The Telecommunications Act, 2023

The Telecommunication Act of 2023 represents a landmark in India’s regulatory landscape, supplanting the antiquated Telegraph Act of 1885 and the Wireless Telegraphy Act of 1933. As technology advances and communication evolves from voice to data, the imperative for a modernised framework becomes undeniable. This new Act not only adapts to the changing dynamics of communication but also foresees the future, encompassing innovations spanning human-to-human, human-to-machine, and machine-to-machine interactions.

Despite commendable provisions, the Act faces scrutiny over safety standards and governmental powers during emergencies, sparking debates on citizen privacy and accountability. However, it introduces vital reforms aimed at fostering competition and mobilising resources for infrastructure development in an industry burdened by debt.

Key to the Act’s objectives is the promotion of competition, crucial for stimulating innovation and attracting investments, particularly in emerging technologies such as 5G. Embracing technology neutrality, the Act acknowledges the convergence of communication mediums and advocates for equitable access to infrastructure for all market players.

Moreover, the Act recognises the transition to fibre-based networks and emphasises the expansion of digital infrastructure, especially in rural areas, to propel India’s digital revolution. By integrating telecommunications with related sectors like broadcasting and addressing regulatory convergence, the Act lays the groundwork for a unified governance approach, licensing, and standards.

Evolution of Telecommunications in India

Telecommunication refers to the emitting, transmitting, or receiving any message using radio, wire, optics, or any other electromagnetic system. As per TRAI, India has the second-largest telecommunications market in the world. The evolution of telecommunications in India has been a remarkable journey, characterised by significant advancements and transformations over the past 75 years since independence. From humble beginnings with limited connectivity and accessibility to the modern era of seamless digital communication, India has emerged as a leader in the global telecom landscape.

Pre-independence Era • Before independence, owning a telephone was considered a luxury, and the process of obtaining a connection was cumbersome, often taking months or even years.

The Indian Telegraph Act, 1885, laid down the regulatory framework for telecommunication during this period.

Post-independence reforms • Economic reforms in 1991 marked a significant turning point, triggering rapid growth in the telecom sector.

The separation of the Department of Telecom (DoT) from India Post in 1985 laid the foundation for modern telecommunications infrastructure.
Acts such as the Indian Telegraph Act, 1885, and the Indian Wireless Telegraphy Act, 1933, provided the legal basis for telecommunication operations.

Expansion of connectivity • From just 80,000 telephone connections at the time of independence, India witnessed exponential growth, surpassing the 1 billion phones mark in 2015.

Initiatives such as Mahanagar Telecom Nigam Ltd (MTNL) and Videsh Sanchar Nigam Ltd (VSNL) facilitated the expansion of telecommunication networks across metro cities and long-distance calls.

Technological advancements • The introduction of Subscriber Trunk Dialing (STD) in the late 1980s and early 1990s revolutionized long-distance communication, eliminating the need for manual trunk booking.

The transition from STD/ISD/PCO booths to cheaper cellphone tariffs and voice over internet protocol (VoIP) services reflects the evolving technological landscape.
Acts such as the Telecom Regulatory Authority of India (TRAI) Act, 1997, established regulatory oversight to ensure fair competition and consumer protection in the telecom sector. It established both theTRAI and the Telecom Disputes Settlement and Appellate Tribunal (TDSAT).

Internet revolution • The advent of the Internet in 1995, made accessible to consumers by VSNL, paved the way for the digital age.

Legislative measures, including amendments to existing acts and the introduction of new policies, facilitated the growth of the Internet infrastructure and services.

Mobile phone revolution • The liberalisation of cellular networks in 1995 opened doors for private players, leading to the mobile phone revolution in India.

The introduction of cellular generations such as 2G, 3G, and 4G, supported by legislative frameworks, enabled widespread access to mobile data and internet services.

Future prospects • India’s journey from “no G to 5G” highlights its ongoing commitment to embracing cutting-edge technologies and fostering digital innovation.

Legislative reforms and policy initiatives, such as the updated Telecommunications Act, 2023, continue to play a crucial role in shaping the future of telecommunications, ensuring inclusivity, affordability, and sustainable growth.

