The draft Indian Telecom Bill, 2022 seeks to capitalize on the immense power that comes with the deregulation of telecom. The explanatory note states that the Bill “recognises the globally established principle of the exclusive prerogative of the Central Government with respect to telecommunication services, telecommunication networks, telecommunication infrastructure and spectrum”. It advocates greater government control rather than free regulation.
India’s Telecommunications Bill 2022 tries to capitalize on the immense power that comes from controlling telecommunications. The explanatory note states that the bill “recognizes the globally established principle of the exclusive privilege of the central government with respect to telecommunications services, the telecommunications network, telecommunications infrastructure and spectrum”.
The draft contains a broad and extensive definition of telecommunication services, including regular phone calls, text messages, broadband connections, streaming platforms such as Amazon and Netflix, and other applications that enable communication, such as WhatsApp. Essentially, all telecommunications devices could be licensed.
The Telecommunications Regulatory Authority of India, the sector’s regulator, could become toothless or obsolete if this bill becomes law, as most of its powers will be replaced by direct state control. So far, the evidence of how the Modi government is dealing with technology and freedom of expression is not comforting.
Among the new terms introduced are “telecommunications services”, which covers services of any description made available to users through telecommunications.
This includes broadcasting services, email, voice mail, voice, video and data communication services, fixed and mobile services, Internet and broadband services, Internet-based communication services, machine-to-machine communication services, OTT communication services.
A rejection must be strictly based on specific substantive grounds. This can create resentment among state governments and other self-governing organizations, whose power to oversee and administer the use of their lands has been curtailed.
There is an urgent need to revisit the dilution of the role of TRAI, in recognition of the commendable role it has played in creating a progressive environment for the upliftment of telecommunications services.
What does the bill propose?
Among various amendments and changes, the bill aims to combine the three laws that govern the telecommunications sector: Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933 and Telegraph Wires (Unlawful Protection) Act, 1950.
The bill provides for the right of appeal to the appeal authority. In addition, the central government is also empowered to set up an alternative dispute resolution mechanism which can range from mediation to arbitration etc.
Redefining the game from Telecom to OTT
Another consequence of these new provisions will be that it will be more difficult to develop new or innovative services using the Internet. This would mean a further strengthening of the existing monopolies. Thus, only large companies would be left with the opportunity to provide any kind of commercial services using the Internet.
The draft Bill defines all such services as over-the-top (OTT) services, which would require appropriate licences.
The limitation of telecommunication services to voice and data communication is also not without reason. Otherwise, with their monopoly power over the fabric of data communications, telecommunications companies have held themselves hostage to new service providers emerging from the Internet, such as bulletin boards for email and information delivery, news services, or recipients of such services. Would have made and kept it. That is why the rules and regulations of net neutrality or net neutrality have been made.
Key Takeaways of the Draft Telecommunication Bill, 2022
First, the draft bill incorporates some major extensions to existing definitions of telecommunications services. Over-The-Top (OTT) communication services have been included in telecommunications services. This greatly expands the definition to include all instant messaging, video and calling applications such as WhatsApp, Zoom, Telegram, Signal which operate as services on the internet using data.
Second, the draft bill deals with licensing and registration. It grants the Union government the “exclusive privilege” to “provide telecommunications services”, operate networks and license telecommunications service providers. As OTT platforms have been covered by telecom services, they may also have to apply for licenses to operate in India.
Third, the telecommunications bill provides for the interception and disclosure of messages or communications on any telecommunications service in the event of a public emergency.
Fourth, the bill also covers spectrum allocation issues. The bill states that the Union government will allocate spectrum to best serve the common good and ensure widespread access to telecommunications services. It may notify a national frequency allocation plan (PNAF) for the use and allocation of the spectrum.
Fifth, the Telecommunications Bill has provided a framework governing defaults of payment by licensees, registered entities or assignees, and allows the government to write off these amounts or part of them. The bill aims to reduce the burden on telecommunications companies by reducing the penalties imposed. It seeks to make most crimes recognizable.
Sixth, the bill also grants the Union government the power to defer, convert to equity, delist or grant relief to any licensee in extraordinary circumstances, including financial hardship, interest of consumers and the maintenance of competition, among others. It also proposes replacing the Universal Service Obligation Fund (USOF) with the Telecommunications Development Fund (TDF). The USOF is the pool of funds generated by the 5% universal service tax that is charged to all telecommunications fund operators on their adjusted gross revenue. USOF has been widely used to facilitate rural connectivity.
Seventh, Right of Way (ROW): The bill attempts to obtain through statute an enforceable “right of way” (ROW) at the state and municipal level. It establishes a framework within which a public entity that owns the land must promptly grant permission for a “right of way” unless it gives a valid reason for refusal.
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