|
Powered by AltAlpha AI
|
Debarun Mukherjee is a Final Year student at Bharati Vidyapeeth University Pune
INTRODUCTION
The Telecommunications Act of 2023 (“Telecom Act”) was passed by the Parliament keeping in mind to substitute the decades-old colonial-era telecom-related laws as well as provide a consolidated framework to regulate the telecommunications sector. The new Act is intended to regulate and govern the Indian telecom industry and has long been in discussion. The Government has introduced this new telecom legislature reminding us how vital the telecom industry is and the old legislatures simply cannot do justice to the ever-increasing intricacies of the sector. The former version of the Act did not shed enough emphasis on some of the pivotal aspects of the industry such as spectrum allocation, enhancing telecom infrastructure as well as promotion and regulation of competition. The Act’s stated objective is to establish a regulatory framework, centred around ensuring the safety and security of the telecom sector; the Act also consolidates the provisions of the telecommunication sector services, networks and equipment and also regulates how spectrum would be allocated. At the outset, the telecom industry has undergone varied reformations pertaining establishment of strategic alliances domestically and globally.
The article highlights the key features of the new Act while pointing out the shortcomings of the previous legislation.
ADDRESSING THE “LICENSE RAJ” AND RED-TAPISM: STRIKING THE BALANCE BETWEEN LIBERTY AND CONTROL
The Act aims to streamline the process of acquiring spectrum, which is crucial for the service providers (TSP’s). This could potentially lead to more players entering the market, especially new entrants looking to challenge the tycoons. Primarily, the new Telecom Act does away with the old licensing and registration regime and instead now provides for requiring authorization from the Central Government. This authorization is required for providing telecom services or establishing, operating, or maintaining a telecommunication network and even for possession of radio equipment. The new Act also mandates that the allocation of spectrum be done through public auction. However, an exception is carved out for certain identified purposes for which spectrum can be allocated through the administrative process. The Act also for the first time, gives statutory recognition to the telecom player’s right of way, concerning private property, and prescribes a three-tier dispute resolution process.
With the Act aiming to change the regime, the question comes to mind regarding the viability of the existing license holders under other telecom-related laws such as the Telegraph Act as well as the Indian Wireless Telegraphy Act; and whether the new Act provides for the accommodation of the existing license holders. The new Act provides for a smooth transition out of the existing regime. Licenses granted to the telecom operators continue to remain valid for the remainder of the durations specified in the license itself and in case such validity period is absent, the license holder is permitted to continue operations for five years from the appointed date under Section 3(6)(b) of Telecom Act. Interestingly, under the new Act, if the Central Government does not prescribe migration of the existing licenses, then telecom operators continue to operate under the terms and conditions of the original license; and perhaps may even try to expand their networks without seeking authorization; however, this position is not crystal clear at this moment. But what is clear, is each license holder will eventually have to seek authorization from the Centre under the new Act.
ADDRESSING SPECTRUM ALLOCATION: A LEGAL AND INFRASTRUCTURAL NIGHTMARE OF INDIA
Before delving into the intricacies of spectrum allocation it is pertinent to understand the meaning of spectrum. Spectrum in telecommunications are radio waves that are used for communication purposes and the Government being the sole custodian, divides the same into different bands to ensure smooth and uninterrupted access across India. The use of spectrum is a restricted activity and requires government authorization. The governmental involvement in spectrum allocation dates back to the first spectrum auction which was held in 1994. The government auctioned spectrums to companies that could make optimal use of the resources and offer services to the consumers. Later, there was a shift towards the administrative allocation model, where the government selected the companies and allocated spectrum without conducting public auctions. This administrative allocation of spectrums stood to be a contentious matter as was witnessed during the much-publicized judgment of the Supreme Court in 2012; where the court cancelled the allocation of 122 licenses granted through administrative allocation and revoked the allocator’s right to use spectrum. After the cancellation of licenses by the court, the government was directed to conduct an allocation of spectrum through an auction and since then, this process remained as the mode of spectrum allocation. Under the new Act, the allotment of spectrum through public auction is a statutory requirement.
In a noteworthy departure from the prevailing licensing system, the Telecom Act brings about a significant shift by eliminating the provision of ‘exclusive privilege’ held by the central government. Instead, it ushers in an authorization model for providing telecommunication services, establishing and expanding telecommunication networks, and possessing radio equipment. The Act introduces a spectrum allotment process in India through assignment and administrative channels, along with government-prescribed standards for cybersecurity, encryption, and data processing in telecommunication. Notably, the legislation includes measures for user protection and implements a dispute resolution mechanism to address user grievances. With a tiered adjudicatory system and graded penalties for contraventions, the Telecom Act aligns with the National Digital Communications Policy, 2018. The overarching goal is to propel India into a leading position in global technological advancements by significantly reforming the telecommunications sector. These reforms, part of the broader digitization initiatives by the Indian government, are anticipated to enhance the ease of doing business in the telecommunications sector and unlock the full potential of the country’s telecommunication capabilities.
CONCLUSION
The recent overhaul of the Telecommunications Act signals a significant departure from a licensing-based framework to an authorization-centric approach, marking a nuanced change in regulatory dynamics. While the terms may seem synonymous, the shift lies in the expanded scope of activities necessitating authorization, diverging from the earlier Telegraph Act, which primarily mandated licenses for telegraph operation. Under the revamped Act, government authorization becomes a prerequisite for providing telecom services and establishing, creating, and maintaining telecom equipment. This shift gains prominence when considering the expansion of the existing telecom industry, sparking concerns about potential exploitation by major players leveraging their resources for extensive network growth. In addressing market competition, the Telecom Act does not explicitly tackle the issue. However, the general provisions of the Competition Act, focusing on de-cartelization and preventing the abuse of dominant positions, are expected to synergize with the new Act. This collaboration will play a vital role in regulating the telecom industry and fostering an environment of fair competition.