Key Provisions of the Act

1. Authorising telecom-related activities The Central Government’s authorisation is required in advance for: i) installing, operating, expanding and managing telecommunications networks, ii) providing services related to telecommunications, and iii) owning radio equipment. The validity of the existing licenses will remain for the period of their grant, or for five years if the period is not mentioned.

2. Assigning spectrum The Act of 2023 states that the assignment of spectrum will be done by auction. However, in case of specific uses, its allocation will be done on an administrative basis. These specific uses are disaster management; national security and defence; transport; weather forecasting; satellite services like DTH and satellite telephony; and BSNL, MTNL and public broadcasting services. Any frequency range may be re-assigned or re-purposed by the Central Government. Besides, trading, sharing, leasing, and surrendering of spectrum may be allowed by the Central Government.

3. Providing powers of interception and search As per the Act of 2023, intercepting, blocking or monitoring of some messages or a certain category of messages should be carried out owing to certain reasons. It is mandatory to carry out such actions on certain grounds, such as public order, security of the state, and prevention of provoking offences. These actions will depend on procedures, duration and safety measures as specified. For similar reasons, the suspension of telecom services may be done. Any telecom network, infrastructure or service should be taken over by the government temporarily in case of public emergency or for public safety. The government gives the responsibility of investigating vehicles or buildings, which may have illegal telecom network or equipment, to an officer.

4. Protecting users According to the Act, 2023, the Central Government should provide protection to the users by specifying certain measures. These measures are as follows:

By creating Do Not Disturb registers
By providing a mechanism that enables users to inform about malware or specific messages
By giving consent in advance so that some specific messages like advertising messages may be received

The Act also states that it is mandatory for organisations providing telecom services to set up an online facility for registering and redressing grievances.

5. Providing the right of way As per the Act, 2023, the right of way may be granted to any facility provider by submitting an application to the public entity or the enterprises that are responsible for establishing telecommunication infrastructure. Such a right of way is meant for both public and private property. The Act provides that this right is granted non-discriminately and non-exclusively as far as possible.

6. Appointing members for TRAI The TRAI Act is amended by the Telecommunications Act, 2023. Now, people having minimum 30 years of professional experience are eligible to be appointed as the Chairperson of TRAI and people having minimum 25 years of professional experience are eligible to be appointed as its members.

7. Digital Bharat Nidhi With the implementation of the Indian Telegraph Act, 1885, the government established the Universal Service Obligation Fund. Its aim is to spread telecom facilities in underdeveloped regions of the country. This provision has been retained in the Act of 2023. But the fund has been renamed as ‘Digital Bharat Nidhi’. The fund will also be used for the purpose of research and development in the field of telecom.

8. Offences and penalties Under the Act, a number of civil and criminal offences have been mentioned. If telecom services are provided without authorisation or access to a telecom network or data is gained illegally, it is considered an offence. The accused will be subject to imprisonment of around three years, or a fine of approximately two crore rupees, or both. If an individual or an organisation breaches the terms and conditions of authorisation, they will be liable to punishment. They will be charged with a civil penalty of up to five crore rupees. If an individual or an organisation owns unauthorised equipment, or uses a network or service illegally, they will be penalised with a fine of up to ten lakh rupees.

9. Adjudication process According to the Act, an adjudicating officer will be appointed by the Central Government. He/she will be responsible for the investigation of civil offences and passing orders against them. Such an officer must hold a position equivalent to that of the joint secretary or above. If any individual is aggrieved with the orders of the adjudicating officer, he/she may appeal against them in front of the Designated Appeals Committee within 30 days of passing such orders. Members of this Committee must hold a position equivalent to that of Additional Secretary. Any individual or an organisation may file an appeal against the orders of the Committee, related to the violation of terms and conditions, with TDSAT within 30 days.

