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An Outline Of The Draft Indian Telecommunication Bill, 2022

Telecommunication is a key driver of socio-economic development. It specifies that telecommunication infrastructure and telecommunication network are important parts of public infrastructure. It emphasizes the need to ensure availability of affordable, reliable, secure and universal telecommunication services.

Indian Constitution itself provide the scheme for the realisation of the socio-economic agenda. Article 38 and 39 of the Indian Constitution enjoins upon the State to strive to promote the welfare of the people by securing a social order, minimize inequalities in income, status, facilities and opportunities not only amongst individuals but amongst groups of people and also directs the State inter-alia to secure to the citizens the right to adequate means of livelihood; that the ownership and control of material resources of the community are so distributed as best to subserve the common good etc.;

India is the world's second largest telecommunication eco-system with more than 117 crores subscribers and contributes 8% of country's GDP. With the significant development and substantial changes in the telecommunication sector there was a need of an enactment that provide solution to the difficulties which may arise in near future with the evolution of telecommunication regulation in other countries.

The present Bill provides for the Recognition and acknowledgement of the need for a new telecommunication legal framework; Updating the nomenclature and definitions of relevant terms in the telecommunication legal framework; Need for legal certainty regarding spectrum management including issues relating to the use, allocation, and assignment, based on the underlying principle that spectrum is a natural resource and can be assigned in manner that serves the common good; Alignment of telecommunication standards with international standards; Importance of cybersecurity, national security and public safety concerns, while ensuring constitutional and procedural safeguards; Need for a distinctive insolvency framework that allows continuity of provision of telecommunication services.

Department of Telecommunication (DoT) Ministry of Communications on 21st September, 2022 has released the Indian Telecommunication Bill, 2022. The present bill is proposing to repeal the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950 and also provides that all the rules, guidelines and administrative orders made under these enactments and which are not inconsistent with the present bill shall be deemed to be made under this Act.[1]

The Bill consists of 53 sections arrayed in 12 chapters and 5 schedules. Some of the important provisions which are provided in the Bill are the provisions related to Licensing, Registration, Authorization and Assignment; Provisions related to Restructuring, Defaults in Payment and Insolvency; Provisions dealing with Standards, Public Safety and National Security; Provisions related to Telecommunication Development Fund; Provisions dealing with Innovation and Technology Development and the provisions which provides for offences under the Act.

Important Definitions under the Bill
"Assignment" of a radio frequency or radio frequency channel[2]
It means the authorization for a radio station to use a radio frequency or radio frequency channel under specified conditions, and the term "assignee" means any entity granted such authorization under sub-section (2) of Section 5.

Broadcasting services [3]
It means a telecommunication service intended to be received by the general public either directly or indirectly.

Entity [4]
Entity means a person, association of persons, firm, company or cooperative society, by whatsoever name called or referred to and engaged or intending to be engaged in providing telecommunication services, telecommunication network or telecommunication infrastructure, or using the spectrum or operating an earth station.

License [5]
License means a license, approval, authorization, permission by whatever name called, granted under this Act for providing: (a) telecommunication services (including only such broadcasting services as specified under sub-clause (c) below); (b) telecommunication network; and (c) broadcasting services in Schedule 2 and any other broadcasting services as may be notified by the Central Government as requiring a license;

Message [6]
Message means any sign, signal, writing, image, sound, video, data stream or intelligence or information intended for telecommunication.

NFAP [7]
It means National Frequency Allocation Plan issued from time to time, by the Central Government to provide guidance for the use of the spectrum.

Spectrum [8]
Spectrum means the range of frequencies of radio waves.

Telecommunication [9]
Telecommunication means a transmission, emission or reception of any messages, by wire, radio, optical or other electro-magnetic systems, whether or not such messages have been subjected to rearrangement, computation or other processes by any means in the course of their transmission, emission or reception.

Telecommunication equipment [10]
It means any equipment, appliance, instrument, device, material or apparatus, including customer equipment, that can be or is being used for telecommunication, and includes software integral to such telecommunication equipment.

Telecommunication infrastructure [11]
It means the infrastructure used or capable of being used for the purpose of telecommunication, as listed in Schedule 5.

Telecommunication network [12]
It means a system or series of systems of telecommunication equipment, or telecommunication infrastructure, or both, including terrestrial or satellite networks or submarine networks, or a combination of such networks, used or intended to be used for providing telecommunication services, but shall not include customer equipment.

Telecommunication services [13]
It means service of any description (including broadcasting services, electronic mail, voice mail, voice, video and data communication services, audiotex services, videotex services, fixed and mobile services, internet and broadband services, satellite based communication services, internet based communication services, in-flight and maritime connectivity services, interpersonal communications services, machine to machine communication services, over-the-top (OTT) communication services) which is made available to users by telecommunication, and includes any other service that the Central Government may notify to be telecommunication services.

