Telecom Blog
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daily12011-07-28T03:29:13ZHow the Telecom Act undermines personal liberties
https://cis-india.org/telecom/blog/indian-express-january-25-2024-how-the-telecom-act-undermines-personal-liberties
<b>In this article, Prof. Rajat Kathuria and Isha Suri analyse whether the law has enough safeguards and an independent regulatory architecture to protect the rights of citizens. The authors posit that the current version leaves the door open for an overenthusiastic enforcement machinery to suppress fundamental rights without any meaningful checks and balances. </b>
<p style="text-align: justify; ">The Telecommunications Act cements government’s power to suspend internet services, does not establish independent oversight mechanism for interception, suspension orders. The article originally published in the Indian Express can be <a class="external-link" href="https://indianexpress.com/article/opinion/columns/how-the-telecom-act-undermines-personal-liberties-9126314/">read here</a>.</p>
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<p style="text-align: justify; ">“Is Big Brother watching you? At the press of a button a civil servant can inspect just about every detail of your life your tax, your medical record and periods of unemployment. That civil servant could be your neighbour. There is mounting concern over this powerful weapon that the computer revolution has put in the government’s hand. But no civil servant will be allowed to examine personal files from another department, without written authority from a Minister. I shall be announcing legislation enabling citizens to take action against any civil servant who gains unauthorised access to his file.” (Yes Minister). The year is 1980, the computer revolution is just about beginning and questions of surveillance have become pertinent; safeguards in the form of separation of powers between the executive and legislative are announced by the Minister for the protection of citizens.</p>
<p style="text-align: justify; ">Although theatrical, Yes Minister can yet be invoked to characterise governments in most parliamentary democracies especially India’s.<br /><br />More than four decades on, the Indian Parliament witnessed the smooth passage of several pieces of legislation, including the Telecommunications Act (TA) 2023, which justifiably seeks to bury remnants of colonial-era laws. While the modern digital age creates conditions for unprecedented surveillance reflecting the Benthamite tenet of maximum monitoring at minimum cost, the question on everyone’s minds is whether the law has enough safeguards and an independent regulatory architecture to protect the rights of citizens.</p>
<p style="text-align: justify; ">Before contemplating this weighty query, let us set the narrative in context with a quick recap of the major markers in digital governance in India that have concluded, at least for the moment, in the passing of TA 2023.<br /><br />The institutional regime for telecommunications dates back to the late 1990s and was created more by accident and less by design. The Telecom Regulatory Authority of India (TRAI) became necessary because private sector investment came in when the public sector operator was both player and referee. Massive litigation followed, leading to the setting up of TRAI. Within a few years, the Telecom Dispute Settlement Appellate Tribunal (TDSAT) was carved from TRAI to fast-track excessive litigation. In between, there was the dissolution of the first TRAI, only confirming who the “boss” was.</p>
<p style="text-align: justify; ">The desire to serve in regulatory regimes has surely been tainted by the goal of securing sinecures. This is not just an Indian phenomenon. For example, the Biden administrators wish they continue in office for long. It is in the nature of such positions that many of those appointed will never again be in a position of authority. There have been few instances after its dissolution that TRAI has taken on the government. The relationship between the legislature and the executive is complex but suffice it to say that such a separation in telecom is met much more in the breach.<br /><br />The regulatory regime for telecom described above notifies subordinate legislation, enforces and adjudicates disputes — it performs the role of the executive and the adjudicator. One key safeguard for the protection of ordinary citizens is, therefore, already undermined. The separation of powers remains on paper and the exercise of authority through delegated rule-making ensures the government can intervene with little resistance.</p>
<p style="text-align: justify; ">In this background, TA 2023 poses challenges. Although undoing colonial-era laws is one of the stated goals, the re-purposing of some existing provisions and ambiguous drafting does little justice to that aim. For example, the definition of telecommunication services has been left open to interpretation. Internet-based services like WhatsApp and Gmail are, therefore, likely to fall under the Act’s ambit. Provisions empowering the government to notify standards and conformity measures or ask for alternatives to end-to-end encryption such as client-side scanning could undermine privacy. Further requiring messages to be disclosed in an “intelligible format” is irreconcilable with end-to-end privacy engineering. Tinkering with end-to-end encryption for compliance could create potential points of vulnerability.<br /><br />The grounds on which such information may be sought, outlined in Section 20 (2) include sovereignty and integrity of India, security of the state and public order. Prima facie these appear reasonable. However, the current phrasing leaves room for expansive interpretation by overenthusiastic enforcement machinery — it could go beyond the letter of the law to please political masters. Research conducted in 2021 by Vrinda Bhandari and others found that many orders issued under the guise of public order restrictions would not qualify as legal per se. The Act cements the government’s power to suspend internet services (Section 20(2)(b)) and does not include procedural safeguards envisaged in the Supreme Court’s Anuradha Bhasin judgment such as the proportionality test, exploration of suitable alternatives and the adoption of least intrusive measures.<br /><br />The Act also does not establish an independent oversight mechanism for interception and suspension orders related to telecommunications. These rules, framed in 1996 in line with the directions of the Supreme Court in PUCL v. Union of India and requiring a committee consisting exclusively of senior government officials, reflect inadequate separation. In the UK the law mandates approval of interception warrants by judicial commissioners. Separation of powers is however not a panacea; it is just a necessary condition for the effective functioning of institutions. We must also observe the counsel of John Stuart Mill for the maintenance of institutional integrity namely, not “to lay [their] liberties at the feet of even a great man, or to trust him with powers which enable him to subvert [their] institutions” — JS Mill, quoted by BR Ambedkar on November 25 1949, requoted by sitting Chief Justice of India on Constitution Day (November 26, 2018).</p>
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<p style="text-align: justify; ">Kathuria is Dean, School of Humanities and Social Sciences and Professor of Economics at the Shiv Nadar Institution of Eminence and Suri is Research Lead, CIS.</p>
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For more details visit <a href='https://cis-india.org/telecom/blog/indian-express-january-25-2024-how-the-telecom-act-undermines-personal-liberties'>https://cis-india.org/telecom/blog/indian-express-january-25-2024-how-the-telecom-act-undermines-personal-liberties</a>
</p>
No publisherRajat Kathuria and Isha SuriTelecom2024-02-20T00:54:29ZBlog EntryComments to the Telecommunications Bill, 2023
https://cis-india.org/telecom/blog/cis-comments-to-the-telecommunications-bill-2023
<b>The Parliament has passed the Telecommunications Bill, 2023 which seeks to replace the Indian Telegraph Act, 1885. The Centre for Internet & Society (CIS) submits its comments to the bill. </b>
<p>The comments were reviewed by Tanveer Hasan. <a class="external-link" href="https://cis-india.org/telecom/files/cis-comments-to-telecommunications-bill-2023">Click to download the PDF</a></p>
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<h3>Key concerns</h3>
<ol type="1"></ol> <ol></ol>
<p><b>Definition of Telecommunication Service </b></p>
<ol></ol> <ol type="1"></ol>
<p style="text-align: justify; ">The definition of the terms telecommunication (section 2(p) and telecommunication service (section 2(t)) is extremely broad and would effectively include transmission of any signal by any electromagnetic systems. This wide definition increases the scope of the Bill to include almost all kinds of means of communication used in modern times including messaging services, email, OTT services, among others. Even if one were to accept the argument that the scope of the Bill has been deliberately kept wide so that the government has the power to regulate all means of telecommunication in order to prevent mischief and illegal activities, the problem arises with the onerous language of section 3(1) which makes it compulsory to obtain an authorisation from the Central Government for any and all telecommunication services, unless specifically exempted under section 3(3).</p>
<p style="text-align: justify; ">In simpler words the Bill not only seeks to regulate all communication services, but requires government permission to provide such services in the first place. Such an approach has the very likely potential to hamper future telecom innovation especially in light of the fact that the penalty for not obtaining permission is imprisonment upto 3 years as well as fine of upto Rs. 2 crores.</p>
<p style="text-align: justify; ">Such a wide definition leads to ambiguity and lack of regulatory certainty to businesses as well as users participating in the ecosystem. This proposal triggers immediate concerns, particularly a confusing definition of telecommunication services which may also incorporate the provision of a broad range of digital and online services. Such a wide definition could lead to confusion and arbitrary implementation on one hand, and if made applicable to the content layer of the internet architecture stifle innovation in the digital ecosystem due to onerous licensing/registration requirements on the other hand. It is also pertinent to note that some of the internet-based services listed in the definition in 2(21) are already regulated under the Information Technology (IT) Act 2000. For example, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 regulates intermediaries, including the significant social media intermediaries (SSMI) such as Facebook and Twitter. Putting an additional regulatory burden on these service layer companies will hamper innovation and competitiveness of the sector and also amount to regulatory overreach.</p>
<ol></ol>
<p><b>Power of authorisation and assignment</b></p>
<ol></ol> <ol type="1"></ol>
<p> </p>
<p style="text-align: justify; "><b>Section 3 (7) -</b> <i>Any authorised entity which provides such telecommunication services as </i><i>may be notified by the Central Government, shall identify the person to whom it provides telecommunication services through use of any verifiable biometric based identification as may be prescribed.</i></p>
<p> </p>
<p style="text-align: justify; ">All services do not require a biometric based identification of the person. While there is a legitimate need to verify a person in the case of financial transactions, however a similar level of scrutiny is not warranted for applications that a person might use once, or applications that do not pose a threat. For example the need to verify a person through Know Your Customer (KYC) or otherwise for an application to order food, or an application which is meant for communication can be excessive regulation. In addition to the enhanced burden of collecting and storing this data that will come on the telecommunication service, there will also be the added requirement to maintain strict data protection and security measures under the Digital Personal Data Protection Act 2023. Furthermore, as has been seen in multiple instances of data breaches and cyber security attacks such as the one at AIIMS<a href="#_ftn1" name="_ftnref1"><sup><sup>[1]</sup></sup></a>, Justpay<a href="#_ftn2" name="_ftnref2"><sup><sup>[2]</sup></sup></a> demonstrate that both public and private organisations can be affected by cyber attacks. It is therefore advisable to reduce the number of entities that store and collect sensitive personal data such as biometric information in the interest of privacy as well as national security.</p>
<p style="text-align: justify; ">The Supreme Court while looking at the constitutionality of the Aadhaar Act upheld the need for banking and financial institutions to require an individual’s Aadhaar number stating the legitimate aim of preventing money laundering; however, the Court struck down the provision that required any private entity to collect Aadhaar details. Justice Bhushan held that the collection by private entities violated the right to privacy, by failing the first prong of the test laid down in Puttaswamy judgement, the test of legality.<a href="#_ftn3" name="_ftnref3"><sup><sup>[3]</sup></sup></a></p>
<p> </p>
<p style="text-align: justify; ">More importantly, through the requirement of ‘verifiable biometric based identification’, the Bill is likely to nudge telecom service providers to incorporate Aadhar Based identification, even though the Indian Supreme Court in 2018 held that the mandatory linking of mobile connections with biometric identification is unlawful.</p>
<p><b> </b></p>
<h3>Standards, Public Safety, National Security and Protection of Telecommunication Networks</h3>
<p> </p>
<p> </p>
<ol type="1"></ol>
<p><b>Power to notify standards</b></p>
<ol type="1"></ol>
<p><b> </b></p>
<p style="text-align: justify; "><b>Section 19 (f)</b> The power to notify standards and conformity measures on encryption is a sweeping power that allows the central government to potentially request for backdoors on encryption, or ask for alternatives to end to end encryption such as client side scanning, which have been critiqued<a href="#_ftn4" name="_ftnref4"><sup><sup>[4]</sup></sup></a> as measures that undermine privacy for all users. If the objective is to provide recommendations for certain encryption techniques when dealing with sensitive government data, a more specific compliance certification can be issued to such firms. For example, the United States government mandates certain government agencies to comply with the Federal Information Processing Standards (FIPS)<a href="#_ftn5" name="_ftnref5"><sup><sup>[5]</sup></sup></a> which also apply to non-government firms holding government contracts. Standards like FIPS recommend specific cryptographic modules to ensure secure communication of sensitive data. Such conditions and cases must be explicitly scoped in defining the standard setting powers of government with regard to encryption, in consultation with the industry and civil society organisations.</p>
<p> </p>
<ol type="1"></ol>
<p><b>Provisions for public emergency or public safety</b></p>
<ol type="1"></ol>
<p> </p>
<p style="text-align: justify; "><b>Section 20(2) (a) -</b> Messaging apps such as WhatsApp and Signal enable end to end encryption, where messages are encrypted on endpoints such as user devices. Service providers and intermediaries cannot decrypt messages. Requiring messages to be amenable to disclosure in an 'intelligible format' is technically impossible within the end to end paradigm of privacy engineering<a href="#_ftn6" name="_ftnref6"><sup><sup>[6]</sup></sup></a>. Technical means of disclosing the contents of messages can either reside on a user’s device, in a middle-box that mediates communication, or on servers where some computation can occur. Restructuring end-to-end encrypted communication networks to facilitate these technical means of disclosure would result in the creation of potential points of vulnerability and encryption backdoors. These vulnerabilities can be exploited by malicious actors and backdoors act as ‘intentional vulnerabilities’<a href="#_ftn7" name="_ftnref7"><sup><sup>[7]</sup></sup></a> that can be used for excessive surveillance of communication that users believe to be private.</p>
<p> </p>
<p style="text-align: justify; ">Section 20 (2) states the grounds for which such information may be sought. These include sovereignty and integrity of India, defence and security of the State, friendly relations with foreign States, and public order. Prima facie, these may appear to be reasonable grounds for facilitating government access, however, the current phrasing is too wide and leaves room for an expansive interpretation. This is particularly true for maintenance of “public order” that is routinely invoked in a variety of situations.<a href="#_ftn8" name="_ftnref8"><sup><sup>[8]</sup></sup></a> According to research conducted in 2021 by Vrinda Bhandari and others on the “Use and Misuse of Section 144 found orders issued under the guise of public order restrictions to regulate a variety of activities, many of which would not qualify as illegal activities per se. For instance, orders were issued to prohibit flying of hot air balloons, unmanned aerial vehicles, unmanned aircraft systems, use of “special” or “metallic” manjhas to fly kites and carrying tiffin boxes inside cinemas.<a href="#_ftn9" name="_ftnref9"><sup><sup>[9]</sup></sup></a> And tracing encrypted messages to thwart such perceived public order threats would be excessive and disproportionate. The order to intercept, detain, disclose or suspend a communication made between private individuals, acts as a violation of privacy and provides extensive grounds to surveil people.<a href="#_ftn10" name="_ftnref10"><sup><sup>[10]</sup></sup></a></p>
<p> </p>
<p style="text-align: justify; ">These grounds may be used to intercept or monitor all communication where a particular word or set of words is used. And its implementation would require communication of all users to be monitored effectively leading to a lower degree of privacy for all users<a href="#_ftn11" name="_ftnref11"><sup><sup>[11]</sup></sup></a> - including internet communication based apps due to definitional ambiguity. The Supreme Court has held that any infringement of the right to privacy should be proportionate to the need for such interference.<a href="#_ftn12" name="_ftnref12"><sup><sup>[12]</sup></sup></a> The judgement in the Puttaswamy case provides some guidance to assess the limits and scope of the constitutional right to privacy in the form of the three prong test. The test requires the existence of a law, a legitimate state interest and the restriction (to privacy) should be ‘proportionate'. This provision violates a user’s fundamental right to privacy since it fails to meet the proportionality requirement as laid down by the Supreme Court.</p>
<p style="text-align: justify; ">Section 20 (2) (b) provides for suspension of telecommunication service or class of services on similar grounds. The Bill empowers the DoT to suspend telecommunication services and if applicable to internet based communication services such as WhatsApp, Signal, among others without the need for any judicial oversight or procedural safeguards as enunciated by the Supreme Court in Anuradha Bhasin vs Union Of India. The provision must incorporate an independent oversight mechanism for such orders and also incorporate safeguards laid down by the Supreme Court in the Anuradha Bhasin judgement<a href="#_ftn13" name="_ftnref13"><sup><sup>[13]</sup></sup></a> to prevent arbitrary, frequent, and prolonged suspension of telecommunication services in India.</p>
<h3>Protection of users</h3>
<p><b> </b></p>
<p><b> </b></p>
<h3><b> </b></h3>
<p><b> </b></p>
<ol type="1"></ol>
<p><b>Measures for protection of users</b></p>
<ol type="1"></ol>
<p><b> </b></p>
<p style="text-align: justify; "><b> Section 28 - </b>This section should also provide mechanisms for de-registering from “specific messages” . While this section mentions the need for prior consent of users for receiving the specified messages/ class of specified messages, it should look at the full spectrum of rights the Digital Personal Data Protection Act 2023 provides, which includes the right to withdraw consent. Hence we suggest that Section 28(3) adds that the authorised entity providing telecommunication services shall establish an online mechanism for withdrawal of consent, in addition to grievance redressal.</p>
<p> </p>
<ol type="1"></ol>
<p><b>Duty of users </b></p>
<ol type="1"></ol>
<p><b> </b></p>
<p style="text-align: justify; "><b>Section 29 - </b>While listing out the duties of the users the Act puts the onus on the user to furnish correct information. It fails to take into account instances where the information is fed into the system by third parties, due to issues of access and literacy on the part of the users. While the section heading states “duty of the user” the preceding text “no user shall” has the potential to penalise users for acts carried out without a malicious intent. Additionally, there is also a need to look at how notices and terms and conditions of most telecommunication services are primarily in English, making it even more difficult for a large number of Indian users to read and hence understand the requirements. Furthermore, the associated penalty for failing to comply with these provisions are, i.e. up to INR 25,000 for the first offence and for the second or subsequent offences, up to INR 50,000 for every day till the contravention continues. Considering the low digital literacy rates, the government would be well advised to reconsider imposition of such hefty fines.</p>
<p> </p>
<p style="text-align: justify; ">If applicable on internet based services, this will also impact the ability of a user to retain anonymity over the internet. Individuals may choose to remain anonymous online for a number of reasons. It is important to understand that an individual may remain anonymous for a variety of legitimate purposes such as expressing opinions about their employers and whistleblowers, providing anonymous tips to newspapers or law enforcement, expressing political opinions and criticism that may be subject to persecution, or simply someone saying something that they may be embarrassed about. <a href="#_ftn14" name="_ftnref14"><sup><sup>[14]</sup></sup></a> In India, in particular, an individual’s caste can be identified from their name, and they may choose to remain anonymous or adopt a pseudonym to escape centuries of stigma and discrimination that their communities have faced. The broad definition of telecommunication services as elaborated above places restrictions on anonymity online and severely degrades an individual’s ability to exercise their fundamental right to freedom of expression.</p>
<div>
<hr />
<br />
<div id="ftn1">
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1"><sup><sup>[1]</sup></sup></a>Business Today Desk, “Cyber attack at AIIMS Delhi: Hackers demand Rs 200 cr in crypto, says report” <i>Business Today,</i> 22 November 2022, https://www.businesstoday.in/latest/in-focus/story/cyber-attack-at-aiims-delhi-hackers-demand-rs-200-cr-in-crypto-says-report-354475-2022-11-28.</p>
</div>
<div id="ftn2">
<p style="text-align: justify; "><a href="#_ftnref2" name="_ftn2"><sup><sup>[2]</sup></sup></a>Ashwin Manikandan, Anandi Chandrashekhar, “Juspay Data Leak fallout: RBI swings into action to curb cyberattacks”, <i>The Economic Times, </i>6 January 2021, https://economictimes.indiatimes.com/tech/technology/juspay-data-leak-fallout-rbi-swings-into-action-to-curb-cyberattacks/articleshow/80125430.cms</p>
