India Replaces Archaic Laws With ‘The Telecommunications Bill 2023’

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The bill empowers the government to take possession of telecom services in case of public emergency and telecom consumers to guard against spam contacts, excluding OTT.

The Indian government has introduced the Telecommunications Bill 2023 in the Lok Sabha,  presented after an elaborate set of consultations with the industry, including a thousand submissions. The bill replaces three archaic laws the Indian Telegraph Act 1885, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wires  (Unlawful Possession) Act, 1950.

According to the bill,the government can take possession of telecom services in case of public emergency, disaster management and in the interest of public safety. It empowers the government to suspend or prohibit use of telecom equipment from countries or a person as may be notified in case of national security threat. Teleco equipment needs to be procured from trusted sources only.

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The bill empowers telecom consumers to guard against spam contacts and imposes strict penalties on firms making such communications. The bill proposes that prior consent should be taken for receiving promotional messages and advertising, etc.

A list of services have been specified that will be given spectrum administratively. Under the first schedule, 19 services/ entities are listed wherein spectrum can be given administratively. The services include national security, defence, public broadcasting, disaster management etc. 

Satellite services include global mobile personal communication by satellite (GMPCS) licence holders, BSNL and MTNL. Apart from the first schedule, spectrums should be provided through auction. Players like Bharti Oneweb, Starlink, Amazon Kuiper and Reliance Jio Satellite will be given spectrum administratively.

Despite opposition from telecom players like Reliance Jio and Vodafone Idea, the bill incorporates GMPCS holders for administrative allocation of spectrum. It was reportedly done because satellite spectrum is not  auctioned anywhere in the world as it is shared by multiple users. “Countries like the US have rules against auctioning satellite spectrum. It is a shared resource with multiple users of the same set of airwaves,” an official added.

The price for administrative allocation of spectrum for satellite service will be set based on recommendation from the Telecom Regulatory Authority of India (Trai). Public sector entities, BSNL and MTNL will need to match the auction determined price.

The bill has removed over-the-top (OTT) players from the definition of telecommunications, giving relief to platforms like Whatsapp, Telegram, Signal, etc. The bill is meant to regulate carrier services offered by telcos and ISPs. OTTs come under Meity, so they can be regulated as part of the Digital India Act.

Some segments have a sentiment that the definition of telecommunications is too generic. “While it is true that the specific reference to OTT communication services has been removed from the definition of ‘telecommunication services’ it  is relevant to note that the new definition of ‘telecommunication services’ has been kept generic and is capable of being interpreted widely. Therefore, it cannot be said with absolute certainty that this will provide complete relief to OTTplayers,” Harsh Walia, partner at Khaitan & Co, said.

The bill also offers clarity on the rules regarding interception of communications. It has eliminated provisions for fee waivers to prevent discretionary power abuse by the government. It introduces a mechanism for voluntary undertakings. This is aimed at encouraging the voluntary disclosure of unintentional lapses and promoting compliance with regulations.

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