"Wireless communication"[14]

It means any telecommunication without the use of wires, including optical fiber, continuous electrical conductors, or similar modes, between the transmitting and the receiving apparatus.

Licensing, Registration, Authorization and Assignment for providing Telecom services
Chapter-III of the Bill specifically deals with the licensing, registration, authorization and assignment of providing telecom services. Section 3 provides exclusive privilege to central government for provide telecommunication services; and to establish, operate, maintain and expand telecommunication network and telecommunication infrastructure; and use, allocate and assign spectrum.

This privilege may be delegated by central government to any other entity through license, authorization, registration or assignment on such terms and conditions, including payment of entry fees, license fees, registration fees or any other fees or charges by whatever name called, as may be prescribed. In case of the breach of terms and conditions of a license, registration, authorization or assignment granted, Central Government should be able to impose penalties and undertake punitive actions such as suspension, revocation, curtailment of the duration of the license, imposition of financial penalties, giving directions to the entity, etc.

Spectrum Management
Section 5 empowers the central government to assign the spectrum which will best serve the common good and ensure wide-spread access to telecommunication services, and may notify a National Frequency Allocation Plan (NFAP) for the use and allocation of spectrum and Central Government may assign spectrum for telecommunication through auction, administrative process for governmental functions or purposes in view of public interest or necessity as provided in Schedule 1; or in any other manner.

Restructuring, Defaults in Payment and Insolvency
The Bill seeks to simplify the framework for mergers, demergers and acquisitions, or other forms of restructuring, by only requiring intimation to the licensing authority.

Chapter V of the bill dealt with the provisions regarding Restructuring, Defaults in Payment and Insolvency. Section 19 of the bill requires the entity undertaking merger, demerger, acquisition, or other forms of restructuring, to give notice to central government of the same and to comply with the terms and conditions, including fees and charges subject to provisions of applicable law.

Section 20 of the bill provides that provisions of chapter V shall apply to the insolvency, bankruptcy and winding up of licensees or assignees, to achieve the larger public interest so that telecommunications services in India would remain available by ensuring efficient use of assigned spectrum.

A licensee, or assignee that becomes subject to any insolvency proceedings may continue to operate under the terms and conditions specified under such license or assignment, if such licensee, or assignee meets the conditions specified in section 20(2) cumulatively and in case of default to comply with the conditions, then the spectrum, if any, assigned to such entity shall revert to the control of the Central Government, and the Central Government may take such further action.

Section 22 of the bill gives power to central government to waive in part or full any fee, charges, interest, additional charges or penalty or damages payable by a licensee, registered entity, assignee or a class thereof; or grant exceptions from the provisions of this Act or rules to a licensee, registered entity, assignee or a class thereof in interest of consumers, ensuring competition, reliability and continued supply of telecommunication services, or availability of telecommunication network or telecommunication infrastructure in India or any part of India, or any circumstance of public interest or national security, by notification.

Precisely, any licensee or registered entity will simply be required to comply with the scheme for restructuring as provided under the Companies Act, 2013, and inform the Department of Telecommunications, as required.

The entity that emerges pursuant to such restructuring, would need to comply with the terms and conditions, including fees and charges, applicable to the licensee or registered entity.

Standards, Public Safety and National Security
Chapter-VI of the bill provides for provisions regarding Standards, Public Safety and National Security. Section 23 grants power to central government to prescribe standards telecommunication equipment, telecommunication services, telecommunication network and telecommunication infrastructure etc.

Section 24 deals with powers of central government or state government or any other authorized officer which may be exercised by them in case of public emergency or in the interest of the public safety in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence.

Telecommunication Development Fund
The Universal Service Obligation Fund ("USOF") was established under the Telegraph Act, to meet the "universal service obligation" which was to provide telegraph access to people in rural and remote areas at affordable and reasonable prices and the Universal Service Obligation Fund created under the Indian Telegraph Act, 1885, shall, from the appointed date, be referred to as the "Telecommunication Development Fund", which shall be under the control of the Central Government, and shall discharge functions as set forth in this Act.[15]

The sums of money received towards the Telecommunication Development Fund, shall first be credited to the Consolidated Fund of India, which shall be appropriated by the Central Government to the Telecommunication Development Fund from time to time for being utilized to meet the objectives mentioned in section 29 of the bill.

