The Ministry of Communications (“MoC”) has issued a consultation paper on the “Need for a new legal framework governing Telecommunication in India”. While issuing the consultation paper, the MoC noted that the “India needs a new law which is clear, precise, and attuned to the realities of the sector for realizing the potential of telecommunication.” The MoC has sought suggestions from the public regarding the consultation paper until 25th August 2022.

Currently, the telecom sector is regulated by the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950. The Consultation paper recognises the fact that the technology and the nature of telecommunication have undergone a massive change since these laws came into effect. Hence, a new law on telecommunication is needed which aims at establishing and enabling a future-ready framework for the development of telecommunication sector and deployment of new technologies. Such a law needs to consolidate the existing laws governing telecommunication sector, while taking into consideration global best practices.

Salient Features

• Spectrum Management: The consultation paper affirms the principle of spectrum allocation that it must be assigned to best serve the common good and enable wide-spread access to telecommunication services. Additionally, there needs to be a provision for re-farming and harmonization of frequency range.
• Right of Way (“RoW”): The consultation paper suggests that a framework is required to be put in place to obtain RoW in a uniform, non-discriminatory manner for establishment of telecommunication infrastructure and to also set up a dispute resolution mechanism for the same. Such a framework should include establishing common ducts and cable corridors in infrastructure projects.
• Insolvency: The consultation paper states that there is a need to ensure that insolvency proceedings do not lead to suspension or termination of the license. Such license should be operative if: (a) telecommunication services continue to be provided and (b) there is no default in payment of dues in relation to the telecom license/ use of spectrum.
• Universal Service Obligation Fund (“USOF”): The consultation paper suggests the overhauling the existing USOF into a “Telecommunication Development Fund”. Such a fund could also address issues regarding research and development in the telecommunication sector in addition to ensuring delivery of telecommunication services to underserved areas.
• Penalties: The consultation paper suggests that penalties need to be made proportionate to offences.
• Equipment Standards and National Security: The consultation paper states that the new law should have enabling provisions for taking measures in the interest of national security. Additionally, the law should also enable the Government of India to prescribe specific standards for telecommunication equipment.

Our Take:

The MoC has taken a welcome step in recognising the archaic legal framework governing the telecommunication sector in India. With the advent of next generation technologies like AI, 5G, M2M, ML, etc., this initiative by the MoC is noteworthy since it may potentially remove any legal lacunae delaying the deployment of such technologies.

The Consultation Paper dwells upon the need to have a framework for RoW without analysing the problems affecting the extant RoW regulations issued in 2016. A Judicious approach could be to first issue a white paper outlining the lacunae in the existing RoW regulations and thereafter ameliorate the RoW framework.

Similarly, the extension of the ambit of USOF for research and development purposes is laudable. However, it is equally important to continue to resolve the problem of underutilisation of the existing funds under USOF for deployment of telecommunication facilities in underserved areas.

The move to make penalties proportionate to the offence committed is in line with the ease of doing business approach of the Government of India and is certainly much needed and commendable. A detailed consultation process with the industry and relevant stakeholders is highly recommended to ensure balancing of interests.

Lastly, the provision to mandate telecommunication equipment standards should be accompanied by detailed consultation process as well as an exercise rationalizing the extant standards mandated under the Mandatory Testing & Certification of Telecommunication Equipment and the National Security Directive on Telecommunication Sector. Overlapping mandates for equipment certification militates against a light touch regulatory approach and ease of doing business initiative adopted by the Government of India.

Links:
Link to the Consultation Paper on the need for a new legal framework governing telecommunication in India – https://dot.gov.in/sites/default/files/Consultation%20Paper%20and%20Notice.pdf?download=1

Indian Telegraph Right of Way Rules, 2016 – https://dot.gov.in/sites/default/files/ROW_2016.pdf?download=1

License Agreement For Unified License – https://dot.gov.in/sites/default/files/UL%20AGREEMENT%20with%20Audiotex%20M2M%20without%20INSAT%20MSSR%2017012022.pdf?download=1

Mandatory Testing & Certification of Telecommunication Equipment – https://tec.gov.in/pdf/MTCTE/MTCTE%20PROCEDURE%20ver%202.1%20Release%20May%202021.pdf

National security directive on telecommunication sector – https://www.trustedtelecom.gov.in/

This article was first published on Saikrishna & Associates