Centre for Internet and Society

Government of India's Response to WGEC Questionnaire

snehashish — 2014-01-22T16:55:43Z

The Working Group on Enhanced Cooperation circulated a questionnaire to collect the views and positions of the stakeholders on the various aspects of enhanced cooperation. India's response to the questionnaire is documented below for archival purposes.

INDIA, Permanent Mission of India to the United Nations Office
9, RUE DU VALAIS, 1202, GENEVA
Mission.india@ties.itu.int

1. Which stakeholder category do you belong to?
Government
If non-government, please indicate:
If non-government, please indicate if you are:

2. What do you think is the significance, purpose and scope of enhanced cooperation as per the Tunis Agenda? 1) Significance 2) Purpose 3) Scope

Significance
The World Summit on Information Society (WSIS), held in two phases had discussed the issues relating to Internet Governance at a great length and in detail and recommended (i) convening a new forum for multi-stake holder policy dialogue and (ii) beginning the process towards Enhanced Cooperation. As a result of the first recommendation, an Internet Governance Forum was established in 2006 as a forum for dialogue among various stakeholders. However, the process towards Enhanced Cooperation to develop international public policy issues pertaining to Internet in a fair and equitable manner is yet to take off. The use of internet and its socio-economic impact has grown further in the last few years. This has made the need for Enhanced Cooperation even more significant and urgent.
Purpose
The purpose of Enhanced Cooperation is to enable governments, on an equal footing, through a suitable multilateral, transparent and democratic mechanism, to carry out their roles and responsibilities in international public policy issues pertaining to the Internet, in consultation with all other stakeholders.
Scope
The scope of Enhanced Cooperation covers international public policy issues pertaining to the internet as well as the development of globally-applicable principles on public policy issues pertaining to the coordination and management of critical internet resources, but not the dayto-day technical and operational matters, that do not impact on international public policy issues.

3. To what extent has or has not enhanced cooperation been implemented? Please use the space below to explain and to provide examples to support your answer.

Enhanced Cooperation, as envisaged in Paras 68 and 69 of the Tunis Agenda, has not been realized. This remains a major shortcoming in implementation of WSIS Outcomes related to Enhanced Cooperation, considering that a specific mandate was given by the World Summit for Information Society (WSIS) in 2005 to begin such a process of Enhanced Cooperation in the first quarter of 2006. There is no multilateral, transparent and democratic global platform where governments can, on an equal footing, decide the full range of international public policies related to internet, in a holistic manner. There is also no mechanism for the development of globally-applicable principles on public policy issues including those pertaining to coordination and management of critical Internet resources. Not establishing an Enhanced Cooperation process has denied the Governments an opportunity to carry out their roles and responsibilities in international public-policy issues pertaining to the internet.

4. What are the relevant international public policy issues pertaining to the Internet?
The Working Group on Internet Governance set up by WSIS identified many public policy issues pertaining to internet, which continue to be relevant today, as listed below:

Issues relating to infrastructure and the management of critical Internet resources, including administration of the domain name system and Internet protocol addresses (IP addresses), administration of the root server system, technical standards, peering and interconnection, telecommunications infrastructure, including innovative and convergent technologies, as well as multilingualization;
Issues relating to the use of the Internet, including spam, network security and cybercrime;
Issues that are relevant to the Internet but have an impact much wider than the Internet and for which existing organizations are responsible, such as intellectual property rights (IPRs) or international trade;
Issues relating to the developmental aspects of Internet governance, in particular capacity building in developing countries;
Issues relating to interconnection costs, meaningful participation in global policy development, freedom of expression, Data protection and privacy rights, Consumer rights, convergence and “next generation networks” (NGNs), as well as trade and e-commerce; Furthermore, Para 59 of the Tunis Agenda recognised that Internet Governance includes social, economic and technical issues including affordability, reliability and quality of service and para 60 of the Tunis Agenda recognised that there are many cross-cutting public policy issues that require attention. Since WSIS, international internet-related public policy issues have only grown in their number as well as importance. Several issues such as cloud computing have emerged in the last few years. Newer issues will keep arising with significant international public policy dimensions as the Internet continues to evolve and grow in its reach and spread.

5. What are the roles and responsibilities of the different stakeholders, including governments, in implementation of the various aspects of enhanced cooperation?

