Introduction
The Telecommunications Act, 2023 (hereinafter referred to as ‘Act’) offers an overhaul of the regulatory landscape for telecommunications and internet services. It aims to modernise existing frameworks, but there are concerns around the act raised by experts and civil society, regarding legal implications and potential shortcomings. The objective of the Act, as stated, is “to amend and consolidate the law related to the development, expansion, and operation of telecommunication services and telecommunication networks”. Additionally, the Act aims to address the “assignment of spectrum and deal with matters connected or incidental to these telecommunications-related activities”.
The new Act has sparked a fervent debate, posing both promises of modernisation and concerns about potential overreach. When the draft Indian Telecommunication Bill, 2022 was first put up for public consultation on the last day in September 2022, it sparked curiosity and raised questions. Amidst a spirited atmosphere in Parliament, the Union Cabinet Minister for Communications introduced the Telecommunications Bill, 2023, also known as the Telecom Bill, 2023. The bill got passed by both the houses of Parliament and received the President’s assent, it has now become the law of the land. This is a significant step towards providing a legal framework for the regulation and management of telecommunications services, networks, and spectrum allocation.
A Legal Perspective
The new Act has generated some concerns due to the lack of clarity in certain provisions, particularly regarding the definition of “telecom services” and the level of data privacy safeguards outlined. These ambiguities have contributed to anxieties surrounding the potential implications and scope of the Act. The transition from the old laws to the new Telecommunication Act, has ushered in significant legal changes that reflect the evolving landscape of telecommunications. The laws that were present were drafted in a different technological era, lacked provisions addressing emerging issues such as data privacy, cybersecurity, and the rapid advancement of digital communication services. In contrast, the new telecom law embraces a forward-looking approach, incorporating stringent measures to safeguard user data, enhance cybersecurity protocols, and accommodate the proliferation of innovative communication technologies. Major changes from the legal standpoint:
– Consolidation of Laws: The Act merges three outdated laws (Indian Telegraph Act, 1885, Indian Wireless Telegraphy Act, 1933, and Telegraph Wires (Unlawful Possession) Act, 1950) into a single, comprehensive framework. This streamlines regulations and addresses technological advancements not encompassed by the older laws.
– Broadened Definition of Telecom Services: The definition of telecommunications services in the new act has undergone a change as compared to the 2022 draft. In the 2022 draft, telecommunications services were broadly defined to include various communication services, explicitly encompassing over-the-top (OTT) services. However, in the new act, which was approved by both houses, maintains a more general definition of telecommunications in Section 2(p). According to the new definition, telecommunications refers to the transmission, emission, or reception of messages through wire, radio, optical, or other electromagnetic systems. The revised definition doesn’t explicitly specify the range of services as comprehensively as the 2022 draft, and it omits the explicit inclusion of OTT services from the ambit of the new act.
– Government Oversight: The new act empowers the union government to notify standards and regulate telecommunication services and telecommunication network on occurrence of any public emergency, including disaster management, or in the interest of public safety with respect of:
* Temporary Network Control: The provision of the new act granting the government temporary control of telecom networks during emergencies is a complex issue with valid concerns. The potential for misuse by the government is a big concern as there is uncertainty about who defines “public emergency” and “public safety”? How are safeguards implemented to prevent abuse of this power?
* Interception and Message Blocking: The government can intercept messages and block transmission of any message for national security and public safety, posing challenges for user privacy and freedom of expression. While there are provisions which aim to ensure the safety and security of the public, it does raise challenges pertaining to user privacy and freedom of expression. Balancing these concerns is crucial, and it will be important to monitor how this provision is implemented to safeguard individual privacy rights while maintaining the necessary measures for national security.
* Prior Authorisation: While the intention behind this provision may be to ensure proper regulation and oversight, but concerns have been raised regarding potential bureaucratic hurdles and the potential impact on innovation. It will be important for the government to strike a balance between regulatory oversight and fostering an environment that encourages innovation and competition. Streamlining the authorisation process, promoting transparency, and providing clear guidelines can help address these concerns and ensure that the regulatory framework supports technological advancements and the growth of the telecommunications sector.
