The Telecommunications Act, 2023 (the "Act") received presidential assent on December 24, 2023 after the draft Telecommunications Bill, 2022 (the "Bill") was released for public consultation. When notified of its enforcement, the Act will replace the current telecommunication laws in India, the Indian Telegraph Act, 1885, and the Indian Wireless Telegraphy Act, 1933 and will provide a consolidated modern legal framework for the telecommunication industry in India. This Article explains some crucial provisions of the Act and highlights some of the differences from its previous iteration in the draft Bill.

OTTs as a Telecommunication Service

The Bill had specifically included Over-the-top ("OTT") communication services in the ambit of 'telecommunication services' and as a result, had sparked widespread criticism from industry stakeholders. The Act now defines 'telecommunication services' as "any service for telecommunication" and 'telecommunication' as "transmission, emission or reception of any message, by wire, radio, optical or other electro-magnetic systems, whether or not such messages have been subjected to rearrangement, computation or other processes by any means in the course of their transmission, emission or reception". Hence, while the Act does not define an OTT as a telecommunication service, the broad scope of a telecommunication service makes it safe to assume that OTT services will be regulated by the provisions of the Act.

Authorization Regime

The Act mandates every entity providing telecommunication services, operating a telecommunication network or possessing radio equipment to obtain an authorization from the central government. This provision replaces the licensing regime as introduced by the Bill, however, it is unclear how stringent the authorization will be, once enforced.

User Verification

An authorized entity is also required to identify an individual who receives telecommunication services by using verifiable biometric bases identification methods. This move might suggest that spam calls and messages will be reduced for customers, however, the concern regarding privacy of users still remains unresolved.

Government Intervention

The Act allows the government to take over telecommunication services and networks and use these services when there is a threat to public safety, national security. The language of the Act is broad and does not define what threat to public safety and national security is. Therefore, the government may exercise extensive powers to intervene in telecommunication services. This is another provision likely to generate disapproval from stakeholders.

Government Prescribed Standard (Chapter IV)

Apart from government intervention in certain circumstances as mentioned above, the Central Government has the authority to prescribe certain conformity standards for inter alia:

  • Telecommunication equipment, telecommunication identifiers and telecommunication networks;
  • Manufacture, import, distribution and sale of telecommunication equipment;
  • Cyber security; and
  • Encryption and data processing.

Right of Way

The Act stipulates a mechanism to utilise the right of way to install telecommunication infrastructure on public and private properties. This provision would be beneficial to industry stakeholders as it ensures fair access and specifies the responsibilities. It also facilitates the advancement of digital connectivity.

Penalties

The Act has also amplified the penalties for contravention as compared to the Bill. Providing telecommunication services without requisite authorization from the government will attract a punishment of imprisonment for up to 3 (three) years and a fine that may extend to Rs. 2,00,00,000/- (Rupees two crore).

Conclusion

In conclusion, the Act which will replace the outdated telecom regulations, signifies a significant legal overhaul for India's telecommunications industry. Notable provisions include the revised definition of telecommunication services avoiding direct categorization of OTT services while allowing for potential regulation under the broad telecommunication service scope. The shift from a licensing regime to authorization raises questions about the forthcoming stringency. The Act introduces a crucial user verification requirement aiming to reduce spam while raising privacy concerns. The government intervention provisions grants authorities to control over telecom services during perceived threats to public safety, a provision which is likely to face industry disapproval. The Act also empowers the government to set conformity standards for various aspects, including cyber security and data encryption.

Provision for the right of way is a positive move, which will facilitate the installation of telecommunication infrastructure on public and private properties, ensuring fair access and delineating responsibilities. However, the Act imposes heightened penalties for unauthorized telecommunication services, including imprisonment and substantial fines. Overall, the impact on India's telecommunication industry is a mixed bag, introducing modernization but also raising concerns about privacy, government intervention and regulatory stringency.

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