</div>
<div id="ftn3">
<p style="text-align: justify; "><a href="#_ftnref3" name="_ftn3"><sup><sup>[3]</sup></sup></a> “Judgement in Plain English Constitutionality of Aadhaar Act”, “<i>Supreme Court Observer</i>, accessed 22 December 2023,https://www.scobserver.in/reports/constitutionality-of-aadhaar-justice-k-s-puttaswamy-union-of-india-judgment-in-plain-english/</p>
</div>
<div id="ftn4">
<p style="text-align: justify; "><a href="#_ftnref4" name="_ftn4"><sup><sup>[4]</sup></sup></a> “Why Adding Client-Side Scanning Breaks End-To-End Encryption”, <i>The Electronic Freedom Foundation</i>, accessed 22 December 2023, https://www.eff.org/deeplinks/2019/11/why-adding-client-side-scanning-breaks-end-end-encryption.</p>
</div>
<div id="ftn5">
<p style="text-align: justify; "><a href="#_ftnref5" name="_ftn5"><sup><sup>[5]</sup></sup></a> “Compliance FAQs: Federal Information Processing Standards (FIPS)”, NIST, accessed December 22 2023. https://www.nist.gov/standardsgov/compliance-faqs-federal-information-processing-standards-fips</p>
</div>
<div id="ftn6">
<p style="text-align: justify; "><a href="#_ftnref6" name="_ftn6"><sup><sup>[6]</sup></sup></a> “Personal Data in the Cloud Is Under Siege. End-to-End Encryption Is Our Most Powerful Defense.”, <i>Lawfare,</i> accessed 22 December 2023, https://www.lawfaremedia.org/article/personal-data-in-the-cloud-is-under-siege.-end-to-end-encryption-is-our-most-powerful-defense</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7"><sup><sup>[7]</sup></sup></a> “Breaking Encryption Myths”, <i>Global Encryption Coalition,</i> accessed 22 December 2023, https://www.globalencryption.org/2020/11/breaking-encryption-myths/</p>
</div>
<div id="ftn8">
<p style="text-align: justify; "><a href="#_ftnref8" name="_ftn8"><sup><sup>[8]</sup></sup></a> Smriti Parsheera “Political misinformation is a problem. But asking WhatsApp to risk user privacy is the wrong solution”,<i> The Indian Express,</i> October 28 202 <a href="https://indianexpress.com/article/opinion/editorials/remedy-worse-than-malaise-9002600/">https://indianexpress.com/article/opinion/editorials/remedy-worse-than-malaise-9002600/</a>.</p>
</div>
<div id="ftn9">
<p style="text-align: justify; "><a href="#_ftnref9" name="_ftn9"><sup><sup>[9]</sup></sup></a> Vrinda Bhandari, <i>et al, </i>The Use and Misuse of Section 144 Cr.P.C, https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID4404496_code2801004.pdf?abstractid=4389147&mirid=1&type=2</p>
</div>
<div id="ftn10">
<p style="text-align: justify; "><a href="#_ftnref10" name="_ftn10"><sup><sup>[10]</sup></sup></a>CIS’ Comments to the (Draft) Indian Telecommunication Bill 2022 <i>“Centre for Internet and Society, </i>accessed 22 December 2023 https://cis-india.org/telecom/blog/cis-comments-to-draft-indian-telecom-bill-2022#:~:text=Comment%3A%20The%20draft%20bill%20attempts,power%20over%20the%20local%20government.</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11"><sup><sup>[11]</sup></sup></a> The Telecommunications Bill, 2023,<i> PRS Legislative Research,</i> accessed 22 December 2023, https://prsindia.org/billtrack/the-telecommunication-bill-2023</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12"><sup><sup>[12]</sup></sup></a> Justice K.S. Puttaswamy (Retd) vs Union of India, W.P.(Civil) No 494 of 2012, Supreme Court of India, September 26, 2018.</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13"><sup><sup>[13]</sup></sup></a> Writ Petition (Civil) NO. 1031 OF 2019, accessed 22 Decmber 2023, <a href="https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Judgement_10-Jan-2020.pdf">https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Judgement_10-Jan-2020.pdf</a>.</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14"><sup><sup>[14]</sup></sup></a>Palme, Jacob, and Mikael Berglund. <i>"Anonymity on the Internet</i>." Accessed 22 December 2023: 2009.</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/cis-comments-to-the-telecommunications-bill-2023'>https://cis-india.org/telecom/blog/cis-comments-to-the-telecommunications-bill-2023</a>
</p>
No publisherIsha Suri, Nishant Shankar, Shweta Mohandas, and Vipul KharbandaTelecom2024-01-06T01:21:55ZBlog Entry CIS’ Comments to the (Draft) Indian Telecommunication Bill 2022
https://cis-india.org/telecom/blog/cis-comments-to-draft-indian-telecom-bill-2022
<b>The Department of Telecommunications, Government of India invited comments on the Draft Indian Telecommunication Bill, 2022. The Centre for Internet & Society (CIS) submitted its comments. </b>
<div><span>Reviewed by </span><b><span>Pallavi Bedi</span></b>
<hr />
<h2>Preliminary</h2>
<p class="MsoNormal" style="text-align: justify; ">The Centre for Internet and Society (CIS) is a non-profit organization that undertakes interdisciplinary research on the internet and digital technologies from policy and academic perspectives. Through its diverse initiatives, CIS explores, intervenes in, and advances contemporary discourse and practices around the internet, technology, and society in India, and elsewhere. Over the last decade, CIS has worked extensively on policy issues related to telecommunication, internet access, digital inclusion, and so on.</p>
<p class="MsoNormal" style="text-align: justify; ">In the past, CIS has responded to various public consultations pertaining to telecommunication such as the Telecom Regulatory Authority of India (TRAI) consultation on 5G Auctions<a href="#_ftn1" name="_ftnref1"><sup><sup><span>[1]</span></sup></sup></a>, TRAI consultation on regulation of over-the-top (OTT) services<a href="#_ftn2" name="_ftnref2"><sup><sup><span>[2]</span></sup></sup></a>, to name a few .</p>
<p class="MsoNormal" style="text-align: justify; ">We appreciate the efforts of the Department of Telecommunications (DoT) for having consultation on the “Draft Indian Telecommunication Bill 2022”. We are grateful for the opportunity to put forth our views and comments to the draft bill.</p>
<h2><a name="_b3q6xpjyxit2"></a>Summary of Recommendations</h2>
<ul>
<li style="text-align: justify; ">At the outset, we recommend that in the interest of transparency and accountability, prior to enacting important legislations like the Telecom Bill, the government would be well-advised to conduct an “impact assessment” exercise such as “regulatory impact assessment” and put the report in public as practised in jurisdictions such as the European Union.<a href="#_ftn3" name="_ftnref3"><sup><sup><span>[3]</span></sup></sup></a> We would also recommend the government to disclose responses and submissions that it receives during the process to ensure a transparent and consultative process of policymaking.</li>
</ul>
<ul>
<li style="text-align: justify; ">We recommend that the scope of the bill should be reconsidered and internet-based services should be removed from the definition of telecommunication services. From this definition read with other clauses of the bill, it appears that the bill tries to licence (or control !) not just telecommunication but all kinds of communication and internet-based services. Putting onerous regulatory requirements on every bit and byte flowing through the internet is unnecessary and regulatory overreach.</li>
</ul>
<ul>
<li style="text-align: justify; ">The draft bill’s attempt to provide for a non-discriminatory and an affordable Right-of-way (RoW) regime is appreciable. However, the central government has been given an overriding power over the local government which has constitutional powers with regard to permissions in their jurisdiction. The bill must clarify the modalities to ensure coordination between centre, state, and local authorities.</li>
</ul>
<ul>
<li style="text-align: justify; ">We recommend that clause 46 of the draft bill which significantly dilutes TRAI’s power should be deleted. Moreover, the government must work towards further strengthening TRAI by hiring subject matter experts to ensure that India has a powerful sector regulator which is well prepared to usher in the next wave of innovation.</li>
</ul>
<ul>
<li style="text-align: justify; ">We recommend that the Bill be inline with the Puttaswamy Judgement, and that of Anuradha Bhasin vs Union of India. The Bill, while paying close attention to the protection of users and duty of the user, fails to uphold rights of the user such as the right to privacy and the freedom of speech and expression.</li>
</ul>
<ul>
<li style="text-align: justify; ">As per clause 29, the objectives for which Telecommunication Development Fund (TDF) can be utilised is broad and therefore the government would be well-advised to specify that TDF can only be utilised to ensure digital access, adoption and usage for digitally marginalised groups. Furthermore, TDF must be ring fenced and not credited to the Consolidated Fund of India to ensure timely implementation which has thus far remained a significant challenge with the universal funds (USOF) regime.</li>
</ul>
<ul>
<li style="text-align: justify; ">The bill does not have any provisions upholding the principles of net neutrality. The government must act on TRAI’s recommendations and set up the multistakeholder body to check adherence to net neutrality requirements by incorporating provisions to that effect.</li>
</ul>
<ul>
<li style="text-align: justify; ">In the interest of transparency and accountability, a clause requiring the government to report (quarterly or annually) vital statistics relating to the functioning and financial aspects of matters contained within the draft legislation. The reporting should also include the number of licences provided, licences revoked, number of blocking and suspension orders passed among others.</li>
</ul>
<b><span> </span></b>
<h2><a name="_ob9eaos6tpj2"></a></h2>
<h2><a name="_bi7gk5lchjuq"></a>Detailed Response</h2>
<table class="a">
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<h3>Preamble<a name="_wftvycmz1mv2"></a></h3>
</td>
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</table>
<p class="MsoNormal"><span>No comments</span></p>
<p class="MsoNormal"><span><span> </span></span></p>
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<h3>Chapter 1: Short <a name="_bpiqa0d8cjnm"></a>Title, Extent and Commencement</h3>
</td>
</tr>
</tbody>
</table>
<p class="MsoNormal"><span>No comments</span></p>
<p class="MsoNormal"><span><span> </span></span></p>
<table class="a1">
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<td>
<h3>Chapter 2: Definitions<a name="_d5nm0amfnq2w"></a></h3>
</td>
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</table>
<p class="MsoNormal"><span> </span></p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>2(9)</span></b><span>: “message” means any sign, signal, writing, image, sound, video, data stream or intelligence or information intended for telecommunication. </span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The terms “intelligence” and “data stream” are not clear in the definition and these terms have not been defined elsewhere in the bill. Moreover, the definition of message is broad and may have implications with regard to surveillance and privacy of users, when read with clause 4(8) and clause 24(2)(a).</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation: </b><span>We recommend that the terms “intelligence” and “data stream” are defined under the bill, in order to reduce chances of excessive surveillance and to maintain the informational privacy of the individual. Additionally the definition could have an expansive list of what could constitute a message in order to prevent mission creep</span>.</p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>2(18)</span></b><span>: “telecommunication equipment” means any equipment, appliance, instrument, device, material or apparatus, including customer equipment, that can be or is being used for telecommunication, and includes software integral to such telecommunication equipment;”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment:</b> The inclusion of customer equipment in the definition of telecommunication equipment has implications. The definition of the “customer equipment”<a href="#_ftn4" name="_ftnref4"><sup><sup><span>[4]</span></sup></sup></a> as provided in clause 2(5) of the Bill is broad enough to include personal devices such as phones, routers, among others. As per clauses 23 to 26 the Central Government has wide ranging powers with respect to telecommunications equipment and telecommunications networks such as issuing various directions for telecommunications networks and even has the power to take over such networks. As the definitions currently stand, these provisions would automatically become applicable to customer equipment as well which may be a violation of the right to privacy of the citizens of the country.</p>
<p class="MsoNormal" style="text-align: justify; ">Moreover, according to 3(2)(c), possession of wireless equipment requires authorization. On reading 3(2)(c) with the definitions of wireless equipment in 2(23) and customer equipment in 2(5), an argument could be framed that the customer equipment could technically also require a licence, and so would the software integral to such equipment. If customer equipment is in fact included in telecom equipment and software integral to it is also included therein, then arguably even Android OS or other OS can be licensable.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation:</b> <span>Thus, we suggest that the government should remove customer equipment from the definition of telecommunication equipment.</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>2(21)</span></b><span>: “telecommunication services" means 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;”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Clause 2(21) expands the scope of “telecommunication services” significantly. The overly-broad definition of “telecommunication services”, and what constitutes a “message”<a href="#_ftn5" name="_ftnref5"><sup><sup><span>[5]</span></sup></sup></a>, brings within its ambit a host of internet services including but not limited to email, instant messaging, social media services, and even payments and e-commerce transactions. Neither the bill, nor the accompanying explanatory note provides a satisfactory rationale for an all-encompassing definition of “telecommunication services”. The explanatory note attached to the bill suggests that legislations in Australia, EU, UK, Singapore, Japan, and USA have been examined while drafting this bill. However, our research<a href="#_ftn6" name="_ftnref6"><sup><sup><span>[6]</span></sup></sup></a> suggests that none of these jurisdictions define “telecommunication services” so expansively and seek to regulate entities offering only internet based services companies through licensing, in particular. It may also be worthwhile to note that TRAI recommended against such an approach and also clarified that there is no issue of financial arbitrage.<a href="#_ftn7" name="_ftnref7"><sup><sup><span>[7]</span></sup></sup></a> However, the bill attempts to bring OTT communication services within the purview of licensing. From this definition read with other clauses of the bill, it appears that the bill tries to licence (or control !) not just telecommunication but all kinds of communication and internet-based services. Putting onerous regulatory requirements on every bit and byte flowing through the internet is unnecessary and regulatory overreach. There can be major implications of expanding the definition of telecommunication services, some of which are listed below:</p>
<p class="MsoNormal" style="text-align: justify; ">●<span> </span>The draft bill has stringent provisions on surveillance and shutdowns [clause 23 to clause 28]. These clauses would be naturally applicable to the expanded bucket of telecommunication services. This has serious implications on user’s right to privacy and freedom of expression online. For example, the bill gives the government the power to surveil citizens over apps such as WhatsApp, Telegram, to name a few, and even email. [some of this will be delved into greater detail in the foregoing sections]</p>
<p class="MsoNormal" style="text-align: justify; ">●<span> </span>Some of the internet-based services listed in the definition in 2(21) are already regulated under the Information Technology (IT) Act 2000. For example, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 regulates intermediaries, including the significant social media intermediaries (SSMI) such as Facebook and Twitter. Putting an additional regulatory burden on these service layer companies in the form of licensing, as envisaged in clause 3 and clause 4 of the bill would hamper the innovation in the sector. Furthermore, it has been observed that the compliance burden of regulations is higher on small businesses in cases where regulations impose identical requirements on entities regardless of the firm size.<a href="#_ftn8" name="_ftnref8"><sup><sup><span>[8]</span></sup></sup></a> Therefore, inserting such a requirement would have a detrimental impact on innovation because excessive compliance requirements would act as a significant entry barrier for smaller firms.</p>
<p class="MsoNormal" style="text-align: justify; ">Moreover, there is significant overlap between various services that are mentioned in the definition of telecommunication services which may lead to significant challenges. As these services are not defined elsewhere in the bill, it leaves scope for ambiguity. The bill makes a mention of “over-the-top (OTT) communication services” without defining it. We argue that making a distinction between communication and non-communication OTT services is superficial and does not take into account today’s realities where categorising applications into different categories is extremely difficult. A majority of the OTT applications such as e-commerce, healthcare, food delivery, payments, and so on, provide integrated communication channels. Disaggregation and making an artificial distinction of such apps into communication (with licensing requirements) and non-communication (without licensing requirements) would result in fragmentation of the internet which is definitely not a desirable outcome.</p>
<table class="a2">
<tbody>
<tr>
<td>
<p class="MsoNormal" style="text-align: justify; ">The “same-service same-rules” argument put forth by Telecommunication Service Providers (TSPs/ telcos) for the regulation of OTT apps which provide communication services [generally referred to as OTT communication services] at par with them is flawed for the reasons elaborated herein below:</p>
<p class="MsoNormal" style="text-align: justify; ">●<span> </span>It is well recognized that there are significant differences at the technical and architectural level between TSPs and OTT apps which provide communication services . Regulating OTT apps which provide communication services at par with TSPs just on the basis of functionality without considering the inherent technical and architectural differences between them is a definite recipe for failure.</p>
<p class="MsoNormal" style="text-align: justify; ">●<span> </span>Moreover, even at the functional level, OTT communication apps offer several additional features which are not available in the traditional TSP services.<a href="#_ftn9" name="_ftnref9"><sup><sup><span>[9]</span></sup></sup></a> Due to this, establishing functional equivalence between TSP’s services and OTT communication services is not only technically unfeasible but also unnecessary since those apps are better regulated by MEITY.</p>
<p class="MsoNormal" style="text-align: justify; ">●<span> </span>Furthermore, TSPs enjoy privileges which OTTs don't. For example, TSPs have exclusive rights to spectrum, right of Way (RoW), numbering resources, to name a few. TSPs have control over underlying broadband infrastructure which OTTs and other internet-based service companies do not have.</p>
</td>
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</tbody>
</table>
<p class="MsoNormal" style="text-align: justify; ">As opposed to what has been suggested in the bill i.e, licence all telecommunication services [clause 3(2)(a)] including the internet-based services, it may be prudent to explore alternative approaches to regulate this space. For instance, a “two-layered framework”<a href="#_ftn10" name="_ftnref10"><sup><sup><span>[10]</span></sup></sup></a> for regulatory intervention can be considered. In this two-layered framework, the first layer would be the network layer consisting of the network and infrastructure; and the second layer would be the service layer consisting of applications and services. The services in the second layer can be further refined into the following three categories: (i) services provided over a non-Internet Protocol (IP) based architecture e.g Public Switched Telephone Network (PSTN) voice calls provided over a circuit switched network; (ii) specialised services that are provided over an IP based architecture in a closed network including facility-based services e.g., facilities-based VoLTE calls to PSTN and IPTV; (iii) IP-based/ Internet-based services such as OTTs. The gist<a href="#_ftn11" name="_ftnref11"><sup><sup><span>[11]</span></sup></sup></a> of the framework is:</p>
<ul>
<li>The network layer <i>may</i> be regulated by way of licensing.</li>
</ul>
<ul>
<li>Non-IP Services and Specialised services <i>may</i> be regulated by way of licensing.</li>
</ul>
<ul>
<li>Internet-based services should be regulated by instruments other than licensing. Such instruments should preferably be in the form of legislations like the IT Act and its rules thereunder.</li>
</ul>
<p class="MsoNormal" style="text-align: justify; ">While there can be approaches apart from the one described above to regulate internet-based services such as the OTT and those approaches can be discussed and debated, putting licensing requirements for every internet-based service is not the way forward.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation</b>: <span>We recommend that the scope of the bill should be reconsidered and internet-based services should be removed from the definition of telecommunication services. In the interest of transparency and accountability, prior to enacting such a legislation the government would be well-advised to conduct a “regulatory impact assessment” exercise and put the report in public, as done in jurisdictions such as the European Union. </span></p>
<p class="MsoNormal"><span><span> </span></span></p>
<table class="a3">
<tbody>
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<td>
<h3>Chapter 3: Licensi<a name="_ffu23qf3tbmq"></a>ng, Registration, Authorization and Assignment</h3>
</td>
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</tbody>
</table>
<p><a name="_9xd53hebzg69"></a><b><span>Clause 4. Licensing, Registration Authorization and Assignment</span></b></p>
<p class="MsoNormal"><span>➔<span> </span></span><b><span>4(6): </span></b><span> “The possession and use of any equipment that blocks telecommunication is prohibited, unless authorised by the Central Government for specific purposes.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: While assuming jurisdiction over equipment capable of blocking telecommunication via this clause is a welcome step, it is not clear why equipment capable of intercepting telecommunications has been kept out of the scope of this clause. Since unlawful and unauthorised interception of telecommunications is a violation of the fundamental right to privacy of an individual,<a href="#_ftn12" name="_ftnref12"><sup><sup><span>[12]</span></sup></sup></a> it is imperative that the scope of this clause be increased to include interception equipment as well. Furthermore, the latter part of the provision mentions “specific purposes” without adequate checks and balances in place. As such, the specific purposes must be defined exhaustively to ensure that this power is not misused.</p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>4(7):</span></b><span> "Any entity which is granted a licence under sub-clause (2) of clause 3, shall unequivocally identify the person to whom it provides services, through a verifiable mode of identification as may be prescribed."</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: All services do not require a verification of the identity of a person. There is a legitimate need to verify a person in the case of financial transactions, however a similar level of scrutiny is not warranted for applications that a person might use once, or applications that do not pose a threat to anyone. For example the need to verify a person through Know Your Customer (KYC) or otherwise for an application to order food, or an application which is meant for communication can be excessive regulation. Furthermore, number based internet communication apps such as Whatsapp require users to sign in through a mobile number, which have already gone through a KYC process. Therefore, dual KYC would be redundant and serve no purpose.</p>
