In September 2022, the government of India came up with a draft Indian Telecommunications Bill, which essentially consolidates three separate Acts that currently govern the telecommunications sector — the Indian Telegraph Act, 1885; Indian Wireless Telegraphy Act, 1993; and Telegraph Wires (Unlawful Possession) Act, 1950. The draft is in the public domain for comments.

The draft bill says that a telecom licence would be issued for all services included within ‘telecommunication service’. But what is ‘telecommunication service’?

The draft bill defines it as “service of any description (including broadcasting services, electronic mail, voice mail, voice, video and data communication services, audiotex services, videotex services, fixed and mobile services, internet and broadband services, satellite-based communication services, internet-based communication services, in-flight and maritime connectivity services, interpersonal communications services, machine-to-machine communication services, over-the-top (OTT) communication services) which is made available to users by telecommunication, and includes any other service that the Central Government may notify to be telecommunication services”.

Experts have pointed out that the usage ‘service of any description’ is problematic. Rajiv K Luthra, head of Luthra and Luthra Law Offices India, notes that the inclusion of services like electronic mail, voice mail and interpersonal communications services is “a novel introduction to the licensing framework”. This, he says, will result in over-regulation and difficulties in implementation.

The definition of ‘telecommunication service’ is extremely broad, and includes OTT communication services like WhatsApp, email and video calling services such as MS Teams. Such services would require a licence. This appears to be a step backwards, according to Mini Raman and Angelina Talukdar of the law firm LexOrbis.

In an article in Mondaq, they note that while the bill intends to capture futuristic technologies, its drafting is “very ambiguous and extremely broad”.

The Indian telecom industry, which has a subscriber base of 1.17 billion, provides direct jobs to 2.2 million and indirect jobs to 1.8 million. It is also a major attraction for foreign direct investment. However, the industry is facing challenges in terms of declining ‘average revenue per user’, low broadband penetration and limited spectrum availability. At this stage, the industry cannot afford to be over-regulated. If businesses such as OTT communication and email services require government licences then it would not only impact their business and profitability but also raise compliance costs.

Luthra recommends defining ‘telecommunication services’ as those that fall within the ambit of telecommunications and not internet-based.

“Merely because communication is occurring between two entities does not mean it is telecommunication in nature,” he says. Since different technologies are involved, they should be regulated separately, he adds. The draft bill makes the transition to a new regime “needlessly complicated and burdensome”, he says.

Raman and Talukdar call for “a complete overhaul and re-examination” of the bill.