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Rajya Sabha passed the Telecom Bill, 2023 on Thursday (December 21). The Centre had introduced the Telecommunications Bill, 2023, in Parliament on Monday (December 18). The proposed law attempts to bring in a slew of structural changes to current regulatory mechanisms in the sector, ranging from simplification of the licensing regime, clarity on spectrum assignment, and a stringent requirement of user verification, among other things.
The Bill seeks to replace the Indian Telegraph Act (1885), the Wireless Telegraphy Act (1933), and the Telegraph Wires (Unlawful Possession) Act (1950), which the government sees as colonial-era archaic laws that need reforms, given that the telecom sector has changed significantly in the last few years.
There are some concerns too, primarily surrounding interception requirements for communication over telecom networks, and whether or not the Bill conclusively excludes Internet-based communication platforms like WhatsApp, Signal and Telegram from its ambit.
The Bill seeks to simplify the current licensing regime for telecom networks by moving towards an authorisation system. Currently, the telecom department issues more than 100 types of licences, registrations, and permissions, and the Bill seeks to club many of those in a single authorisation process.
While auctions will continue to be the preferred norm of assigning spectrum to entities, but outside of satellite communications, administrative allocation will be done for sectors like metro rails, community radio, defence, railways, and police, among others.
The Bill also allows the government to take back spectrum that is unutilised for insufficient reasons and also opens the door for sharing, trading, and leasing of spectrum. Entities will be able to surrender unused spectrum, but will not receive payment from the government for it.
A voluntary undertaking mechanism to facilitate voluntary disclosure of inadvertent lapses and to facilitate compliance has been introduced. A tiered structure for settling disputes arising out of breach of terms and conditions involving an adjudicating officer, designated committee of appeals and the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) on top.
Entities have been mandated to carry out biometric authentication of their users as a measure to curb fraud. The provision has raised concerns about the privacy of users.
The Bill empowers the central and state governments or a specially authorised officer to seek interception, disclosure, and suspension powers in case of a public emergency or interest or safety. Press messages, meant for publication in India and of correspondents accredited to state or central governments, have been exempted from interception, although they can be intercepted for national security reasons.
The Bill, which was a surprise addition to the Parliament’s list of business late Sunday evening, also empowers the Centre to take over control and management of telecommunication services and networks in the interest of national security, or in the event of a war.
The Bill tabled in Parliament also lays down eligibility requirements for the chairperson of the Telecom Regulatory Authority of India (TRAI) to be appointed from the private sector. The Indian Express had first reported about this in September.
The Telecommunications Bill, 2023 has opened the door for administrative allocation of spectrum for satellite broadband services, with India set to follow the global norm in how such spectrum is assigned to entities. This could be a big win for Bharti Airtel’s OneWeb, Elon Musk’s Starlink, and Amazon’s Kuiper.
The assignment of spectrum – whether through an auction or administrative means – for satellite communications was at the heart of a debate between the government and a divided industry, with the telecom department even asking the telecom regulator TRAI for modalities around auctioning satellite spectrum.
While Reliance Jio had earlier called for auctioning of the spectrum rather than allocating it administratively, OneWeb had “strongly recommended” the government take the administrative allocation route and charge a fee for it “in order to promote investment and make sure competitive prices are available to the market at the end”. Musk’s Starlink had recommended that the regulatory framework imposes nominal charges as spectrum use charges to ensure affordable access to services.
This also comes in the backdrop of the Supreme Court’s 2012 ruling in the 2G case, which held that the allocation of 2G spectrum by the Congress-led UPA government was illegal and an arbitrary exercise of power, as it went on to cancel more than a hundred telecom licences allotted to companies. Since the judgement, government allocation of spectrum for most commercial purposes had become a no-go area given the discretionary nature of such decisions, with it being reserved for such as Very Small Aperture Terminal (VSAT).
However, the satellite spectrum story is a little different. Unlike terrestrial spectrum which is used for mobile communications, by its very nature, satellite spectrum has no national territorial limits and is international in character. It is therefore coordinated and managed by the UN agency, International Telecommunications Union (ITU).
The industry welcomed the proposal to allocate spectrum. “By allocating the spectrum by the administrative method for satcom, India could align itself with international standards, promote global cooperation and also help drive innovation, create opportunities for startups, and strengthen the country’s position in the global satellite market,” said Anil Kumar Bhatt, director general, Indian Space Association.
It is understood that the government’s decision in the Telecommunications Bill to allow for the allocation of satellite spectrum came because there is “no precedent” of auctioning such airwaves globally. The pricing of this spectrum and the methodology of allocation will be decided by the TRAI, a senior government official said.
Unlike a 2022 draft, which had expressly mentioned online communication services like WhatsApp, Instagram and Telegram as telecommunication services, experts, and a section of the government believe that the current Bill’s definition of such services — while whittled down — has been kept wide open to potentially regulate online platforms as well.
As per the new Bill, telecom services and networks will need authorisation from the government, unless it decides to exempt certain entities in public interest.
In the new Bill, the definition of telecommunication has been kept 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”.
While a section of the industry and civil society is concerned over fears that the current definition could be interpreted in a way to potentially open the door for the telecom department to regulate online platforms, the Allocation of Business Rules could stand in the way of that since the telecom department’s remit is limited to regulating the ‘carrier’ layer, that is telecom services, under those rules.
At least one industry body has called for further consultation to iron out the definitions. To be sure, the telecom department had released a consultation paper on what a law for the sector should look like back in July 2022, with a first draft of the Bill released for consultation in September of that year.
“…While we are still reviewing the full text, the current definition of telecommunication services appears to be quite broad. We expect the government to conduct a consultation on the current version of the bill and welcome the opportunity to provide additional feedback,” said Kumar Deep, country manager of the ITI Council, a lobby group representing Big Tech companies including Google and Meta, which could be impacted when the Bill gets passed.
A section within the IT Ministry is also concerned about the definition. The Indian Express had earlier reported that a difference of opinion had emerged between the Information Technology Ministry and the Department of Telecommunications over the inclusion of internet-based communication services.
However, others believe that the definitions do conclusively exclude online platforms. “The Bill introduced in the Lok Sabha now excludes email, internet-based communication services, broadcasting services, machine to machine communication services and over-the-top (OTT) communication services, as suggested by IAMAI,” the industry body said in a statement.
