Legal Service India - Need for Conversion of the Convergence Bill
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Need For Conversion of The Convergence Bill

Written By :Parikshit Dasgupta, ALMT Legal,Indo-European Consultants
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The much awaited and debated Bill, The Communication Convergence Bill, is on the verge of being enacted and changing the Indian communication machinery in an unprecedented fashion. The Bill primarily intends to promote and develop the entire communications sector[1], in the scenario of increasing convergence of technologies. Thus India hopes to become the second country in the globe to have a legislation regarding convergence[2].

The Bill will replace five existing laws namely -The Indian Telegraph Act-1885, Cable TV Networks Act 1995, Indian Wireless Telegraphy Act-1933, The Telegraph Wires (Unlawful Possession) Act 1950 and the Telecom Regulatory Authority of India Act 1997.

Rationale behind the Bill

The Bill seeks to achieve 4 main purposes-
The development of national infrastructure for an information based society, and to enable access thereto;
To provide a choice of services to the people with a view to promoting plurality of news, views and information;
To establish a regulatory framework for carriage and content of communication
To establish of a single regulatory and licensing authority with defined powers, procedures and functions and and an Appellate Tribunal
To put it in a nutshell, the Bill facilitates multi-operations and a service provider may provide a consolidated service in basic telecom, cellular telecom, internet and satellite television without procuring different licenses. Presently, the absence of a single window clearance for these services, make it cumbersome for companies advent into and provide all these services simultaneously. The manner in which the Convergence Bill seeks to remedy these difficulties is captured in this article.

Salient Features
The Bill contemplates the establishment of an autonomous body to be called the Communication Commission of India (CCI), entrusted with wide-ranging functions, duties and powers.

The Commission shall be constitute of 9 individuals comprising of a Chairperson, seven members and the Spectrum Manager, as ex-officio member[3] The Chairperson and Members (except the ex-officio Member) shall be appointed by the Central Government. The Chairperson and whole-time Members shall hold office for a term of five years and shall not be eligible for re-appointment.

Hearing of complaints and resolution of disputes by the Commission

The Commission shall decide any dispute between two or more service providers on issues relating to spectrum interference, interconnectivity, denial of fair access and restrictive practices and between a service provider and a group of consumers. It will also look into any dispute arising out of enforcement of any provision of the Act.

Spectrum Management Committee

The Central Government shall create a Spectrum Spectrum Management Committee for coordination with international agencies for Spectrum Management and also for allocation of available spectrum for strategic and non-strategic/commercial purposes. The functions would inter alia include -
Co-ordinating with international agencies on matters relating to overall spectrum planning, use and its management;
Carry out spectrum planning, and assign frequencies to the Central Government and to State Governments to meet their vital needs.
Allocate frequencies or band of frequencies including frequencies which are to be assigned by the Commission; and re-assignment of frequencies from time to time.

Constantly review and make available as much spectrum as possible and also optimize usages

Monitoring, in consultation with the Commission, the efficiency of the utilization of the spectrum by all users including investigation and resolution of spectrum interference.

After meeting the requirements of the Central Government and of State Governments, the Spectrum Manager shall make the spectrum available for assignment by the Commission, both in the shared as well as in the exclusive bands.

Licenses For Communication Services And Network Infrastructure Facilities

The CCI will try to uphold public interest by ensuring competition and prevention of monopolies while issuing licenses for providing communication services. The commission will also stipulate the eligibility conditions for such licenses. The Commission may grant license to any person:
To provide or own network infrastructure facilities, (which includes include Earth Stations, Cable infrastructure, Wireless Equipment, Towers, poles, ducts and pits used in conjunction with other communication infrastructure.

To provide networking services
To provide network applications services,
To provide content application services
Breach of terms and conditions of Licenses, Penalties and Adjudication
When the terms of the license are breached, or when the licensee fails to comply with any decision, direction or order of the Commission, the Commission may, take appropriate measures including an order to do or abstain from doing something, suspension of the license for a specific period or restrict the same or seize of the equipment being used for providing such service.