Enhanced Cooperation is a dynamic process due to the dynamic nature of internet. As a result, the roles and responsibilities of different stakeholders would need to be broadly defined. In this regard, we concur with the recommendations of the Working Group on Internet Governance on the role of different stakeholders — as listed below: Governments: Public authority for Internet related public policy issues is the sovereign right of States and that they have rights and responsibilities for international Internet public policy.

Their roles and responsibilities include:-

Public policy-making and coordination and implementation, as appropriate, at the national level, and policy development and coordination at the regional and international levels;
Creating an enabling environment for information and communication technology (ICT) development; Oversight functions; Development and adoption of laws, regulations and standards;
Treaty-making; Development of best practices; Fostering capacity-building in and through ICTs;
Promoting research and development of technologies and standards;
Promoting access to ICT services; Combating cybercrime;
Fostering international and regional cooperation;
Promoting the development of infrastructure and ICT applications;
Addressing general developmental issues;
Promoting multilingualism and cultural diversity;

Dispute resolution and arbitration.

Private sector: The private sector has important role and responsibilities which include the following:-
Industry self-regulation; Development of best practices; Development of policy proposals, guidelines and tools for policymakers and other stakeholders; Research and development of technologies, standards and processes; Contribution to the drafting of national law and participation in national and international policy development; Fostering innovation; Arbitration and dispute resolution; Promoting capacity-building.

Civil society: Civil society has also played an important role on Internet matters especially at the community level and should continue to play such roles. The roles and responsibilities of civil society include:

Awareness-raising and capacity-building (knowledge, training, skills sharing);
Promoting various public interest objectives; Facilitating network-building; Mobilizing citizens in democratic processes;
Bringing perspectives of marginalized groups, including, for example, excluded communities and grass-roots activists;
Engaging in policy processes; Contributing expertise, skills, experience and knowledge in a range of ICT policy areas;
Contributing to policy processes and policies that are more bottom-up, people-centred and inclusive; Research and development of technologies and standards; Development and dissemination of best practices;
Helping to ensure that political and market forces are accountable to the needs of all members of society;
Encouraging social responsibility and good governance practice. Advocating for the development of social projects and activities that are critical but may not be “fashionable” or profitable;
Contributing to shaping visions of human-centred information societies based on human rights, sustainable development, social justice and empowerment.

Furthermore, the contribution to the Internet of the academic community is very valuable and constitutes one of its main sources of inspiration, innovation and creativity. Similarly, the technical community and its organizations are deeply involved in Internet operation, Internet standard-setting and Internet services development. Both of these groups make a permanent and valuable contribution to the stability, security, functioning and evolution of the Internet. They interact extensively with and within all stakeholder groups. The para 35 of the Tunis Agenda recognises the role of intergovernmental organizations in facilitating the coordination of internet related public policy issues and international organizations in the development of internet related technical standards and relevant policies.

6. How should enhanced cooperation be implemented to enable governments, on an equal footing, to carry out their roles and responsibilities in international public policy issues pertaining to the Internet?

A suitable multilateral, transparent and democratic mechanism must be created where governments, on an equal footing, may carry out their roles and responsibilities in international public policy issues pertaining to the Internet and public policy issues pertaining to coordination and management of critical Internet resources, in consultation with all other stakeholders. India would submit its recommendations on such a mechanism separately to the WGEC.
WGEC should submit its recommendation on the broad parameters of such a mechanism to the UNGA through CSTD as an input to the overall review of the outcomes of the WSIS.

7. How can enhanced cooperation enable other stakeholders to carry out their roles and responsibilities?

The mechanism should be designed so as to enable the other stakeholders to discharge their respective roles and responsibilities as mentioned above in response to Question 5 above in an effective manner. Further, Para 70 of the Tunis Agenda stated that relevant international organizations responsible for essential tasks associated with the Internet should contribute in creating an environment that facilitates the development of public policy principles. Therefore these organizations would need to make necessary changes to facilitate an appropriate interface with the mechanism of Enhanced Cooperation.

8. What are the most appropriate mechanisms to fully implement enhanced cooperation as recognized in the Tunis Agenda, including on international public policy issues pertaining to the Internet and public policy issues associated with coordination and management of critical Internet resources?

