telecommunication, and includes any other service that the Central Government may notify to be telecommunication services.
- Telecommunication Network: means a system or series of systems of telecommunication equipment, or telecommunication infrastructure, or both, including terrestrial or satellite networks or submarine networks, or a combination of such networks, used or intended to be used for providing telecommunication services, but shall not include customer equipment.
LICENSING, REGISTRATION, AUTHORIZATION AND ASSIGNMENT:
The Bill provides the central government an exclusive privilege to provide telecommunication services, establish & operate telecommunication networks and infrastructure, and to Use and allocate spectrum. Further to exercise this privilege the bill allows the central government to grant:
- License to any entity providing telecommunication services which also includes over-the-top (OTT) communication services or establishing, operating, maintaining and expanding telecommunication networks.
- Registration to any entity for providing telecommunication infrastructure.
- Authorization to an entity in possession of wireless equipment.
- Assignment of Spectrum through auction.
Further in order to prevent any disruption in the Telecommunication Industry, The Draft provides that any entity providing telecommunication services or telecommunication network, holding a license granted under current laws will be permitted to operate with their former licenses until migration.
INTERCEPTION OF MESSAGES:
The Draft Bill includes a provision which gives the Central Government power to intercept, detain, not to transmit and disclosure of messages transmitted through telecommunication services or telecommunication network, to the officer specified in the surveillance request/order in case of occurrence of any public emergency or in the interest of the public safety.
DISCLOSURE OF CALLER ID:
The Draft Bill makes it mandatory for the entity providing telecommunication services to identify the person to whom it provides services through a specific “verifiable mode of identification”, which would be prescribed by the government. Further it makes it mandatory for the entities to integrate a Caller-ID feature to ensure that the identity of the person communicating using any form of telecommunication services shall be available to the user receiving such communication.
ALLOCATION OF SPECTRUM:
The National Frequency Allocation Plan (NFAP) 2018 is a central policy that defines the roadmap for future spectrum usage by all national authorities, including the telecom department, the department of space and the defence ministry. Further to ensure wide-spread access to telecommunication services the Draft Bill provides that the central government may notify a new National Frequency Plan (NFAP) for the use and allocation of Spectrum). Wherein the allocation of Spectrum will take place through Auction or through administrative process.
RIGHT OF WAY:
Right of Way is a legal framework and a pre-requisite for setting up telecom infrastructure and improvement of telecommunication services. The current regulatory framework is based on Right of Way Rules, 2016, which has a very limited impact in addressing bottlenecks in rapid expansion of telecommunication infrastructure. As such in order to provide Right of Way in Uniform, non-discriminatory manner and for establishment of telecommunication infrastructure the Draft Bill provides a framework for obtaining Right of Way.
The Draft Bill provides that a Facility Provider shall obtain Right of Way from public entity through an application, which will be granted in expeditious manner, and the application for right of way can only be denied on limited substantive grounds.
The Draft Bill with the proposed aim of ensuring continuity of telecommunication services provides that a licensee or assignee undergoing insolvency proceedings can continue to operate if it continues to provide telecom services and does not default on payment of dues by complying with additional or modified terms and conditions of license. While in case the entity fails to comply with the requirements the assigned spectrum will revert to the control of the government.
- The recommendation is to narrow down the scope of broad definitions like 'telecommunication service' to only include businesses and entities that use spectrum for their operations and to exclude Internet-based services and applications from the ambit of a 'telecommunication service'.
- Licensing requirement has to be withdrawn for Internet-based service providers, applications, and platforms.
- The draft Bill is still also required to orate the data privacy issues.
- The inclusion of OTT services as telecom services will need to go through the KYC process, where users will have to follow the similar steps when they buy SIM Cards.
- The KYC requirements will have deleterious impact on their privacy, safety, and security offline.
- The proposed spectrum management framework while forward looking, retains aspects of discretionary exceptions to be made in the spectrum allocation by the Government of India under the broadly undefined aspect of "public interest".
- Suspension of communication services or internet shutdowns based on public emergency could be a threat to open and free internet leading to huge economic losses.
- According to Top10VPN, India shut down the Internet for 1,157 hours in 2021, resulting in economic losses in the bracket of $583 million.
- Over the last three years, the Internet was shut down in India for a cumulative 14,280 hours, costing the national economy $4.7 billion.
The draft Bill is surely an attempt by the Department of Telecommunications (DoT) to bring into force a new regulatory framework, bringing obsolete provisions from the colonial era laws at par with technological advancements. Yet there are several concerns as the bill erodes the fundamental right to privacy, giving government the authority to intercept messages over any telecommunication services and disclosing in case of a public emergency.
The draft bill also has provision with respect to Suspension of communication services and internet shutdowns based on a public emergency or in the interest of public reducing the transparency in procedure for imposing internet shutdowns. Apart from it the draft bill also diluted the role of TRAI (Telecom Regulatory Authority of India), instead of strengthening the role of TRAI as regulatory body the draft Bill confines TRAI’s powers to making recommendations on request of DoT. Certainly the Telecommunication laws were in need of upgrade, however certain provisions which are in conflict with the privacy of the users and other concerns are to be reviewed and rectified by the Department of Telecommunications.