<p class="MsoNormal" style="text-align: justify; ">The Supreme Court while looking at the constitutionality of the Aadhaar Act upheld the need for banking and financial institutions to require an individual’s Aadhaar number stating the legitimate aim of preventing money laundering; however, the Court struck down the provision that required any private entity to collect Aadhaar details.<a href="#_ftn13" name="_ftnref13"><sup><sup><span>[13]</span></sup></sup></a> Justice Bhushan held that the collection by private entities violated the right to privacy, by failing the first prong of the test laid down in Puttaswamy, the test of legality.<a href="#_ftn14" name="_ftnref14"><sup><sup><span>[14]</span></sup></sup></a></p>
<p class="MsoNormal"><b>Recommendation<i> </i>:<i> </i></b><span>Clause 4(7) should be deleted.</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>4(8)</span></b><span> “The identity of a person sending a message using telecommunication services shall be available to the user receiving such message, in such form as may be prescribed, unless specified otherwise by the Central Government.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Although the intent behind this provision may have been to curb the menace of anonymous harassment of users, a blanket requirement to reveal the identity of the sender of a message in every instance may be considered a violation of the right to privacy of the sender. . There are clearly a number of competing rights involved here and the issue needs to be addressed in a more nuanced manner. Additionally there are a number of services such as chat applications providing support for mental health, that allow users to be anonymous in order to remove the concern and stigma around seeking help. A requirement that the user's name be revealed in these applications could hinder the functioning of these services as well as prevent more people from seeking help.</p>
<p class="MsoNormal" style="text-align: justify; ">Anonymity was also explained in the Puttaswamy Judgment where it was stated that - “Privacy involves hiding information whereas anonymity involves hiding what makes it personal. An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy.” In his judgement, Justice F. Nariman talks about different aspects of the right to privacy in the Indian context and observes “Informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore recognises that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right”.<a href="#_ftn15" name="_ftnref15"><sup><sup><span>[15]</span></sup></sup></a></p>
<p class="MsoNormal" style="text-align: justify; ">In this backdrop it is perhaps preferable that the issue be addressed through separate guidelines rather than through a blanket direction in the Statute. Recently the Department of Telecom sent a reference to the TRAI for framing a mechanism for using KYC based identification.<a href="#_ftn16" name="_ftnref16"><sup><sup><span>[16]</span></sup></sup></a> It would be advisable if the TRAI in its response also takes into account the competing rights involved in this issue of caller identification and suggests a framework that addresses these concerns as well.</p>
<p class="MsoNormal" style="text-align: justify; "><span>Retaining anonymity on the internet</span>: Individuals may choose to remain anonymous online for a number of reasons. This includes employees expressing opinions about their employers and whistleblowers, people providing anonymous tips to newspapers or law enforcement, people expressing political opinions and criticism that may be subject to persecution, or simply someone saying something that they may be embarrassed about.<a href="#_ftn17" name="_ftnref17"><sup><sup><span>[17]</span></sup></sup></a> In India, in particular, an individual’s caste can be derived from their name, and they may choose to remain anonymous or adopt a pseudonym to escape centuries of stigma and discrimination that their communities have faced. Religious, gender and sexual minorities may also make this choice for similar reasons. The broad definition of telecommunication services in the bill places restrictions on anonymity online and severely degrades an individual’s ability to exercise their fundamental right to freedom of expression.</p>
<p class="MsoNormal" style="text-align: justify; "><span>Right to privacy</span>: The overly broad definition of “telecommunication services” and what constitutes a “message” also brings a number of digital services under the ambit of this bill. This can include email, instant messaging, social media services, and even payments and e-commerce transactions. Mandating identification of individuals as they navigate these services, which they require to go about their daily lives, creates an unprecedented potential for surveillance and abuse of personal information. To evaluate the legal validity of this infringement on privacy, we can utilise the necessity and proportionality tests put forth by the Puttaswamy Judgment. The explanatory note accompanying the bill states that the purpose of this provision is to “prevent cyber frauds”, establishing a legitimate aim for mandating identification. However, it fails to justify whether this is the least intrusive means necessary to achieve the stated aim. Law enforcement agencies have access to a wide variety of metadata, such as IP addresses, already collected by digital services today, which can be used to identify individuals committing cyber crimes. Furthermore, as the internet is a global network, bad actors can evade identification by routing their internet traffic through another country by using services such as Virtual Private Network (VPNs), proxies and onion routing. Well resourced actors can simply hire someone in another country to communicate on their behalf. The infringement upon the right to privacy by this provision is also disproportionate to the objective sought. By mandating storage of personally identifiable information that is not required for the operation of the wide range of services that fall under the ambit of this bill, it allows not only for state surveillance, but also creates the possibility of misuse by criminal actors and hostile states who may gain unlawful access to this information through data breaches. Overall, this provision can easily be circumvented by the bad actors it intends to catch, leaving us with a surveillance mechanism that is ripe for misuse against ordinary, law-abiding citizens.</p>
<p class="MsoNormal" style="text-align: justify; "><span>Misunderstanding how the internet works</span>: This draft bill assumes and propagates a centralised view of the internet. Unlike traditional telecommunication services, which require access to a finite spectrum or other physical infrastructure, the internet allows any individual or organisation to self-host their own communication service. Several organisations and technologically savvy individuals host their own email services, instant messaging services, blogs and social media networks. It is unclear how the licensing provisions in this bill apply to people developing and hosting their own communication equipment.</p>
<p class="MsoNormal"><b>Recommendation<i> </i>:<i> </i></b><span>Clause 4(8) should be deleted.</span></p>
<h3><a name="_h6yjqqt5bgdv"></a><span>Clause 5. Spectrum Management</span></h3>
<p class="MsoNormal"><span>➔<span> </span></span><b><span>5(2)(b)</span></b><span>: “administrative process for governmental functions or purposes in view of public interest or necessity as provided in Schedule 1; or”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment: </b>Even though the draft bill seeks to provide an explicit statutory framework and predictability for spectrum management policy in India, it appears that for the large part it would be relying on spectrum auctions for assignment of spectrum. While the bill provides for administrative allocation of spectrum for governmental functions or purposes in view of public interest or necessity as provided in Schedule 1, the explanatory note provided for the draft bill indicates auction to be the predominant method for spectrum assignment. Even though the explanatory memorandum cannot be used for legal interpretation, it can be used to indicate that for the foreseeable future the government intends to allocate spectrum predominantly through auctions. While it can be argued that an auction based regime ensures transparency, it also creates significant barriers to entry for smaller operators. It is also pertinent to mention that in the seven auctions held since 2010, the government has successfully sold 100 percent of the auction only once. Relying solely on auctions since 2010 has led to unsold spectrum, lost revenue, and deferring of the rural digital ecosystem.<a href="#_ftn18" name="_ftnref18"><sup><sup><span>[18]</span></sup></sup></a> Therefore, auctions should be supplemented with “administrative allocation” and other innovative approaches to ensure that affordable broadband connectivity does not remain within the remit of a few. For instance, Canada has initiated a consultation on a non-competitive local licensing framework in the 3900-3980 MHz Band and Portions of the 26, 28 and 38 GHz Bands, and one of its objectives is to facilitate broadband connectivity in rural areas.<a href="#_ftn19" name="_ftnref19"><sup><sup><span>[19]</span></sup></sup></a> <span>Therefore, we would like to recommend the DoT to explore other forms of spectrum assignment and not rely solely on auctions to ensure efficient utilisation of available spectrum and to also ensure affordable access to hitherto underserved regions. </span></p>
<p class="MsoNormal" style="text-align: justify; ">Moreover, the bill does not provide clarity with regard to unlicensed spectrum for public Wi-Fi, and assignment of shared spectrum for satcom services.<a href="#_ftn20" name="_ftnref20"><sup><sup><span>[20]</span></sup></sup></a> Spectrum allocation for satcom becomes all the more important as the draft bill seems to give a preference to auction for spectrum assignment, while the global practice on spectrum assignment for satcom has been administrative allocation.</p>
<p class="MsoNormal" style="text-align: justify; ">Furthermore, clause 5(2)(b) read with Schedule 1 suggests that BSNL and MTNL can acquire spectrum through an administrative process in view of public interest or necessity. However, we would like to submit that spectrum assignment to BSNL and MTNL may no longer serve the public interest and it only protects a very small interest group. For context, BSNL and MTNL have a combined market share of only 9.83%, as per TRAI subscription data of Aug 31, 2022.<a href="#_ftn21" name="_ftnref21"><sup><sup><span>[21]</span></sup></sup></a> For such a small subscriber share, it cannot be argued that these PSUs serve a public interest. The government can easily migrate these subscribers to the other three telcos. Moreover, this also provides the PSUs with an unfair advantage over its competitors and distorts the level playing field, thereby creating competition concerns in the market.</p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>5(8)</span></b><span>: “The Central Government may, to promote optimal use of the available spectrum assign a particular part of a spectrum that has already been assigned to an entity (“primary assignee”), to one or more additional entity/ entities (“secondary assignees”), where such secondary assignment does not cause harmful interference in the use of the relevant part of the spectrum by the primary assignee, subject to the terms and conditions as may be prescribed.” </span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment: “</b>Secondary assignment” of spectrum and the shift from “right to exclusive use” to “right to protection from interference”, as envisaged in 5(8) is a progressive move towards efficient utilisation of spectrum.</p>
<p class="MsoNormal" style="text-align: justify; ">CIS, in its past submission<a href="#_ftn22" name="_ftnref22"><sup><sup><span>[22]</span></sup></sup></a> to the TRAI had highlighted the merits of a “use-or-share” approach in spectrum. The chasm that exists between expensive exclusive spectrum licensing and the licence-exempt ecosystem can be bridged by enshrining “use-it-or-share-it” provisions in spectrum licences. As such, ‘use-it-or-share-it’ rules enable the regulator to grant secondary access to licensed or governmental spectrum that is unused or underutilised.<a href="#_ftn23" name="_ftnref23"><sup><sup><span>[23]</span></sup></sup></a> ‘Use-it-or-share-it’ rules expand the productive use of spectrum without risking harmful interference or undermining the deployment plans of primary licensees. Clauses such as 5(8) enable “use-or-share” provisions are a step in the right direction.</p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>5(9)</span></b><span>: “The Central Government, after providing a reasonable opportunity of being heard to the assignee concerned, if it determines that spectrum that has been assigned, has remained unutilized for insufficient reasons for a prescribed period, may terminate such assignment, or a part of such assignment, or prescribe further terms and conditions relating to spectrum utilization.”</span></p>
<p class="MsoNormal"><b>Comment</b>: There is lack of coherence between 5(8) and 5(9) when read together. 5(8) and 5(9) should be put as sub-clauses under a parent clause to ensure clarity.</p>
<p class="MsoNormal" style="text-align: justify; ">We believe that the provision must be articulated clearly to state that licensees would first be given an opportunity to share spectrum and in cases where the entity fails to do so within a reasonable amount of time, the spectrum licence would be cancelled to prevent wilful spectrum hoarding. The Independent Communications Authority of South Africa (ICASA) in the <i>2nd Information Memorandum </i>has expressed similar provisions with clarity. While, we feel five years may be an unnecessarily long timeframe for the government to enact spectrum sharing provisions, the language put forth by ICASA captures the essence of our argument:</p>
<p class="MsoNormal">“11.6.2 In cases where the spectrum is not fully utilised by the licensee within 5 years of issuance of the Radio Frequency Spectrum Licences, the Authority will initiate the process for the Licensee:</p>
<p class="MsoNormal" style="text-align: justify; ">11.6.2.1 to share unused spectrum in all areas to ECNS licensees who may, inter alia, combine licensed spectrum in any innovative combinations in order to address local and rural connectivity in some municipalities including by entrepreneurial SMMEs;</p>
<p class="MsoNormal" style="text-align: justify; ">11.6.2.2 to surrender the radio frequency spectrum licence or portion of the unused assigned spectrum in accordance with Radio Frequency Spectrum Regulations, 2015”</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation</b>:<span> Clause 5(8) and 5(9) must be brought under one clause and it must be clarified that licence holders would lose their licence in case they fail to successfully incorporate spectrum sharing.</span></p>
<h3><a name="_rnugk2cdpjik"></a><span>Clause 7. Breach of Terms and Conditions</span></h3>
<p style="text-align: justify; "><a name="_brr2sld72hgs"></a><span>➔<span> </span></span><b><span>7(1)</span></b><span>: “In case of breach of any of the terms and conditions of licence, registration, authorization or assignment granted under this Act, the Central Government may, after providing an opportunity of being heard to the party concerned, do any one or more of the following: ……”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Usually the consequences of breach are specifically illustrated in the licence. Listing the consequences of breach in the statute itself may lead to lack of clarity unless the terms of licence are also referenced. It could also be argued by a defaulting licensee that the powers listed in clause 7(1) are exhaustive and the Central Government cannot add any other conditions for breach of the conditions of the licence as in the licence agreement and any such conditions not specified in clause 7(1) are void and ultra vires the Statute.</p>
<p class="MsoNormal"><b>Recommendation</b>: <span>In order to avoid such a situation, the clause should clearly state whether the powers listed in clause 7(1) are in addition to the terms and conditions that may be specified in the licence. </span></p>
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<h2>Chapter 4: Right of Way for Telecommunication Infrastructure<a name="_1770c14pfm88"></a></h2>
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<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The draft bill attempts to provide for a non-discriminatory and an affordable Right-of-way regime, which is appreciable. However, the provision suggests that the central government has an overriding power over the local government. Provided that the Constitution of India defines certain powers which reside with the local authority in terms of providing permissions in the local areas, it is unclear from the bill on how the coordination between various authorities will take place. <span>We recommend that there needs to be a mechanism that ensures coordination between centre, state, and local authorities.</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>❖<span> </span></span><b><span>14(3)</span></b><span> : “In the event the person under sub-clause (1) does not provide the right of way requested, and the Central Government determines that it is necessary to do so in the public interest, it may, either by itself or through any other authority designated by the Central Government for this purpose, proceed to acquire the right of way for enabling the facility provider to establish, operate, maintain such telecommunication infrastructure, in the manner as may be prescribed.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The right of the Central Government to acquire the right of way should be in lieu of adequate and appropriate compensation to be paid to the property owner. This requirement should be clearly mentioned in sub-clause (3). The clause as it currently stands only mentions the Central Government’s right to acquire but contains no mention of said acquisition being in lieu of adequate and proportionate compensation.</p>
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<h2>Chapter 5. Rest<a name="_x52xctf02mif"></a>ructuring, Defaults in Payment and Insolvency</h2>
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<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>19(1)</span></b><span>: “Any licensee or registered entity may undertake any merger, demerger or acquisition, or other forms of restructuring, subject to provisions of applicable law, after providing notice to the Central Government of the same.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Sub-clause (1) only requires that the Central Government be given a notice in case of merger, demerger, acquisition or restructuring of the licensee. Although sub-clause (2) requires that the successor entity shall comply with all the terms and conditions of the licence, considering the strategic nature of the telecommunications sector<a href="#_ftn24" name="_ftnref24"><sup><sup><span>[24]</span></sup></sup></a> it would be advisable to change the requirement of notice to a requirement of permission from the Central Government for restructuring the business rather than a mere notice requirement. In order for this requirement to not be a hindrance to the growth of the industry there could be a provision for deemed approval if the approval is not granted within a particular period of time.<a href="#_ftn25" name="_ftnref25"><sup><sup><span>[25]</span></sup></sup></a></p>
<p class="MsoNormal"><b>Recommendation: </b><span>Any merger in the sector must be approved by the DoT. In order to ensure that this does not lead to unnecessary delays, a deemed approval route may be considered.</span></p>
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<h3>Chapter 6: Standards, Public Safety and National Security<a name="_dzmhkxq4hr9n"></a></h3>
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<p class="MsoNormal" style="text-align: justify; "><span>❖<span> </span></span><b><span>24(2)</span></b><span>: “On the occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central or a State Government, may, if satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence, for reasons to be recorded in writing, by order:</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(a) direct that any message or class of messages, to or from any person or class of persons, or relating to any particular subject, brought for transmission by, or transmitted or received by any telecommunication services or telecommunication network, shall not be transmitted, or shall be intercepted or detained or disclosed to the officer mentioned in such order; or </span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(b) direct that communications or class of communications to or from any person or class of persons, or relating to any particular subject, transmitted or received by any telecommunication network shall be suspended”.</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The pre-conditions for interception contained in the Bill are similar to those contained in the Telegraph Act, 1885, i.e. “occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central or a State Government, may, if satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence”. Although more stringent, these conditions are different from those contained in the Information Technology Act, 2000 which does not contain the added safeguard of there being a “public emergency or in the interest of public safety”.<a href="#_ftn26" name="_ftnref26"><sup><sup><span>[26]</span></sup></sup></a> With consumers spending more and more time on the internet and using internet based technologies and applications for communications, there is significant regulatory overlap between the Telecommunications Bill and the Information Technology Act, 2000. It is therefore advisable that the interception and blocking provisions under both the legislations should be aligned and standardised.</p>
<p class="MsoNormal" style="text-align: justify; ">The judgement in the Puttaswamy case provides some guidance to assess the limits and scope of the constitutional right to privacy in the form of the three prong test. The test requires the existence of a law, a legitimate state interest and the restriction (to privacy) should be ‘proportionate'. The order to intercept, detain, disclose or suspend a communication made between private individuals, acts as a violation of privacy and to ensure that this does not provide extensive grounds to surveil people, the three prong test especially the grounds of proportionality combined with the necessity provision are essential to ensure that this provision is not used disproportionately.</p>
