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Starting Wednesday (June 26), multiple sections of the Telecommunications Act, 2023 will come into effect, giving way to what is the first piece of the larger technology legislative puzzle to fall into place. This is among the three key laws the Centre wants to put together as a comprehensive legal framework for the country’s burgeoning tech sector.
The law, which has been criticised for its ambiguity on whether internet-based services fall under its ambit, also attempts to bring in a slew of structural changes to current regulatory mechanisms in the sector. These range from simplification of the licensing regime, clarity on spectrum assignment, and a stringent requirement of user verification, among other things.
What’s coming into force, what’s not
Sections 1, 2, 10 to 30, 42 to 44, 46, 47, 50 to 58, 61 and 62 of the Act will go into effect from Wednesday. These sections include the entire chapter on right of way reforms (they bring in a state government-led dispute resolution structure, where state bureaucracy can decide right of way issues that are related to permits for telecom network roll out), standards, public safety, national security and protection of telecommunication networks, Digital Bharat Nidhi (a replacement of the erstwhile Universal Service Obligation Fund), innovation and technology development, protection of users, offences and certain miscellaneous sections.
Some of these provisions (for instance, the right of way reforms), however, need further rules to be made completely operational. These rules are yet to be released by the Department of Telecommunications (DoT). Other provisions, like the suspension and interception of telecommunication services, which go into effect under the Act, have been in place under the older laws as well. Creating sandboxes for innovation — meaning building a controlled environment in which organisations can test and experiment with new technologies and ideas without the risk of failure — is a new provision which will come into force.
The Act envisions the creation of a live testing environment where new products, services, processes and business models may be deployed, on a limited set of users, for a specified period of time, with certain relaxations.
Crucially, some of the big ticket reforms that the Telecom Act wished to achieve, including the introduction of an authorisation regime, mandatory biometric verification of users, amendments to the Telecom Regulatory Authority of India Act, 1997, and allowing administrative allocation of spectrum for satellite communications, are yet to come into effect.
Some of the provisions – such as suspension and interception of messages – that will come into force on Wednesday were already in force through extant laws such as the Indian Telegraph Act. Others related to duties of users, criminalisation of certain acts such as tampering with telecom identifiers, and creation of regulatory sandboxes are new.
The big debate over allocation and auction of spectrum, and overhang of the 2012 SC ruling
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 a 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 the 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 2012 Supreme Court 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. The judgment went on to cancel more than a hundred telecom licences allotted to companies. Since the judgment, 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 a 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, the International Telecommunications Union (ITU).