– Digital Inclusion: The Act establishes the “Digital Bharat Nidhi” fund to promote infrastructure development and services in rural areas, aiming to bridge the digital divide across India. The Digital Bharat Nidhi fund replaces the Universal Services Obligation Fund (USOF) created under the Indian Telegraph Act, 1885. The Digital Bharat Nidhi would be under the direct control of the Central Government and shall discharge functions as per Section 25 of the Act.
– Litigation Free?: Whether the new Telecom Act will be entirely litigation-free is a complex question with no definitive answer. While the Act introduces innovative provisions aimed at reducing litigation, some experts remain sceptical about its complete elimination. The proposed Act offers reasons for optimism and scepticism in the realm of dispute resolution. Optimistically, the focus on online dispute resolution (ODR) platforms is seen as a positive step, promising streamlined resolutions for disputes, potentially reducing court backlogs. The provision for voluntary undertakings allows entities to admit mistakes and resolve issues swiftly, offering an alternative to litigation for routine cases. The introduction of Adjudicatory Officers (AO) and Designated Appeal Committees (DAC) as intermediate stages before resorting to the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) aims to efficiently resolve disputes and encourage settlements. However, scepticism arises in the case of complex cases, particularly those involving substantial financial stakes or broader policy challenges that may not be amenable through ODR or voluntary undertakings, necessitating litigation. Additionally, the effectiveness of the proposed dispute resolution mechanisms, including ODR, AO, and DAC, remains uncertain and contingent on their efficient implementation, transparent procedures, and the delivery of fair outcomes. While the new Act holds promise for reducing litigation in the telecom sector, it’s unlikely to completely eliminate it. However, the Act’s innovative measures have the potential to significantly streamline dispute resolution for routine matters, reducing the overall burden on the legal system and promoting a more cooperative environment within the telecom sector. Ultimately, the Act’s impact on litigation will depend on its implementation, interpretation, and evolution through legal challenges and policy adjustments. Continued monitoring and open discussion among stakeholders will be crucial in ensuring its effectiveness in minimising litigation while upholding fundamental rights and ensuring transparency in the telecom sector.
The new telecom law has brought about a critical reassessment of the regulatory framework governing the telecommunications sector. While the new telecom law represents a substantial effort to adapt to the rapidly changing technological landscape, the impact of the new telecom law extends beyond regulatory compliance, influencing the dynamics of market competition, consumer rights, and technological innovation. Stakeholders, including service providers, consumers, and regulatory bodies, now find themselves navigating an altered landscape where issues like data privacy, cybersecurity, and equitable access to communication services are addressed with a renewed focus. The new Telecommunications Act, 2023, has brought about significant changes in the regulatory framework governing the telecommunications sector. Some of the key changes and their possible impacts include:
– SIM card cloning has become a major cybercrime threat across the country. Major service providers have already warned their subscribers against the same on multiple occasions. The new act has strict provisions to check fraudulent issuance of SIM cards. Any violation or impersonation will entail three years of imprisonment along with fine and also makes these offences cognizable and non-bailable. The new act makes it mandatory for the authorised entities which provide such telecommunication services as prescribed by the Government to identify the person to whom such services are provided only after capturing verifiable biometric data of the person to prevent misuse of telecom resources. There are strict provisions for crimes related to “spoofing” or “cloning”. It has now become a ‘punishable crime’ along with a penalty which may extend up to two crores.
– The Act curbs the powers of the Telecom Regulatory Authority of India (TRAI) by addressing concerns raised by industry players. The provision in the new Act stating that the TRAI chairman and members can be appointed from services other than government which indicates a shift in the approach of the regulatory body. Appointing individuals from other than government sectors implies that the regulatory body aims to benefit from the industry-specific expertise and experience of private sector professionals. Having leaders from the private sector may foster a closer alignment between regulatory policies and the needs of the industry. This could lead to a more collaborative relationship between the regulator and industry stakeholders. On the flip side, appointing individuals from the private sector may raise concerns about potential conflicts of interest. Striking a balance between industry knowledge and impartial regulation is crucial to maintain the integrity of the regulatory process.