<p class="MsoNormal" style="text-align: justify; ">More recently in <i>Anuradha Bhasin vs Union Of India</i> the Supreme Court stated “A public emergency usually would involve different stages and the authorities are required to have regards to the stage, before the power can be utilised under the aforesaid rules. The appropriate balancing of the factors differs, when considering the stages of emergency and accordingly, the authorities are required to triangulate the necessity of imposition of such restriction after satisfying the proportionality requirement.” The court while passing the judgement also stated “The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed.”<a href="#_ftn27" name="_ftnref27"><sup><sup><span>[27]</span></sup></sup></a> The judgement while examining the duration of the suspension mentioned that any order which suspends the internet must adhere to the principle of proportionality and must not extend beyond necessary duration.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation</b>: <span>There is a need to look at the implications of such an order enabling blocking or suspension of services post the Puttaswamy judgement where informational privacy, and dignity were considered as some of the aspects of privacy. While this clause uses the test of necessity and expediency, we suggest that along with these two the clause also introduce the three prong test laid out in Puttaswamy I. In addition to this since this legislation has been drafted subsequent to the Anuradha Bhasin judgement the provisions of the legislation must be in conformity with the same in order to avoid confusion and reduce litigation. </span></p>
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<h3>Chapter 7: Telecommunication Development Fund<a name="_3naj84qcw1se"></a></h3>
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<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>Clause 29:</span></b><span> “The sums of money received towards the Telecommunication Development Fund under clause 27, shall first be credited to the Consolidated Fund of India, which shall be appropriated by the Central Government, in accordance with law made by the Parliament, to the Telecommunication Development Fund from time to time for being utilised to meet any or all of the following objectives:</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(a) support universal service through promoting access to and delivery of telecommunication services in underserved rural, remote and urban areas;</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(b) research and development of new telecommunication services, technologies, and products;</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(c) support skill development and training in telecommunication;</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(d) support pilot projects, consultancy assistance and advisory support towards provision of universal service under sub-clause (a) of this clause; and</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(e) support introduction of new telecommunication services, technologies, and products.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Clause 27 of the draft bill proposes to rename the Universal Service Obligation Fund (USOF) to Telecommunication Development Fund (TDF) and expand its scope to include underserved urban areas in addition to rural and remote areas. This has been done, ostensibly to expand the scope of current USOF to include within its ambit underserved urban areas, research and development, and skill development, among others.<a href="#_ftn28" name="_ftnref28"><sup><sup><span>[28]</span></sup></sup></a> While there is a need to spend the vast amount of unspent balance within the USOF, and spending it on skill development, investments in innovative low cost-technology that enables affordable broadband connectivity for all is important, the manner in which the TDF is currently defined is loose and vague. In order to ensure that the fund is spent to include digitally marginalised groups only, the purpose for which the TDF can be used needs to have an “exact” and “specific definition”. The purpose should be narrowly defined to include only those activities that have the potential to mitigate and bridge the many digital divides that exist in our country because in its absence TDF may be misused to subsidise urban middle class users as opposed to originally intended beneficiaries - the hitherto marginalised sections of the society.</p>
<p class="MsoNormal" style="text-align: justify; ">Furthermore, the Bill suggests that the money received towards the TDF shall first be credited to the Consolidated Fund of India, which shall be appropriated by the Central Government, in accordance with law made by the Parliament. This is a relic of the erstwhile USOF policy funds, and allocations are made on a demand and review basis. One of the reasons that India has an unspent balance of nearly INR 50,000 crore in USOF is owing to a delay in its implementation due to bureaucratic delays since all credits to this fund require parliamentary approvals.<a href="#_ftn29" name="_ftnref29"><sup><sup><span>[29]</span></sup></sup></a> In order to ensure that funds received through USOF/TDF are utilised efficiently, the government must ring fence these funds and ensure that they are only spent on the objectives envisaged under the TDF. Furthermore, funds collected for this purpose must not be credited to the Consolidated Fund of India since requiring additional approvals delays implementation of the fund. For instance, the rural road fund is ring fenced which has ensured smoother flow of funds.<a href="#_ftn30" name="_ftnref30"><sup><sup><span>[30]</span></sup></sup></a> Moreover, auction proceeds, and other levies on the sector such as service tax and GST are already credited to the Consolidated Fund of India, therefore the government can afford to ring fence funds collected for universal service as opposed to crediting them to the Consolidated Fund of India.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation:</b> <span>The objectives for which the TDF can be utilised is vague and too broad and therefore the government would be well-advised to specify that TDF can only be utilised to ensure digital access, adoption and usage for digitally marginalised groups. This would go a long way in ensuring that the funds are not misspent on providing subsidies to users that may not be in need for such a subsidy. Furthermore, TDF must be ring fenced and not credited to the Consolidated Fund of India to ensure timely implementation.</span></p>
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<h3>Chapter 9: Protection of users<a name="_z0cogooipp2d"></a></h3>
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<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>Clause 34</span></b><span> : “In the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence, no user shall furnish any false particulars, suppress any material information or impersonate another person while establishing identity for availing telecommunication services.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The intent behind this provision appears to be to prevent misrepresentation or identity and the giving of false information for availing telecom services. Whilst it is understandable that there may be privacy issues involved in the matter of revealing one’s identity for availing telecommunications services, the requirement to provide correct identity documents is a well established and accepted norm in the industry today which is manifest in the KYC requirements that have to be fulfilled by every customer. Therefore there is no need to qualify the obligation to provide true and accurate documents with the phrase “in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence”.</p>
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<h3>Chapter 10: Miscellaneous<a name="_bthxwgtsxcmv"></a></h3>
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<p class="MsoNormal"><span>➔<span> </span></span><b><span>Clause 46: Amendment to Act 24 of 1997</span></b></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Clause 46 of the Bill significantly dilutes the power of TRAI and effectively renders the Regulator to the role of the government’s rubber stamp through proposed amendments to clause 11<a href="#_ftn31" name="_ftnref31"><sup><sup><span>[31]</span></sup></sup></a> of the TRAI Act. Section 11 of the TRAI Act as it currently stands requires DoT to solicit recommendations from TRAI on issues pertaining to licensing, new services, and spectrum management, where the powers vest with the government. However, if the Bill becomes a law, this would not be mandatory on the government’s part. It may or may not seek the Regulator’s recommendations, thus eroding the transparency which was built in the process of policymaking. Consequently, as per the current Bill, the government will effectively be the licensor, operator, and the Regulator. Since the government owns BSNL/MTNL (a telecom operator) the role of an independent regulator assumes even more significance. Even without the proposed amendments, the Indian regulator has been largely ineffective since it lacks significant functional autonomy including negligible penalisation powers, limited role in its hiring decisions, and lack of financial autonomy since it needs DoT’s approvals for its budget.<a href="#_ftn32" name="_ftnref32"><sup><sup><span>[32]</span></sup></sup></a> Even in its present form, TRAI has lesser power as compared to many regulators across the globe. For instance Federal Communications Commission (FCC) of the USA, Ofcom of the UK, and regulators in Pakistan, Bangladesh, and Sri Lanka have powers over spectrum and licensing, while TRAI has only recommendatory powers.<a href="#_ftn33" name="_ftnref33"><sup><sup><span>[33]</span></sup></sup></a> With the advent of 5G, the lines between telecom and digital services are likely to blur even more and in order to ensure that we are able to exploit the vast potential this new wave of innovations could unleash, it is important to have skilled policymakers well-versed with technology at the helm of affairs. Amidst this backdrop, it is important to invest in enhancing TRAI’s competence by hiring subject matter experts, and ensuring that TRAI functions as an independent and transparent regulator.</p>
<p class="MsoNormal" style="text-align: justify; ">Furthermore, the bill empowers the government to set up an alternate dispute resolution mechanism effectively making the role of Telecom Disputes Settlement and Appellate Tribunal (TDSAT) redundant. Currently, TDSAT is the first body which looks into any dispute between two (i) telecom operators, (ii) telecom operators and the government, and (iii) between operators, the government and as well as the regulator. Only once the TDSAT has passed orders on such disputes can they be appealed in the Supreme Court. Therefore, clauses diluting the power of TRAI must be deleted. The government must also clarify what it means by an alternate dispute resolution mechanism, and the role it envisages for TDSAT.</p>
<p class="MsoNormal" style="text-align: justify; ">Lastly, TRAI process is consultative by design providing various stakeholders with an opportunity to participate in the policymaking process. However, the proposed bill does not have any provisions mandating the DoT to hold transparent stakeholder consultations.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation</b>: <span>Clause 46 of the proposed bill should be deleted. Furthermore, the government must work towards further strengthening TRAI by hiring subject matter experts and further empowering TRAI by giving it penalising powers. Also, TRAI must be responsible for conducting spectrum audits and ensuring that licensees are adhering to licensing conditions. </span></p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>46(k)</span></b><span>: “Provided further that the Authority may direct a licensee or class of licensees to abstain from predatory pricing that is harmful to the overall health of the telecommunication sector, competition, long term development and fair market mechanism” shall be inserted.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The Bill through clause 46 (k) empowers the TRAI to decide on ‘predatory pricing’, which falls within the remit of the Competition Commission of India (CCI) which could potentially create jurisdictional overlaps between the two regulators. Even in the past, there has been friction between the two regulators on whether TRAI has jurisdiction to decide on matters relating to competition and predatory pricing in telecom tariffs.<a href="#_ftn34" name="_ftnref34"><sup><sup><span>[34]</span></sup></sup></a> In <i>Competition Commission of India v. Bharti Airtel Limited & Ors</i><a href="#_ftn35" name="_ftnref35"><sup><sup><span>[35]</span></sup></sup></a>, Supreme Court of India rejected the contention by the incumbent dominant operators (IDOs) that TRAI, as the sectoral regulator, had exclusive jurisdiction to rule on competition-related aspects in the industry. It ruled that if TRAI had determined that the IDOs had formed a cartel or colluded to block Jio’s entry, the CCI then would have jurisdiction to decide whether the IDOs’ actions had an appreciable adverse effect on competition. While TRAI’s powers of sanction were limited by the TRAI Act, the CCI had the power to prescribe and enforce structural remedies to promote genuine competition in the telecom sector. The court prescribed comity between TRAI and the CCI in the discharge of their roles.<a href="#_ftn36" name="_ftnref36"><sup><sup><span>[36]</span></sup></sup></a> Over time, the telecom sector has evolved from being a rudimentary voice service to being a complex data-centric converged service, and even though overlapping jurisdictions cannot be completely wished away,<a href="#_ftn37" name="_ftnref37"><sup><sup><span>[37]</span></sup></sup></a> there is a need for clearly defined roles for various ministries and regulators. And there will also be a need to adopt a consultative approach towards policymaking through inter-departmental consultations, an area that India has thus far been lacking in. As evidenced by the International Telecommunication Union’s (ITU) Global ICT Regulatory Outlook 2020, which ranks India at 94 (out of a total of 193) countries in terms of the maturity and collaborative approach shown by telecom regulatory bodies, lower than countries such as Japan, Singapore, Korea, Pakistan, Kenya, and Nigeria.<a href="#_ftn38" name="_ftnref38"><sup><sup><span>[38]</span></sup></sup></a></p>
<p class="MsoNormal" style="text-align: justify; ">Therefore, inserting such a provision may create more chaos and regulatory uncertainty. <span>It is advisable that the government ensures there are no jurisdictional issues between the two regulators by clearly defining the role of TRAI and inserting provisions to facilitate inter regulatory consultation mechanism.</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>Clause 48</span></b><span>: “If the person committing an offence under this Act is a company, the employee(s) who at the time the offence was committed, was responsible to the company for the conduct of the business relating to the offence, shall be liable to be proceeded against and punished accordingly.</span><span>”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: While there is a need to ensure that offenders and violators of provisions under this Act are provided with penalties, there is a need to look at ways to ensure that the fear of penalties does not stifle innovation. This legislation intends to bring into its ambit a number of new stakeholders who might not be able to comply with all the requirements due to the inexperience, which could lead to inadvertent offences and violations. The current wording of clause 48, does not make any distinction between offences that were done with prior knowledge and malafide intentions and those done without knowledge of its commission.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation</b>: <span>We suggest that the Act keeps the wordings in line with similar legislations such as the draft Personal Data Protection Bill 2019. The revised text could have a proviso that reads as “Nothing contained in sub-clause (1) shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.”</span></p>
<p class="MsoNormal" style="text-align: justify; ">Keeping in mind the existing burden of work both on the executive and the judiciary, and the time sensitive nature of the provisions of the Bill there is a need to look at different, swift, and inexpensive strategies. One possible way could be through Informal Guidances, similar to Security and Exchange Board of India (SEBI)’s Informal Guidance Scheme, which enables regulated entities to approach the Authority for non-binding advice on the position of law.<a href="#_ftn39" name="_ftnref39"><sup><sup><span>[39]</span></sup></sup></a> As there will be a number of new players that will be under the Bill, it would be useful for entities to get guidance. Another possible step could be to use Undertakings, where the regulator enforces the errant party to seek contractual undertakings to take certain remedial steps.<a href="#_ftn40" name="_ftnref40"><sup><sup><span>[40]</span></sup></sup></a></p>
<p class="MsoNormal" style="text-align: justify; ">➔<span> </span><b><span>Clause 51</span></b><span>: “Notwithstanding anything contained in any law for the time being in force, where the Central Government, a State Government or a Government of a Union Territory is satisfied that any information, document or record in possession or control of any licensee, registered entity or assignee relating to any telecommunication services, telecommunication network, telecommunication infrastructure or use of spectrum, availed of by any entity or consumer or subscriber is necessary to be furnished in relation to any pending or apprehended civil or criminal proceedings, an officer, specially authorised in writing by such Government in this behalf, shall direct such licensee, registered entity or assignee to furnish such information, document or record to him and the licensee, registered entity or assignee shall comply with the direction of such officer.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The requirement to provide information or document even for “pending or apprehended civil or criminal proceedings” is too wide and could be misutilised, specially given the fact that there is no judicial authority making the determination that the information or document is required for such proceedings. Even in clause 91 of the Cr.P.C. , the requirement to provide documents or information is only for existing investigations, inquiries, trials or proceedings. <span>Therefore the requirement to provide information, document or record for apprehended civil proceedings should be deleted.</span></p>
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<h3>Additional Comments<a name="_drm48hrug1gb"></a></h3>
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<p class="MsoNormal" style="text-align:justify; ">➔<span> </span><b>Comment: </b>The bill fails to incorporate net neutrality requirements</p>
<p class="MsoNormal" style="text-align:justify; ">Technological convergence and vertical integration within the sector make adherence to net neutrality critical to keep discrimination and anti-competitive conduct in check. While extant TRAI regulations, forbid TSPs from discriminating on the basis of content, sender or receiver, protocols or user equipment based on prior arrangements, by slowing down one application or providing fast lanes to another. However, there is lack of clarity on how adherence to net-neutrality principles is currently being monitored. In 2020, TRAI had recommended setting up a Multistakeholder body for monitoring adherence to net neutrality by licensees.<a href="#_ftn41" name="_ftnref41"><sup><sup><span>[41]</span></sup></sup></a> However, the draft bill fails to codify net neutrality requirements and as such non-discriminatory treatment of traffic does not find a mention in the bill or the explanatory note accompanying it.</p>
<p class="MsoNormal"><b>Recommendation</b>:<span> The government must act on TRAI’s recommendations and set up the multistakeholder body to check adherence to net neutrality requirements by incorporating provisions to that effect.</span></p>
<p class="MsoNormal"><span><span> </span></span></p>
<p class="MsoNormal" style="text-align: justify; ">➔<span> </span><b>Comment: </b>There is no provision in the bill that requires the government to report vital statistics and other information relating to the sector. We understand that both TRAI and DoT have taken efforts in publishing those statistics through DoT dashboard and reports such as the annual report, performance indicator reports, and subscriber reports. But, putting reporting requirements in the statute would be better.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation: </b><span>In the interest of transparency and accountability, a clause requiring the government to report (quarterly or annually) vital statistics relating to the functioning and financial aspects of matters contained within the draft legislation. The reporting should also include the number of licences provided, licences revoked, number of blocking and suspension orders passed among others.<br /> </span></p>
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<div id="ftn1">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref1" name="_ftn1"><sup><sup><span>[1]</span></sup></sup></a><span> “Response to TRAI consultation on Auction of Spectrum in frequency bands identified for IMT/5G”, Centre for Internet and Society, accessed 10 November 2022,</span><a href="https://cis-india.org/telecom/blog/response-to-trai-consultation-auction-of-spectrum-in-frequency-bands-identified-for-imt-5g"><span>https://cis-india.org/telecom/blog/response-to-trai-consultation-auction-of-spectrum-in-frequency-bands-identified-for-imt-5g</span></a><span> </span></p>
</div>
<div id="ftn2">
<p class="MsoNormal"><a href="#_ftnref2" name="_ftn2"><sup><sup><span>[2]</span></sup></sup></a><span> “Response to TRAI Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services”,Centre for Internet and Society, accessed 10 November 2022, </span><a href="https://cis-india.org/internet-governance/blog/response-to-trai-consultation-paper-on-regulatory-framework-for-over-the-top-ott-communication-services"><span>https://cis-india.org/internet-governance/blog/response-to-trai-consultation-paper-on-regulatory-framework-for-over-the-top-ott-communication-services</span></a><span> </span></p>
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<div id="ftn3">
<p class="MsoNormal"><a href="#_ftnref3" name="_ftn3"><sup><sup><span>[3]</span></sup></sup></a><span> “Impact Assessments”, <i>European Commission,</i> accessed 10 November 2022,<</span><a href="https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/impact-assessments_en#:~:text=Impact%20assessments%20examine%20whether%20there,support%20the%20decision%2Dmaking%20process"><span>https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/impact-assessments_en#:~:text=Impact%20assessments%20examine%20whether%20there,support%20the%20decision%2Dmaking%20process</span></a><span>.></span></p>
</div>
<div id="ftn4">
<p class="MsoNormal"><a href="#_ftnref4" name="_ftn4"><sup><sup><span>[4]</span></sup></sup></a><span> Clause 2(5) defines customer equipment as follows: “ “customer equipment” means equipment deployed on the premises of a person, other than the equipment of the licensee or registered entity, to originate, route or terminate telecommunication, or equipment used by such person for accessing telecommunication services;”</span></p>
</div>
<div id="ftn5">
<p class="MsoNormal"><a href="#_ftnref5" name="_ftn5"><sup><sup><span>[5]</span></sup></sup></a><span> As defined in clause 2(9) of the draft bill.</span></p>
