Access Alert: Telecommunications Bill passes both houses of Indian Parliament

Access Alert: Telecommunications Bill passes both houses of Indian Parliament

After 138 years, India is modernising its Telecommunications legal framework. Over recent decades, the sector has become a key driver of India’s economic and social development. However, the current regulatory framework governing the provision of electronic communications in India dates back to the telegraph era, when the internet and satellites did not exist.

In September 2022, in a bid to adapt to the needs and realities of the 21st century and promote innovation, a Draft Telecommunications Bill was released by the Department of Telecommunications to modernise and consolidate India’s existing legal framework.

The Indian Parliament is a bicameral legislature composed of two Houses: the Rajya Sabha (Council of States) and the Lok Sabha (House of the People). After a bill has been passed by one House, it is sent to the other, where it goes through the same lawmaking procedure. Once a bill is passed in both Houses, it becomes a binding Act of Parliament once it has received the President’s assent.

On 18 December 2023, after a lengthy public consultation, the Indian government finally introduced the Telecommunications Bill 2023 (Bill) in Parliament. The Bill was passed in the Lok Sabha on 20 December before being passed in the Rajya Sabha the following day. It is expected to receive presidential assent in the new year.

The change in the legal framework will usher in several changes, simplifying telecommunications licensing and reducing the number of authorisations and licences to provide them. This has been welcomed by the telecommunications industry.

Access to spectrum

One of the main elements of the newly passed Bill is the fact that it includes provisions for the administrative assignment of spectrum, including for satellite-based services, rather than through auctions. This move will facilitate market access for foreign providers wishing to launch their satellite services in India, foster innovation, and help to bridge the country’s digital divide.

However, on the other side of the value chain, concerns remain regarding the regulation of content services. The level of intervention that will actually take place is also still uncertain. While the Bill represents a significant step towards upgrading India’s telecommunications infrastructure and attracting foreign investment in the sector, unease persists among civil society as the new provisions of the Bill could be abused by the government to eliminate mass protests and infringe the right to privacy.

Concerns regarding control measures

The Bill grants extensive control powers to the government by allowing it to temporarily take control over telecom services, monitor traffic data, and intercept communications in the interests of national security and during emergencies. Finally, the Bill mandates biometric verification for subscribers and restricts the number of SIM cards each subscriber can use to limit fraud.

OTT

To ensure a level playing field and fair competition, one of the key changes proposed under the draft Bill was the inclusion of over-the-top (OTT) communication services in the definition of telecommunication services. Under the final version adopted by Parliament, OTT platforms should not be subject to the same licensing regime as other telecommunications operators.

However, while the new law does not directly target over-the-top (OTT) services, the broad definitions of “telecommunication” (encompassing the transmission of messages through various systems) and “message” (including various types of communication) within the law raise concerns by leaving room for interpretation.

If you are interested in learning more about Indian legislation or market access in India, please contact Chrystel Erotokritou, Compliance Manager, at [email protected] or Juliana Ramirez, Senior Policy Manager, at [email protected].

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