Telecom Bill 2023: Ground laid out for India telecom’s space take-off

The Telecom Bill 2023 has proposed to subsume all of these into a simple, easy-to-administer authorisation system that would replace procedural opaqueness, bureaucratic discretion, and overlapping authorities through a well-defined rules-based system.

The Bill has proposed significant changes in the regulatory architecture with a new rules matrix. The clutch of new rules, which kept messaging apps such as Whatsapp and Telegram out of its ambit, has received support from the industry on grounds of offering better clarity of a range of issues.

Authorisation to replace licensing system:

The Bill seeks to bring in an authorisation system to replace the existing licensing system. Currently, service providers have to procure different licences, permissions, approvals and registrations for different types of services. There are more than 100 such licences or registrations that the department of telecom issues.

The Telecom Bill 2023 has proposed to subsume all of these into a simple, easy-to-administer authorisation system that would replace procedural opaqueness, bureaucratic discretion, and overlapping authorities through a well-defined rules-based 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.

Prior authorisation from the central government will be required to: (i) provide telecommunication services, (ii) establish, operate, maintain, or expand telecommunications networks, or (iii) 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.

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Some spectrum to allocated:

While the telecom spectrum will mostly be auctioned, the Bill proposes a major departure for enabling administrative allocation of radio waves for ‘specified’ purposes.

These include purposes such as: (i) national security and defence, (ii) disaster management, (iii) weather forecasting, (iv) transport, (v) satellite services such as DTH and satellite telephony, and (vi) BSNL, MTNL, and public broadcasting services.  The central government may re-purpose or re-assign any frequency range.

This will help quicker rollout of satellite telecom services as companies such as Bharti Group-backed OneWeb, Reliance’s Jio Satellite Communications, Elon Musk’s Starlink and Amazon’s Project Kuiper will not have to go through the auction process. The Bill also enables administrative allocation of spectrum to other areas such as direct-to-home (DTH), national long-distance calling, maritime, and in-flight connectivity services.

The rationale for this is that auctions may not be the technically and economically most viable and efficient way of allocating spectrum for a variety of functions such as law enforcement or satellites where the same spectrum would be used by multiple entities.

The government has drawn a distinction between mobile telephony that rides on terrestrial spectrum and satellite spectrum that is not bound by national geographies. These come under the remit of the International Telecommunications Union (ITU), a UN arm.

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.

Administrative allocation of spectrum for Satcom services will align India with global standards and norms, giving a push to India’s fledgling, but promising, space startup ecosystem.

The Presidential reference to the Supreme Court (SC) judgment of 2012 on the 2G telecom spectrum allocation had said that the SC was not the body that can decide what should be the right way of allocating natural resources. The court had also said that the best possible and scientific way should be used. TRAI will decide on the pricing and the methodology of administrative spectrum allocation.

The central government may permit sharing, trading, leasing, and surrender of the spectrum that is unutilised.

WhatsApp, Telegram and Signal outside its purview

The Telecom Bill, 2023 has kept WhatsApp, Telegram and Signal outside its purview. This should assuage fears triggered by an earlier draft that included these as telecom services. It is now clear that the OTT (over-the-top) entities will be regulated by the ministry of electronics and information technology; carriers (telecom companies) will come under the authorities defined by the Telecom Bill, 2023 and content will be under the ambit of information and broadcasting ministry.

This draws a distinction between telecom spectrum-controlling entities (telecom companies) and spectrum-using companies such as OTTs and messenger apps.

Powers of interception and search

According to the Bill, 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: (i) security of the state, (ii) prevention of incitement of offences, or (iii) public order.  Telecom services may be suspended on similar grounds.  The government may take temporary possession of any telecom infrastructure, network, or services in the occurrence of any public emergency or public safety.  An officer authorised by the government may search premises or vehicles for possession of unauthorised telecom networks or equipment.

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.