</div>
<div id="ftn6">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref6" name="_ftn6"><sup><sup><span>[6]</span></sup></sup></a><span> Japan: "Telecommunications service" means intermediating communications of others through the use of telecommunications facilities, or any other acts of providing telecommunications facilities for the use of communications by others; Singapore: “telecommunication service” means any service for telecommunications but excludes any broadcasting service; UK: “electronic communications service” means a service of any of the types specified in subsection (2A) provided by means of an electronic communications network, except so far as it is a content service. Those types of service are— (a)an internet access service; (b)a number-based interpersonal communications service; and (c)any other service consisting in, or having as its principal feature, the conveyance of signals, such as a transmission service used for machine-to-machine services or for broadcasting.</span></p>
</div>
<div id="ftn7">
<p class="MsoNormal"><a href="#_ftnref7" name="_ftn7"><sup><sup><span>[7]</span></sup></sup></a><span> Muntazir Abbas, “Regulating OTT players complicated: Trai”, <i>The Economic Times, </i>30 January 2020,<</span><a href="https://economictimes.indiatimes.com/industry/telecom/telecom-policy/regulating-ott-players-complicated-trai/articleshow/73759307.cms?from=mdr"><span>https://economictimes.indiatimes.com/industry/telecom/telecom-policy/regulating-ott-players-complicated-trai/articleshow/73759307.cms?from=mdr</span></a><span> ></span></p>
</div>
<div id="ftn8">
<p class="MsoNormal"><a href="#_ftnref8" name="_ftn8"><sup><sup><span>[8]</span></sup></sup></a><span> Justin Douglas and Amy Land Pejoska, Regulation and Small Business, <</span><a href="https://treasury.gov.au/sites/default/files/2019-03/p2017-t213722-Roundup_Sml_bus_regulation-final.pdf"><span>https://treasury.gov.au/sites/default/files/2019-03/p2017-t213722-Roundup_Sml_bus_regulation-final.pdf</span></a><span>></span></p>
</div>
<div id="ftn9">
<p class="MsoNormal"><a href="#_ftnref9" name="_ftn9"><sup><sup><span>[9]</span></sup></sup></a><span> See, for instance, “Features, <i>Whatsapp </i>(2020), <https://www.whatsapp.com/features>; “Signal</span></p>
<p class="MsoNormal"><span>Messenger Features”,<i> Signal</i> (2020)</span></p>
</div>
<div id="ftn10">
<p class="MsoNormal"><a href="#_ftnref10" name="_ftn10"><sup><sup><span>[10]</span></sup></sup></a><span> CIS has recommended this “two layered framework” in its previous submissions to TRAI.</span></p>
</div>
<div id="ftn11">
<p class="MsoNormal"><a href="#_ftnref11" name="_ftn11"><sup><sup><span>[11]</span></sup></sup></a><span> “Response to TRAI Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services”,<i>Centre for Internet and Society.</i></span></p>
</div>
<div id="ftn12">
<p class="MsoNormal"><a href="#_ftnref12" name="_ftn12"><sup><sup><span>[12]</span></sup></sup></a><span> “Internet Privacy in India”,Centre for Internet and Society, accessed 10 November 2022,https://cis-india.org/telecom/knowledge-repository-on-internet-access/internet-privacy-in-india</span></p>
</div>
<div id="ftn13">
<p class="MsoNormal"><a href="#_ftnref13" name="_ftn13"><sup><sup><span>[13]</span></sup></sup></a><span>Justice K. Puttaswamy and Others v. Union of India and Others 1 SCC 1 (2019)</span></p>
</div>
<div id="ftn14">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref14" name="_ftn14"><sup><sup><span>[14]</span></sup></sup></a><span>“Judgement in Plain English Constitutionality of Aadhaar Act”, “Supreme Court Observer, accessed 10 November 20222,https://www.scobserver.in/reports/constitutionality-of-aadhaar-justice-k-s-puttaswamy-union-of-india-judgment-in-plain-english/</span></p>
</div>
<div id="ftn15">
<p class="MsoNormal"><a href="#_ftnref15" name="_ftn15"><sup><sup><span>[15]</span></sup></sup></a><span> “Right to Encrypt : Subset of Right to Privacy?”, SFLC, accessed 10 November 20222,</span><a href="https://sflc.in/right-encrypt-subset-right-privacy"><span>https://sflc.in/right-encrypt-subset-right-privacy</span></a><span> </span></p>
</div>
<div id="ftn16">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref16" name="_ftn16"><sup><sup><span>[16]</span></sup></sup></a><span> PTI, “Trai to moot mechanism for KYC-based caller name display”,The Economic Times, 20 May 2022,</span><a href="https://economictimes.indiatimes.com/industry/telecom/telecom-news/trai-to-moot-mechanism-for-kyc-based-caller-name-display/articleshow/91695117.cms?from=mdr"><span>https://economictimes.indiatimes.com/industry/telecom/telecom-news/trai-to-moot-mechanism-for-kyc-based-caller-name-display/articleshow/91695117.cms?from=mdr</span></a><span> </span></p>
</div>
<div id="ftn17">
<p class="MsoNormal"><a href="#_ftnref17" name="_ftn17"><sup><sup><span>[17]</span></sup></sup></a><span> Palme, Jacob, and Mikael Berglund. "Anonymity on the Internet.” <</span><a href="https://people.dsv.su.se/~jpalme/society/anonymity.pdf"><span>https://people.dsv.su.se/~jpalme/society/anonymity.pdf</span></a><span> ></span></p>
</div>
<div id="ftn18">
<p class="MsoNormal"><a href="#_ftnref18" name="_ftn18"><sup><sup><span>[18]</span></sup></sup></a><span> Rajat Kathuria, Isha Suri “Why spectrum needs a change in approach”, <i>Indian Express</i>, 20 October 2022, </span><a href="https://indianexpress.com/article/opinion/columns/why-spectrum-needs-a-change-in-approach-8235997/"><span>https://indianexpress.com/article/opinion/columns/why-spectrum-needs-a-change-in-approach-8235997/</span></a><span> </span></p>
</div>
<div id="ftn19">
<p class="MsoNormal"><a href="#_ftnref19" name="_ftn19"><sup><sup><span>[19]</span></sup></sup></a><span> </span><a href="https://www.ic.gc.ca/eic/site/smt-gst.nsf/eng/sf11793.html"><span>Consultation on a Non-Competitive Local Licensing Framework, Including Spectrum in the 3900-3980 MHz Band and Portions of the 26, 28 and 38 GHz Bands - Spectrum management and telecommunications</span></a></p>
</div>
<div id="ftn20">
<p class="MsoNormal"><a href="#_ftnref20" name="_ftn20"><sup><sup><span>[20]</span></sup></sup></a><span> Aneesh Phadnis“Extant rules choke growth, telecom bill needs review: Broadband India Forum”, <i>Business Standard</i>, 23 September2022<</span><a href="https://www.business-standard.com/article/companies/extant-rules-choke-growth-telecom-bill-needs-review-broadband-india-forum-122092301265_1.html"><span>https://www.business-standard.com/article/companies/extant-rules-choke-growth-telecom-bill-needs-review-broadband-india-forum-122092301265_1.html</span></a><span> ></span></p>
</div>
<div id="ftn21">
<p class="MsoNormal"><a href="#_ftnref21" name="_ftn21"><sup><sup><span>[21]</span></sup></sup></a><span> Highlights of Telecom Subscription Data as on 31st August, 2022, <i>TRAI, </i>accessed 10 November 2022, </span><a href="https://www.trai.gov.in/sites/default/files/PR_No.67of2022.pdf"><span>https://www.trai.gov.in/sites/default/files/PR_No.67of2022.pdf</span></a><span> </span></p>
</div>
<div id="ftn22">
<p class="MsoNormal"><a href="#_ftnref22" name="_ftn22"><sup><sup><span>[22]</span></sup></sup></a><span> “Response to TRAI consultation on Auction of Spectrum in frequency bands identified for IMT/5G”, Centre for Internet and Society.</span></p>
</div>
<div id="ftn23">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref23" name="_ftn23"><sup><sup><span>[23]</span></sup></sup></a><span> Calabrese, M. (2021). Use it or Share It: A New Default Policy for Spectrum Management. <i>Available at SSRN 3762098. </i><</span><a href="https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3762098_code2826029.pdf?abstractid=3762098&mirid=1"><span>https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3762098_code2826029.pdf?abstractid=3762098&mirid=1</span></a><span> > </span></p>
</div>
<div id="ftn24">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref24" name="_ftn24"><sup><sup><span>[24]</span></sup></sup></a><span> “Guidelines for Implementation of New Public Sector Enterprises (PSEI Policy for CPSEs in Non-Strategic Sector' regarding”, “Government of India Ministry of Finance Department of Public EnterPrises, 10 November 2022, </span><a href="https://dpe.gov.in/sites/default/files/DPE_OM_DTD_13.12.21_Guidelines_on_New_PSE_Policy_0.pdf"><span>https://dpe.gov.in/sites/default/files/DPE_OM_DTD_13.12.21_Guidelines_on_New_PSE_Policy_0.pdf</span></a><span>, Economic Survey 2021-2022, <i>India Budget, </i>accessed 10 November 2022, <</span><a href="https://www.indiabudget.gov.in/economicsurvey/ebook_es2022/index.html#p=86"><span>https://www.indiabudget.gov.in/economicsurvey/ebook_es2022/index.html#p=86</span></a><span> ></span></p>
</div>
<div id="ftn25">
<p class="MsoNormal"><a href="#_ftnref25" name="_ftn25"><sup><sup><span>[25]</span></sup></sup></a><span> A similar approach has been taken in the new Occupational Safety, Health and Working Conditions Code, 2020 for registration of establishments under clause 3(3) of the Code.</span></p>
</div>
<div id="ftn26">
<p class="MsoNormal"><a href="#_ftnref26" name="_ftn26"><sup><sup><span>[26]</span></sup></sup></a><span> Sections 69 and 69A of the Information Technology Act, 2000.</span></p>
</div>
<div id="ftn27">
<p class="MsoNormal"><a href="#_ftnref27" name="_ftn27"><sup><sup><span>[27]</span></sup></sup></a><span> Anuradha Bhasin vs Union Of India, 3 SCC 637 (2020)</span></p>
</div>
<div id="ftn28">
<p class="MsoNormal"><a href="#_ftnref28" name="_ftn28"><sup><sup><span>[28]</span></sup></sup></a><span> Explanatory Note to the draft Indian Telecommunication Bill, 2022, Pg. 14.</span></p>
</div>
<div id="ftn29">
<p class="MsoNormal"><a href="#_ftnref29" name="_ftn29"><sup><sup><span>[29]</span></sup></sup></a><span>“USOF Scheme for Aspirational Districts in 5 states”, “Drishti IAS”, accessed 10 November 2022, https://www.drishtiias.com/daily-updates/daily-news-analysis/usof-scheme-for-aspirational-districts-in-5-states </span></p>
</div>
<div id="ftn30">
<p class="MsoNormal"><a href="#_ftnref30" name="_ftn30"><sup><sup><span>[30]</span></sup></sup></a><span>“What BharatNet can learn from the rural-roads scheme: involve states, local bodies, private sector” “ Centre for Internet and Society, accessed 10 November 2022, https://cis-india.org/telecom/blog/what-bharatnet-can-learn-from-the-rural-roads-scheme-involve-states-local-bodies-private-sector</span></p>
<p class="MsoNormal"><span> </span></p>
<p class="MsoNormal"><span> </span></p>
</div>
<div id="ftn31">
<p class="MsoNormal"><a href="#_ftnref31" name="_ftn31"><sup><sup><span>[31]</span></sup></sup></a><span> Functions of Authority, clause 11, TRAI Act, 1997.</span></p>
</div>
<div id="ftn32">
<p class="MsoNormal"><a href="#_ftnref32" name="_ftn32"><sup><sup><span>[32]</span></sup></sup></a><span> Pratap Vikram Singh, “Trai, try again: India’s toothless telecom regulator fights for more powers”, Aug 31, 2021, <i>The Ken</i>, <</span><a href="https://the-ken.com/story/trai-try-again-indias-toothless-telecom-regulator-fights-for-more-powers/"><span>https://the-ken.com/story/trai-try-again-indias-toothless-telecom-regulator-fights-for-more-powers/</span></a><span>></span></p>
</div>
<div id="ftn33">
<p class="MsoNormal"><a href="#_ftnref33" name="_ftn33"><sup><sup><span>[33]</span></sup></sup></a><span> <i>Ibid</i>.</span></p>
</div>
<div id="ftn34">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref34" name="_ftn34"><sup><sup><span>[34]</span></sup></sup></a><span> “PTI” “Have power to settle competitive tariff issues: TRAI to CCI”, Aug 7, 2017, <i>The Economic Times</i>, </span><a href="https://economictimes.indiatimes.com/news/economy/policy/have-power-to-settle-competitive-tariff-issues-trai-to-cci/articleshow/59959144.cms?from=mdr"><span>https://economictimes.indiatimes.com/news/economy/policy/have-power-to-settle-competitive-tariff-issues-trai-to-cci/articleshow/59959144.cms?from=mdr</span></a><span><span> </span></span></p>
</div>
<div id="ftn35">
<p class="MsoNormal"><a href="#_ftnref35" name="_ftn35"><sup><sup><span>[35]</span></sup></sup></a><span> CIVIL APPEAL NO(S). 11843 OF 2018</span></p>
</div>
<div id="ftn36">
<p class="MsoNormal"><a href="#_ftnref36" name="_ftn36"><sup><sup><span>[36]</span></sup></sup></a><span> Ibid at Para 90</span></p>
</div>
<div id="ftn37">
<p class="MsoNormal"><a href="#_ftnref37" name="_ftn37"><sup><sup><span>[37]</span></sup></sup></a><span> “Market Study on the Telecom Sector”, Jan 22, 2021, Competition Commission of India</span></p>
</div>
<div id="ftn38">
<p class="MsoNormal"><a href="#_ftnref38" name="_ftn38"><sup><sup><span>[38]</span></sup></sup></a><span> Global ICT Regulatory Outlook 2020 - Pointing the way forward to collaborative regulation (2020), <i>ITU, </i>https://www.itu.int/dms_pub/itu-d/opb/pref/D-PREF-BB.REG_OUT01-2020-PDF-E.pdf</span></p>
</div>
<div id="ftn39">
<p class="MsoNormal"><a href="#_ftnref39" name="_ftn39"><sup><sup><span>[39]</span></sup></sup></a><span>Informal Guidance Scheme of SEBI: Understanding the Concept and Analyzing the Guidance Provided by SEBI, Vijay Kumar Singh</span> <a href="https://www.researchgate.net/publication/228226352_Informal_Guidance_Scheme_of_SEBI_Understanding_the_Concept_and_Analyzing_the_Guidance_Provided_by_SEBI"><span>https://www.researchgate.net/publication/228226352_Informal_Guidance_Scheme_of_SEBI_Understanding_the_Concept_and_Analyzing_the_Guidance_Provided_by_SEBI</span></a><span>> </span></p>
</div>
<div id="ftn40">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref40" name="_ftn40"><sup><sup><span>[40]</span></sup></sup></a><span> We have made similar recommendations to the Personal Data Protection Bill 2019, on the offences and penalties under the Bill. The comments can be viewed here: <</span><a href="https://cis-india.org/accessibility/blog/cis-general-comments-to-the-pdp-bill-2019"><span>https://cis-india.org/accessibility/blog/cis-general-comments-to-the-pdp-bill-2019</span></a><span>></span></p>
</div>
<div id="ftn41">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref41" name="_ftn41"><sup><sup><span>[41]</span></sup></sup></a><span>Recommendations On Traffic Management Practices (TMPs) and MultiStakeholder Body for Net Neutrality,<i> TRAI,</i> accessed 10 November 2022, </span><a href="https://www.trai.gov.in/sites/default/files/Recommendations_22092020_0.pdf"><span>https://www.trai.gov.in/sites/default/files/Recommendations_22092020_0.pdf</span></a><span> </span></p>
</div>
<hr />
The comments were drafted by Abhishek Raj, Divyank Katira, Isha Suri, Shweta Mohandas and Vipul Kharbanda, and reviewed by Pallavi Bedi. Click to download the <a href="https://cis-india.org/telecom/comments-to-the-draft-indian-telecommunication-bill" class="internal-link">submission here</a></div>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/cis-comments-to-draft-indian-telecom-bill-2022'>https://cis-india.org/telecom/blog/cis-comments-to-draft-indian-telecom-bill-2022</a>
</p>
No publisherAbhishek Raj, Divyank Katira, Isha Suri, Shweta Mohandas, and Vipul KharbandaTelecom2022-11-22T13:22:24ZBlog EntryWhy spectrum needs a change in approach
https://cis-india.org/telecom/blog/indian-express-rajat-kathuria-isha-suri-why-spectrum-needs-a-change-in-approach
<b>Rajat Kathuria and Isha Suri write: It must be recognised that spectrum needs to be combined with other infrastructure to enable service delivery.</b>
<p style="text-align: justify; ">One must bear in mind that the cost of deploying other infrastructure in remote areas is nearly twice as much, while revenue opportunities are far lower, damaging if not destroying the rural business case. The stark digital divide needs a fresh approach to crack it.</p>
<p style="text-align: justify; ">On September 22, the government released the draft Indian Telecommunication Bill, 2022, seeking to replace the colonial era Indian Telegraph Act, 1885. The draft bill compares spectrum to aatma: “In a way, spectrum is similar to aatma, which is ajar, amar as described in Shrimad Bhagwad Gita. Like aatma, spectrum too does not have any physical form, yet it is omnipresent.” And yet there is one immutable difference in this material world. While the value of aatma is inestimable, spectrum has always had a banal price tag associated with it.</p>
<hr />
<p><a class="external-link" href="https://indianexpress.com/article/opinion/columns/why-spectrum-needs-a-change-in-approach-8235997/">Click to access</a> the full article published in Indian Express on October 29, 2022</p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/indian-express-rajat-kathuria-isha-suri-why-spectrum-needs-a-change-in-approach'>https://cis-india.org/telecom/blog/indian-express-rajat-kathuria-isha-suri-why-spectrum-needs-a-change-in-approach</a>
</p>
No publisherRajat Kathuria and Isha SuriTelecom2023-01-18T23:35:10ZBlog EntryAn Overview of Telecommunications Policy and Regulation Framework in India
https://cis-india.org/telecom/blog/an-overview-telecommunications-policy-and-regulation-framework-in-india
<b>Abhishek Raj, a researcher at the Centre for Internet Society (CIS), has authored a document that provides an overview of the policy and regulatory environment surrounding telecommunications in India.</b>
<p>It summarises the legal and policy instruments that regulate telecom and internet service providers in the country. It covers following areas:</p>
<ul>
<li>General overview of acts and associated policiesO</li>
<li>Operator licensing</li>
<li>Spectrum and associated fees</li>
<li>Backbone and backhaul infrastructure</li>
<li>Universal service/financial support</li>
<li>Gender and telecom</li>
</ul>
<p>Read the <a href="https://cis-india.org/telecom/overview-telecommunications-policy-regulation-framework-india" class="internal-link">full document here</a></p>
<p style="text-align: justify; ">The information from this document has also been added to the India’s country profile on the <a href="https://policy.communitynetworks.group/country-profiles/india">LocNet Wiki</a>, which is regularly updated to keep abreast with developments in telecom policy.</p>
<hr />
<p style="text-align: justify; ">The author is thankful to Divyansha Sehgal, Gurshabad Grover and Isha Suri for their review and suggestions.</p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/an-overview-telecommunications-policy-and-regulation-framework-in-india'>https://cis-india.org/telecom/blog/an-overview-telecommunications-policy-and-regulation-framework-in-india</a>
</p>
No publisherabhishekTelecom2022-03-25T02:06:28ZBlog EntryOpinion: Delicensing 6 GHz, 60 GHz bands is crucial to improve Wi-Fi scenario in India
https://cis-india.org/telecom/blog/the-news-minute-december-21-2021-abhishek-raj-opinion-delicensing-6-ghz-60-ghz-bands-crucial-improve-wi-fi-scenario-india
<b>Recently, there has been growing demand from industry bodies and associations to delicense 6 GHz and 60 GHz bands in India.</b>
<p>The article by Abhishek Raj was <a class="external-link" href="https://www.thenewsminute.com/article/opinion-delicensing-6-ghz-60-ghz-bands-crucial-improve-wi-fi-scenario-india-158974"><strong>published by the News Minute</strong></a> on December 21, 2021.</p>
<hr />
<p style="text-align: justify; ">The Wi-Fi space has become a lot more exciting with the emergence of new Wi-Fi standards such as Wi-Fi 6E (the latest generation of Wi-Fi) and WiGig (that uses the V-band and offers advantages such as faster gigabit speeds). These standards require airwaves in 6 GHz and 60 GHz frequency bands to operate. As a consequence, governments and telecom regulators across the globe are deliberating on policy options for spectrum allocation in the aforementioned bands.</p>
<p style="text-align: justify; ">Stakeholders are divided on the issue of allocating 6 GHz and 60 GHz bands in India. For instance, there are certain telcos who strongly oppose delicensing these bands and demand a licensed framework with the use of auctions for allocation. As per their <a href="https://telecom.economictimes.indiatimes.com/news/jio-airtel-spar-with-tech-cos-over-spectrum-delicensing-want-govt-to-protect-spectrum-related-investments/80138028">argument</a>, delicensing the said bands will put their investments at risk and upset a level playing field. Whereas, on the other side, US tech majors Cisco and Intel, alongside industry bodies and forums such as the ITU-APT Foundation of India and Broadband India Forum, are in <a href="https://telecom.economictimes.indiatimes.com/news/jio-airtel-spar-with-tech-cos-over-spectrum-delicensing-want-govt-to-protect-spectrum-related-investments/80138028">favor of delicensing</a>. Notably, the delicensed/ unlicensed frequency bands are “free to use” by anyone, and the users need not pay any fees or obtain a license (right to use) from the government. On the contrary, licensed bands come with a “right to exclusive use” and are usually allocated through auction. They have associated costs including auction amount, license fees, usage charges, etc.</p>
<p style="text-align: justify; ">In this article, I argue that the government should consider delicensing the 6 GHz band and 60 GHz range in the V-band, simply known as the 60 GHz band, to meet the increasing data demand, provide a better connection experience, and, more importantly, unlock the economic value and potential of these bands.</p>
<h3 style="text-align: justify; ">Evolution of Wi-Fi Standards</h3>
<p style="text-align: justify; ">Let us begin by understanding the fundamentals of Wi-Fi and its evolution over the years. Wi-Fi is a wireless networking technology based on the Institute of Electrical and Electronics Engineers (IEEE) standard 802.11. To keep things simple, consider ‘Wi-Fi’ a user-friendly name for IEEE 802.11 standard. Since its advent in 1997, Wi-Fi has become an indispensable wireless technology alongside mobile technology. The term ‘Wi-Fi’ is used synonymously with the internet by many users as a result of its widespread use in providing an interface with the internet.</p>
<p style="text-align: justify; ">IEEE 802.11 standards have evolved over the years, from 802.11a to 802.11ax. Again, these terms don’t sound so user-friendly, and for this reason, Wi-Fi alliance, a non-profit organisation that owns Wi-Fi trademark, came up with simplified generational names such as Wi-Fi 4, Wi-Fi 5, Wi-Fi 6, etc. The most recent Wi-Fi 6E [read Wi-Fi 6th generation- extended] is a simplified name for IEEE 802.11 ax standard. Needless to say, every new generation of Wi-Fi brings greater speed, lower latency, and a better user experience.</p>
<h3 style="text-align: justify; ">Benefits of Wi-Fi 6E & WiGig: Case for Delicensing</h3>
<p style="text-align: justify; ">In addition to the pre-existing growth in demand for data, the COVID-19 pandemic has escalated data requirements due to the radical shift to work-from-home, online classes, etc. Dependence on Wi-Fi has increased in parallel to meet this increase in demand. On the other hand, India has only around 700 MHz of spectrum available for unlicensed use, concentrated majorly in 2.4 GHz and 5 GHz bands which are currently used for Wi-Fi services in India. The 2.4 GHz band is already crowded, and the same is anticipated for the latter. In order to support the growing data demand, policymakers in India need to explore the option of opening up more unlicensed spectrum. Notably, the quantum of unlicensed spectrum in India is significantly lower than in other countries such as the USA, UK, China, Japan, and Brazil, all of which have approximately <a href="https://broadbandindiaforum.com/wp-content/uploads/2021/06/BIF-WP_Role-Importance-of-Next-Generation-Wi-Fi-Technologies-in-Acceleration-of-Digital-Transformation_June-2021.pdf">15,000 MHz of unlicensed spectrum. </a></p>
