Telecom Bill paves way for allocation of 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 impose 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 element in such decisions.

However, assignment of satellite spectrum 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).

It is understood that the government’s decision in the Telecommunications Bill to allow for allocation of satellite spectrum came because there is “no precedent” of auctioning such airwaves globally.

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, according to the Telecommunications Bill, 2023, which was introduced in Lok Sabha Monday.

Unlike a previous draft from 2022 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.

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 are in need of structural reforms, given the context of the telecom sector that has changed significantly in the last few years.

The Bill allows the Central Government to take over “the control and management of, or suspending the operation of… any or all of any telecommunication services, or any telecommunication network or part thereof, connected with such telecommunication services” by means of a notification in the interest of national security, friendly relations with foreign states, or in the event of war.

This also points to another major contention in the Bill — on whether or not it seeks to regulate Internet-based communication services as telecommunication services. In the previous draft of the Bill, such services were clearly defined to include electronic mail, voice mail, voice, video and data communication services, among other things.

As per the new Bill, telecom services and networks will need an 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.

“In the previous draft, the definition of telecom services very explicitly covered Internet-based communication services like WhatsApp and Telegram. In the version of the Bill that was introduced in Parliament, while the previous definition of telecommunication services has been whittled down, it is ambiguous enough to leave room to regulate OTT services,” said Apar Gupta, advocate and tech policy expert.

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.

A senior IT Ministry official said that if the draft is passed in its current form, it could potentially result in dual regulation for a host of online services, including platforms like Google Pay and Paytm which offer messaging as an ancillary service.

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.