Advantages of the Act

Centralised authorisation Mandating prior authorisation from the central government for telecommunications activities ensures oversight and control over services, network expansions, and possession of radio equipment. This helps in maintaining regulatory compliance and preventing unauthorised operations, thereby promoting a structured and accountable telecom environment.
Efficient spectrum allocation Spectrum assignment through auctions ensures efficient allocation of scarce resources, fostering competition and innovation in the sector. This approach promotes optimal utilisation of spectrum bands while generating revenue for the government through transparent bidding processes.
Powers for public safety Granting powers of interception and search allows necessary actions in the interest of public safety or emergencies. Subject to prescribed procedures and safeguards, these provisions empower authorities to address security threats effectively while safeguarding individual rights and privacy.
User protection mechanisms The legislation focuses on protecting users’ interests by enabling consent mechanisms for specified messages, establishing Do Not Disturb registers, and creating grievance redressal mechanisms. These provisions enhance consumer rights and satisfaction by addressing concerns related to unsolicited communications and service quality.
Right of way regulations Addressing the right of way for telecom infrastructure on public or private property ensures fair and non-exclusive access, facilitating the deployment of telecom networks and services. Clear regulations in this regard promote infrastructure development while minimising conflicts and delays.
Enhanced development initiatives Amendments to the TRAI Act for appointments and the establishment of the Digital Bharat Nidhi for telecom development in underserved areas reflect the statute’s comprehensive approach towards promoting inclusive growth and bridging the digital divide. These initiatives aim to extend telecom services to remote and marginalised communities, fostering socio-economic development.
Accountability and enforcement Stringent penalties for offences and the establishment of an adjudication process with tiers of appeal ensure accountability and enforcement of regulatory provisions. This promotes adherence to regulatory norms and standards, deterring malpractices and ensuring a level playing field for all stakeholders in the telecom sector.

Major Issues Associated with the Act

The Telecommunications Act of 2023, while aiming to regulate and enhance the telecom sector, faces several significant drawbacks and concerns:

Lack of explicit safeguards The Act lacks specific procedures and safeguards within its provisions, delegating these critical aspects to government rules. This raises concerns about transparency and protection of individual rights, particularly regarding interception, monitoring, or blocking of communications. Explicit safeguards are necessary to prevent potential misuse and ensure accountability.
Insufficient oversight mechanism The existing oversight mechanism, primarily constituted by senior government officials, might not effectively safeguard against potential abuses of power. This structure could conflict with the principle of separation of powers, leading to unchecked government actions and compromising accountability.
Risk of extensive surveillance The broad language of the Act permits interception of all communications based on specified grounds, potentially enabling mass surveillance. This extensive monitoring could infringe upon the fundamental right to privacy without proportional justification for such intrusion, raising concerns about privacy violations.
Lack of safeguards in search and seizure powers The Act does not specify safeguards for search and seizure actions authorised by the central government, raising concerns about accountability and protection of individual rights. Stringent statutory conditions typically ensure accountability and protection in such actions.
Biometric verification concerns Requiring biometric-based identification for user verification may be disproportionate and infringe upon the fundamental right to privacy. Such intrusive measures raise questions about necessity and proportionality, especially considering less intrusive alternatives for identity verification.
Limitations on SIM card usage The Act imposes penalties for using SIM cards in excess of a notified number without defining a legal limit for usage, creating ambiguity and potential enforcement challenges. Establishing a legal limit for SIM card usage could address these concerns.
Centralisation of regulatory powers Delegating regulatory functions to the central government instead of an independent regulatory body raises concerns about concentrated power and potential conflicts of interest. A more decentralised regulatory framework could ensure fairness and transparency in regulatory decisions.
Legislative integrity and authority Granting the central government the authority to modify civil offences and penalties through notifications undermines the legislative process and raises questions about arbitrary use of power. Changes to civil offences should be subject to parliamentary scrutiny to ensure legislative integrity and authority.
Addressing these concerns is crucial to ensure a comprehensive legal framework that fosters the growth and regulation of the telecom industry while prioritising individual rights, privacy, and fair oversight. Striking a balance between enabling innovation and safeguarding fundamental rights will be essential in crafting a telecommunications law that truly meets the evolving demands of the sector while upholding constitutional principles.

Conclusion

In conclusion, the Telecommunications Act, 2023 heralds a significant shift in the regulatory landscape for service providers in India. The Act entails incorporating changes into terms and conditions, aligning operational procedures with government timelines for interception access, and potentially adopting India-specific measures for global operations. As the industry braces for these changes, it is imperative to address concerns surrounding government surveillance and interception, ensuring both business continuity and robust protection of user rights. While the specifics of the new framework may unfold gradually, the twin priorities of maintaining operational continuity and safeguarding user rights must remain central to ongoing discussions and preparations.