Draft Telecom Bill enhances unease of doing biz amid regulatory overlaps

Source: The post is based on the article “Draft Telecom Bill enhances unease of doing biz amid regulatory overlaps” published in the Business Standard on 19^th October 2022.

Syllabus: GS 3 – Infrastructure: Energy, Ports, Roads, Airports, Railways etc.

Relevance: About the concerns with the draft telecom bill.

News: The draft telecommunication Bill was put up for comment last month.

About the salient provisions of the draft telecommunication Bill

What are the concerns associated with the draft telecom bill?

Forces digital companies to re­­port to two ministries: The draft law forces digital companies to re­­port DoT under the telecom min­istry, and Ministry of Electronics and Information Technology (MeitY) and, in some cases, the Ministry of Information and Broadcasting (I&B).

More power to the government: The government has assumed under the Bill to intercept any “message” in the interest of the “sovereignty, security, integrity of the country”.

The Bill also vests DoT with the same powers as MeitY, that too without filters. The safeguards implicit in the IT Act are absent in the Bill.

Overlapping jurisdictions

With IT Act: Over-the-top (OTT) services, video and audio services under Section 2 of the draft Bill, are also covered under the IT Act as curated content.

OTT communication services are already regulated as intermediaries under the IT Act. But under the draft Bill, OTT platforms have been incorporated also as ‘telecommunications services. So, OTT platforms now have to report to both ministries — apart from following the instructions of the Ministry of Home Affairs.

There is also a duplication of penalties and powers to set standards between the two Acts.

With Cable Act of 1995: The Cable Act of 1995, which falls under the I&B ministry, was formulated to govern the registration and operation of cable networks. However, Direct-to-home services (such as cable operators) have been defined as broadcasting services under tele­com services in the Bill. Both laws have identical provisions for revoking the registration and issuing directions.

So, the duplication of regulation between the proposed telecom Bill and the Cable Act will take place.

Undermine specialised agencies under MeitY: IT, applications and software-related services have, so far, been under MeitY and its specialised bodies such as the Indian Computer Emergency Response Team.

But, the Bill includes aspects of software under the definition of “telecommunications equipment”, which might undermine the position of MeitY’s specialised agencies.

Reduce the power of Telecom Dis­putes Settlement and Appellate Tribunal (TDSAT): The Bill adds uncertainty to TDSAT’s role by intro­d­u­cing an alternative redressal system. The draft em­powers the government to refer any disputes to arbitration, mediation or other processes.

Non-clear definitions: The Bill has not clearly defined what constitutes “broadcasting services”. The definition does not distinguish between carriage and content. By not defining the terms, it is left to the discretion of officers who might want to also control cont­ent.

Reversal of DoT’s earlier decision

About Machine-to-machine (M2M) communications: M2M communications are treated as “communication services” requiring a licence under the bill. But that’s a reversal of DoT’s decision prescribing a registration framework issued through guidelines in 2022.

According to industry estimates, there will be at least 50 million M2M devices in the next five years, and 95% will operate on non-cellular technologies — all of which will be licensed. So, in time, non-cellular technologies such as radio-frequency identification, Bluetooth and near-field communication will also come under the purview of licensing.

About various electronic products: The government exempted various products like mobile devices, smartwatch, smart cameras and PoS machines from the mandatory testing and certi­fication of telecom equipment under the Indian Tele­graph Act.

But now, under the bill, they are included under the definition of telecom equipment. Thus open to testing.