It is relevant to recall relevant paragraphs of the Tunis Agenda to identify most appropriate mechanisms to fully implement enhanced cooperation. The Para 69 sets the tone for Governments to define a mechanism of the enhanced cooperation. This paragraph together with other paras in the Tunis Agenda, when read with the WSIS outcomes clearly provides the basis for establishing the mechanism of enhanced cooperation. The sequence of paragraphs that help define the contours of a mechanism is as follows:

Para 29 states that international management of internet should be multilateral, transparent and democratic with the full involvement of governments and other stakeholders.
Para 31 commits to full participation of all stakeholders, within respective roles and responsibilities, to ensure requisite legitimacy of governance of internet.
The roles and responsibilities of various stakeholders have been defined in brief in para 35 of the Tunis Agenda and in detail in paras 29-34 of WGIG report.
In Para 60 of the Tunis Agenda, the Leaders have clearly pointed out the inadequacy of the current mechanisms for dealing with many cross-cutting international public policy issues. As a sequel to this recognition, Para 61 stresses the need to initiate, and reinforce, as appropriate, a transparent, democratic, and multilateral process, with the participation of governments, private sector, civil society and international organizations, in their respective roles.
Para 68 further recognizes the need for development of public policy by governments in consultation with all stakeholders. The Para 69 recognises the importance of the governments to act on an equal footing with each other. Thus, there is a clear mandate for defining a mechanism for effective and enhanced cooperation on global internet governance. India would submit its recommendations on such a mechanism separately to the WGEC.

9. What is the possible relationship between enhanced cooperation and the IGF?

The IGF is a forum for multi-stakeholder dialogue. The discussions and dialogue in IGF would enrich the process of development of the international public policy issues pertaining to the Internet by the mechanism proposed under Enhanced Cooperation. Enhanced Cooperation is a mechanism for policy development whereas IGF is a forum for policy dialogue - IGF is, thus, a distinct and a complementary process to the enhanced cooperation mechanism. IGF should contribute its outcomes as inputs into the policy development/ making processes to be undertaken by the new mechanism for Enhanced Cooperation.

10. How can the role of developing countries be made more effective in global Internet governance?

Paragraph 65 of the Tunis Agenda underlines the need to maximize the participation of developing countries in decisions regarding Internet governance, which should reflect their interests, as well as in the development of capacity building. The developing countries are integral part of the global Internet governance. They would participate, at equal footing in the mechanism explained above.

11. What barriers remain for all stakeholders to fully participate in their respective roles in global Internet governance? How can these barriers best be overcome?

The main barrier to the participation of stakeholders is the absence of a mechanism for global internet governance where they can participate in their respective roles. Second barrier to participation of stakeholders is the nature of selection process of participants who represent these stakeholders. The process of selection of the representatives should be made in a transparent manner and using an inclusive approach.
12. What actions are needed to promote effective participation of all marginalised people in the global information society?

The mechanism proposed above involves all stakeholders, having important role to play in addressing the challenge to effective participation of marginalised people. Challenges like accessibility, availability and affordability of information services have to be addressed at regional, national and international level with participation of all stakeholders in their respective roles and responsibilities effectively.

13. How can enhanced cooperation address key issues toward global, social and economic development?

Since enhanced cooperation would facilitate establishment of a mechanism to formulate international internet related public policies with the participation of all stakeholders in their respective roles from developed and developing countries, the implementation of these policies would be able to address the issues toward global, social and economic development in a better way than today.

14. What is the role of various stakeholders in promoting the development of local language content?

Development of local language content is an important element in ensuring overall socioeconomic development. All stakeholders have an important role to play in generation, dissemination and consumption of the local language content. National governments would be responsible for creation of an enabling environment including, development of relevant standards, legal protection and business opportunities. Private sector would be responsible to provide innovative solutions to the challenge. Civil society would play a very important role in supporting and generating community interest towards local language content development.

15. What are the international internet-related public policy issues that are of special relevance to developing countries?

The issues important for developing countries include accessibility, affordability and availability of the information services and technologies. The public policy issues contained in our replies to Question No. 4 are also equally important for developing countries.

16. What are the key issues to be addressed to promote the affordability of the Internet, in particular in developing countries and least developed countries?

