Telecom Bill in current form likely to trigger DoT-I&B tussle

The draft Telecom Bill, if implemented in its current form, is likely to create unnecessary overlap, and result in a turf war between the department of telecom and the information & broadcasting ministry (MIB), feel experts.

The broadcasters are concerned with some of the clauses, which they feel are based on “flawed premises”.

“The draft unfortunately appears to be framed on a flawed understanding,” said a senior industry executive. “It assumes scarcity of spectrum across all the range of services and based on this assumption, prescribes auctioning as the primary method of dispensation. It mistakenly terms various services as “telecommunication services” whether such services use spectrum or not. This basis being flawed is naturally bound to lead to flawed legislative application and in turn sub-serve public interest as opposed to further it.”

Incidentally, the explanatory statements issued so far do not identify any factual data nor economic rationale for any of the concerns either therefore giving no opportunity to engage meaningfully on the premise, the industry insiders say.

Specific to the broadcasting sector, one top executive said that while usage of scarce spectrum may be the case for telecom operators, who require exclusive access to the limited ‘terrestrial spectrum’, it seeks to force-fit broadcasting, which does not avail any exclusive access to such scarce spectrum, within the same fold as telcos.

Meanwhile, the MIB is also planning to send its comments on the draft, seeking clarity from the department of telecom on the inclusion of OTTs and certain broadcast-specific aspects such as DTH in the bill that is open for public comments now.

Content on video streaming platforms, as such, comes under the purview of the MIB, and according to top officials in the government, the ministry is looking at getting a better understanding on how the telecom bill understands OTTs, and if it wishes to regulate only the spectrum which is anyway under its domain.

A broadcaster, on condition of anonymity, said that content regulation merits light touch approach and creation of multiple frameworks for content can jeopardise content creation potential of India.

“Given the proposed auctioning of spectrum, access – or the lack thereof – to spectrum itself may be considered an intrusion into content creation leave alone its pervasive regulation. Auctioning as a proposition for broadcast is a flawed enterprise and we have not been provided with any rationale or basis as to why such a framework has been devised as the optimal or ideal course.”

Many in the industry feel that prior to formulating any legislation a public consultation on optimal utilisation of spectrum ought to be conducted. At the very least, the basis for “scarcity”, “auction” and inclusion of various services as “telecommunications services” ought to be made public for a mature and forward-looking discourse to ensue.

Incidentally, the allocation and efficient use of the spectrum is the responsibility of the department of telecom, but in an executive order in November 2020, the government amended the Allocation of Business Rules and brought video-streaming platforms such as Netflix, Amazon Prime Video and others as well as digital news sites, under the purview of the MIB. This was the first time the ministry got into the digital space.

According to a senior official in the ministry, “The way DoT looks at OTTs and the MIB looks at them is different. Apps and OTTs have been under the domain of MEIty or MIB, while efficient allocation of spectrum has been DoT’s task. It is possible that the department is looking at regulating just the spectrum. We will anyway be sending our views to get the picture right.”
Earlier, the DoT proposed regulating communication services including voice, video, and data offered by over-the-top (OTT) platforms such as WhatsApp as telecom services, requiring them to obtain a licence from the government just like other telecom operators.

In the draft Indian Telecommunication Bill, 2022, released in public domain, the government included internet-based and OTT communication services such as WhatsApp calls, Facetime, Google Meet etc. under telecom services. At present, telecom companies need a licence to offer services, while OTT platforms do not.

Bringing OTTs under the ambit of telecom services means that OTT and internet-based communications would require a licence to offer services. The draft bill also said it could exempt entities from the requirement of obtaining a licence if it is in “public interest”. Inc42