The government has tabled the Draft Indian Telecommunications Bill 2023 in the Lok Sabha. The new bill amends and consolidates the laws relating to the development, expansion and operation of telecommunication services and networks and the assignment of spectrum. It seeks to replace the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950.
According to its statement of objectives and reasons, the bill, inter alia, seeks to provide for:
- A framework for the authorisation of telecommunication services, telecommunication networks, and possession of radio equipment, assignment and efficient utilisation of spectrum including provisions for harmonisation and re-farming, development of new technologies, and regulatory sandbox for innovation using spectrum
- A framework for developing and maintaining telecom networks through right of way (RoW) provisions, and establishment of common ducts
- A framework for standards and conformity assessment of telecommunication equipment, telecommunication identifiers, telecommunication network and telecommunication services
- Provisions for national security, public emergency and public safety
- Provisions for protection of users and defining duties of users
- A framework for the resolution of disputes.
According to the first schedule of the bill, the spectrum for certain satellite-based services such as very small aperture terminal (VSAT), global mobile personal communication by satellites (GMPCS), national long distance (NLD), international long distance (ILD), mobile satellite service in L and S bands, teleports, television channels and direct-to-home, among others, can be allocated outside auctions through the administrative process.
The new bill seeks to keep over-the-top (OTT) services away from the purview of the proposed law. The bill defines telecommunications services as “any service for telecommunications” — a departure from previous drafts that had extended the definition to include OTT platforms such as WhatsApp and Skype, among a host of specialised communication services, including machine-to-machine, in-flight, and maritime communications.
Further, the bill allows the government to take over telecom services and intercept messages in the interests of national security and in case of emergencies. As per the bill, on the occurrence of any public emergency, including disaster management, or in the interest of public safety, the central government or a state government or any officer specially authorised on this behalf by the government, can take temporary possession of any telecommunication service or network from an authorised entity, or provide for appropriate mechanism to ensure that messages of a user or group of users authorised for response and recovery during public emergency are routed on priority. It states that on the occurrence of any public emergency or in the interest of public safety, the central or state government can direct that messages transmitted or received by any telecommunication service or network, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed in an intelligible format to the officer mentioned in such order. It mentions that the press messages, intended to be published in India, of correspondents accredited to the central government or a state government shall not be intercepted or detained unless their transmission has been prohibited under relevant rules.
The proposed legislation proposes to allow senior private sector corporate executives in the role of chairperson of the Telecom Regulatory Authority of India (TRAI). It allows the hiring of non-government executives if such person has at least 30 years of professional experience and has served as a member of the board of directors or a chief executive of a company in certain areas. On the RoW front, the bill states that facility providers may seek a RoW over public or private property to establish telecom infrastructure. RoW must be provided on a non-discriminatory and non-exclusive basis to the extent possible. Furthermore, the bill renames the Universal Service Obligation Fund, established under the 1885 Act to provide for telecom services in underserved areas, as ‘Digital Bharat Nidhi’, and also allows its use for research and development.
Additionally, the bill specifies various criminal and civil offences. Providing telecom services without authorisation, or gaining unauthorised access to a telecom network or data, are punishable with imprisonment of up to three years, a fine of up to Rs 2 million, or both. Breaching terms and conditions of authorisation is punishable with a civil penalty up to Rs 50 million. Possessing unauthorised equipment, or using an unauthorised network or service, is punishable with a penalty of up to Rs 1 million.
