The draft Indian Telecommunication Bill, 2022 (Bill) is Department of Telecommunications’ (DoT) attempt to consolidate three legislations ineffectively governing the telecommunication sector in India. The aspiration is to bring the telecom law, at that in a uniform manner, at par with needs of digital augmentation and remove obsolete provisions from the dated laws.
Released for public consultation on September 22, 2022 along with an inadequate explanatory note (Note), it will consolidate:
- The Indian Telegraph Act, 1885
- The Wireless Telegraphy Act, 1933
- The Telegraph Wires (Unlawful Possession) Act, 1950
APPLICATION
The Central Government is replacing itself as the controller of:
- telecommunication services and networks,
- telecommunication equipment and
- Infrastructure and spectrum and spectrum assignment.
These were under the powers of TRAI which with this change will rest with Central Government, the extent of role TRAI will have- seems uncertain. Entitles,
- Providing telecommunication services
- Operating telecommunication network
- Owning telecommunication equipment and infrastructure
- Assigned or seeking assignment.
Will be governed by this law.
KEY CHANGES
1. BROAD DEFINITIONS
A broad definition of ‘telecommunication services’. It now includes internet-based services, in-flight and maritime connectivity, interpersonal communications services, machine to machine communication services, and over-the-top (OTT) based communication services that are made available to users by telecommunication.
The definition also includes:
- Broadcasting
- Communication services (including electronic mail, voice mail, voice, video, data, audiotex services, videotex services, fixed and mobile services)
- Internet and broadband services
- Satellite-based communication services
- Any other service notified by the central government to be telecommunication services
The term ‘telecom’ is also defined broadly, to mean, “a transmission, emission, or reception of any message by wire, radio, optical or other electro-magnetic systems”. Message is defined as, “any sign, signal, writing, image, sound, video, data stream or information intended for telecom.”
2. LICENSE, REGISTRATION AND AUTHORISATION
The Bill, proposes four types of permissions, license, registration, authorization and assignment, with no differentiation amongst these, it clarifies that –
- A license is only required for providing telecommunication services or operating telecommunication networks.
- Registration is required for establishing telecommunication infrastructure.
- An authorization is essential for the possession of wireless equipment.
- Assignment only applies to spectrum.
The Note clarifies, a registration is required to simplify the process for establishing telecommunication infrastructure. To ensure policy continuity, licensed entities under the previous license conditions, will be allowed to operate under the previous licenses, until migration.
3. KYC AND ID CALLER ID REQ
Licensed entities have to identify the persons to whom they provide telecommunication services, to be done through a ‘verifiable mode’, and incorporating caller-id like features to enable receivers of messages to identify the sender.
4. RIGHT OF WAY
The currently applicable Right of Way Rules, 2016, do not address bottlenecks in rapid expansion of telecommunication infrastructure, the Bill attempts to address this through uniform and non-discriminatory right of way being exercised both, in public and private property.
5. POWERS OF CENTRAL GOVERNMENT
The Bill includes wide-ranging powers for the central and state governments, for public emergency or in interest of public safety. like:
- Taking temporary possession of any telecommunication services, networks or infrastructure from a licensee or registered entity.
- Provide for a priority call routing scheme.
- Suspension of transmission in cases of public emergency.
- mandate interception/detainment/disclosure of messages, suspension of communications, or otherwise transmit certain announcements for public safety and national security purposes.
- In the event of war, or in the interests of national security, or to preserve friendly relations with foreign states, issue directives:
- To take control and management of a telecommunication network, service or infrastructure;
- usage of telecommunication networks, services and equipment
- suspension or prohibition of specified telecommunications equipment
6. PROTECTION OF USERS
User protection’ has been declared as an important policy objective of the Government. The Bill creates a framework for the government to protect users from ‘specified messages’, which offer, advertise, or promote goods, services, solicits interest in property, businesses, employment or investment.”
Protection to users is offered in the form of, need to obtain prior consent, creation of a ‘Do Not Disturb’ register for users, and mechanisms for reporting messages.
Users have been imposed with written down duties:
- not to furnish false information
- not to suppress material information
- not to impersonate others in proving identity.
7. INSOLVENCY/RESTRUCTURING
The highlight of the Bill has been simplification of mergers, demergers, acquisitions and other forms of corporate restructuring. It is an inflated claim, because the alteration seems in intimating the DoT about the corporate restructuring and compliance with law. Previous requirement involved approval of the DoT.
Spectrum assigned, in case of Insolvency shall revert to government control, granting the Central Government absolute rights to either take further action or allow the licensee or assignee to continue to use the spectrum.
8. OFFENCES AND PENALTIES
Offences may be punished with a fine, imprisonment, suspension of telecommunication services or a combination of the above. For companies, the employees responsible for the conduct or the business relating to the offence, will be punished.
The Bill also categorizes some contraventions as criminal offences. This requires additional clarity with a wide definition of ‘telecommunication services’. One example is, offence of providing telecommunication services or establishing telecommunication networks without a license can lead to imprisonment for one year or fine up to INR 50 lakh.
Other offence include, knowingly using a telecommunication service, network or infrastructure, which does not possess a license or registration as an offence punishable with fine up to INR 1 lakh.
The Bill empowers the central government to establish civil liabilities, including compensation. Such compensation will be payable by any person causing damage to telecommunication network or telecommunication infrastructure to the licensee or registered entity.
9. SPECTRUM ASSIGNMENT
To ensure widespread access the central government may notify a National Frequency Allocation Plan (NFAP) for the use and allocation of spectrum. Currently, the NFAP 2018 is in force.
Spectrum assignment will primarily, be through auction and additionally it may be assigned administratively, as decided by the government without an auction.
To minimize spectrum wastage as a public resource, an enabling framework for optimal and flexible utilization of spectrum provides for:
- Technology agnostic spectrum use
- Re-farming and re-purposing of spectrum
- Sharing, trading, leasing and surrender of spectrum
- Return of unused spectrum
What is the impact of this on telemarketing services?
The new Bill once a law, will relieve user from the barrage of unsolicited calls and messages. The identity calling provision will impact telemarketing services and contribute in preventing cyber-frauds done using telecom services.
Does this apply to intermediaries?
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 contains provisions requiring significant social media intermediaries to enable tracing of the originator of information on their platform (“traceability”). However, this is being challenged at the Supreme Court of India. It remains to be seen how the OTT communication service providers will respond to the present Bill.
What is the implication on OSP license holders? (The BPO, basically)
The provisions provided under the Bill does not affect the Other Service Providers (OSP) license holders in terms of compliance procedures. Therefore, OSP Guidelines 2021 remains applicable to all OSP license holders. The Bill is still under review and provisions related to OSP could still be introduced in the coming months.
What has the Bill proposed, overall?
The Bill is offering significant control in the hands of the Central Government with flexible powers to be used with 100% discretion. How will these powers be exercised, what will be the role of TRAI and integration of the OTT services under this new law in line with the existing enactments, all will be a large transition and integration challenge.
Domestic security has found place in the Bill which is a ground for absolute control at the hands of the Central Government to take over the control, operation and management of any service or spectrum.
This is only for informational purposes. Nothing contained herein is, purports to be, or is intended as legal advice and you should seek legal advice before you act on any information or view expressed herein. Endeavoured to accurately reflect the subject matter of this alert, without any representation or warranty, express or implied, in any manner whatsoever in connection with the contents of this. This isn’t an attempt to solicit business in any manner.