The government recently published the Draft Telecommunications Bill, 2022 for public comment. This follows the repeal of the Personal Data Protection Act (PDP), which has been in the pipeline for five years. The PDP Act provided a framework for citizens' privacy rights, building on his Puttaswamy decision of the Supreme Court, which declared privacy a fundamental right. Taken together, these measures mean that governments have vastly increased power over what citizens can do, see and hear, while citizens' rights remain undefined.

The Draft Telecommunications Act not only strengthens the government's powers over citizens and service providers but also strengthens the powers of independent sector regulators, the Telecommunications Regulatory Authority of India (TRAI), and the Telecommunications Dispute Settlement and Dispute Court (TDSAT).

This bill replaces the Indian Telegraph Act of 1885 and continues the trend of the Narendra Modi government to expand the central government's powers over its citizens. But this time, it didn't pass Congress like the Farm Bill that led to nationwide farm unrest.

The new Bill establishes a broad framework that addresses certain concerns on principle, leaving other substantive parts to be developed by the government after the primary framework is in place. From a legal standpoint, the government may achieve more through a Bill than through regulations or licensing conditions, as limits on private rights or delving into Supreme Court principles are better suited to primary legislation.

The legal implications of the bill will be innumerable, but here are a few that which bill underlines

Explanation on Spectrum Assignment: The Bill underlines the government's ability to award spectrum, with or without auction, and emphasizes that the goal of spectrum assignment is the common good and access to telecom services. This may put an end to the longstanding controversy over whether spectrum assignment should maximize government income or improve access to telecom services, allowing for smoother and more optimal spectrum assignment (e.g., administrative assignment of backhaul spectrum).

Criminal penalties are being eased: The Bill eliminates various unnecessary penalties (for example, trespass in a telegraph office); applies a quantum of penalties depending on severity; and provides resolution of offences by fines and voluntary undertaking. This will improve the ease of doing business and significantly lower the risk of criminal prosecution for telecom operators' operational concerns. Provisions for notice (rather than approval) of M&A transactions, as well as a legislative foundation and rules for Right of Way when putting down infrastructure, would make it easier to do business in the industry.

Licensing Internet-based apps: The Bill, on the other hand, mandates OTT communication services, which are essentially Internet-based apps/software, to get telecom licenses and so fall inside the telecom framework. Given the dynamic and varied character of Internet-based services, putting them to a telecom licensing framework with criminal consequences might hinder innovation or even exclude the Indian market (For example, an interactive gaming provider in India may opt to discontinue delivering the interactive element or the game itself owing to the prospect of criminal penalties for failing to get a license.)

Broad shutdown and monitoring powers: The Bill grants the government the authority to command the stoppage of message transmission or the supply of telecom networks or services. These powers are far broader than the present framework for internet shutdowns and interception, and include directives for data interception and disclosure, as well as suspension/surveillance of correspondence "related to any specific issue." The latter is an onerous requirement for telecom companies and risks widespread monitoring of the public.

Collaboration with other agencies: The Bill weakens TRAI's authority by allowing the government the authority to deal with unwelcome advertisements and promotional materials. It also demands that broadcasting licenses be given within the same telecom framework that has hitherto been handled by MIB. TRAI also gains the authority to rule on predatory pricing, as it has done so far with CCI, while some clauses overlap with MeitY's powers under the Information Technology Act.

While simplifying various regulations benefits the sector, essential inter-departmental talks should be completed to eliminate legislative overlap and meet the Government's objectives without internal limitations. This is especially significant because telecom providers are also subject to other frameworks in the works by other organizations, such as the Digital India and Data Protection Bills.

The Modi government's intention seems to be to strengthen the police force and build a surveillance system. This will force all service providers to share user data with the government. It also allows the federal government to make rules that could prevent the use of end-to-end encrypted messaging apps such as Signal and Telegram. All of these applications are considered Over-The-Top or OTT services and require a formal license.

Another consequence is that it will become much more difficult to develop new and innovative services that rely on the Internet. In other words, existing monopolies will be strengthened and only large companies will offer commercial services on the Internet. The bill defines all these services as OTT, which requires a license.

Let's see what impact this bill will have on TRAI. TRAI is an agency established to act as an independent regulator of telecommunications services and framework policies. The government’s Department of Telecommunications (DoT) assumes both of these roles, and TRAI is simply following government directives. Even one of TRAI's functions, setting tariffs, is subject to the DoT, as such powers exercised by the DoT must be under the Telecommunications Act.

