Broad definitions in Telecom Act pit telcos and OTTs against each other yet again

In response to the Telecom Regulatory Authority of India’s (TRAI’s) ongoing consultations on service authorisations, all the three major telecom operators have made a case that OTT platforms fall under the definition of telecom services, and therefore, should require licensing from the government the same way telcos do.

In the Act, telecom services have been defined as: “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”. And ‘messages’ has been further defined as “any sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication”.

When the Act was tabled in Parliament last year, various stakeholders had raised concerns that this particular definition was broad enough to potentially include OTT communications platforms. However, former telecom minister Ashwini Vaishnaw had, at the time, clarified publicly to the media that OTTs are not under the ambit of the law.

But telecom companies seemingly have a different interpretation, almost eight months after the Act was passed in Parliament.

“As per our understanding, OTT communication services are covered under the new Telecom Act as an access service. To address the issues of non-level playing field and ensure adoption of principles of ‘same service, same rule’, these competing and substitutable services should be included under Access Services authorisation under the new framework,” the Cellular Operators Association of India (COAI), which represents the three telecom companies Jio, Airtel and Vi, said in a statement.

To be sure, this is the interpretation of the telecom companies, and TRAI or the telecom department may or may not entertain them.

Tech companies are pushing back against this interpretation. The Broadband India Forum (BIF), a think tank which represents companies like Meta, Google, and Amazon, has opposed the telecom operators body’s understanding and has said that such an authorisation requirement “will change the definition of the market altogether as certain entities would then possess an unprecedented market advantage, stifling competition, innovation and consumer choice”.