Duggal, Pavan --- "Telecommunications Convergence Law in India - A Critique" [2002] MurdochUeJlLaw 6; (2002) 9(1) Murdoch University Electronic Journal of Law

Telecommunications Convergence Law in India – A Critique

Author:	Pavan Duggal Advocate, Supreme Court of India
Issue:	Volume 9, Number 1 (March 2002)

1. The dawning of the 21st century seems to have had a magical effect on India. The Indian Government has taken the emergence of the new millennium as a signal to proceed forward in the direction of wholeheartedly adopting technologies and giving legal recognition to the same and regulating the same. This new chapter began with the passing of India's first Cyberlaw namely, the Information Technology Act, 2001 on 17th May 2000. Immediately, thereafter, the Government embarked upon the move to regulate the convergence industry given the impending scenario of convergence of technology. Keeping this end in mind, the Government came across numerous drafts on The Convergence Bill in the country which were open to public debate on the web before final tabling The Communication Convergence Bill, 2001 in the lower house of the Parliament in the recently concluded Parliament session. As convergence is an all-encompassing phenomenon, it is important for us to analyze in detail the new proposed Indian Convergence Law.

2. The new proposed Convergence Law aims to promote, facilitate and develop in an orderly manner the carriage and content of communications including broadcasting, telecommunications and multimedia. It further aims to establish an autonomous commission to regulate carriage of all forms of communication.

3. The new proposed law mandates that no one shall use any part of the spectrum without assignment from the Central Government or the statutory body under the new law namely, the Communications Commission of India.

4. Similarly, owning or providing any network infrastructure facility or providing any network services or any network application services or any value added network application services or any content application services without a proper license or registration under the proposed law has been made illegal. It has been mandatory to have a license before possessing any wireless equipment.

5. The new proposed law seeks to establish the Communications Commission of India (CCI in short) as the super-regulator in India in the context of convergence of telecommunications, broadcasting, data communication, multi media and other related technologies and services. The objectives of the proposed CCI range from developing communications sector in a competitive environment and in consumer interests to making the communication services available at affordable costs to all. It further aims to increase access to information for greater empowerment of citizens and hopes to make strides in the direction of establishing a modern and effective communication infrastructure taking into account the convergence of Information technology, media, telecommunications and consumer electronics.

6. The Communications Commission of India (CCI) seeks to establish an open licensing policy and ensure a level playing field for all operators and to promote equitable, non-discriminatory interconnection across various networks,

7. Towards that end in view, the CCI has been given immense powers. The new law deals with the important issue of licensing or registration of the specified categories of services. The CCI has been empowered to grant licenses in its discretion for five different categories: -

   1. To provide or own network infrastructure facilities. This category has been defined by the explanation to include earth stations, cable infrastructure, wireless equipments, towers, posts, ducts and pits used in conjunction with other communication infrastructure, and distribution facilities including facilities for broadcasting distribution;
   2. To provide networking services. This category has been defined to include bandwidth services, fixed links and mobile links;
   3. To provide network application services. This category has been defined to include public switched telephony, public cellular telephony, global mobile personal communication by satellite, internet protocol telephony, radio paging services, public mobile radio trunking services, public switched data services and broadcasting (radio or television service excluding continued)
   4. To provide content application services. This category has been defined to include satellite broadcasting, subscription broadcasting, terrestrial free to air television broadcasting and terrestrial radio broadcasting;
   5. To provide value added network application services such as Internet services and unified messaging services. This category has been defined to specifically exclude information technology enabled services. Thus, IT enabled services such as call centers, electronic-commerce, tele-banking, tele-education, tele-trading, tele-medicine, videotext and video conferencing shall not be licensed under the new legislation.

8. The new proposed law seeks to establish a distinction between civil wrongs and penal offences.

9. Adjudication has been provided for by Adjudicating Officers in the proposed law who would have the power to decide civil liability which may not exceed 50 crore rupees.

10. The law provides for establishment of a Communications Appellate Tribunal to hear appeals against orders passed by the CCI or the Adjudicating Officer.

11. The new proposed law also deals with the important issue of right of way for laying cables and erection of posts. Various offences have been detailed under the proposed new law, which have been made cognizable and triable by a Court of Sessions.

12. The new law has also given immense powers to Central Government and the CCI to make rules and regulations respectively to carry out the purposes of proposed law.

13. Finally, the proposed law seeks to repeal five different existing legislations of our country namely The Indian Telegraph Act, 1885, The Indian Wireless Telegraph Act, 1931, The Telegraph Wires (Unlawful Possession) Act, 1950, The Telecom Regulatory Authority of India Act, 1987 and The Cable Television Networks (Regulation) Act, 1995. The newly proposed Communication Convergence Bill, 2001 has got noble objectives in terms of providing for the establishment of a structured mechanism to promote, facilitate and develop in an orderly manner, the carriage and contents of communications in the scenario of increasing convergence of technologies.

14. The Convergence Bill provides conceptual clarity to a landscape previously defined by licensing agreements, telecom policies, recommendations, judgments and undertakings. This bill is a futuristic Bill, which represents new possibilities not yet foreseen by existing laws. It has also laid down the foundation on which certain laws are going to be developed in our country in the times to come.

15. However, the new law is riddled with numerous controversial and contentious elements. Firstly, the proposed law is meant for regulating convergence. Surprisingly, the proposed law does not define the word "convergence" in its definitional clause. As a result, there is no legal definition of the subject matter that the proposed law seeks to regulate.

