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On December 18, the Centre introduced the Telecommunications Bill, 2023. The proposed law attempts to bring in structural changes to the current regulatory mechanisms in the telecom sector. The Union government has ushered in a series of reforms through this legislation.
It seeks to replace the Indian Telegraph Act of 1885, the Indian Wireless Telegraphy Act of 1933, and the Telegraph Wires (Unlawful Possession) Act of 1950.
What are the key provisions of the Telecommunications Bill 2023?
1) Authorization for Telecom-related Activities: Obtaining prior approval from the central government is mandatory for (i) providing telecom services, (ii) establishing, operating, or expanding telecom networks, or (iii) possessing radio equipment.
The Bill allows the government to take back the spectrum that is unutilised, and also allow for the sharing, trading, and leasing of spectrum.
2) Changes in the Allocation of Spectrum:
Spectrum will be assigned by auction, except for certain specified uses.
In some specific use cases, spectrum will be allocated on an administrative basis (by the Government).
These include: (i) national security and defence, (ii) disaster management, (iii) weather forecasting, (iv) transport (railways, etc.), (v) satellite services such as DTH and satellite telephony, and (vi) BSNL, MTNL, and public broadcasting services.
Note: Supreme Court in 2012 had ruled that there should be competitive auctioning for distribution of natural public-owned resources such as spectrum. Since then, spectrum had been allocated only through the bidding process.
3) Powers of Interception: Government can suspend, assume control of, or oversee any telecom service in case of public emergency or national security concerns.
The Bill empowers the central and state governments or a government authorised officer to seek interception, disclosure, and suspension of powers in case of a public emergency or interest or safety.
4) Digital Bharat Nidhi: An earlier fund to provide telecom services in underserved areas has been renamed as Digital Bharat Nidhi, expanding its usage to include R&D.
5) Dispute Settlement: A tiered structure for settling disputes – involving an adjudicating officer, designated committee of appeals and the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) on top.
6) Biometric Authentication of Users: Entities have been mandated to carry out biometric authentication of their users as a measure to curb fraud.
7) Territorial Applicability: It now extends to offences committed outside India if the offence in question involves a telecom service provided in India.
What is the significance of the Telecommunications Bill 2023?
1) Replaces Archaic Laws: The Bill seeks to replace the Indian Telegraph Act (1885), the Wireless Telegraphy Act (1933), and the Telegraph Wires (Unlawful Possession) Act (1950), which are colonial-era archaic laws that need reforms, given that the telecom sector has changed significantly in the last few years.
2) Provides Clarity for Satellite broadband services: It provides clarity for satellite broadband services, an emerging field of telecom that is expected to expand connectivity to remote areas. It aligns India with international norms and sets the stage for global players to enter.
It will also help drive innovation, create opportunities for startups, and strengthen the country’s position in the global satellite market.
3) Takes Away Executive Discretion: An earlier draft stated that spectrum could be assigned through auction, administrative processes and “any other manner as may be prescribed.” In the 2023 bill, this has been limited to just auction or administrative processes.
4) Technology-based Solutions for Governance: For instance, there is a provision of online dispute resolution for grievance redressal which will usher in ease of doing business.
5) Simplification of Bureaucratic Procedures: Provisions such as applying for licences and permits for telecom operators have been simplified (through digitisation).
For instance, currently, the telecom department issues more than 100 types of licences, registrations, and permissions. The Bill seeks to club many of those in a single authorisation process.
This will give the much-needed regulatory stability and enabling environment for the next phase of telecom expansion.
6) Does Not Interfere with OTT: The Bill has stopped short of extending to telecom-adjacent services (such as OTT). This will prevent overregulation of the sector.
What are the challenges in the Telecommunications Bill 2023?
1) Potential for Misuse by the Executive: Concerns are being raised over the Bill’s broad provisions that would allow the Centre to take over, manage or suspend any or all telecom services or networks in the interest of national security or war. Also, another clause proposes message interception and service suspension in case of a public emergency or for public safety.
2) Privacy and Surveillance Concerns: Another clause lets the government notify standards and ensure compliance for encryption and data processing in telecom. This raises the question of whether it empowers the Centre to possibly prevent popular chat apps from encrypting text messages. This goes against the user’s right to privacy.
3) Legal Challenges to Administrative Allocation: Supreme Court’s 2G spectrum allotment ruling of 2012 had recommended auctions of scarce natural resources. The ‘administrative allocation’ provision may go against this ruling.
4) Ambiguity in Definitions: Its definitions of telecom, telecom services and what constitutes a message are so broad that it potentially leaves a door open for wide interpretation. It is alleged that these definitions have been kept wide open to potentially regulate online platforms as well (such as messaging apps like Whatsapp, and OTT Platforms).
Way forward:
1) Checks and Balances: To prevent misuse, only a declared national emergency under Article 352 of the Constitution should be allowed to trigger executive action. Any such action must require Parliamentary approval.
2) Respecting the Right to Privacy: The message interception and service suspension part must align with fundamental rights such as the right to privacy.
3) Transparency: The government must address privacy concerns with an open mind, considering the vast powers that the text of the Bill grants it. The government must also conduct rule-making with absolute transparency and consultation.
4) Broader Consultations: The government should conduct a broad based consultation on the current version of the bill, involving all stakeholders (private players, public, etc.).
This Bill is an attempt to rejuvenate the telecom industry, that holds so much promise for India. The telecommunications landscape has evolved dramatically since the Telegraph Act was first passed in the 19th century. Hence, regulation and lawmaking of the current telecommunication scenario should be equipped to comprehensively address the issues that have come with this digital explosion.