Regulatory Stand-box
"Regulatory Sandbox" shall mean a framework of special terms and conditions of a license, registration, authorization or assignment that allows persons to conduct live testing of products and services in a controlled environment under the supervision of the Central Government. The Central Government may, for the purpose of encouraging and facilitating innovation and technological development in telecommunication, create a Regulatory Sandbox in a prescribed manner.[16]

Protection of Users
Chapter-IX of the bill provides for the protection measures and policies that will be undertake by the central government for protection of the users from specified messages. Such measures may include the prior consent of users for receiving certain messages or class of messages; or preparation and maintenance of one or more registers, to be called as "Do Not Disturb" register, to ensure that users do not receive specified messages without prior consent; or mechanism to enable users to report specified messages received in contravention of provisions of the bill.

Bill itself provides for the meaning of specified messages as any message offering, advertising or promoting goods, services, interest in property, business opportunity, employment opportunity or investment opportunity, whether or not the goods, services, interest, or opportunity are real or fictitious; or it is lawful to acquire such goods, services, property, interest or take up the opportunity.

Duty of users
Rights and duties go hand in hand. If duties are done, then rights get automatically implemented. Our Constitution also recognizes both rights and duties. In today's world, telecommunication offers possibilities that were unknown to mankind. From connecting families to creating newer economic opportunities, the potential is limitless. Therefore, it is a civic duty of every individual to use telecommunication responsibly.

Section 34 of the bill imposes duty on the users to not furnish any false particulars, suppress any material information or impersonate another person while establishing identity for availing telecommunication services and such duties are imposed for the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence.

Provisions with respect to offences under the Bill
The Bill consolidates and updates the various provisions on penalties and offences under the existing law. Taking into consideration the developments in criminology and penal jurisprudence. However, the Bill has kept the penalty of imprisonment or heavy fines only for a small set of critical offences.

For most of the offences, the Bill specifies fines, and also provides for compounding the same. The decriminalization of certain offences by removing imprisonment, and levying only fines, as well as compounding of multiple offences, will help in development of telecom ecosystem.

According to section 47 any person or entity committing any offence listed in Schedule 3 of the bill shall be punished with fine or imprisonment, or through suspension of telecommunication service, or through a combination thereof, as specified in Schedule 3. The provisions of Schedule 3 shall apply to the abetment of, or attempt to commit, an offence as they apply to the offence.

All the offences committed under this bill shall be bailable, and shall be cognizable or non-cognizable as provided under Schedule 3. Court shall not take cognizance of any non-cognizable offence punishable under this Act or the rules or regulations, save on a complaint made by the Central Government or the competent authority as may be notified by the Central Government in this regard. Chief Metropolitan Magistrate or a Chief Judicial Magistrate of first class shall have the jurisdiction to try any offence punishable under this bill.

Compounding of the Offences
According to Section 49, Offences as specified to be compoundable in Schedule 3 of the bill, may be compounded either before or after the institution of any prosecution. Compounding of such offences shall be in accordance with the procedure and on payment by the person committing the offence, of such sum, as prescribed by the Central Government.

In the case of an offence punishable with fine only, no such sum shall exceed one hundred and fifty percent of the maximum amount of fine which may be imposed for that offence. Where an offence is compoundable under this Section, the abetment of such offence or an attempt to commit such offence is also compoundable and compounded in same manner.

Author's View point
The Indian Telecommunications Bill, 2022, is a bold and positive and much needed step towards Atmanirbhar Bharat in the telecom industry. However, various aspects in the bill are not very clear and vague for instance the terms like 'public safety', 'emergency' are not defined in the bill and therefore needs more clarity so as to ensure better execution and implementation of the provisions of the bill.

Since the bill has given wide range of powers to the central government, the bill also lacks provision regarding the judicial review or intervention for overseeing the actions of the government in case these powers are exercised by the government arbitrarily or evasively. So, it is of the view that government will consider all the shortcomings which may come to their notice during the current period of public consultation and will try to resolve the same in the final bill for laying before parliament.

End-Notes:
  1. The Telecommunication Bill, 2022, ss. 52, 53.
  2. The Telecommunication Bill, 2022, s. 2(3).
  3. The Telecommunication Bill, 2022, s. 2(4).
  4. The Telecommunication Bill, 2022, s. 2(6).
  5. The Telecommunication Bill, 2022, s. 2(7).
  6. The Telecommunication Bill, 2022, s. 2(9).
  7. The Telecommunication Bill, 2022, s. 2(10).
  8. The Telecommunication Bill, 2022, s. 2(15).
  9. The Telecommunication Bill, 2022, s. 2(17).
  10. The Telecommunication Bill, 2022, s. 2(18).
  11. The Telecommunication Bill, 2022, s. 2(19).
  12. The Telecommunication Bill, 2022, s. 2(20).
  13. The Telecommunication Bill, 2022, s. 2(21).
  14. The Telecommunication Bill, 2022, s. 2(24).
  15. The Telecommunication Bill, 2022, s. 27.
  16. Section 32

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