NEW DELHI: The Telecommunication Bill 2023 passed by Parliament last week proposes a slew of changes in the sector, which was widely seen as a mixed bag. It replaces the three legislations -- the Indian Telegraph Act, 1885; the Indian Wireless Telegraphy Act, 1933; and the Telegraph Wires Act, 1950. Henceforth, telecom companies won't be subjected to a licensing process; a simple on-tap authorisation will suffice. The legislation includes provisions for penalties or fines in case of any harm to telecom infrastructure; direct allocation of satellite spectrum; and mandatory biometrics before issuing SIM cards to consumers. It also opens the possibility of appointing the TRAI chairperson and its members from the private sector.
However, certain aspects of the bill have sparked concerns among Internet rights organisations. These include empowering the government to temporarily take control of telecom services; intercepting messages and asking companies to ease encryption. Organisations such as the Signal Foundation, Access Now, Eko and Digital Rights Watch Freedom House have collectively demanded a rollback of the bill, citing its potential impact on privacy.
Defending the provisions, Union telecom minister Ashwini Vaishnaw said the telecom is the gateway to digital services, adding the security of the country is vitally dependent on the safety of the networks. Therefore, there is a need to create a legal and regulatory framework that focuses on a safe and secure network for digitally inclusive growth, he argued.
“The current legal framework is governed by three laws enacted in 1885, 1933 and 1950. The nature of telecommunication, its usage and underlying technologies have undergone massive changes, especially in the past decade. Therefore, there is a need for enacting legislation for the telecom sector that serves the needs of our society,” the minister said.
Let's explore the main aspects of the bill.
End of licensing
The first change is to do away with the licensing process and introduce authorisation. Individuals or entities intending to provide telecom services, or to establish, operate, maintain or possess radio equipment must obtain authorisation from the government. Exemption from authorisation, too, can be granted by the government in public interest.
Ease of deployment
The legislation enables the government to simplify and ease the deployment of telecom infrastructure. Now, companies can apply to a public entity for the right of way for a telecom network over public property. After the application, the public entity can grant permission for surveys and activities related to the establishment, operation and maintenance of the telecom network. Once the application is received, the public entity is required to grant permission promptly within prescribed timelines - subject to administrative expenses and compensation, as determined by regulations.
In the case of private properties, both telecom operators and private property owners can arrive at a mutual understanding on the installation of telecom equipment. In the case of damage, the facility provider must restore the property or pay the agreed compensation. There is also a provision for compulsory permission. If the person owning the property does not grant the right of way but the government finds it necessary in public interest, it can intervene and determine the terms and conditions.
The bill, however, underlines that facility providers have no ownership rights over the property where the telecom network is established. The network is not considered part of the property for transactions, taxes or duties. In case of a dispute between the facility provider or property owner for damage or any other issue, both parties can go to the district magistrate or any other notified authority.
Spectrum rules
The government, as the spectrum owner, assigns it and can notify a National Frequency Allocation Plan. The bill says the spectrum is assigned through auction, except in special cases such as allocating to satellite communication providers. Additionally, it will assign spectrum to state-owned Bharat Sanchar Nigam Limited (BSNL) and Mahanagar Telephone Nigam Limited (MTNL) for communication services. The government can also allocate spectrum for national security and defence, public broadcasting services and others.
The bill allows sharing, trading, leasing and surrender of assigned spectrum under prescribed terms and conditions. To promote optimal use, the government can offer parts of a spectrum assigned to a primary assignee to one or more secondary assignees, while ensuring no harmful interference. Unused spectrum may be terminated or subjected to further terms and conditions after providing a hearing opportunity. However, there will be no refund of fees or charges if the authorisation or assignment is suspended, curtailed, revoked or varied.
Fines and penalties
The bill introduces some of the most stringent measures against unauthorised activities such as causing harm to telecom infrastructure, unlawful intercepting of messages, use of blocking equipment, etc. Offenders now face penalties of imprisonment for up to three years, fines reaching `2 crore or both. In the case of unlawfully intercepting messages, possessing or using equipment blocking telecommunication, using unauthorised identifiers, tampering with identifiers, and possessing radio equipment without proper authorisation, these offences carry penalties of imprisonment, fines or both. The legislation also addresses damage to telecom networks (excluding critical infrastructure), prescribing compensation and fines.
Besides, it addresses damage to telecom networks (excluding critical infrastructure), prescribing compensation and fines. The bill applies to any offence committed or contravention made outside India by any person if the act or conduct constituting such an offence or contravention involves a telecom service provided in India, or telecom equipment or network located in India.
Elephant in the room
The downside is that the government can read your messages, take control of telecom services, and restrict the transmission of certain messages in case of emergency, disasters and national security. The bill provides that the government can direct telecom operators to not transmit any particular message or intercept messages in an intelligible format and send them to designated government officials. The legislation, however, keeps accredited journalists out of the ambit of this law.
At time of war or for national security, the government can issue measures related to the use of telecom equipment, like standards, procurement and control of services or networks. “The Central Government may, by notification in the Official Gazette, declare any telecommunication network, or part thereof, as Critical Telecommunication Infrastructure, disruption of which shall have debilitating impact on national security, economy, public health or safety,” reads the bill.
Legal disputes
An Adjudicating Officer appointed under the provisions of the bill, through an inquiry, may issue orders directing entities to comply, impose civil penalties and recommend suspension, revocation or curtailment of authorisation. Orders by the Adjudicating Officer and Designated Appeals Committee are executable like civil court decrees (Section 38). Appeals against Designated Appeals Committee orders related to Section 32 matters go to the Telecom Disputes Settlement and Appellate Tribunal, while those related to Section 33 matters go to civil courts (Sections 39 and 40).
The bill, however, exempts the government or government officials from any prosecution or other legal proceeding for anything which is done in good faith, or intended to be done in ‘pursuance of this Act or any rule, regulation or order made thereunder’.
Industry view
The bill drew mixed reactions from stakeholders. Akshaya Moondra, CEO of Vodafone Idea, called it a pivotal moment in telecom reform. He particularly welcomed the rationalisation of penalties and the legal enforceability of the right of way, besides recognising telecom as a critical infrastructure. The Cellular Operators Association of India also appreciated the clarity on penalties, the shift from license to authorisation, and measures preventing coercive actions without due permission from the government.
The Internet and Mobile Association of India (IAMAI), representing nearly 600 Internet firms and start-ups, welcomed the progressive approach. The IAMAI lauded the exclusion of Internet companies from the law's scope and appreciated the adoption of its recommendations, such as excluding email, Internet-based communication service and broadcasting services from the ambit of the legislation.
The Broadband India Forum (BIF) hailing it as a significant enabler for the broader digital ecosystem, particularly for innovative OTT apps and the satellite sector.
However, it faced criticism from some quarters. Critics raised concerns about ambiguous definition of telecom services, suggesting potential extensions to cover online communication services like email and messaging platforms. Prateek Waghre, Executive Director at the Internet Freedom Foundation, pointed out the scope for interpreting the bill to include a broader set of internet services. Digital rights organisations, including Signal and the Firefox browser, expressed apprehensions in a letter to minister Vaishnaw, demanding the bill's withdrawal. They raised concerns about its impact on encryption, privacy, free expression and enhanced government surveillance without independent oversight.