– Spectrum for satellite internet: The new Act includes significant changes in the allocation of spectrum for satellite broadband service. It provides for the allocation of spectrum for telecommunication to entities through auction and may notify it on the National Frequency Allocation Plan from time to time. However there are 19 services/entities listed under “first schedule”, where spectrum can be given administratively which means assignment of spectrum without holding an auction, these include:
* National Security, defence, disaster management, public broadcasting;
* Satellite services, including GMPCS holders (such as Bharti OneWeb, starlink, MAzon, Kuiper and Reliance Jio Satellite).
* BSNL and MTNL
For others, spectrum will be provided through auction.
– Offences and Penalties: The violation of the terms and conditions of authorisation in the telecommunications sector carries significant consequences, ranging from written warnings to a substantial civil penalty, with a maximum limit of INR 5 crore. Additionally, engaging in unauthorized provisioning of telecom services, establishing networks without proper authorisation, or causing damage to critical infrastructure may result in severe penalties, including imprisonment for up to 3 years, a fine reaching INR 2 crore, or a combination of both. Furthermore, unauthorised access to telecom networks or data, as well as the unauthorised transfer of data and interception of messages in violation of national security measures, can lead to imprisonment for up to 3 years, a fine up to INR 50 lakh, or both. These stringent measures underscore the importance placed on ensuring compliance and safeguarding national security within the telecommunications industry, discouraging any activities that may compromise the integrity of the network or pose threats to critical infrastructure.
– Right of way (ROW): This typically refers to the legal right to pass through or use a designated route or area. In the context of telecommunication infrastructure, it includes the installation and maintenance of cables, wires, and other facilities. The new act includes provisions related to Right of Way to ensure that telecommunication service providers have the necessary permissions and access to install and maintain their infrastructure. This can involve the deployment of cables, antennas, and other network components along public and private property. The act establishes the exemption of telecom networks installed on any property from any claims, encumbrances, liquidation or the like, relating to such property.
– Media messages exempted: Prima facie the new act contains exemption for “press message” but after careful consideration it can be said that even though it does create a sub-classification for “correspondents accredited with the Central or State Government”, it does not offer any heightened protection (such as an additional procedural safeguard or reason) for the same. In legal terms, the absence of additional procedural safeguards or reasons may mean that, while these correspondents are recognised, they are not granted any special treatment or enhanced protection compared to other entities covered by the Telecommunications Act.
Moving Forward
The Telecom Act 2023 presents a unique opportunity for the modernisation of India’s telecommunications landscape, reflecting the nation’s commitment to keeping pace with the digital era. As stakeholders navigate the implications of the new regulatory framework, insights from Ashwani Vaishnaw, Union Cabinet Minister for Communications, offer valuable perspectives.
In his statement at the World Economic Forum Annual General Meeting in Davos, Ashwani Vaishnaw underscored the significant strides in India’s digital infrastructure and the simplification of regulatory processes within the telecom sector. This emphasis on digital growth aligns with the global acknowledgment of the digital economy’s impact on overall economic development.
He commended the government’s efforts in streamlining laws and procedures, noting the removal of outdated colonial-era laws and a substantial reduction in compliance requirements. This has created a more streamlined and efficient environment, exemplified by the remarkable reduction in the average time to obtain a permit for setting up a telecom tower from 230 days to just 7 days. The newfound efficiency, with 85% of tower permissions granted almost instantly, is considered a game-changer for the industry.
However, Ashwani Vaishnaw also highlighted the importance of striking a balance between progress and privacy. As India accelerates its digital transformation, careful consideration of potential shortcomings and an open dialogue become crucial to ensure that the final law serves the best interests of both citizens and the digital economy. Overall, the Telecom Act 2023 presents an opportunity for modernisation, but it requires careful consideration and continuous evaluation to address potential shortcomings and ensure a fair and inclusive regulatory environment.