T.V. Ramachandran, President, Broadband India Forum

The availability of robust telecom infrastructure across the country is wi­dely recognised as a fundamental re­quirement to achieve India’s ambitious digital goals and foster inclusive socio-economic development. Telecom infrastructure ser­ves as the basic mode of connectivity that transmits the vast amount of information that surrounds us. It requires both physical connectivity and the content or information to grow synergistically to achieve the desired objectives. In telecom, the infrastructure itself comprises two important parts – active and passive. The latter comprises visible and well-known components such as towers, fibre and generators while the former (active) are less familiar to the general pu­b­lic. These active components include antennae, feeder cables, base stations, ra­dio access networks and transmission systems including microwave and optic fibre cables (OFC) along with electronics to “light” it. Both the active and passive parts are useless without the other, emphasising the significance of an integrated approach to create a meaningful and robust digital telecom infrastructure.

The National Digital Communica­tio­ns Policy (NDCP), 2018 is the official policy document that defines the framework and objectives of digital communications. In its first and foremost section titled “Con­nect India: Creating a Robust Digital Co­m­munications Infrastructure”, the policy included Strategy (f), which aimed to “en­courage and facilitate sharing of infrastr­ucture by enhancing the scope of Infra­str­ucture Providers (IP) and promoting and incentivising the deployment of common sharable, passive as well as active infrastructure”. It is discouraging to note that, ev­en after five years, the critical issue of enhancing the scope of passive IP-1s is still under discussion and has not yet been implemented. This has delayed the progress that could have been made in the roll-out of 4G and 5G networks in these years.

The Telecom Regulatory Authority of India (TRAI), recognised as the expert and independent telecom regulator, provided its recommendations on March 13, 2020, regarding the “Enhancement of Scope of Infrastructure Providers Category-I (IP-I) Registration”. In these recommendations, TRAI proposed the expansion and en­ha­ncement of the scope of IP-I registration to include passive and active infrastructure, excluding core network elements and spectrum. These recommendations extensively covered the legal aspects justifying the provision of such infrastructure sharing by IP-1s, as outlined in Para 2.36 to Para 2.46 of the recommendations.

However, to the disappointment of many, in a recent TRAI consultation paper ad­dressing the same topic, it was mentio­n­ed that the Department of Telecom­m­unications (DoT) has rejected the previous TRAI recommendations covering the enhancement of the scope of IP-1s under the registration. It stated that allowing IP-1s to provide active infrastructure under the IP-1 registration is not permissible and such activities can only be undertaken under a specific form of licensing.

Experts strongly support the viewpoint taken by TRAI, which was based on extensive public consultations with stakeholders and in line with the NDCP guidelines and legal considerations. TRAI had suggested that the enhancement of the scope of IP-Is should be permitted under the existing IP-1 registration. In fact, the active infrastr­ucture deployed by the infrastructure pro­vider will always remain passive and in non-operating condition, until it is powered by a service provider authoris­ed/li­cen­sed to do so. Therefore, the elements of active infrastructure, in a non-operational condition, should be permitted to be provided by IP-1s on the condition that such infrastructure is exclusively offered to licensed telecom service provi­ders (TSPs).

The above conditions are excellent sa­fe­guards against any possible misuse of the integrated facility. Importantly, it should be emphasised that even with the expanded scope, IP-1s cannot access end-users of the telecom access service under any circumstances. While IP-1s can contribute to the faster roll-out of services, th­ey cannot infringe upon the latter’s jurisdiction or poach their customers. There­fore, it is quite incomprehensible that telcos would oppose the enhancement of the IP-1 sco­pe. In fact, they should champion this cause and advocate for this benefit to im­prove their business prospects.

