Telecom Bill 2023 -OTT continues to be under MeitY jurisdiction

The much awaited Telecom Bill 2023 has finally been tabled in the Lok Sabha on December 18.

Some highlights:
The Central Government may, if satisfied that it is necessary or expedient to do so, in the interest of national security … take over the control and management of, or suspend the operation of, or entrust any authority of the Central Government to manage any or all of any telecommunication services, or any telecommunication network or part, thereof, connected with such telecommunication services.

The Centre may by rules, provide for measures to protect and ensure the cyber security of telecommunication networks and telecommunication services, and the measures may include collection, analysis and dissemination of traffic data that is generated, transmitted, received or stored in telecommunication networks. The security measures will include cyber security for telecommunication services and telecommunication networks; and encryption and data processing in telecommunication. Biometric verification of new telecom users will be mandatory, a move to prevent SIM-based fraud. The Bill empowers the government to notify standards and conformity assessment measures for equipment, services.

On the occurrence of any public emergency, including disaster management, or in the interest of public safety, the Centre or a State government or any officer specially authorised on this behalf by the Centre or a State government, can take temporary possession of any telecommunication service or telecommunication network from an authorised entity; or provide for an appropriate mechanism to ensure that messages of a user or group of users authorised for response and recovery during a public emergency, are routed on priority.

The Bill includes significant changes in the allocation of spectrum for satellite broadband services. The Telecom Bill has cleared that spectrum for such services can be assigned on administered prices, without auction.

The central government will allocate satellite broadband spectrum, mandate biometric authentication of new telecom users, regulate encryption standards for internet communications and wield power to take over telecom networks at times of conflict. GMPCS licence for such services will be issued. In other 19 services, TV broadcast, direct-to-home (DTH), national long-distance calling, maritime and in-flight connectivity services are included. This is the first time since the Supreme Court (SC) judgement on the 2G scam where allocation of airwaves outside of auction has been decided by the government. The pricing of this spectrum and the methodology of allocation will be decided by the Telecom Regulatory Authority of India.

The bill proposes to take back unutilized spectrum from private as well as government entities, but this will not apply to entities such as Aircel and Reliance Communications undergoing insolvency. It is yet silent on if the government will return the amount already paid by the telcos.

A key draft proposal to curtail TRAI’s powers has been dropped. Telecom Regulatory Authority of India (TRAI) Chairman and Members, the bill are to be appointed from the private sector.

A dispute resolution mechanism is also proposed where people can approach an adjudicating authority appointed by the government for dealing with violation of rules. A designated appeal committee will be set up for appealing the decisions. The two-stage mechanism, which will deal with matters before they go to the Telecom Disputes Settlement and Appellate Tribunal, will be online. The bill also makes it mandatory for each service provider has to have a grievance redressal mechanism.

The bill also proposes to rename the universal services obligation fund (USOF) as Digital Bharat Nidhi. Telcos give 5% of their annual revenues to the government, which goes to the USOF and is utilized for connecting the unconnected areas of the country.

In the spirit of ease of doing business, the bill has provided a voluntary undertaking mechanism. This will allow telcos to voluntarily disclose inadvertent lapses and facilitate compliance.

Other highlights include the refarming of spectrum, unified authorisation for telecom services, more streamlined digital resolution rules,

The bill keeps apps such as WhatsApp, Telegram and Signal outside its purview. OTT will be regulated by the ministry of electronics and information technology; the carriage will be dealt by the Telecom Bill, and content will be regulated by the information and broadcasting ministry, in accordance with the allocation of business rules.

The draft Telecom Bill issued in September 2022 had proposed for allowing write-off or deferment of dues in cases of payment default in extraordinary circumstances, and had proposed that if a telco undergoes insolvency and intends to shut down or suspend operations but continues to provide services, does not default in payments and complies with modified terms and conditions, the government can assign another person or entity to manage the operations for a certain period of time. These provisions did not make it to the final draft.

This bill replaces three existing laws—the Indian Telegraph Act of 1885, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950.

As it has been tabled as a Money Bill, it does not require approval of the Rajya Sabha.

The government is also drafting the Digital India Act, for which consultations are ongoing, but it would be taken up for execution by the next government.

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Also read, The industry welcomes Telecom Bill 2023