Sunday, December 10, 2023

Tussle for Territory

There are differences between the IT ministry and DoT over inclusion of internet-based communication services in the new Bill. While telecom companies need a license to offer services, OTTs don’t

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By Nishkarsh Pratap Singh Tomar and Ashit Srivastava

A draft of the Indian Telecommunication Bill, 2022, was made available by the Department of Telecommunications (DoT) on September 21, 2022. Public comments were invited and the deadline was extended to November 20. The proposed bill will replace three archaic laws: The Indian Telegraph Act, 1885; The Indian Wireless Telegraphy Act, 1933; and The Telegraph Wires (Unlawful Possession) Act, 1950.

The level of digital connectivity today could not have been conceived at that time when these Acts, which date back around 140 years, were created. As a result, it is a positive move because this domain requires a new legal framework. The Bill also caters to a longstanding request for fair competition between telecommunications operators and internet-based Over-The-Top (OTT) communication services like Facetime, WhatsApp calls and Google Meet. While telecommunications companies need a license to offer services, OTT platforms do not. The Bill aims to rectify this discrepancy.

However, the DoT faced a few hiccups for failing to consult all stakeholders before releasing the Bill. The Bill’s definition of “telecommunication” is so broad that it encroaches upon the jurisdiction of multiple ministries.

A senior government official explained that the draft will be made into an umbrella Act that will cover multiple ministries and will be made available for stakeholder input in the upcoming months. The various ministries will determine which portions of the Act are applicable to their areas and will work within the rules of allocation of business prescribed for that ministry. Responsibilities for communication, broadcasting and e-commerce regulations will be managed by their respective ministries. 

For instance, the broadcasting ministry will have sole authority to create regulations and handle issues pertaining to the broadcasting sector, ensuring that there are no conflicts of interest. The primary goal is to establish a streamlined regulatory framework, avoiding the complications of multiple regulations.

The DoT then prepared a revised draft after hearing from all stakeholders and taking into account various issues that were raised. According to an official, although OTT communications apps would be regulated, it would differ from telecom operators wherein they have to pay license fees and other charges as OTT platforms do not purchase spectrum from them. The regulation of OTT pertains to matters of national security and consumer safety. 

In the revised draft, the DoT tweaked the language to define OTT apps, clearly stating its objective to regulate only communication apps and not the ones offering content and other services. Moreover, the idea of licensing was discarded with a new provision of “authorisation” being introduced in its place.

The DoT then forwarded the Telecommunication Bill 2022 for inter-ministerial consultation and was planning to present the Bill in the monsoon session, but was unable to do so as the Bill was in an advanced stage and there were ongoing internal discussions.

The provisions of the updated draft apply broadly to all sectors. Their distribution would be dealt with in other bills that the government was coming up with. The draft bill specifies that spectrum allocation can occur through auctions, administrative processes or other methods as determined by the government. When it came for consultation in the inter-ministerial group, Ministry of Electronics and Information Technology (MeitY) emphasised that the DoT can only regulate the carriage layer, which includes telephony, wireless communications and private sector licenses, and similar aspects.

A section within the IT Ministry is of the opinion that if the DoT is given charge of OTT communication platforms and their authorisation, there exists the possibility that they could be compelled to share their revenue with telecom operators. There is a fear that if the DoT asks OTT communication services to pay telecom companies for their network usage, a stance the latter have been vocal about, it will undermine the principles of net neutrality.

According to Rajiv K Luthra, head of Luthra and Luthra Law Offices India, using broad terms and leaving them vague can result in overregulation and complexity, which is a step backwards and is unsuited for the present times. Just because communication occurs between two persons does not mean it can be categorised as “telecommunication” as different technologies are involved.

It is not surprising that economic competition among the corporate giants is churning this wheel. The fact that substantial communications are happening over voice calls from mobile-based applications impacts the conventional telephone market. There has been a continuous demand from the telecom and network industry to regulate the OTT platform and share the burden of network cost for their share of traffic. 

In fact, in the consultation stage of the telecommunication draft, the telecom industry has, in consensus, highlighted its concern. However, governing technology remains a complex task as there are several layers attached to a technological tool. The fact that MeitY has shown a strong stand against the regulation of OTT by DoT reflects the complexity of technological tools.

On the other hand, a section of society has batted against such regulation of OTT and licensing them on the pretext of maintaining net neutrality. There is a continuous fear in the OTT circle that, eventually, they will be forced to share their revenue with the telecom industry, and being governed by DoT is the first step towards it. However, there are genuine worries that bearing the network cost or sharing revenue with the network industry will seriously affect net neutrality. As a principle, net neutrality perpetuates the view that the internet should be free or simply a neutral place. This neutrality might be at risk if mobile-based applications work closely with network platforms or share their revenue.

On the other hand, the telecom industry has shown dismay at the non-sharing of network costs by the OTT platform. The fact that one set of players is bearing the cost will only lower their competing power in the market. This argument flows from creating a level playing field for all the players that will perpetuate more net neutrality.  

Undoubtedly, the maximum population in India is using 4G networks for accessing OTT services. Using a 4G network has operational cost for the network industries. However, MeitY has made it clear that DoT cannot overlap the jurisdiction with it, and there is no limit on online platforms offering communication services. Therefore, to what extent will DoT regulate all the online platforms? 

—Nishkarsh Pratap Singh Tomar is a student at National Law University, Jabalpur, and Ashit Srivastava is Assistant Professor of Law there

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