Consistency in regulations and alignment between policy and regulations are crucial factors in building investor confidence and providing a clear roadmap for strategic decision-making and long-term investments. Unfortunately, in the crucial matter of passive and active digital infrastructure creation, there have been policy and regulatory flip-flops since 2005 till date. The situation needs to be addressed promptly by adopting an integrated and progressive infrastructure policy as earlier proposed by TRAI. There are ample policy and regulatory justifications that support this proposition. These include:

  • DoT allowing registration for passive sharing
  • DoT’s clarification dated May 22, 2018, stating that under Clause 2(d) of the Ri­ght of Way (RoW) Rules, licensees in­clude IP-1s
  • TRAI’s recommendations, released in March 2020, on the enhancement of the scope of IP-1
  • The definition of “Telegraph” in the In­dian Telegraph Act, which does not distinguish between active and passive infrastructure.

At the heart of the debate lies the definition of the term “licence”. According to Black’s Law Dictionary, one of the most reputed and trusted sources worldwide for legal definitions, a licence is defined as “a permission, granted by a competent au­thority, conferring the right to perform an act that would be illegal, or considered a trespass or tort without such authorisation”. Typically, this permission is granted in written form as an express licence.

A careful study of the Indian Telegraph Act, 1885 suggests that registration is also a form of licensing and that the IP-1 licen­ce is granted through registration. Under the relevant Section 4 of the Indian Tele­graph Act, it is clearly stated that the government has wide and all-encompassing power that embraces all possibilities, and a licence can be granted on any terms and conditions as deemed necessary by DoT, ev­en through a simple registration. We qu­ote from the proviso to Section 4 (1) of the Act, which states, “Provided that the central government may grant a licence, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of (India).” Based on the above, it is clear that the central gov­ern­me­nt possesses full powers to grant a licence with any terms and conditions, and licences to the local cable operators, IP-1s, other service providers, etc. are granted by means of a registration.

While a licence may be in the form of a commercial licence agreement or a simple registration, the obligations/payment terms should be commensurate with the rights given under such licences. It would be incorrect to draw an analogy between IP-1 registration and a unified licence held by a TSP. The TSPs stand on an entirely different footing, as they hold at least four valuable and unique rights, including:

  • The right to licensed spectrum
  • The right to PSTN interconnection on regulated terms
  • The right to numbering resources
  • The right to establish, maintain and pro­­vide telegraph services.

None of these rights are granted to IP-1s, which also do not have access to end-customers. However, RoW needs to be provided to them for enabling the expe­di­tious roll-out of infrastructure. After a detailed analysis, TRAI, in its recommendations of March 2020, also agreed that the registration of IP-1 is nothing but a kind of licence granted under Section 4 of the Indian Telegraph Act, 1885 for establishing and maintaining infrastructure within its limited scope. It also suggested that the scope of IP-1 registration can in­clude any telegraph item legally.

Also, there are sufficient safeguards in the existing framework, Guidelines of DoT for Infrastructure Providers Catego­ry I dated December 22, 2021. According to the guidelines, an IP-I can provide ass­ets such as dark fibre, RoW, duct space and towers for lease, rent or sale on­ly to licensees of telecom services on mu­tually agreed terms and conditions. The­se companies are not allowed to operate or provide telegraph service including end-to-end bandwidth to any service provider or other customers.

With the rapid advancement of technology and the advent of 5G, India needs to rapidly upgrade and enhance its digital infrastructure. Given the fact that operators are knee-deep in their past debts, they require saviours in the form of infrastructure providers to help augment and upgrade both passive and active digital infrastructure including in-building solutions. This collaboration will enable op­e­rators to leverage the infrastructure and deliver customised and innovative 5G and 6G services, without incurring additional debt. To expedite the realisation of Digital India and Broadband for All, the government must establish consistent and predictable policies and regulations that promote innovation and fair competition. If this is ensured, we will be unable to stop the influx of investments for the rapid de­ve­lopment of digital infrastructure. s

The author is Hon. FIET (London) and President, Broadband India Forum.

The views expressed in the article are

personal with research inputs by Debashish Bhattacharya