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