Industry bodies criticise draft Telecom Bill, seek review

The Department of Telecom (DoT) has received suggestions on the draft Indian Telecommunication Bill, 2022 from industry stakeholders elaborating on concerns ranging from data privacy to regulations of over-the-top (OTT) communication platforms.

The ministry had invited suggestions on the Bill from various stakeholders for which it set a deadline of 10 November.

Several industry bodies, especially the ones representing major telecom companies, agree unanimously that the century-old telecom laws need a revamp, and that the Indian Telegraph Act, 1885 — the current law for the telecom sector — had outlived its purpose.

However, the proposed regulations on OTT communication services, collaborations within the ministries, and the definition of ‘telecommunications’ have generated a lot of debate and criticism ever since the draft Bill was released on 21 September.

Major bone of contention – OTT regulations
One of the key contentious issues with the draft Bill is that the OTT communication platforms will need to be licensed, ensuring their compliance with the DoT regulations. Critics say that the rules will stifle innovation and will ultimately harm the public.

According to the Asian Internet Coalition, an industry body representing companies like Amazon, Google and Yahoo, there will be “unwarranted government oversight” if these regulations are implemented.

In their feedback to the government, they said that the draft Bill brings in regulation of online services, such as OTT communication services, internet-based communication services, machine-to-machine communication services, interpersonal communication services, data communication services, etc, “within the purview of a law that ought to be limited to regulation of traditional telecom services”.

The problem with this, they explained, is that OTT services and traditional telecommunication services are not similar and should ideally be regulated under separate frameworks altogether.

Definition of telecom services
The Asian Internet Coalition also demanded that the definition of “telecommunication services” be narrowed.

“We note that the definition is broad and does not distinguish between telecom infrastructure services and internet infrastructure services,” it submitted. “It is clear from the draft explanation that the intention of the Bill is to focus on the regulation of telecom services, which is the best approach as internet infrastructure is regulated under the IT Act. Therefore, it is suggested that the draft definition be amended to specifically define the services accurately or carve out a distinction for internet infrastructure services.”

This view is echoed by other fora, which say that not only does the draft Bill seem prohibitive in nature, it also seems to be weakening the sector regulator, the Telecom Regulatory Authority of India (TRAI).

“Some of the provisions of the draft Indian Telecommunications Bill 2022, unfortunately, appear to be prohibitive rather than facilitating/enabling for the larger digital ecosystem in the country,” said T.V. Ramachandran, president of the Broadband India Forum, an industry body representing companies like AT&T and Amazon.

“The provisions seem to take us back to the pre-1997 era by diluting the powers of the regulator viz. Section 11(1) of TRAI Act. This could lead to damage to investor confidence and undermine the independence of the regulatory authority, owing to the deletion of provisions which enable proper checks and balances.”

Section 11 (1) of the TRAI Act enables proper checks and balances during consultative processes between the TRAI and the DoT.

Parliament panel on data privacy
It’s not just industry associations that have problems with the definitions and ambit of the draft Bill.

The Parliament Standing Committee on IT met on 28 October to discuss the draft Bill, and a few members had raised concerns regarding “the government’s overarching powers under the garb of national security”.

On Thursday, Karti Chidambaram, a member of the Standing Committee, told ThePrint: “The Union government has once again gone for more centralisation and is diluting the powers of the TRAI by removing the requirement of the government to take recommendations from the telecom regulator before issuing licenses. There are also risks of greater surveillance powers with central and state governments without any oversight process.”

The inclusion of OTT communication services within the purview of telecommunications brings about all types of internet communication under the ambit of the Bill as well, which means that the privacy offered by platforms like Signal, Telegram and WhatsApp stands at risk, he added.

This meeting of the Parliamentary Standing Committee flew in the face of convention, whereby the ministry would have, first, sent the Bill for consultation (by stakeholders), and then informed the Committee of the feedback it had received, so that those could be incorporated in the panel’s findings.

Differing view – ‘National security most important’
However, the Cellular Operators Association of India (COAI), which represents leading telecom operators like Vodafone & Bharti Airtel, disagrees with the Asian Internet Coalition and Broadband India Forum’s views over data privacy as well as OTT regulations.

According to COAI, whoever is using India’s “digital highways” should pay a price irrespective of what communication platform it is, especially since most OTTs are foreign entities.

“The charges that the OTT players are making are incorrect. Since it does not serve their interest, they are making these allegations which is not healthy for a country,” COAI director general S.P. Kochhar told ThePrint.

“Almost all OTTs are foreign companies with deep pockets, so if they are earning from Indian clients, it is mandatory for them to contribute to the growth of the telecom industry. If they are using our digital highways, they should contribute.”

“If you look at it in perspective, the regulation is not increasing… What is the most important thing for us as Indians — security of the nation. Our legal system should be ready to counter and weed out all terror-related activities in India and these regulations will help [in that regard],” Kochhar added.

Regarding concerns over data privacy, Kochhar said, “[National] Security is paramount. If you are involved in a legal activity, you will benefit [from the new laws]. But in case you are involved in illegal activities, then there should be an adequate provision in law so that you don’t hide behind technology and don’t get away with it. When it comes to national security, data privacy would be deemed secondary.”

Data privacy is essential under normal circumstances, he added.

Differences between ministries
Sources in the government have confirmed to ThePrint that “concerns about overlapping responsibilities [of different ministries] have come to the fore” since the Ministry of Information and Broadcasting (MIB) and the Ministry of Electronics and Information Technology (MeITY) are both expected to be involved in the regulation of the newly-defined telecommunications space.

“We have sent our comments to the Department of Telecom and we will see how it goes,” a senior I&B official told ThePrint. “It is obvious that all ministries concerned have to work together.” ThePrint