Industry reactions:
Commenting on the bill, Lt. Gen. Dr. S.P. Kochhar, Director General, Cellular Operators Association of India (COAI), said, “COAI welcomes the Indian Telecommunications Bill, 2023, tabled in the parliament. The bill introduced by our progressive telecom minister Ashwini Vaishnaw, includes focus on creating robust telecom networks through a well-defined chapter on RoW, including granting of RoW in a non-discriminatory manner and clarifying that this network shall not be considered for the purposes of tax, levy, cess, fees or duties on that property. The bill prevents coercive actions like sealing/shutdowns without due permission from the government. Such positive measures will help connect Indians to a robust digital network across the length and breadth of the country. We also appreciate the clarifications and specification of penalties. The bill brings in the proportionality and nexus with the nature of the offence and will lead to a considered and rational approach to penalties. It is a progressive step designed to increase industry confidence and increase ease of doing business. In the bill, ‘licence’ has been replaced by ‘authorisation’, wherein it has been specified that authorisation would be required to provide telecommunication services. This would simplify the overall regulatory landscape for telecom services. Further, the bill incorporates strict provisions in case of unlawful interception of messages or unauthorized access to the same, to help ensure national security. The bill also lays down that Internet shutdowns can be authorised only by the central government, which is objective and looks at ensuring continued, uninterrupted and seamless telecom connectivity to all.”
Meanwhile, the Internet and Mobile Association of India (IAMAI), has welcomed the bill. IAMAI hails the bill as progressive especially since internet companies have been decisively kept out of the ambit of the final version of the bill. IAMAI had recommended that the ambit of the bill be limited to the network layer, thereby excluding the application layer. The time-tested distinction between telecom spectrum controlling entities (which are regulated) and spectrum using companies should be maintained as it has been the basis that has allowed innovation and deeper penetration of the internet in India. Further, IAMAI had recommended that ‘broadcasting services’ should be explicitly exempted from the purview of the draft bill and from the definition of ‘telecommunication services’, particularly in respect of content. The bill introduced in the Lok Sabha now excludes email, internet-based communication services, broadcasting services, machine-to-machine communication services and OTT communication services, as suggested by IAMAI. The bill also provisions for administrative assignment of spectrum for GMPCS as suggested by the association. IAMAI had recommended that the bill should include all satellite communication and usage (including the GMPCS service) within the list of purposes for which spectrum can be assigned through administrative processes.
Further, the All India Fixed Internet Service Providers Association (AIFISPA) has expressed its support and appreciation for the draft Telecommunications Bill, 2023, terming it as a step in the right direction to address the needs of the industry and all allied stakeholders. AIFISPA acknowledges that the draft Telecommunications Bill 2023 includes pivotal features, such as granting providers a non-discriminatory, non-exclusive RoW. This provision is poised to enhance faster connectivity and last-mile deployments, thereby improving high-speed fixed broadband access for the general public. Commenting on the bill, Sunil Yajaman, president, AIFISPA said, “This draft bill is forward-looking and is contemporary for the current times. The bill accords highest priority to national interests and digital security while promoting and recognizing the needs of the industry today. AIFISPA is confident that the government will encourage fixed broadband service providers through license fee exemption aligning with these impactful telecom policy interventions.” AIFISPA remains committed to collaborating with the government in advancing the digital economy and enhancing the country’s connectivity. The draft telecom bill signifies a positive stride in the right direction.
Additionally, Prachur Sah, Managing Director and Chief Executive Officer, Indus Towers Limited, said, “As a leading passive infrastructure provider, Indus Towers commends the government for the Telecommunications Bill, 2023 and its progressive provisions aimed at establishing a robust telecom network. We welcome the recognition of the telecom infrastructure as critical telecom infrastructure, ensuring network security with punitive consequences for damage. We are optimistic that this bill will establish an effective adjudicating mechanism, playing a pivotal role in eliminating the burden of multiple levies, taxes, RoW challenges, and ensuring uniformity across the diverse landscape of India and ease of doing business. The commitment through strong rules to a non-discriminatory RoW grant and e.g., de-linking telecom infrastructure from property taxes, no coercive action without permission from central government, deployment of telecom infrastructure on private property on the basis of agreement between property owner and infrastructure provider etc. will significantly contribute to building resilient telecom infrastructure which includes telecom towers. Overall, the bill promises a comprehensive approach, addressing industry concerns, promoting security, and fostering innovation.”