Puttuswamy established that privacy is a fundamental right and that any invasion of privacy must be lawful (or lawful), have a legitimate purpose, and be proportionate to that purpose.

In addition to the safeguards that must be put in place to prevent the abuse of rights, there must be a reasonable link between the objective and the means used to achieve it.

Unfortunately, the data protection law that has been in force for five years remains unresolved once again. Puttuswamy makes it clear that mass surveillance of citizens cannot be legally justified, but the problem is that without data protection laws citizens can do little to exercise their privacy rights. Any of the 10 government agencies empowered to monitor citizens and businesses can do so without proper controls or offsets. The draft

Telecommunications Act expands these powers by defining all communications using the Internet as telecommunications services.

An important provision of this bill concerns the reference to OTT services. This has been used to mean that services from Netflix, Hot Star, and Amazon to mall grocery stores that deliver to your neighbourhood via an app are all considered OTT services and require registration and licensing. rice field.

There are two issues with calling a service that uses the Internet as an OTT. For one thing, telecommunications only recognizes voice and data services. Both communication services involve direct voice transmission over cable or data. In this case, all data sent over the Internet is decomposed into packets of data and reassembled into voice, image, or data at the other end. The use of OTT as a generic term addresses features of data that are not telecom features regulated by DoT.

Some services offered in the physical world are regulated. For example, health ministries regulate medical services at the central and state levels. It may even be regulated by local governments. Similarly, education, commerce, etc. are subject to regulation depending on the type. So labelling all these services OTT and putting them under the federal umbrella is a huge exaggeration by both the federal and the DoT.

Looking at telecommunications services, there are only two main types: telephone and internet services. The physical infrastructure (copper, fiber, or wireless) is irrelevant to defining a service as data or voice. You may wonder why we differentiate between phone calls and internet calls when both phone and internet calls offer voice communication. This difference is based on how the sound is transmitted.

Converts voice directly to data and back directly to voice as a voice service or over a wireless or wired connection as a data service. These are the only two services offered by carriers. What is contained in the data packet is not in the realm of telecommunications. Consider some examples of how government definitions affect the service economy of ED.

A doctor who offers online consultations, a small grocery store that uses the internet to reach customers, or a restaurant that offers takeout, either registers as an OTT service provider or joins one of the larger proprietary service providers. is needed. This means giving a significant portion of the revenue to such monopolies. It also requires licensing as an OTT service, which prevents the introduction of new innovative services and strengthens existing exclusivity.

There's a reason communications services were limited to voice and data. Otherwise, telecommunications companies could threaten new service providers emerging from the Internet, such as e-mail and bulletin boards for information, news services, or people receiving such services, to monopolize data transmission networks. there is.

This is why net neutrality regulations were created. If you remember, this was a battle between Facebook and its Free Basics. Facebook worked with a few carriers to offer this little private internet and make it look like the whole internet. Internet users in India were against it, TRAI rejected it based on net neutrality, and Facebook (now Meta) probably suffered its biggest defeat yet. Defining all database services as OTT would not only lead to excessive federal regulation. This allows ISPs to exercise monopoly rights over other service providers and prevents the emergence of new services.

In 2015 TRAI distributed a paper draft on his OTT service. Organizations to which I belong, such as the Delhi Science Forum and Knowledge Commons, provided detailed reasons for opposing such a move. They argued that attempts to differentiate data services as OTT services would have a chilling effect on smaller new players and significantly slow innovation. Considering the criticism, TRAI recommended not to proceed further. Interestingly, the same OTT prescription of his came back 7 years later in law.

We need to ask ourselves who benefits when governments take big initiatives. As Murder Mystery says, cui bono? The obvious beneficiary is the federal government, which wants more licensing and surveillance powers. Other major carriers (Reliance Jio, Airtel, Vodafone Idea) are also the largest ISPs. They have maintained a unique position against competitors who may infringe on their monopoly, especially through voice and messaging apps. Is this a way to give up net neutrality and give major carriers more bargaining power over what will be called OTT service providers under the new law?

Who is pushing the telecom industry in this new direction? Doing so will only stifle innovation in one of the world's fastest-growing sectors. This is a big step back from the current internet based on net neutrality principles created by Indian users and regulators. Why is India, seen as a paragon of net neutrality and participatory governance, reintroducing regressive policies? Is it a love of surveillance or a monopoly of private communications?

Written By:

• Krishna Kumar and
• Avantika Jain