The key issues relating to affordability of the Internet, include the following:-

Co-location of content in geographically dispersed location along with Content Distribution Networks (CDNs)
Lowering of Interconnection costs
Internet Exchange Points with peering for routing local traffic and interconnection across borders
Location of Internet “host” computers in the country and/or region.
Regional backbones that interlink countries in the region and which also link to international backbones
Location of the root server systems in these countries
Interoperability and Net Neutrality - In response to the limitation posed by propriety software, alternative products such as Free and Open Source Software (FOSS) and alternative licensing regimes (for example Creative Commons, Copy left etc.) to help reduce the costs and (legal) risks associated with proprietary software and content.
Multi-lingualization (Internationalized Domain Names and Local Language Content).
Affordability in accessing International internet connectivity.

17. What are the national capacities to be developed and modalities to be considered for national governments to develop Internet-related public policy with participation of all stakeholders?

The national capacities that need to be considered by national governments to develop Internet related public policy include:

Setting up of Centre of Excellence on Internet Governance and related issues.
Establishment of R&D centers in the area of Internet related Public Policy.
Introduction of formal courses on Internet governance in premier educational institutes for Industries, Academia & Civil Society.
Introduction of Training and Awareness building programmes in the area of Internet Governance.
Creation of online Knowledge Repository Portal on Internet Governance.

18. Are there other comments, or areas of concern, on enhanced cooperation you would like to submit?

Enhanced Cooperation is a dynamic process, and hence it requires periodic reassessment – based on the feedback from Governments as well as other relevant stakeholders, on any inter-governmental mechanism that is set up to oversee its operationalization.

For more details visit https://cis-india.org/internet-governance/resources/government-of-indias-response-to-wgec-questionnaire-1

Electoral Databases – Privacy and Security Concerns

snehashish — 2014-01-16T11:07:21Z

In this blogpost, Snehashish Ghosh analyzes privacy and security concerns which have surfaced with the digitization, centralization and standardization of the electoral database and argues that even though the law provides the scope for protection of electoral databases, the State has not taken any steps to ensure its safety.

The recent move by the Election Commission of India (ECI) to tie-up with Google for providing electoral look-up services for citizens and electoral information services has faced heavy criticism on the grounds of data security and privacy.[i] After due consideration, the ECI has decided to drop the plan.[ii]

The plan to partner with Google has led to much apprehension regarding Google gaining access to the database of 790 million voters including, personal information such as age, place of birth and residence. It could have also gained access to cell phone numbers and email addresses had the voter chosen to enroll via the online portal on the ECI website. Although, the plan has been cancelled, it does not necessarily mean that the largest database of citizens of India is safe from any kind of security breach or abuse. In fact, the personal information of each voter in a constituency can be accessed by anyone through the ECI website and the publication of electoral rolls is mandated by the law.

Publication of Electoral Rolls
The electoral roll essentially contains the name of the voter, name of the relationship (son of/wife of, etc.), age, sex, address and the photo identity card number. The main objective of creation and maintenance of electoral rolls and the issue of Electoral Photo Identity Card (EPIC) was to ensure a free and fair election where the voter would have been able to cast his own vote as per his own choice. In other words, the main purpose of the exercise was to curtail bogus voting. This is achieved by cross referencing the EPIC with the electoral roll.

The process of creation and maintenance of electoral rolls is governed by the Registration of Electors Rules, 1960. Rule 22 requires the registration officer to publish the roll with list of amendments at his office for inspection and public information. Furthermore, ECI may direct the registration officer to send two copies of the electoral roll to every political party for which a symbol has exclusively been reserved by the ECI. It can be safely concluded that the electoral roll of a constituency is a public document[iii] given that the roll is published and can be circulated on the direction of the ECI.

With the computational turn, in 1998 the ECI took the decision to digitize the electoral databases. Furthermore, printed electoral rolls and compact discs containing the rolls are available for sale to general public.[iv] In addition to that, the electoral rolls for the entire country are available on the ECI website.[v] However, the current database is not uniform and standardized, and entries in some constituencies are available only in the local language. The ECI has taken steps to make the database uniform, standardized and centralized.[vi]

Security Concerns
The Registration of Electoral Rules, 1960 is an archaic piece of delegated legislation which is still in force and casts a statutory duty on the ECI to publish the electoral rolls. The publication of electoral rolls is not a threat to security when it is distributed in hard copies and the availability of electoral rolls is limited. The security risks emerge only after the digitization of electoral database, which allows for uniformity, standardization and centralization of the database which in turn makes it vulnerable and subject to abuse. The law has failed to evolve with the change in technology.