16. The new proposed Bill does not seek to make a marked departure from the previous drafts. On the contrary, it reinforces the concept of giving the Government maximum regulatory powers in the context of convergence. The new Bill is nothing but a reiteration of regulatory tendencies of the Government to regulate the convergence industry, which has yet to effectively take off in India.

17. The proposed Bill provides for immense control of the Government. The Government has been given the complete control of assignment of the spectrum. The proposed super regulator CCI is nothing but a glorified mouthpiece of the Government. The same runs contrary to the objects of the new proposed Bill.

18. While the new Bill aims to provide for the establishment of an autonomous commission to regulate all forms of communications namely the CCI but the structure detailed in the proposed law makes it abundantly clear that the CCI is a commission, which is anything but autonomous.

19. The Government has retained all powers to appoint the Chairperson and the members of the CCI on the recommendations of a search committee, which shall be constituted by the Central Government, thereby assuring that favored nominees of political powers that be find representation under the new statutory body. What is the Search Committee expected to do, what shall be its composition, how it shall proceed ahead to search appropriate candidates has completely been left at the subjective discretion of the Central Government.

20. The parameters of appointing the members of the CCI have been left very vague. The proposed law states that the members shall be appointed from amongst persons of eminence in the field of literature, performing arts, media, culture, education, films, persons prominent in social and consumer activities, telecommunications, broadcasting technology, IT, finance and administration or law. Who shall be "persons of eminence" in the said fields has been left upon the subjective discretion of the Central Government, thereby bringing immense control of the Government over the CCI.

21. Further, the Communications Commission has been given no independent existence of its own since it has to mandatorily follow all policy directives as may be communicated to it by the Central Government. These directives may include the procedure and mode in which any services are to be registered and licensed by the way of auction in case of granting licenses or in any other form. As such, our country can hardly expect an independent and autonomous commission as has been envisaged by the objects of the new convergence law. The new law comes up with the concept of a content censor, though not in so many words. The aim of the Bill is to establish a regulatory framework for carriage and content of communications in the scenario of convergence and telecommunications broadcasting, data communication, multi media and other related technologies and services. Content has been defined in Section 2(9) to mean any sound, text, data, picture (still or moving), other audio visual representation, signal or intelligence of any nature or any combination thereof which is capable of being created, processed, stored, retrieved or communicated electronically.

22. Consequent to the same, the new law has actually given immense powers of censoring content to the CCI. The CCI has been given the mandatory power to specify, by regulations, programme codes and standards which may include practices to ensure fairness and impartiality of news and other programmes.

23. The basic question as to what is the fairness and impartiality in presentation of news and other programmes has been left at the subjective discretion of the CCI, which has to work mandatorily under directives of the Government.

24. The proposed bill also is silent on the factors, which the commission (CCI) has to follow as in order to ensure fairness and impartiality. No standards or parameters of fairness and impartiality have been defined under the Act and the same have been left upon the subjective discretion of a Government controlled commission. This can be extremely dangerous for the freedom of the press and the electronic press and is an attempt to tamper with a vibrant free press and to force divergent viewpoints to toe the line of the Government.

25. No sense of impartiality and fairness can be expected from a commission, which has been created by the Central Government, which works under the general directives of the Central Government, and which has no independent will or thought process of its own. Thus, this is a measure to keep control over uncomfortable viewpoints.

26. The Constitution of India is based upon the concept of separation of powers. Under the proposed law, both policy and regulation making as well as judicial powers to decide disputes have been conferred a single body namely, CCI which goes against the aforesaid legal principle on which the constitution makers had sought reliance.

27. Huge elements of vagueness has crept into the proposed new law in as much as the definitions of the categories of the services have been provided in such vague manner so as to admit various conflicting interpretations. The definition of "value added network application services" is standing on unsure ground more so in the light of the fact that it has specifically excluded I T enables services such as call centers, electronic commerce, tele-banking, tele-education, tele-medicine, tele-trading, videotex and video conferencing etc from the ambit of licensing under the proposed law.

28. Vast range of discretionary powers have been granted in the hands of the Central Government for the exercise of which, no parameters or standards have been laid down under the Communication Convergence Bill. The proposed law seeks much to be desired. It is a haphazard legislation based substantially on the skeletal structure of the Information Technology Act, 2000. In a number of provisions, the exact language of the corresponding provisions of the I T Act, 2000 are reproduced.

29. The proposed law belies the expectation of the common consumer as also the hopes in the convergence industry of an independent impartial and autonomous body to be an enabler in the healthy growth of the convergence industry.

30. While India has to be commended for its vision to think of a Convergence Law yet the timing for the same is not very appropriate, especially because it is planned to be passed at a time when convergence is yet to effectively take off and become a ground reality in India. We as a nation refuse to learn from the mistakes of other nations. History has taught us that the enactment of the Information Technology Act, 2000 in a hurry was a mistake, the realization of which is drawing today.

31. Let us not be in a hurry to pass a law on convergence without taking all the appropriate inputs in mind. This is absolutely essential given the futuristic nature of the proposed legislation It is also hoped that the proposed law should be the subject of immense discussion in the Parliament and should undergo some radical changes before being passed. If this is not done, the days of the government acting as an omnipotent factor in the convergence industry are not far off. This is the time to analyze the various legal issues raised by the proposed Convergence Bill 2001 before the said bill becomes the law of our country.

32. All eyes are now on the Parliament for what the country needs in the present context is minimum regulation and more enablement. All said and done, this is indeed an exciting time in the formative years of the Indian Convergence Law.