<p style="text-align: justify; "><a href="https://broadbandindiaforum.com/wp-content/uploads/2021/06/BIF-WP_Role-Importance-of-Next-Generation-Wi-Fi-Technologies-in-Acceleration-of-Digital-Transformation_June-2021.pdf">The policy reluctance of DoT to delicense more spectrum is</a> partly because of fear of losing out on revenues which licensed spectrum generates, and partly because of a <a href="https://tele.net.in/short-on-spectrum-need-for-an-enabling-policy-and-regulatory-environment/">narrow interpretation of Supreme Court’s 2012 judgement</a>. However, considering the recent developments in Wi-Fi, 6 GHz and 60 GHz bands appear to be ideal candidates for creating more unlicensed spectrum. Let us explore this further.</p>
<p style="text-align: justify; ">Unlike its previous versions, which operated in either the 2.4 GHz or the 5 GHz band, Wi-Fi 6E operates in the 6 GHz band. The 6 GHz band contains radio frequencies between 5.925 and 7.125 GHz, and is much wider than the 2.4 GHz and 5 GHz bands. The wide channels, along with other distinct features such as lesser interference, enable Wi-Fi 6E to perform with better speeds, even in multi-user connected, congested, and dense networks.</p>
<p style="text-align: justify; ">Furthermore, Wi-Fi 6E is a new and niche technology, whose market will undoubtedly develop in the coming years. Indian telecom hardware and software companies have the opportunity to capture a chunk of this market in India as well as globally. We know that service provision in unlicensed bands is less expensive, and thus attracts a lot of innovations. We need to open up the 6 GHz band very soon to foster innovations by indigenous companies. We took a late call on delicensing the 5 GHz band which affected the prospects of Indian innovators and companies. We can’t afford to repeat this.</p>
<p style="text-align: justify; ">Similarly, we have WiGig – another exciting Wi-Fi technology. WiGig uses the V-band’s 60 GHz range (i.e., airwaves between 57-71 GHz frequency) to operate. The V-band offers advantages such as faster gigabit speeds and lack of interference due to oxygen absorption within its frequency range, making this band ideal for shared unlicensed use. The <a href="https://pib.gov.in/PressReleasePage.aspx?PRID=1679342">government launched</a> a public Wi-Fi initiative of India known as PM-WANI in December 2020. PM-WANI aims to promote broadband in the country through the deployment of public Wi-Fi access points. Supporting such a dense deployment of Wi-Fi access points would require a <a href="https://broadbandindiaforum.com/wp-content/uploads/2021/06/The-Economic-Value-of-Wi-Fi-Spectrum-for-India-online-19-MAY-2021-accessible.pdf">“fiber speed” backbone</a>. However, cost structure and right-of-way hurdles may be prohibitive for the deployment of fiber backhaul in dense urban environments. WiGig offers a cost-efficient wireless backhaul solution as an alternative to fiber backhaul, with multigigabit speeds and reliability similar to fiber. Delicensing the 60 GHz band can thus especially benefit PM-WANI, because of its potential to provide alternative backhaul solutions.</p>
<p style="text-align: justify; ">It is important to remember that unlicensed bands for Wi-Fi access have significant economic value. Although unlicensed bands do not generate direct revenue for the government through auctions, spectrum usage charges, etc., the economic value of unlicensed Wi-Fi is huge. According to <a href="https://www.wi-fi.org/download.php?file=/sites/default/files/private/Global_Economic_Value_of_Wi-Fi_2021-2025_202109.pdf">a report by Wi-Fi Alliance</a>, the global economic value of Wi-Fi will reach Rs 362 lakh crore (USD 4.9 trillion) by 2025. A <a href="https://broadbandindiaforum.com/wp-content/uploads/2021/05/Press-Release_Economic-Value-of-Wi-Fi-in-unlicensed-spectrum-bands-to-be-almost-INR-12.7-lakh-crores-in-India_BIF-Report_17.05.2021.pdf">BIF (Broadband India Forum) report</a> authored by Prof. Rekha Jain estimates the economic value of Wi-Fi in unlicensed spectrum bands (2.4 GHz, 5GHz, 6 GHz, and 60 GHz) for 2025 to be INR 12.7 lakh crore in India. A major concern raised by telcos recently is that the government might lose out on revenue if 6 GHz and 60 GHz bands are delicensed instead of licensing and sold through auction. However, this concern seems to be evidently misplaced due to the huge economic potential of these bands, as also <a href="https://www.financialexpress.com/opinion/connecting-india-delicense-6-ghz-and-v-bands-for-superior-wi-fi/2350080/">pointed out by other experts</a>.</p>
<p style="text-align: justify; ">Several other jurisdictions have already started delicensing these bands. Almost 35 countries, including the USA, UK, Brazil, UAE, and Korea have delicensed the 6 GHz band, and several others are considering the same. Similarly, around 70 countries across the globe have delicensed the V-band in the 60 GHz range.</p>
<h3>Conclusion</h3>
<p style="text-align: justify; ">Wi-Fi 6E and WiGig are exciting technologies with numerous benefits and will play a crucial role in improving the Wi-Fi scenario in India. Had the 2.4 GHz and 5 GHz bands not been delicensed in the past, could we have even imagined a Wi-Fi revolution? The government must consider delicensing the 6 GHz and 60 GHz bands to bring in the next Wi-Fi revolution.</p>
<hr />
<p>(The author is thankful to Arindrajit Basu and Isha Suri for their review and suggestions.)</p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/the-news-minute-december-21-2021-abhishek-raj-opinion-delicensing-6-ghz-60-ghz-bands-crucial-improve-wi-fi-scenario-india'>https://cis-india.org/telecom/blog/the-news-minute-december-21-2021-abhishek-raj-opinion-delicensing-6-ghz-60-ghz-bands-crucial-improve-wi-fi-scenario-india</a>
</p>
No publisherabhishekTelecomWi-FiSpectrum2022-01-03T15:30:43ZBlog EntryGram Panchayat Development Plan (GPDP): An Opportunity for Funding Rural Internet Connectivity in India
https://cis-india.org/telecom/blog/gpdp-an-opportunity-for-funding-rural-internet
<b>A paper titled "Gram Panchayat Development Plan (GPDP): An Opportunity for Funding Rural Internet Connectivity in India" authored by CIS' researcher Abhishek Raj got published in the book "Community Networks: Towards Sustainable Funding Models". This book was released at the United Nations Internet Governance Forum(IGF) 2021, and is also the official outcome of the IGF Dynamic Coalition on Community Connectivity (DC3).</b>
<p style="text-align: justify; ">Internet connectivity has become important for socio-economic development of any region, especially the rural and remote regions. However, a major population of the world including India still remains unconnected to the internet. The traditional ‘top-down’ approach for enabling connectivity has proved to be insufficient for rural and remote areas. In this paper, we discuss an alternative ‘bottom-up’ sustainable multistakeholder model for enabling connectivity in rural India which has an active involvement of the village community through ‘Gram Panchayats’ (also known as Village Council). We also discuss the funding mechanism for this model through ‘Gram Panchayat Development Plan (GPDP)’. We suggest that ‘Internet for Development’ be included as one of the cross-cutting development areas in the GPDP to fund access to the internet in villages.</p>
<hr />
<p style="text-align: justify; ">Click <a href="https://www.intgovforum.org/en/filedepot_download/92/20438">here</a> to access full PDF of the paper. <span>(Refer p. 129- 146). The author extends thanks to co-authors of the paper Dr. Sarbani Banerjee Belur and Ritu Srivastava.</span></p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/gpdp-an-opportunity-for-funding-rural-internet'>https://cis-india.org/telecom/blog/gpdp-an-opportunity-for-funding-rural-internet</a>
</p>
No publisherabhishekTelecom2021-12-14T02:12:53ZBlog EntryResponse to TRAI Consultation Paper on Broadband Connectivity and Speed
https://cis-india.org/telecom/blog/response-to-trai-consultation-paper-on-broadband-connectivity-and-speed
<b>CIS comments on Telecom Regulatory Authority of India’s Consultation Paper on Roadmap to Promote Broadband Connectivity and Enhanced Broadband Speed</b>
<p id="docs-internal-guid-0fc8ed5b-7fff-6775-3415-d08d4d378b68" dir="ltr">This submission presents a response by individuals working at the Centre for Internet & Society (CIS) to the Telecom Regulatory Authority of India’s Consultation Paper on Roadmap to Promote Broadband Connectivity and Enhanced Broadband Speed (hereinafter, the “TRAI Consultation Paper”) released on 20 August, 2020 for comments.</p>
<p dir="ltr">CIS appreciates the continual efforts of Telecom Regulatory Authority of India (TRAI) to have consultations, and is grateful for the opportunity to put forth its views and comments.</p>
<p dir="ltr">Read the response <a class="external-link" href="https://cis-india.org/telecom/cis-trai-consultation-response-broadband">here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/response-to-trai-consultation-paper-on-broadband-connectivity-and-speed'>https://cis-india.org/telecom/blog/response-to-trai-consultation-paper-on-broadband-connectivity-and-speed</a>
</p>
No publisherShyam PonappaBroadbandTelecomTRAI2020-12-20T08:43:20ZBlog Entry Unlock = Open, not Choked!
https://cis-india.org/telecom/blog/unlock-open-not-choked
<b> Don't let a virus stall initiatives and weaken the economy.</b>
<p>This article first appeared in the <a class="external-link" href="https://www.business-standard.com/article/opinion/unlock-open-not-choked-120060400079_1.html">Business Standard</a> and on June 4, 2020.</p>
<hr />
<p> </p>
<p>A
recent column in this newspaper juxtaposed the way smart, experienced
people have high expectations, only to be disappointed by our weak
state’s predictable failures (<em><a href="https://www.business-standard.com/article/opinion/strong-expectations-from-a-weak-state-120052401090_1.html" rel="nofollow" target="_blank">Strong expectations from a weak state</a>, May 25</em>).
Is there justification for any optimism, or at least hope? Here is an
exploration of reasons for persisting in the face of continued odds, and
pushing for economic recovery. Why should one persist with constructive
efforts? Because a rising tide lifts all boats, and one’s contribution
can affect outcomes. And because attempts at partial opening will not
suffice.</p>
<div>
There could be new economic opportunities by way of capacity, logistics
or markets, or a wider array of sustainable consumer choices, whether
for manufactured goods, services, or activities. Think back, and surely
you have witnessed government action extend beyond the grind of just
keeping everything going.</div>
<div>
One instance of major change that affected the economy was in 1990, when
the secretary of the Department of Electronics N Vittal worked in close
consultation with industry. This resulted in path-breaking reforms,
such as the setting up of “high-speed” links (of a mere 64 kilobits per
second at the time) between Information Technology (IT) companies in
Indian software technology parks and their international clients, and
various tax incentives that followed much later. The offshore services
industry gathered strength, and later expanded to cover IT-enabled
services with call centres and business processing, extending to
knowledge processing.</div>
<div>
Likewise, telecommunications reforms began in 1990, when prime minister
Chandra Shekhar led a shaky government for a brief period. The
telecommunications ministry was looking for a private sector consultant.
Through an invisible network, an investment banker who had been a
management consultant in San Francisco was asked to look into
telecommunications reforms. This led to the setting up of the Athreya
Committee and its recommendations: On separating policy-making from
operations, corporatising the Mahanagar Telephone Nigam as an operating
company for Delhi and Mumbai, and Bharat Sanchar Nigam for the rest,
while recommending access to private sector operators. All this was not
smooth and painless, and took years, but did happen eventually, although
the separation remains untidy.</div>
<div>
By 1998, telecommunications operators were in a situation similar to the
predicament some months ago, of weak revenues and a debt overhang, with
some differences. There were many operators with heavy debt because of
government charges and limited revenue generation capacity, because of
smaller networks and less clients. This is the “winners’ curse” of
auctions, when exorbitant amounts are paid to government for auctions,
with nothing left for building and running networks and enterprises to
generate the revenues to justify those payments. There are exceptions,
as in the social democrat Nordic states, or state-controlled allocations
as in China, or in Japan for a number of years.</div>
<div>
Key people in government grasped this. The Prime Minister’s Office
consulted with industry and external consultants, and took action. This
resulted in the New Telecom Policy 1999 (NTP-99), whereby the major
change was converting up-front licence fees to revenue sharing, although
the policy was uneven because of cherry-picked recommendations.
Initially, the government set the percentage share too high. It took
years to reduce and trigger rapid growth. This came about through
reduced government charges, calling party pays (which cut call costs),
and a price war, brought on by the stealth entry of a new technology
(CDMA) network, which the authorities allowed despite incumbent
protests. Mobile services then grew exponentially from 2004, until the
2G spectrum scam surfaced in 2011.</div>
<div>
A stream of articles advocated extending revenue-sharing to spectrum
fees as for licence fees, and for shared infrastructure including
spectrum. In 2011, a senior official in the DoT was sufficiently
impressed to explore the possibility of evaluating alternatives using
simulation models. But the 2G scam broke after the first few meetings of
DoT officials, and this process was aborted. Instead of major changes
based on simulations, a mere statement of intent about spectrum pooling
and sharing made it into NTP-2012.</div>
<div>
There were other incredible developments, although with no apparent
results (yet). For instance, in 2013, a non-governmental organisation,
the Centre for Internet and Society in Bengaluru, arranged for the
former chief technology officer of the US Federal Communications
Commission, Jon Peha, who had pioneered changes in America, to meet with
top officials of the DoT, the Telecom Regulatory Authority of India,
and some IIT professors. The latter conducted successful trials using TV
White Space spectrum for the Ministry of Electronics and Information
Technology. The details are many, but the point is that constructive
advocacy can have an impact.</div>
<div>
<strong>Reviving the Economy Now</strong></div>
<div>
We are in a difficult situation, with our economy and society battered
by the lockdown and much else. We will need to do everything possible to
recover, and it will take years. Attempts at partial opening will not
suffice. Systemic revival calls for unrestricted flows of money, people,
activity, and goods and services.</div>
<div>
While reactivating the economy, we will need to be cautious through the
pandemic (through “social distancing”, using masks to reduce infection,
avoiding close contact with outsiders, and so on). But survivors have to
live with this virus, as with other strains of viruses and bacteria,
and other threats.</div>
<div>
Consider traffic accidents, which average over 145,000 deaths annually (data 2013-2017: <a href="https://ncrb.gov.in/sites/default/files/chapter-1A-traffic-accidents-2017_0.pdf">https://ncrb.gov.in/sites/default/files/chapter-1A-traffic-accidents-2017_0.pdf</a>).
Extrapolating, this means a million fatalities in seven years, yet we
don’t shut down all traffic. By comparison, Covid-19 had about 6,000
fatalities since January.</div>
<div>
A proportion of the medical fraternity opines that (a) there is
community spread of Covid-19, and (b) with many cases milder than the
expected severity, that most patients need home care rather than
hospitalisation. If these continue, our health systems will not be
overwhelmed with severe cases. Also, so far, India has had a relatively
low fatality rate of 2.8 per cent (<em>see chart</em>).</div>
<p> </p>
<p> </p>
<p><img src="https://cis-india.org/telecom/case-fatality-rate/" alt="null" width="50%" /></p>
<p> </p>
<div>
Source: Data - <a href="https://ourworldindata.org/coronavirus">https://ourworldindata.org/coronavirus</a></div>
<div>
As long as these factors hold, our priority has to be unfettered
economic activity. Countries with higher fatality rates, including
Sweden, China, Japan and Germany in the chart, have open economic
activity (with tremendous productivity). We will weaken and our problems
will escalate if we are held back.</div>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/unlock-open-not-choked'>https://cis-india.org/telecom/blog/unlock-open-not-choked</a>
</p>
No publisherShyam PonappaTelecomEconomicsCovid192020-06-15T03:04:18ZBlog EntryAfter the Lockdown
https://cis-india.org/internet-governance/blog/after-the-lockdown
<b></b>
<div>
<p>This post was first published in the <a class="external-link" href="https://www.business-standard.com/article/opinion/after-the-lockdown-120040200010_1.html">Business Standard</a>, on April 2, 2020.</p>
<p> </p>
</div>
<div> </div>
<div>
This is a time when, as
the authorities deal with a lockdown, there needs to be an equal
emphasis on providing for large numbers of people without the money for
food and necessities, while the rest of us wait it out. Hard as it is,
an MIT scholar writes that after the Spanish flu in 1918, cities that
restricted public gatherings sooner and longer had fewer fatalities, and
emerged with stronger economic growth.<a href="https://www.reuters.com/article/us-health-coronavirus-usa-reopen-analysi/the-u-s-weighs-the-grim-math-of-death-vs-the-economy-idUSKBN21H1B4" target="_blank"><strong>1</strong></a> It
is likely that costs and benefits vary with economic and social
capacity, and we may have a harder time with it here. Going forward,
government action to help provide relief, rehabilitate people and deal
with loss needs to be well planned, including targeting aid to the urban
and displaced poor.<strong><a href="https://www.financialexpress.com/opinion/the-coronavirus-lockdown-and-indias-urban-vulnerables/1915316/" target="_blank">2</a></strong></div>
<div>
As important now as to
ensure the lockdown continues is to plan on how to revive productive
activity and the economy, and restore public confidence. A systematic
approach will likely yield better results.</div>
<div>
A major element of the
recovery plan is steps such as liberal credit and amortisation terms,
perhaps much more than the three-month extension the Reserve Bank of
India (RBI) has announced. A primary purpose is the re-initiation of
large-scale activities such as construction, of which there are
reportedly about 200,000 large projects around the country. These have
to be nursed back to being going concerns. The RBI may need to consider
doing more, including lowering rates.</div>
<div>
An ominous development
that has grown as the economy slowed is financial stress that could
swell non-performing assets (NPAs). At the half-year ending September
2019, about half of non-financial large corporations in India, excluding
telecom, showed financial stress (<em>see table</em>).</div>
<div> </div>
<a style="text-align: center;" href="https://1.bp.blogspot.com/-LUGInMPm0qA/XoX9HV4-HBI/AAAAAAAAHio/bpAUXcOxJ2AZ3mHTisIdMGLnbon7r5YpQCLcBGAsYHQ/s1600/Indebted%2BFirms-Likely%2BFinancial%2BHeadwinds-Krishna%2BKant-BS.jpg"><img src="https://1.bp.blogspot.com/-LUGInMPm0qA/XoX9HV4-HBI/AAAAAAAAHio/bpAUXcOxJ2AZ3mHTisIdMGLnbon7r5YpQCLcBGAsYHQ/s320/Indebted%2BFirms-Likely%2BFinancial%2BHeadwinds-Krishna%2BKant-BS.jpg" alt="null" height="320" width="205" /></a>
<p> </p>
<p>Source: Krishna Kant: "Coronavirus shutdown puts Rs 15-trillion debt at risk, to impact finances", BS, March 30, 2020:</p>
<div><a href="https://www.business-standard.com/article/markets/coronavirus-shutdown-puts-rs-15-trillion-debt-at-risk-to-impact-finances-120032901036_1.html">https://www.business-standard.com/article/markets/coronavirus-shutdown-puts-rs-15-trillion-debt-at-risk-to-impact-finances-120032901036_1.html</a></div>
<p> </p>
<div>
These include some of
India’s largest companies, producing power, steel, and chemicals. The
201 companies have total debt of nearly Rs 15 trillion, more than half
of all borrowings. There is also the debt overhang of the National
Highways Authority of India, and of the telecom companies. Ironically,
the telecom companies are our lifeline now, despite having nearly
collapsed under debt because of ill-advised policies in the past, which
have still not changed. Perhaps our obvious dependence telecom services
now will spark well conceived, convergent policies for this sector, so that we can function effectively. </div>
<div>
A start with immediate
changes in administrative rules for 60GHz, 70-80GHz, and 500-700MHz
wireless use, modelled on the US FCC regulations as was done for the
5GHz Wi-Fi in October 2018, could change the game. It will provide the
opportunity in India for the innovation of devices, their production,
and use, possibly unleashing this sector. This can help offset our
reliance on imported technology and equipment. However, such changes in
policies and purchasing support have eluded us thus far. Now, the only
way our high-technology manufacturers can thrive is to succeed
internationally, in order to be able to sell to the domestic market.
Imagine how hard that might be, and you begin to get an inkling of why
we have few domestic product champions, struggling against odds in areas
such as optical switches, networking equipment, and wireless devices.
For order-of-magnitude change, however, structural changes need to be
worked out in consultation with operators in the organisation of
services through shared infrastructure.</div>
<div> </div>
<p>For the longer term, a fundamental
reconsideration for allocating resources is needed through coherent,
orchestrated policy planning and support. What the government can do as a
primary responsibility, besides ensuring law and order and security, is
to develop our inadequate and unreliable infrastructure, including
facilities and services that enable efficient production clusters, their
integrated functioning, and skilling. For instance, Apple’s recent
decision against moving iPhone production
from China to India was reportedly because similar large facilities
(factories of 250,000) are not feasible here, and second, our logistics
are inadequate. Such considerations should be factored into our
planning, although Apple may well have to revisit the very
sustainability of the concept of outsize facilities that require the
sort of repressive conditions prevailing in China. However, we need not
aim for building unsustainable mega-factories. Instead, a more practical
approach may be to plan for building agglomerations of smaller,
sustainable units, that can aggregate their activity and output
effectively and efficiently. Such developments could form the basis of
numerous viable clusters, and where possible, capitalise on existing
incipient clusters of activities. Such infrastructure needs to be
extended to the countryside for agriculture and allied activities as
well, so that productivity increases with a change from rain-fed,
extensive cultivation to intensive practices, with more controlled
conditions.</p>
<p>The automotive industry,
the largest employer in manufacturing, provides an example for other
sectors. It was a success story like telecom until recently, but is now
floundering, partly because of inappropriate policies, despite its
systematic efforts at incorporating collaborative planning and working
with the government. It has achieved the remarkable transformation of
moving from BS-IV to BS-VI emission regulations in just three years,
upgrading by two levels with an investment of Rs 70,000 crore, whereas
European companies have taken five to six years to upgrade by one level.
