The Centre has proposed to open the door for the allocation of spectrum administratively, under the Indian Telecommunication Bill, 2022. The draft of the proposed new law was released for public consultation and has provisioned a slew of reforms, including expanding the definition of telecommunication services to include over-the-top (OTT) communication apps such as Whatsapp, Signal and Zoom in its ambit.

As part of the Bill, the Centre has acknowledged “administrative process” as a means to assign spectrum without holding auctions. While the auction route has not been done away with under the new framework, the Centre will have the discretion to decide on the mode of allocating spectrum.

The Centre’s move assumes significance in the wake of the Supreme Court’s 2012 decision, where after cancelling 2G licenses for operators, the apex court noted that auction was the only permissible way for spectrum assignment. The underlying philosophy of the Bill is that spectrum assignment should serve the common good and ensure widespread access to telecommunication services. While the Bill provides for assignment of spectrum primarily through auction, for certain specified functions relating to government and public interest like defence, transportation, research, etc., the Bill provides an enabling framework for assignment of spectrum through administrative process.

As part of the draft Bill, the Centre may assign spectrum through the administrative process, “or governmental functions or purposes in view of public interest or necessity”. Interestingly, areas such as radio backhaul and satellite-based services are also part of the list of applications where spectrum could be administratively assigned, especially given that the deliberations for the auction process of their spectrum are currently underway. Industry experts remain optimistic that a spectrum for private networks could also be assigned.

OTT apps included

In another significant move, OTT communication apps have also been included in the definition of telecommunication services, although the exact regulations that these applications will be subject to are unclear. Communication apps such as WhatsApp came under the government’s radar in 2019, when a series of mob lynchings targetting minorities was triggered by WhatsApp forwards. Consequently, the government has asked these companies to dilute their encryption in recent years. At present, it is unclear the extent to which OTT will be regulated.

The draft Bill also indicates that the powers of the Telecom Regulatory Authority of India (TRAI) will be changed. businessline previously reported that clarifications regarding the insolvency process and financial waiver stressed telecom assets are being considered, and those are part of the Bill as well. Simplification of Right of Way rules has been given legal codification and the Bill has also highlighted provisions to ensure user protection. For instance, the draft Bill states that users’ consent will have to be taken for telemarketing calls. However, the legal penalties to enforce these protections are unclear.

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