With Prime Minister Narendra Modi launching 5G services in the country at the Indian Mobile Congress 2022 on October 1, it is hoped the remarkable progress the telecom industry has made, especially in mobile services, will continue.

It is indeed timely that the Department of Telecommunications (DoT) has released the draft Indian Telecommunications Bill 2022, replacing the age old Indian Telegraph Act of 1885. However, though technology has evolved exponentially in the last decade, the draft Bill, disappointingly, lacks a vision for the future.

The positive side

First, a look at the positive aspects of the Bill. It is stated clearly that any revisions to the telecom policies, including licensing conditions and payment, will not have any retrospective effect. This provides certainty to the firms.

Second, is the need for verifiable identification of the calling party to be displayed to the receiver to limit the ubiquitous unsolicited commercial calls.

Third, the Bill recognises the optimal utilisation of radio spectrum for commercial mobile services and provides the way forward for spectrum trading, sharing, leasing and re-purposing in a technology agnostic manner.

Fourth, is the opening up of the option for allocation to assign radio spectrum other than using auctions.

This provides opportunities for the government to allocate spectrum using other methodologies such as administrative or beauty parade as applicable in specific use cases.

Fifth, is the recognition of telecommunication facility providers and the associated Right of Way (RoW) enablement for the laying down of the passive infrastructure.

The caveats

However, there are a number of caveats to the Bill. Though the policy makers have attempted to re-define telecommunication services to include all forms of digital communication including Over The Top (OTT) communication and broadcasting services, the way in which this sector is addressed in the Bill severely lacks depth and vision.

In fact, worldwide, the regulators are in a bind over whether OTT services should be regulated on par with mobile network operators (MNOs). The Telecom Regulatory Authority of India (TRAI) issued a consultation paper in 2020. However, the Bill fails to provide clarity. There is still a debate on whether the OTT services complement or substitute the services such as voice telephony and Short Message Service offered by the MNOs. MNOs are licensed and are often under stringent regulation due to their exclusive access to radio spectrum, Right of Way for laying down their infrastructure such as optic fibre and towers, and access to Universal Service Fund for providing connectivity to the non-profitable rural areas of the country. Needless to say, they also pay for spectrum and license fees towards the same.

On the other hand, the OTTs do not have the same type of exclusive privileges and access and hence they have not been regulated until now. However, bringing OTTs under a light touch regulation is needed due to their power in capturing and using Personal Information (PI) of the consumers, and exhibiting near monopoly in “defined markets” due to network effects.

However, the type of regulation of OTTs should be different from that of the MNOs which span across areas such as data and privacy protection, consumer protection, content moderation to name a few.

By regulating OTTs on par with MNOs with similar terms and conditions including heavy licensing is a serious problem. The Bill fails to address these differences.

TRAI’s role

Second, is the total absence of any modification to the role of the Telecommunications Regulatory of Authority of India (TRAI), except for cosmetic changes to the TRAI Act 1997. The TRAI has done remarkable job as the regulator of this dynamic technologically advanced sector for the past 25 years. The government must provide the much needed autonomy — both financially as well as administrative.

The Regulator plays a very important role in shaping the digital communication landscape of the country. The only additional power that has been given to TRAI is the checking of predatory pricing in telecommunications which in fact is an antitrust action and should be in the Competition Commission of India’s (SCCI) ambit and not TRAI.

Third, is the Centre’s overarching power to regulate all aspects of telecommunications in the interest of national security, without appropriate safeguards including the designation of authorities who can issue such orders. This is likely to send jitters to the service providers as well as consumers, so there is a need to clearly indicate the precautionary measures and processes to reduce possible misuse.

Fourth, granular level of details regarding sanctions and penalties in the Bill for deviating conduct of the service providers should be prescribed in the subsequent regulations and rules.

Finally, telecommunications has morphed in to digital communications and the ecosystem not only comprises MNOs, but also OTT firms, cloud service providers, network equipment manufacturers, content and application providers where the telecom connectivity piece has been reduced to less than 10 per cent of the value.

However, the Bill has only paid lip service to the fast evolving ecosystem. The Bill’s scope should be expanded to address the newly emerging digital communications sector; the sector regulator’s role also needs to be enhanced for appropriate coordination with other related regulators including the soon-to-be enacted Data Protection Authority, CCI and Consumer Protection Authority.

The writer is Professor at IIIT Bangalore