INCOMING CALL: ON THE INTRODUCTION OF THE TELECOMMUNICATIONS BILL, 2023

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THE CONTEXT: Recently, the Telecommunications Bill, 2023 was introduced in the Lok Sabha after the President recommended its introduction under Article 117(1) of the Constitution of India in the Winter Session. This Bill aims to usher in comprehensive regulations for the telecommunications sector.

KEY PROVISIONS OF THE BILL:

• It repeals the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950.  It also amends the Telecom Regulatory Authority of India (TRAI) Act, 1997.
• Authorisation for telecom-related activities:  

Prior authorisation from the central government will be required to:

1. provide telecommunication services

2. establish, operate, maintain or expand telecommunications networks

3. possess radio equipment.

Existing licences will continue to be valid for the period of their grant, or for five years, where the period is not specified.

• Assignment of spectrum:Spectrum will be assigned by auction, except for specified uses, where it will be allocated on an administrative basis.

These include purposes such as:

1. national security and defence

2. disaster management

3. weather forecasting

4. transport

5. satellite services such as DTH and satellite telephony

6. BSNL, MTNL, and public broadcasting services.

The central government may re-purpose or re-assign any frequency range.  The central government may permit sharing, trading, leasing, and surrender of spectrum.

• Powers of interception and search: Messages or a class of messages between two or more persons may be intercepted, monitored, or blocked on certain grounds.  Such actions must be necessary or expedient in the interest of public safety or public emergency, and must be in the interest of specified grounds which include:

1. security of the state

2. prevention of incitement of offences

3. public order.

• Powers to specify standards:  The central government may prescribe standards and assessments for telecom equipment, infrastructure, networks, and services.
• Right of way:  Facility providers may seek a right of way over public or private property to establish telecom infrastructure.  Right of way must be provided on a non-discriminatory and non-exclusive basis to the extent possible.
• Protection of users: The central government may provide for measures to protect users which include:

1. prior consent to receive specified messages such as advertising messages

2. creation of Do Not Disturb registers

3. a mechanism to allow users to report malware or specified messages.

Entities providing telecom services must establish an online mechanism for registration and redressal of grievances.

• Appointments to TRAI:   The Bill amends the TRAI Act to also allow individuals with:

1. at least 30 years of professional experience to serve as the chairperson

2. at least 25 years of professional experience to serve as members.

• Digital Bharat Nidhi: The Universal Service Obligation Fund has been established under the 1885 Act to provide for telecom services in underserved areas.  The Bill retains this provision, renames the fund as Digital Bharat Nidhi, and also allows its use for research and development.
• Offences and penalties: The Bill specifies various criminal and civil offences.  Providing telecom services without authorisation or gaining unauthorised access to a telecom network or data, are punishable with imprisonment up to three years, a fine up to two crore rupees, or both.  Breaching terms and conditions of authorisation is punishable with a civil penalty up to five crore rupees.  Possessing unauthorised equipment, or using unauthorised network or service, is punishable with a penalty of up to ten lakh rupees.
• Adjudication process: The central government will appoint an adjudicating officer to conduct inquiries and pass orders against civil offences under the Bill.  The officer must be of the rank of joint secretary and above.  Orders of the adjudicating officer may be appealed before the Designated Appeals Committee within 30 days.  Members of this Committee will be officers of the rank of at least Additional Secretary.   Appeals against the orders of the Committee, in connection to breach of terms and conditions, may be filed with TDSAT within 30 days.

SIGNIFICANCE OF THE BILL:

• Simplifying procedure for license: The Bill seeks to simplify the current licensing regime for telecom networks by moving towards an authorisation system. Currently, the telecom department issues more than 100 types of licences, registrations, and permissions, and the Bill seeks to club many of those in a single authorisation process. Licensing processes are set to be digitised, and telecom operators will have a new way of dealing with non-compliance with their licence terms. It will also have access to district and state-level authorities for permissions and dispute resolution when setting up their equipment and optical fiber networks on public and private properties.
• Utilising spectrum: The Bill also allows the government to take back spectrum that is unutilised for insufficient reasons and also opens the door for sharing, trading, and leasing of spectrum. Entities will be able to surrender unused spectrum but will not receive payment from the government for it.
• Settling disputes: The Bill introduces structured measure for settling of disputes efficiently. A tiered structure for settling disputes arising out of breach of terms and conditions involving an adjudicating officer, designated committee of appeals and the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) on top.
• Consolidation: The introduction of the Telecommunications Bill, 2023 leads to consolidation of the laws for wireless networks and Internet service providers by keeping existing regulatory structures largely intact. It simplifies bureaucratic procedures such as applying for licences and permits for telecom operators.
• Ease of doing business: The Bill streamlined regulatory landscape of industry bodies and promotes their ease of doing business, and could possibly give the much-needed regulatory stability and enables environment for the next phase of telecom expansion.

ISSUES:

• Authorisation from the government: As per the new Bill, telecom services and networks will need authorisation from the government, unless it decides to exempt certain entities in public interest. There are concerns surrounding interception requirements for communication over telecom networks and whether the Bill excludes Internet-based communication platforms like WhatsApp and Telegram from its ambit.
• Issue of surveillance: The expansive definition of telecom brings in its ambit a range of services, and state authority over them raises concerns of privacy and surveillance. These concerns are not merely academic considering past allegations of state-sponsored snooping.

The issues of surveillance reform and Internet shutdowns have massive implications, but the newly introduced Bill did not address these issues.

• Privacy concern: Entities have been mandated to carry out biometric authentication of their users as a measure to curb fraud. However, this provision has raised concerns about the privacy of users.

THE WAY FORWARD

• Stakeholder consultation: The government must address the concerns of stakeholders with an open mind, considering the vast powers that the text of the Bill grants. To further reassure the public of its clean motives, the government must conduct rule-making with absolute transparency and consultation.
• Address privacy concerns: The Bill needs to address privacy concerns and simplify procedures regulation of telecommunication sector. The Bill tries to deal with spamming concerns, but its proposed solutions require additional compromises to privacy.

• Balancing Security and Freedom: The Bill needs to acknowledge the need to safeguard press freedom with specific rules for accredited correspondents while ensuring security. The Bill’s provisions for government intervention in telecom services during emergencies highlight a focus on national security and public safety.
• Aligning with current needs: There is a need to create a regulatory environment that aligns with current technological advancements and societal needs.

THE CONCLUSION:

The telecommunications landscape has evolved dramatically since the Telegraph Act was first passed in the 19th century. The newly introduced telecommunication Bill needs to comprehensively address all the issues that have come up with this digital explosion.

PREVIOUS YEAR QUESTION

Q.1 The aim of Information Technology Agreements (ITAs) is to lower all taxes and tariffs on information technology products by signatories to zero. What impact would such agreements have on India’s interests? (2014)

MAINS PRACTICE QUESTION

Q.1 The newly introduced Telecommunication Bill, 2023 seems to interfere with free online communication services which could lead to surveillance and privacy concerns. Examine with justification.

SOURCE: https://www.thehindu.com/opinion/editorial/incoming-call-on-the-introduction-of-the-telecommunications-bill-2023/article67654726.ece