This has meant that there was no time for local sourcing, and therefore
heavy reliance on global suppliers, including China. While the
collaborative planning model adopted by the industry provides a model
for other sectors, the question here is, what now. In a sense, it was
not just the radical change in market demand with the advent of
ridesharing and e-vehicles, but also the government’s approach to
policies and taxation that aggravated its difficulties.</p>
<div>
Going forward, policies
that are more congruent in terms of societal goals, including employment
that support the development of large manufacturing opportunities, need
to be thought through from a perspective of aligning and integrating
objectives (in this case, transportation). Areas such as automotive and
other industries for the manufacture of road and rail transport vehicles
need to be considered from the perspective of reconfiguring the
purpose, flow, and value-added, to achieve both low-cost, accessible
mass transport, and vehicles for private use that complement
transportation objectives as also employment and welfare.</div>
<div>
Systematic and convergent planning and implementation across sectors could help achieve a better revival.</div>
<div> </div>
<div>
Shyam (no space) Ponappa at gmail dot com</div>
<div>
<em>1: <a href="https://www.reuters.com/article/us-health-coronavirus-usa-reopen-analysi/the-u-s-weighs-the-grim-math-of-death-vs-the-economy-idUSKBN21H1B4">https://www.reuters.com/article/us-health-coronavirus-usa-reopen-analysi/the-u-s-weighs-the-grim-math-of-death-vs-the-economy-idUSKBN21H1B4</a></em></div>
<div>
<em>2: <a href="https://www.financialexpress.com/opinion/the-coronavirus-lockdown-and-indias-urban-vulnerables/1915316/">https://www.financialexpress.com/opinion/the-coronavirus-lockdown-and-indias-urban-vulnerables/1915316/</a></em></div>
<p> </p>
<div class="column-right-outer">
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<table class="section-columns columns-2">
<tbody>
<tr>
<td class="first columns-cell"><br /></td>
<td class="columns-cell"><br /></td>
</tr>
</tbody>
</table>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/after-the-lockdown'>https://cis-india.org/internet-governance/blog/after-the-lockdown</a>
</p>
No publisherShyam PonappaTelecominternet governanceInternet Governance2020-04-09T10:05:49ZBlog Entry India’s ‘Self-Goal’ in Telecom
https://cis-india.org/internet-governance/indias-self-goal-in-telecom
<b></b>
<p> </p>
<p>This post was first published in the <a class="external-link" href="https://www.business-standard.com/article/opinion/india-s-self-goal-in-telecom-120030500019_1.html">Business Standard</a>, on March 5, 2020.</p>
<p> </p>
<p> </p>
<p> </p>
<p>The government apparently cannot resolve the problems in telecommunications. Why? Because the authorities are trying to balance the Supreme Court order on Adjusted Gross Revenue (AGR), with keeping the telecom sector healthy, while safeguarding consumer interest. These irreconcilable differences have arisen because both the United Progressive Alliance and the National Democratic Alliance governments prosecuted unreasonable claims for 15 years, despite adverse rulings! This imagined “impossible trinity” is an entirely self-created conflation.<br />If only the authorities focused on what they can do for India’s real needs instead of tilting at windmills, we’d fare better. Now, we are close to a collapse in communications that would impede many sectors, compound the problem of non-performing assets (NPAs), demoralise bankers, increase unemployment, and reduce investment, adding to our economic and social problems.<br />Is resolving the telecom crisis central to the public interest? Yes, because people need good infrastructure to use time, money, material, and mindshare effectively and efficiently, with minimal degradation of their environment, whether for productive purposes or for leisure. Systems that deliver water, sanitation, energy, transport and communications support all these activities. Nothing matches the transformation brought about by communications in India from 2004 to 2011 in our complex socio-economic terrain and demography. Its potential is still vast, limited only by our imagination and capacity for convergent action. Yet, the government’s dysfunctional approach to communications is in stark contrast to the constructive approach to make rail operations viable for private operators.<br />India’s interests are best served if people get the services they need for productivity and wellbeing with ease, at reasonable prices. This is why it is important for government and people to understand and work towards establishing good infrastructure.<br /><br /></p>
<h2>What the Government Can Do</h2>
<p><br />An absolute prerequisite is for all branches of government (legislative, executive, and judicial), the press and media, and society, to recognise that all of us must strive together to conceptualise and achieve good infrastructure. It is not “somebody else’s job”, and certainly not just the Department of Telecommunications’ (DoT’s). The latter cannot do it alone, or even take the lead, because the steps required far exceed its ambit.<br /><br /></p>
<h3>Act Quickly</h3>
<p><br />These actions are needed immediately:<br /><br />First, annul the AGR demand using whatever legal means are available. For instance, the operators could file an appeal, and the government could settle out of court, renouncing the suit, accepting the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) ruling of 2015 on AGR.<br /><br />Second, issue an appropriate ordinance that rescinds all extended claims. Follow up with the requisite legislation, working across political lines for consensus in the national interest.<br /><br />Third, take action to organise and deliver communications services effectively and efficiently to as many people as possible. The following steps will help build and maintain more extensive networks with good services, reasonable prices, and more government revenues.<br /><br /><br /><br /></p>
<h3>Enable Spectrum Usage on Feasible Terms</h3>
<p><br /><strong>Wireless regulations</strong><br /><br />It is infeasible for fibre or cable to reach most people in India, compared with wireless alternatives. Realistically, the extension of connectivity beyond the nearest fibre termination point is through wireless middle-mile connections, and Wi-Fi for most last-mile links. The technology is available, and administrative decisions together with appropriate legislation can enable the use of spectrum immediately in 60GHz, 70-80GHz, and below 700MHz bands to be used by authorised operators for wireless connectivity. The first two bands are useful for high-capacity short and medium distance hops, while the third is for up to 10 km hops. The DoT can follow its own precedent set in October 2018 for 5GHz for Wi-Fi, i.e., use the US Federal Communications Commission regulations as a model.1 The one change needed is an adaptation to our circumstances that restricts their use to authorised operators for the middle-mile instead of open access, because of the spectrum payments made by operators. Policies in the public interest allowing spectrum use without auctions do not contravene Supreme Court orders.<br /><strong><br />Policies: Revenue sharing for spectrum</strong><br /><br />A second requirement is for all licensed spectrum to be paid for as a share of revenues based on usage as for licence fees, in lieu of auction payments. Legislation to this effect can ensure that spectrum for communications is either paid through revenue sharing for actual use, or is open access for all Wi-Fi bands. The restricted middle-mile use mentioned above can be charged at minimal administrative costs for management through geo-location databases to avoid interference. In the past, revenue-sharing has earned much more than up-front fees in India, and rejuvenated communications.2 There are two additional reasons for revenue sharing. One is the need to manufacture a significant proportion of equipment with Indian IPR or value-added, to not have to rely as much as we do on imports. This is critical for achieving a better balance-of-payments, and for strategic considerations. The second is to enable local talent to design and develop solutions for devices for local as well as global markets, which is denied because it is virtually impossible for them to access spectrum, no matter what the stated policies might claim.</p>
<p><strong>Policies and Organisation for Infrastructure Sharing</strong><br /><br />Further, the government needs to actively facilitate shared infrastructure with policies and legislation. One way is through consortiums for network development and management, charging for usage by authorised operators. At least two consortiums that provide access for a fee, with government’s minority participation in both for security and the public interest, can ensure competition for quality and pricing. Authorised service providers could pay according to usage.<br />Press reports of a consortium approach to 5G where operators pay as before and the government “contributes” spectrum reflect seriously flawed thinking.3 Such extractive payments with no funds left for network development and service provision only support an illusion that genuine efforts are being made to the ill-informed, who simultaneously rejoice in the idea of free services while acclaiming high government charges (the two are obviously not compatible).<br />Instead of tilting at windmills that do not serve people’s needs while beggaring their prospects, commitment to our collective interests requires implementing what can be done with competence and integrity.<br /><br />Shyam (no space) Ponappa at gmail dot com<br />1. https://dot.gov.in/sites/default/files/2018_10_29%20DCC.pdf<br />2. http://organizing-india.blogspot.in/2016/04/ breakthroughs- needed-for-digital-india.html<br />3. https://www.business-standard.com/article/economy-policy/govt-considering-spv-with-5g-sweetener-as-solution-to-telecom-crisis-120012300302_1.html</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/indias-self-goal-in-telecom'>https://cis-india.org/internet-governance/indias-self-goal-in-telecom</a>
</p>
No publisherShyam PonappaTelecominternet governanceInternet Governance2020-04-09T07:18:26ZBlog EntryThe Telecom Crisis is an NPA Problem
https://cis-india.org/telecom/blog/shyam-ponappa-business-standard-and-organizing-india-blogspot-november-7-2019-telecom-crisis-is-an-npa-problem
<b>After interim relief for telecom, structural reforms must follow.</b>
<p style="text-align: justify; ">The article originally published in <a class="external-link" href="https://www.business-standard.com/article/opinion/the-telecom-crisis-is-an-npa-problem-119110700062_1.html">Business Standard</a> on November 7, 2019 was also mirrored on <a class="external-link" href="https://organizing-india.blogspot.com/2019/11/the-telecom-crisis-is-npa-problem.html">Organizing India Blogspot</a></p>
<hr />
<p style="text-align: justify; ">The Committee of Secretaries to mitigate financial stress in telecom must act quickly on interim measures for the sector to survive. But is its mere survival sufficient for India’s development and growth? Is it possible to fix telecom in isolation?Our communications needs are very poorly served, although at rock-bottom prices. Is it even possible for our hapless citizens and enterprises to get past shoddy services and productivity foregone, to trade with other countries on a more even footing?</p>
<p style="text-align: justify; ">Yes, if we succeed at major structural changes, starting with telecom. But to transform telecom, the government and all of us have to come to the stark realisation that just as finance drives the economy, digitisation and communications have to be at the heart of production and delivery. Telecom and digitisation are strategic enablers for all infrastructure and in all sectors. Leading countries are so far ahead and functioning so effectively that it is difficult for us to imagine. We must want that path, plan for it, and put in the requisite effort.</p>
<p style="text-align: justify; ">Simply tweaking overdue payments, tinkering to reduce charges, and plugging along as before isn’t going to get us there. In this sense, the Committee’s charter is too limited. All it can do is assuage the pain, whereas our need is for a revitalised industry to serve our purposes.If the Committee’s scope were broader, could we actually adopt digitisation as our core strategy for development and growth? A study on China, “Telecommunications reforms in China”, about the transformation in policies to make digitisation its development priority, is instructive.1</p>
<p style="text-align: justify; ">Their approach to reforms was to balance the government’s aims of universal coverage, governance and control, and efficiency; industry’s profit-seeking; and the people and enterprises’ needs for freer, more rapid communications. This is what we need to do, in a way that works for us.Also, the government, the judiciary, the press and users need to understand and accept that the telecom crisis is part of the larger non-performing assets (NPAs) problem. It has systemic links to NPAs and banking, which links to real estate and construction, electricity and roads, and stable and predictable taxes. Government payment delays and tax terrorism must stop. Business as usual will not resolve NPAs soon to enable growth. These two articles explain why and deserve attention.2</p>
<p style="text-align: justify; ">Essentially, entities that take deposits need Reserve Bank of India (RBI) regulation. In a crisis, people with domain expertise and capacity must be appointed to take immediate steps to protect assets and operations, as with Satyam or IL&FS, because seizing/freezing assets often hurts depositors and creditors. A bureaucratic process as with the Punjab & Maharashtra Co-operative bank is likely to result in yet another zombie bank, burning depositors’ money just to stay alive.The Committee’s focus should be on cash flows, modelling cash flows and their timing, not just the present value of discounted flows, or other extraneous emotional, political, or judicial/administrative reasons.</p>
<p style="text-align: justify; ">Employment is a legitimate consideration, but has to be sustainable, with timely cash generation. Else, other sources of timely cash support must be arranged, because without sustained cash flows, no gambit or subsidy can succeed (and maintaining unproductive employment will not be possible). Some fixes need major legislative changes to policies.</p>
<p style="text-align: justify; "><strong>BSNL & MTNL</strong></p>
<p style="text-align: justify; "><strong> </strong>On BSNL and MTNL, a recent article sets the context and explains why the revival plan is unrealistic.3 In short, these poorly supported and much-abused enterprises have so much debt that earnings before interest, taxation, depreciation and amortisation would have to be at least 35 per cent. Governments have used them as market spoilers as with Air India, precipitating unsustainable price wars that gutted the industry.An alternative is to downsize, re-skill as needed, and retain the public sector entities (as one or both) in the role of security-and-public-interest-anchors in infrastructure consortiums. These must be run by the private sector (and in strategic areas, by defence). This will facilitate policies such as assigning spectrum for payment on usage without auctions, and extending Wi-Fi to 60 GHz and 6 GHz (details at: <a href="https://organizing-india.blogspot.com/2019/10/extend-tax-cut-logic-to-infrastructure.html" target="_blank">https://organizing-india</a><a href="https://organizing-india.blogspot.com/2019/10/extend-tax-cut-logic-to-infrastructure.html" target="_blank">.blogspot.com/2019/10/extend-tax-cut-logic-to-infrastructure</a><a href="https://organizing-india.blogspot.com/2019/10/extend-tax-cut-logic-to-infrastructure.html" target="_blank">.html</a>, and <a href="https://organizing-india.blogspot.com/2018/11/a-great-start-on-wi-fi-reforms.html" target="_blank">https://organizing-india.blogspot.com/2018/11/a-great-start-on-wi-fi-reforms.html</a>).</p>
<p style="text-align: justify; "><strong>Weak Financial Systems</strong></p>
<p style="text-align: justify; "><strong> </strong>The Committee needs to apprehend and convey the need to strengthen financial institutions. Financial systems provide second-order infrastructure for productive activity and wellbeing. They need an adequate underlay of first-order, basic infrastructure, comprising communications, energy, water, waste, sewerage, and transport, leaving aside housing and the basics of security, and law and order. While most of us take these for granted, there should be no doubt about how critical these attributes are, and that they are being eroded and increasingly at risk because of social disorder and economic inadequacies. In addition, basic health care and education are essential adjuncts for the supply of trainable people to operate these sectors.</p>
<p style="text-align: justify; ">Until some years ago, despite weak infrastructure, financial systems were among India’s real strengths, although eroded periodically by disruptions resulting in NPAs. However, there was strength in the professional capacity of this sector that held up in spite of the pressures. Over time, these institutions have been severely degraded, through laxity, complicity, pressures for evergreening, the abrupt imposition of credit quality and NPAs, the extent of frauds because of lax or complicit supervision and the reputational damage, the buffeting from demonetisation and pressures to cross-sell products such as insurance. Governments need to understand this and support building professionalism, avoiding <em>melas</em> and waivers.</p>
<p style="text-align: justify; ">The scope of the Committee could be expanded to set the objectives of telecom and digitisation in the interests of governance, industry, and users, and to outline next steps. They could consider the experience of China and others such as Sweden for this vast effort, while addressing linkages and NPA issues. Perhaps, they could be exemplars by setting the tone for a national approach that is not departmental and becomes bipartisan, and helps to move away from our abrasive, confrontational politics that leads to deadlocks.</p>
<hr style="text-align: justify; " />
<ol style="text-align: justify; ">
<li style="text-align: left; ">Becky P.Y. Loo, October 2004: <a class="external-link" href="https://www.researchgate.net/publication/227426547_Telecommunications_reforms_in_China_Towards_an_analytical_framework">https://www.researchgate.net/publication/227426547_Telecommunications_reforms_in_China_Towards_an_analytical_framework</a></li>
<li>Debashis Basu, October 27, 2019: <a class="external-link" href="https://www.business-standard.com/article/opinion/how-to-fix-the-pmc-bank-crisis-119101400006_1.html October 13, 2019: https://www.business-standard.com/article/opinion/lessons-from-pmc-why-govt-is-responsible-for-co-operative-bank-crises-119102700620_1.html">https://www.business-standard.com/article/opinion/how-to-fix-the-pmc-bank-crisis-119101400006_1.html October 13, 2019: https://www.business-standard.com/article/opinion/lessons-from-pmc-why-govt-is-responsible-for-co-operative-bank-crises-119102700620_1.html</a></li>
<li style="text-align: justify; ">Rahul Khullar, October 31, 2019: <a class="external-link" href="https://www.business-standard.com/article/opinion/don-t-bet-on-bsnl-mtnl-s-revival-119103100040_1.html">https://www.business-standard.com/article/opinion/don-t-bet-on-bsnl-mtnl-s-revival-119103100040_1.html</a></li>
</ol>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/shyam-ponappa-business-standard-and-organizing-india-blogspot-november-7-2019-telecom-crisis-is-an-npa-problem'>https://cis-india.org/telecom/blog/shyam-ponappa-business-standard-and-organizing-india-blogspot-november-7-2019-telecom-crisis-is-an-npa-problem</a>
</p>
No publisherShyam PonappaTelecom2019-12-15T07:26:50ZBlog EntryTraffic Rules, Mindset and On-Time Payments
https://cis-india.org/telecom/blog/business-standard-september-4-2019-shyam-ponappa-traffic-rules-mindset-and-on-time-payments
<b>There's no alternative to following the rules and working together with discipline for our common interests.</b>
<p style="text-align: justify; ">The article was published in the <a class="external-link" href="https://www.business-standard.com/article/opinion/traffic-rules-mindset-and-on-time-payments-119090401568_1.html">Business Standard</a> on September 4, 2019 and carried in <a class="external-link" href="https://organizing-india.blogspot.com/2019/09/traffic-rules-mindset-and-on-time.html">Organizing India Blogspot </a>on September 5, 2019.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">Payments have gained currency, pun unintended, with the sharp focus on consumer spending and the economy. The following anecdote from newspaper reports begins with a payment problem for a traffic infraction, which leads on to existential questions on behaviour and governance.</p>
<p style="text-align: justify; ">A motorcycle rider in Uttar Pradesh was booked for not wearing a helmet. Events spiralled quickly to arrive at the heart of the matter: The state of governance and our utter disregard for due process and the law. But let’s not get ahead of the story.</p>
<p style="text-align: justify; ">The rider was an electrician on contract with the UP State Electricity Board. He pleaded with the police to be let off on the Rs 500 fine, saying he earned only Rs 6,000 a month, and hadn’t been paid for four months. The police said it was the law, and issued a ticket. The electrician’s superior interceded at his request, but couldn’t convince the police to waive the fine. (It turned out that tickets had been issued to 70 policemen for traffic violations.)</p>
<p style="text-align: justify; ">The electrician checked on the electricity dues owed by the police station. Finding that they amounted to Rs 662,463 over several years, he disconnected their power supply. When questioned, he said that this was as required by the law.</p>
<p style="text-align: justify; ">The power supply to the police station was soon restored, with the customary, vague assurance that the bill “would be paid soon”. A positive outcome, however, was that the state electricity board then paid Rs 17 crore of arrears for the month of May to 9,627 contract workers, including the electrician. The remaining amount, they said, “would be paid soon”.</p>
<p style="text-align: justify; ">Why were wages delayed? Apparently because consumers delayed payments, and the electricity board didn’t have the money to pay. Employees were still owed back pay for three months. Meanwhile, a formal enquiry reportedly began on the episode.</p>
<p style="text-align: justify; ">Such incidents are not unusual. In August, there was an instance in Agra of unpaid sanitation workers responsible for the toilets at the Taj Mahal going on strike. In Noida near New Delhi, two major shopping malls, a hospital, and a school had their water and sewer lines shut off because of unpaid dues. There were apparently 107 defaulters who owed over Rs 10 lakh each, with the highest being Rs 46.35 crore.</p>
<p style="text-align: justify; ">It isn’t as though citizens and the private sector are the sole culprits, with only stray government entities defaulting. A former Confederation of Indian Industry chairperson said in an interview on television recently that while hard data on government dues to the private sector are unavailable, informal estimates of the dues from central and state governments, state-owned companies such as electricity boards, and arbitration awards, ranged from Rs 2 trillion to Rs 5 trillion. Her observation was that if these dues were paid, it would provide the biggest boost for the economy, because it would result in much-needed capital formation and economic rejuvenation. As to where the funding could be found, given the government’s finances, she replied that the same sources (for example, bonds) could be used that would fund whatever waivers or incentives the central and state governments were promising. Those funds could be channelled for productive use in capital formation by their rightful claimants.</p>
<p style="text-align: justify; ">Stepping back for perspective, the problems appear to stem from slack implementation of protocols (defined, sequential steps), whether it is the discipline of timely payments, or rules and regulations. The same malady afflicting payments shows in the disregard for traffic rules, and the confusion in disallowing tyre shredders to discourage driving the wrong way, which is even more dangerous to the public.</p>
<p style="text-align: justify; ">In some cases, the design itself is flawed. For instance, resources for infrastructure such as coal and spectrum need to be priced low to facilitate productivity. If auctioned at a premium, instead of abundant supply of good quality at reasonable prices, the supply is constrained in quantity or quality, or priced high. Other instances are of processes not thought through in terms of design (e.g, stranded power generation. A requirement of Letters of Credit (LC) for purchasing power has been around, but has not been enforced. Will a new directive enforce this, when banks acting prudently can issue LCs only to distribution companies with strong finances?) The design shortcomings could result from fragmented and episodic attention, disaggregated responsibilities, lack of professional capacity, or simply winging it.</p>
