By Gulshan Rai and Kamal Taneja
The department of telecommunication proposes to repeal the Indian Telecom Act, 1985, Indian Wireless Telegraphic Act, 1933 and Telegraph Wires (Unlawful Possession) Act, 1905, with a new legislation, The Indian Telecommunication Bill, 2022. The primary objective is to create a framework to foster “minimum but effective regulations”, “regulatory certainty”, a robust right-of-way (RoW) mechanism, the protection of users, and promotion of innovation & employment. The initiative is laudable as it will encourage a competitive environment in which the benefits of technology convergence will be delivered to the consumers.
The existing Acts have guided the growth of the telecom sector in the country over the last 100+ years. However, the world is currently experiencing convergence in technologies. Telecommunication, information technology and media, so far distinct, have converged in various ways. Such a convergence is leading to increased synergy among ecosystems, cross-platform developments, cross-sector shareholding and manipulation of different forms of information across all types of network infrastructure.
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The legacy sectors that operated largely independent of each other can no longer be regulated in an abstract manner as most of the assumptions underlying regulation of such sectors no longer hold true. The legacy-sector-specific regulations were adopted in the context where the respective sectors could be easily monitored with respect to the conditions for license granted to service providers. The inter-operability requirements were different. Technology, in the current perspective, has both technical and functional aspects. Technical aspects refer to the ability of infra to transport any type of data while functional aspect means consumers may be able to integrate data in a seamless manner through applications. The cable television companies, telecom service providers, and IT companies today compete with the broadcasting sector. As a result, a legislation that provides a competitive regulatory framework to address the emerging issues of technology convergence has been felt for some time.
The Bill is a step forward. It is important to note that some schedules attached to the Bill do not find reference in its main body. There are certain words like ‘moderate’, ‘severe’, etc that may need to be defined for effective enforcement. One may recall that vagueness of words was the primary reason for striking down of Section 66A of the Information Technology Act 2000. The Bill should be flexible to change so that it addresses the needs of the respective ecosystems and users. Nevertheless, the Bill is too wide, and empowers the Centre to subsequently enact many subordinate legislations, which would be open to uncertainties and can change direction and move away from the said objectives in due course of time. The powers of the Trai have been diluted significantly, thereby bringing down needed checks and balances. This will result in a lot of uncertainty with regard to upcoming regulations and the directions in which the legal framework may move, which is not in the larger interest of the public and the industry.
Definitions, for example, of ‘telecommunication infrastructure’, ‘telecommunication services’, ‘wireless equipment’, ‘wireless communication’, and ‘OTT’ are very wide, and empower the government to expand the scope of the Bill through subordinate legislations beyond the Bill’s stated objectives. Specifically, the definition of ‘telecommunication services’ in the Bill covers anything and everything that has a telecom interface and can be connected to via the internet, which could include data centers, cloud services, connected hospitals, smart grids, etc. The regime of licensing and registration of such services could be cumbersome. Though the government has provided a certain form of assurance, safeguards are needed as part of the legislation itself. The government must introduce specifics to the extent possible to bolster “regulations certainty” and avoid excessive regulation at a later stage. Additionally, the Bill must ensure that telecom services providers (TSPs) must assume responsibility and accountability to ensure delivery of services to the users, meeting international quality standards. Internet-based systems will require leap-frogging in terms of quality of services. Just prescribing KYC norms would not suffice as spoof and anonymous messages can be sent on the internet.
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The Bill attempts to regulate both content and carriage, which could be confusing for the industry and the public. As of today, infrastructure for internet and IT applications and over-the-top (OTT) services, cloud, machine-to-machine connection, video streaming, web-casting and messaging applications, etc, is practically unlicensed. Such sectors need not set up their own network infra/distribution network. It may be mentioned that broadcasting and telecom services were licensed spaces as they constitute quid pro quo for use of public resource, i.e., the radio spectrum. OTT services, tele-medicines, smart homes, etc, only make use of the licensed infra of TSPs, and there is no separate quid pro quo. Bringing anything and everything with a telecom interface under the licensed registration category is a regressive step and will impact innovation, and ultimately will impede the growth of the ecosystem. It would certainly impede entrepreneurship and employment. The government, on many occasions, has said that the telecom sector is an engine for the economic and social development of the country. The broad definitions provided in the Bill therefore needs relooking at so that the government can capitaliase on the opportunity to stimulate market and socio-economic development. The definitions should only cover “communication infra” of service providers, to move towards technology neutrality. The content and IT related applications need to be segregated from infra. Clear distinctions should be drawn between carriage, content, and applications. The ministries, especially the ministry of information and broadcasting, and the ministry of electronics and information technology, that have sector-specific expertise must regulate respective parts of the application technologies and govern such applications. Three separate legislations complementary to each other and covering the three areas are the need of the hour.
Adequate safeguards need to built in Clause 14 so as to stop misuse, if any, which may coerce the consumers to provide right of way. Appropriate provisions to safeguard the interests and needs of consumers also need to be provided under Clause 33. Similarly, Clauses 52 and 53 need relooking at to avoid any confusion in the intervening period between the repeal of the existing legislation and the implementation of the new legislation.
The Bill must also provide for quality standards and place liability against non-compliance. It needs to prescribe an appropriate redressal mechanism to address quality issues, affix responsibility on the service provider for testing of equipment and ensuring protection of data privacy and cybersecurity. The ‘Bill’ must provide for revoking of license for gross failure of responsibilities on the part of the service provider.
Gulshan Rai and Kamal Taneja, Respectively, former national cyber security coordinator, GoI, and senior advisor, Dua Consulting