Demystifying the draft Indian Telecommunication Bill, 2022

The Draft Indian Telecommunication Bill seeks to update the extant telecommunications framework, but serious challenges must be addressed to ensure that India plays a leading role in the global information society. 

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THE draft Indian Telecommunication Bill, 2022 ('Bill') was introduced by the Department of Telecommunication ('DoT'), Ministry of Communications, Government of India on September 21. The Bill proposes to consolidate various statutes currently governing the telecommunications industry in India.

Comments on the draft were due on October 20. To stimulate discussion and debate, the DoT also issued an Explanatory Note ('Explainer') which provides a brief overview of the Bill.

What issues does the Bill address?

With the advent of the Fourth Industrial Revolution, technological advancements in the telecommunications sector, such as 4G and 5G internet, the Internet of Things, M2M communications, and mobile edge computing, have become commonplace. Due to the evolution of such technologies, the telegraph has become redundant, and its use has ceased since 2013.

Also read: Parliamentary Panel Calls Out DoT for Delay in 5G Trials

This brought into focus the outdated nature of existing legislations governing telecommunications in India, namely the Indian Telegraph Act, 1885, the Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950. It paved the way for the Bill, which seeks to end the outdated regulatory framework that governs the telecommunications sector of India, dating back to colonial times.

The drafters of the Bill have infused it with legal provisions after undertaking a comparative analysis. Their analysis has taken into account relevant legislations of Australia, the European Union, the United Kingdom, Singapore, Japan, and the United States of America.

In doing so, the Bill has also made novel efforts by defining various terms, which are comprehensive and reflect modern-day realities, namely "Telecommunication", "Telecommunication services", "Telecommunication infrastructure", "Telecommunication equipment", and "Telecommunication networks".

What are the salient features of the Bill?

The Bill is structured in such a way that it is squarely applicable to entities that provide telecommunication services, operate telecommunication networks, own telecommunication equipment and infrastructure and are assigned or seeking assignment of spectrum. Within the scheme of things, the Union Government has been entrusted with governing the aforesaid telecommunications contours.

To that end, it can exercise the globally accepted principle of exclusive privilege. For exercising these privileges, the Union Government has the power to grant various types of permissions including licences to an entity providing telecommunication services or a telecommunication network. It also includes registration for establishing telecommunication infrastructure, authorisation for wireless equipment possession, and spectrum assignment.

The Bill mandates that the identity of a licence holder must be provided to the user who receives communications from them via any telecommunication service using a verifiable means of identification.

Additionally, the Bill makes it easier for telecommunication service providers to allocate spectrum by stipulating the primary allocation route through auction. Instead of adopting a pedantic approach, this simplifies the merger, demerger, acquisition, and other corporate restructuring frameworks by requiring only that the licensing authority must be informed of the transaction.

What are the challenges of the Bill?

As one gleans the text of the Bill, it becomes evident that it faces several challenges that could undermine its effectiveness in the long run.

Also read: There are valid concerns over the Draft Indian Telecommunication Bill, 2022

In order to be regulated under the Bill, Over-the-Top ('OTT') communication services have been included within the domain of telecommunication services, but no definition of the term has been provided. Furthermore, the possibility of regulatory overlap is an additional concern that arises from expanding the definition of 'telecommunication services' to include OTT communication platforms, such as WhatsApp, Telegram, and Signal.

The Information Technology Act, 2000 ('IT Act') currently governs such platforms, and it immediately becomes evident that the licensing requirement for such platforms under the Bill will create regulatory uncertainty.

To make things even more perplexing, the Bill authorises the Union Government to temporarily divest the licensee or registered entity from possession of telecommunication services/infrastructure/network by invoking the provision of public emergency or in the interest of public safety.

This clause presents a unique challenge. Neither does it define the terms "public emergency" or "interest of public safety", nor does it posit any constraints on the power of the executive, allowing them to decipher these terms according to their whims and fancies.

Not only that, but the Union Government has the power to expand the scope of telecommunication services through a notification without any mention of proper accompanying checks and balances.

In this regard, the lack of judicial scrutiny is distinctly evident in the Bill, as it does not provide for any appellate authority to challenge the executive's decisions. It paints a daunting picture of the amorphous regulatory powers of DoT in governing the telecommunications sector.

How does the Bill impact other entities?

The Bill has incorporated the principle of "Right of way" (the legal principle that deals with statutory requirements for telecom infrastructure), which requires a public entity whose ownership, management or control is vested in public property to make said property available expeditiously for the purpose of telecom tower development.

A rejection must be based strictly on specific substantive grounds. This may create resentment among state governments and other autonomous organisations, whose power to oversee and administer the use of their land has been curtailed.

A striking feature of the Bill is that it has rendered absolute powers to DoT to take policy-making decisions without any statutory obligation to consult the Telecom Regulatory Authority of India ('TRAI'). It has been carried out by diluting the powers of TRAI whose mission is to protect consumer interest and, at the same time, nurture conditions for the growth of the telecommunications sector in India.

How should the challenges of the Bill be addressed?

First, to remedy the issues arising from unregulated powers of the executive, judicial tribunals, as well as appellate authorities should be created to adjudicate disputes arising under this Bill.

In turn, it would create an appropriate constraint on abuse of executive power, and hold the concerned person or office accountable for acts that are not in accordance with the provisions of the Bill.

Second, it could also be supplemented with the incorporation of precise definitions for terms such as "public emergency" and "interest of the public", which again places much required manacles on unbridled executive powers.

Also read: Draft Indian Telecommunication Bill, 2022 is intrusive, and inconsistent with digitisation

Finally, there is a dire 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 elevating telecom services. This will enable India to play a leading role in the emerging global information society.

The overall and comprehensive growth of the telecommunication sector requires state governments and autonomous organisations to participate as stakeholders in the Bill's consultation process, in order to appreciate and address the concerns highlighted by them. Surely, the Bill can delineate its regulatory power vis-à-vis OTT communication platforms to avoid friction with the IT Act.