The Adjudication Officer
An Adjudication officer shall be appointed by the CCI to find out whether any person has committed guilty of contravention of any of the applicable provisions and is liable to a penalty which shall be quantified, bearing in mind -
the amount of revenue loss to the Government;
the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default;
the amount of loss caused to any person as a result of the default;
the repetitive nature of the default;
that the amount of the penalty shall be such as may act as a deterrent even though no financial loss may be caused by such contravention.

Communications Appellate Tribunal

The Bill also provides for the setting up of a COMMUNICATIONS APPELLATE TRIBUNAL so that any person aggrieved by the decision of the CCI shall prefer an appeal. An appeal shall be filed against the decision of CCI or of the Adjudicating Officer may be filled within 60 says of the decision. The appellate tribunal shall consist of a chairperson and not more than 6 members. The Appellate Tribunal shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit. An appeal shall lie against any order, passed by the Appellate Tribunal to the Supreme Court of India on one or more of the grounds specified in section 100 of the Civil Procedure Code. The time period is 90 days from the date of the decision appealed against.

Shortcomings of the Bill
In zeal of becoming the second country in the world to have a Communication Convergence Law the Indian Government, introduced the Convergence Bill in very hasty manner. The Bill provides for the setting up of a super-regulator, the CCI, which is supposed to be an autonomous body and claims to be a truly independent body in every sense. But a mere perusal of the Bill would belie this claim. Right from the process of appointing the CCI members, the government would hold its control. If one reads the Bill carefully he can discover that at the end of each and every clause the government has retained the right to interfere. The government is even having the power to exempt anybody from licensing and going by the earlier instances in similar situations one can assume that the government will sideline the CCI. Undoubtedly this will make a mockery of CCI's autonomy.

The Bill states that the CCI has to follow all the policy directives of the government. Whether a directive is a policy irective is to be solely determined by the Government. This will amply prove that the government is not at all sincere to grant any real autonomy to the CCI. Under the pretext of giving policy directives the government can run its writ and thereby effectively bulldoze the CCI.

Problems Regarding Spectrum Management

The Government is vested with wide powers relating to Spectrum Management. The Government is the supervening and absolute power for determining the Spectrum it needs for defence / other essential needs. But once this is determined the rest should be allocated to the industry in a fair manner. The Cabinet Secretary will head the Spectrum Management Committee envisaged under the Bill, and the CCI will only have a secondary role to play here. This dual authority on spectrum can be problematic and make CCI submissive to the Spectrum Management Committee. Many experts contend that the CCI is better equipped to balance the spectrum requirements of the industry and government. It is of paramount importance that the allocation of spectrum is efficiently managed as this allocation is linked to the development of the Industry.

The appointment of the Secretary General of the CCI should be from an open pool of competent persons as against from a panel of government secretaries proposed by the Bill. This will certainly bring a sense of professionalism and competitiveness. The Bill is also unclear on jurisdictional aspects of the CCI and the adjudicating officer.

Conclusion
Thus after going through the proposed Bill on convergence it can be concluded that the autonomy of the CCI, which is fundamental to the plan and which the Bill's proponents are relying on, is a mere publicity stunt. The Bill requires a scrutiny by experts in a detailed manner. If the Bill is passed in its present form then there will be a flurry of lawsuits and as a lawyer dealing with convergence issues I would be definitely happy. But considering the larger interests the Bill should be studied in detail and steps should be taken to empower the CCI with real autonomy. As of now the Bill looks like an ugly duckling, but if we are realistic, we can always turn this ugly duckling into a swan.
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[1] Communication sector comprises of broadcasting, telecom and information technology
[2] The first being Malaysia
[3] Section 6.3 and 6.4
 

You may also contact the author for any query concerning this article: pdasgupta@almtlegal.com

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