<p style="text-align: justify; ">These failings have existed over decades, regardless of the governments in office. Some initial successes, as in mobile telephony from 2003 to around 2011, or in road construction or electricity supply, have not been consistent, nor have they been convergent to yield all-round, sustainable growth of the sort that could result from well-organised orchestration across the board. They have not even been able to sustain their performance, and now comprise the troubled sectors for banking and non-performing assets.</p>
<p style="text-align: justify; ">The root causes may be in underlying contradictions in our attitudes. These include feudal and post-colonial (exploitative) notions, with the trappings of a Westminster system, without the requisite culture and preparation of policies, practices and training. The result is either government and citizens facing off in an “Us vs Them”, with citizens often being viewed in the way colonials regarded “the natives”, or episodic “schemes” that fizzle out. Our political leadership and we have to realise that we are in the same boat, and that there is no substitute for working together with discipline for our common interests.</p>
<p style="text-align: justify; ">There are no colonial masters here, only their mindsets that we adhere to, without refashioning them for our purposes. This is what we must change over time from a total-solutions perspective, from on-time payments, to law and order including traffic, to waste management,<sup>1</sup> all infrastructure, finance, industry, farming, the arts and daily living.</p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/business-standard-september-4-2019-shyam-ponappa-traffic-rules-mindset-and-on-time-payments'>https://cis-india.org/telecom/blog/business-standard-september-4-2019-shyam-ponappa-traffic-rules-mindset-and-on-time-payments</a>
</p>
No publisherShyam PonappaTelecom2019-09-26T15:05:29ZBlog EntryFix Problems Before Complete Failure
https://cis-india.org/telecom/blog/shyam-ponappa-business-standard-july-4-2019-fix-problems-before-complete-failure
<b>We need some real solutions on the ground. Examples - Jet Airways post mortem findings applied as the way forward for difficult NPAs; and a radical change of course a</b>
<p style="text-align: justify; ">The article by Shyam Ponappa was published in the <a class="external-link" href="https://www.business-standard.com/article/opinion/fix-problems-before-complete-failure-119070400025_1.html">Business Standard</a> on July 4, 2019 and <a class="external-link" href="https://organizing-india.blogspot.com/2019/07/fix-problems-before-complete-failure.html">Organizing India Blogspot</a> on July 5, 2019.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; ">There is much talk about improving the big picture in India. What we really need, though, is some successes on the ground — some actual resolution of problems as building blocks for further success. Two instances are discussed below.</p>
<p style="text-align: justify; ">The first is a puzzling business failure: Jet Airways running aground in slow motion. It is already bankrupt, but unravelling the sequence could make such financial predicaments, of which there are many, more tractable. India’s once dominant airline slipped up and, inexplicably, was allowed to collapse. Over 16,000 employees are affected, and India’s airline services are in turmoil. One estimate of liabilities was Rs 26,000 crore.</p>
<p style="text-align: justify; ">Why didn’t lenders and government agencies use a combination of executive action, judicial process and bridge financing to keep the airline afloat? Did legal obstacles genuinely prevent resolution? Or was it irresolute collective action, including lenders being gun-shy because of the Non-Performing Assets (NPAs) and witch-hunts, or manipulation, complicity, or vindictiveness? Answers and corrective action could help fix other high-profile NPAs.</p>
<p style="text-align: justify; ">The second is a macro-level example from telecom: The mishandling of BSNL and MTNL. Since the 1990s, successive governments have repeatedly attempted to give a fresh impetus to these hapless telecom entities, while depriving them of what could actually have made them successful, namely, strong, informed leadership, with independence/non-interference. Consequently, BSNL’s accumulated losses amount to nearly Rs 1 trillion. This is nearly five times Jet Airways’, and double Air India’s accumulated losses until March 2018, the latter being roughly the size of India’s annual health budget.</p>
<p style="text-align: justify; ">Sorting out these infrastructure service problems is crucial because of their effect on everything from security, education and healthcare, to work and entertainment. If BSNL and MTNL can change course constructively, we may be able to get them off their collapsing trajectory. Resolving this situation would remove severe impediments to our effectiveness and convenience, and an enormous drag on productivity. Connectivity and communications are so critical to social and economic capabilities, and our approach for decades has been so flawed and on a disastrous trajectory, that it is incomprehensible that we should be resolutely following this failing path without changing it. Now, the government is reportedly considering infusing thousands of crores into the same business, together with monetising land and assets.</p>
<p style="text-align: justify; "><b>What Is In The Public Interest?</b></p>
<p style="text-align: justify; "><b></b>The first step is setting appropriate objectives for BSNL and MTNL. What public-interest needs do they serve? The communications minister mentioned strategic areas like home and defence, and services for crisis management during times of disaster such as cyclones and floods. Two others that he mentioned appear unjustifiable: That they are national assets, and leading providers of free services. The first is just an assertion, while the second is inappropriate for commercial undertakings. It’s time to drop wishful thinking and take honest stock. For instance, after policy statements supporting spectrum sharing, regulations were framed to be so restrictive as to make it not worthwhile. Instead, policy-makers should set objectives that actually serve the public interest.</p>
<p style="text-align: justify; ">Thus far, we have had confused and absurdly contradictory objectives in practice: High government collections from auction fees and charges, while expecting ubiquitous, reasonably-priced, good-quality services. It seems self-evident that such contradictory objectives cannot possibly be achieved. The fact that high government charges deprive networks of funds and increase user costs are documented in the following reports:<br />“<a href="http://icrier.org/pdf/Working_Paper_380.pdf" target="_blank">A Study of the Financial Health of the Telecom Sector</a>”1 and <br /><br />“<a href="https://www.nera.com/content/dam/nera/publications/2017/PUB_High_Spectrum_Costs_0517.pdf." target="_blank">The Impact of High Spectrum Costs on Mobile Network Investment and Consumer Prices</a>”2<br /><br /><strong>Suggested Objectives</strong></p>
<p style="text-align: justify; "><strong></strong>A genuine reset could be attempted on the following lines:</p>
<ul style="text-align: justify; ">
<li>Connectivity is the most essential objective. The ideal must be balanced with the practical, through trade-offs and phasing. The top cities and clusters have a major share of economic and social activity and are therefore a priority, of which 35-50 may be the fastest growing, with the next 50 requiring attention because of sheer size. For instance, Sweden’s phasing for 2025 is for 98 per cent of the population to have a minimum of 1 Gbps at home/work, 1.9 per cent at least 100 Mbps, and 0.1 per cent at 30 Mbps. But to the extent communications are available in our hinterland together with roads, water and sanitation, activity and prosperity will spread, with less pressure to migrate to urban centres. The longer term objective therefore needs to be good connectivity everywhere (within reason).</li>
<li>An equally important objective is to safeguard the public interest, while ensuring good, reliable services at reasonable prices. The question is not whether to shut down BSNL and MTNL, but how to provide the right structuring and support including reskilling and continuing education, so that they participate effectively in consortiums and provide safety, security, and oversight in the public interest.</li>
<li>A third is to avoid disrupting markets with unsustainable prices, including free services. Governments have done this repeatedly in telecom, airline and electricity services. It needs to stop. People need high-quality infrastructure for productivity, not shoddy services that undermine productivity and waste their time, pre-empting better services because of low pricing.</li>
<li>A fourth is to actively ensure adequate capacity and quality in services to not constrain or waste public resources and potential. This is to avoid the shoddy services referred to above, that are bottlenecks that subvert alternatives as low-priced barriers to competition, through constraining revenues while draining public resources.</li>
<li>Finally, we must embrace infrastructure- and spectrum-sharing. Sweden provides a model not only for the European Union, but also for India. Singapore had a model public-private partnership until some years ago, when SingTel, a passive anchor partner, took over OpenNet. We need mandatory active network sharing (including spectrum) through consortiums run by the private sector, with BSNL and MTNL as guardian anchor participants. A report by Stokab in March 2017,<sup>3</sup> the City of Stockholm’s IT infrastructure company, provides details of an operator-neutral fibre and mobile infrastructure. </li>
</ul>
<p style="text-align: justify; ">Resolving connectivity problems that affect many people may be more easily doable than, for example, clearing the NPAs, or reconfiguring agriculture.</p>
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<p style="text-align: justify; "><em>Shyam dot Ponappa at gmail dot com</em> <br /><br />1: <a href="http://icrier.org/pdf/Working_Paper_380.pdf">http://icrier.org/pdf/Working_Paper_380.pdf</a><br /><br />2: <a href="https://www.nera.com/content/dam/nera/publications/2017/PUB_High_Spectrum_Costs_0517.pdf">https://www.nera.com/content/dam/nera/publications/2017/PUB_High_Spectrum_Costs_0517.pdf</a><br /><br />3. <a href="https://www.stokab.se/Documents/Nyheter%20bilagor/Provins%20rapport%20mars%202017_en.pdf">https://www.stokab.se/Documents/Nyheter%20bilagor/Provins%20rapport%20mars%202017_en.pdf</a></p>
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For more details visit <a href='https://cis-india.org/telecom/blog/shyam-ponappa-business-standard-july-4-2019-fix-problems-before-complete-failure'>https://cis-india.org/telecom/blog/shyam-ponappa-business-standard-july-4-2019-fix-problems-before-complete-failure</a>
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No publisherShyam PonappaTelecom2019-07-31T02:43:51ZBlog EntryFostering Strategic Convergence in US-India Tech Relations: 5G and Beyond
https://cis-india.org/telecom/blog/the-diplomat-justin-sherman-and-arindrajit-basu-july-3-2019-fostering-strategic-convergence-in-us-india-tech-relations-5g-and-beyond
<b>The 2019 G-20 summit underscores the importance of fostering strategic convergence in U.S.-India tech relations.</b>
<p style="text-align: justify; ">The article by Justin Sherman and Arindrajit Basu was <a class="external-link" href="https://thediplomat.com/2019/07/fostering-strategic-convergence-in-us-india-tech-relations-5g-and-beyond/">published in the Diplomat</a> on July 3, 2019.</p>
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<p style="text-align: justify; ">As world leaders gathered for the G-20 summit in Osaka, Japan this past weekend, a multitude of issues from climate to trade to technology came to the fore. Much of the focus was on U.S.-China interactions at the summit, as the two nations are locked in both a trade war and broader technological and geopolitical competition. Despite the present focus on the U.S. and China, however, it is crucial to not overlook another bilateral relationship of ever-growing importance in the process: The tech relationship between the United States and India.</p>
<p style="text-align: justify; ">Certainly, the two countries have many disagreements on some technology issues. But this is a geopolitical relationship that is both strategically important for each country, and a vital opportunity for the two largest democracies in the world to collectively combat Chinese-style digital authoritarianism.</p>
<p style="text-align: justify; "><strong>Huawei and 5G</strong></p>
<p style="text-align: justify; ">First, with respect to national security and 5G roll-outs, the U.S and India are not on the same page. The United States, for several months now, has been on a <a href="https://www.lawfareblog.com/confused-us-messaging-campaign-huawei" target="_blank">diplomatic messaging tour</a> of the world to try to convince — with great resistance (some would argue failure) — allies, partners, and potential partners alike to ban Chinese firm Huawei from supplying components of 5G networks. Many officials across Europe, the Middle East, South America, and elsewhere have been reluctant to ban Huawei per the U.S. recommendation, and India is no exception. Indeed, National Security Advisory Board Chairman P.S. Raghavan <a href="https://www.thehindu.com/news/national/on-5g-and-data-india-stands-with-developing-world-not-us-japan-at-g20/article28207169.ece/amp/?__twitter_impression=true" target="_blank">told</a> <em>The Hindu</em> that “5G is becoming a fault line in the technology cold war between world powers” and that India must avoid getting caught in these fault lines.</p>
<p style="text-align: justify; ">In large part, U.S. diplomatic messaging here has fallen short due to <a href="https://www.lawfareblog.com/confused-us-messaging-campaign-huawei" target="_blank">heavy conflations</a> of national security- and trade-related risks; and Trump only contributed further to this fact with his latest <a href="https://twitter.com/JenniferJJacobs/status/1145072073800183808" target="_blank">reference</a> to Huawei, during the G-20, as a potential trade war bargaining chip. The sheer population of India, however, combined with its fast growing technology sectors and <a href="http://www.cmai.asia/digitalindia/" target="_blank">desire to digitize</a>, makes the country an important market player when it comes to the 5G revolution. U.S.-India engagement on 5G issues must be managed effectively through robust articulation of each country’s national interests underscored by a clean segregation of trade and security questions in the discussion. This partnership has the potential to wield great influence in the global market, including in ways that could prioritize or deprioritize certain 5G equipment suppliers (like Huawei).</p>
<p style="text-align: justify; "><strong>Data Sovereignty and Data Privacy</strong></p>
<p style="text-align: justify; ">Data sovereignty is another hot area in which the U.S.-India tech relationship demands careful negotiation. Over the past year, the Indian government has <a href="https://twitter.com/cis_india/status/1143096429298085889" target="_blank">introduced a range of policy instruments</a> which dictate that certain kinds of data must be stored in servers located physically within India — termed “<a href="https://cis-india.org/internet-governance/resources/the-localisation-gambit.pdf" target="_blank">data localization</a>.” While there are <a href="https://cis-india.org/internet-governance/resources/the-localisation-gambit.pdf" target="_blank">a number of policy objectives</a> this gambit ostensibly seeks to serve, the two which stand out are (1) the presently cumbersome process for Indian law enforcement agencies to access data stored in the U.S. during criminal investigations, and (2) extractive economic models used by U.S. companies operating in India.</p>
<p style="text-align: justify; ">A range of conflicting developments emerging from the G-20 summit underscore this fact. India, along with the BRICS grouping, <a href="https://mea.gov.in/bilateral-documents.htm?dtl/31506/Joint+Statement+on+BRICS+Leaders+Informal+Meeting+on+the+margins+of+G20+Summit" target="_blank">focused</a> on the development dimensions of data governance and re-emphasized the need for <a href="https://www.youtube.com/watch?v=0a8YsZQ0F6k&feature=youtu.be" target="_blank">data sovereignty</a> — broadly understood as the sovereign right of nations to govern data in their national interest for the welfare of their citizens. President Trump <a href="https://www.whitehouse.gov/briefings-statements/remarks-president-trump-g20-leaders-special-event-digital-economy-osaka-japan/" target="_blank">reigned in his focus</a> on the need for cross-border data flows and, in direct opposition to some proposals that have emerged from India, explicitly opposed data localization. While India did not sign the <a href="https://www.international.gc.ca/world-monde/international_relations-relations_internationales/g20/2019-06-29-g20_declaration-declaration_g20.aspx?lang=eng" target="_blank">Osaka Declaration on the Digital Economy</a> that promoted cross-border data flows, the importance of cross-border data flows in spurring the global economy did find its way into the <a href="https://g20.org/pdf/documents/en/FINAL_G20_Osaka_Leaders_Declaration.pdf" target="_blank">Final G-20 Leaders Declaration</a> — which, of course, both countries signed.</p>
<p style="text-align: justify; ">Geopolitically, the importance of India’s data governance stance cannot be overstated as it could pave the way for the approach adopted by other emerging economies — most notably the BRICS countries. Likewise, the U.S. has important thinking to do around such questions as what shape a national data privacy law could take. Even though the two countries’ views on data may be quite different from one another, the seats that India and the U.S. have at the table for <a href="https://www.theatlantic.com/international/archive/2019/06/g20-data/592606/" target="_blank">global data governance discussions</a> — alongside others like Japan, China, and the European Union — underscore the value of meaningful interactions and mutual trust and respect on this issue.</p>
<p style="text-align: justify; "><strong>Norms for a Democratic Digital Future</strong></p>
<p style="text-align: justify; ">Finally, as the <a href="https://www.un.org/disarmament/ict-security/" target="_blank">United Nations Group of Governmental Experts</a> and the <a href="https://www.un.org/disarmament/open-ended-working-group/" target="_blank">Open-Ended Working Group</a> meet to resurrect the norm-formulation process for fostering responsible state behavior in cyberspace, India has some homework to do. Even though it has been a member of five out of the six Group of Governmental Experts set up thus far, India is yet to come out with a public statement delineating its views on the applicability of International Law applies in cyberspace. Further, India has also failed to articulate a cohesive digital strategy — instead relying on a patchwork of hastily rolled out and often ill-conceived regulatory policies, some of which commentators in the West <a href="https://www.nytimes.com/2019/02/14/technology/india-internet-censorship.html" target="_blank">have hastily labeled</a> as digital authoritarianism. The U.S., for its part, amidst a <a href="https://www.newamerica.org/cybersecurity-initiative/c2b/c2b-log/four-opportunities-for-states-new-cyber-bureau/" target="_blank">cutback</a> to diplomatic cyber engagement (as part of cutbacks to diplomacy writ large), could also up its support of international engagement on these issues. Its recent repeal of net neutrality protections could also be argued as a step back from long-time international <a href="https://d1y8sb8igg2f8e.cloudfront.net/documents/The_Idealized_Internet_vs._Internet_Realities_Version_1.0_2018-07-25_203930.pdf" target="_blank">norm promotion</a> around internet openness.</p>
<p style="text-align: justify; ">Through a combination of domestic policy gambits and foreign policy maneuvers, both states need to draw lines in the sand that safeguard human rights, international law, and democracy online, while arriving at some balance with each other’s national interests.</p>
<p style="text-align: justify; ">A primary example lies with artificial intelligence (AI). AI has found increasing use in digital authoritarianism, as dictators use automated, intelligent systems to boost their surveillance capabilities. The Chinese government has arguably been at the <a href="https://freedomhouse.org/report/freedom-net/freedom-net-2018" target="_blank">forefront</a> of this enhanced level of authoritarian rule for the digital age.</p>
<p style="text-align: justify; ">In addition to <a href="https://www.newamerica.org/cybersecurity-initiative/digichina/blog/translation-chinese-government-outlines-ai-ambitions-through-2020/" target="_blank">focusing</a> on AI applications for everything from natural language processing to self-driving cars — through investments, strategies, policy documents, and so on — Beijing has also been <a href="https://www.nytimes.com/2019/04/14/technology/china-surveillance-artificial-intelligence-racial-profiling.html" target="_blank">deploying</a> AI in the service of large-scale human-rights abuses. Chinese strategy papers on AI, while similarly emphasizing many commercial or benign applications and raising attention to such issues as algorithmic fairness, concurrently have <a href="https://www.newamerica.org/cybersecurity-initiative/digichina/blog/online-symposium-chinese-thinking-ai-security-comparative-context/" target="_blank">discussed</a> using AI for “social governance,” censorship, and surveillance. To combat the rising intersection of AI and digital authoritarianism, the U.S. and India could wield enormous leverage — as the two largest democracies in the world — in governing these technologies in a democratic fashion that counters <a href="https://www.newamerica.org/cybersecurity-initiative/reports/essay-reframing-the-us-china-ai-arms-race/" target="_blank">dangerous arms-race narratives</a> and uses of AI for surveillance and repression.</p>
<p style="text-align: justify; ">The same goes for paying attention to technology exports and diffusion to human-rights abusers. For instance, companies incorporated in China, among those incorporated elsewhere, have been <a href="https://www.cfr.org/blog/authoritarians-are-exporting-surveillance-tech-and-it-their-vision-internet" target="_blank">heavily involved</a> in exports of dual-use surveillance technologies to other countries, including those with questionable or outright poor human-rights records. Although companies incorporated in democracies may engage in such practices as well, most democracies take steps to curtail these practices as much as possible, such as through the multilateral Wassenaar Arrangement — which lays out export controls around conventional weapons and dual-use goods and technologies. The U.S. has long been a party to this agreement, and India <a href="https://economictimes.indiatimes.com/news/defence/wassenaar-arrangement-decides-to-make-india-its-member/articleshow/61975192.cms?from=mdr" target="_blank">officially joined</a> in 2018. Arguments persist about the extent to which Beijing is involved in these dual-use surveillance technology exports, but these exports may only increase going forward as companies <a href="https://www.newamerica.org/weekly/edition-254/long-view-digital-authoritarianism/" target="_blank">increasingly</a> sell not just internet surveillance tools but also dual-use AI tools. In this way, too, India and the U.S. could play an important role in countering the spread of such capabilities to human-rights abusers and standing against the spread of digital authoritarianism in the process.</p>
<p style="text-align: justify; ">The relationship here is, therefore, one that requires careful navigation for its significant geopolitical, economic, and ideological consequences. For the future of the technological relationship between the world’s largest democracies—and the extent to which they respect each other’s strategic autonomy while converging on issues of mutual interest—could determine the future of global digital governance.</p>
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For more details visit <a href='https://cis-india.org/telecom/blog/the-diplomat-justin-sherman-and-arindrajit-basu-july-3-2019-fostering-strategic-convergence-in-us-india-tech-relations-5g-and-beyond'>https://cis-india.org/telecom/blog/the-diplomat-justin-sherman-and-arindrajit-basu-july-3-2019-fostering-strategic-convergence-in-us-india-tech-relations-5g-and-beyond</a>
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No publisherJustin Sherman and Arindrajit BasuTelecomArtificial Intelligence2019-07-05T02:19:09ZBlog Entry