In a recent article, Bill Davidow analyzes "the dark side of Moore’s Law" and argues that with the growth processing power there has been a growth in surveillance capabilities and on this note the article is titled, “With Great Computing Power Comes Great Surveillance”[vii] Drawing from Davidow’s argument, with the exponential growth in computing power, search has become convenient, faster and cheap. A uniform, standardized and centralized database bearing the personal information of 790 million voters can be searched and categorized in accordance with the search terms. The personal information of the voters can be used for good, but it can be equally abused if it falls into the wrong hands. Big data analysis or the computing power makes it easier to target voters, as bits and pieces of personal information give a bigger picture of an individual, a community, etc. This can be considered intrusive on individual’s privacy since the personal information of every voter is made available in the public domain

For example, the availability of a centralized, searchable database of voters along with their age would allow the appropriate authorities to identify wards or constituencies, which has a high population of voters above the age of 65. This would help the authority to set up polling booths at closer location with special amenities. However, the same database can be used to search for density of members of a particular community in a ward or constituency based on the name, age, sex of the voters. This information can be used to disrupt elections, target vulnerable communities during an election and rig elections.

Current IT Laws does not mandate the protection of the electoral database
A centralized electoral database of the entire country can be considered as a critical information infrastructure (CII) given the impact it may have on the election which is the cornerstone of any democracy. Under Section 70 of the Information Technology Act, 2000 (IT Act) CII means “the computer resource, incapacitation or destruction of which, shall have debilitating impact on national security, economy.”[viii] However, the appropriate Government has not notified the electoral database as a protected system[ix]. Therefore, information security practices and procedures for a protected system are not applicable to the electoral database.

The Information Technology Rules (IT Rules) are also not applicable to electoral databases, per se. Since, ECI is not a body corporate, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information), Rules, 2011 (hereinafter Reasonable Security Practices Rules) do not apply to electoral databases. Ignoring that Reasonable Security Practices Rules only apply to a body corporate, the electoral database does fall within the ambit of definition of “personal information”[x] and should arguably be made subject to the Rules.

The intent of the ECI for hosting the entire country’s electoral database online inter alia is to provide electronic service delivery to the citizens. It seeks to provide “electoral look up services for citizens ... for better electoral information services.”[xi] However, the Information Technology (Electronic Service Delivery) Rules, 2011 are not applicable to the electoral database given that it is not notified by the appropriate Government as a service to be delivered electronically. Hence, the encryption and security standards for electronic service delivery are not applicable to electoral rolls.

The IT Act and the IT Rules provide a reasonable scope for the appropriate Government to include electoral databases within the ambit of protected system and electronic service delivery. However, the appropriate government has not taken any steps to notify electoral database as protected system or a mode of electronic service delivery under the existing laws.

Conclusion
Publication of electoral rolls is a necessary part of an election process. It ensures free and fair election and promotes transparency and accountability. But unfettered access to electronic electoral databases may have an adverse effect and would endanger the very goal it seeks to achieve because the electronic database may pose threat to privacy of the voters and also lead to security breach. It may be argued that the ECI is mandated by the law to publish the electoral database and hence, it is beyond the operation of the IT Act. But Section 81 of the IT Act has an overriding effect on any law inconsistent, therewith. The appropriate Government should take necessary steps under the IT Act and notify electoral databases as a protected system.

It is recommended that the Electors Registration Rules, 1960 should be amended, taking into account the advancement in technology. Therefore, the Rules should aim at restricting the unfettered electronic access to the electoral database and also introduce purposive limitation on the use of the electoral database. It should also be noted that more adequate and robust data protection and privacy laws should be put in place, which would regulate the collection, use, storage and processing of databases which are critical to national security.

[i] Pratap Vikram Singh, Post-uproar, EC’s Google tie-up plan may go for a toss, Governance Now, January 7, 2014 available at http://www.governancenow.com/news/regular-story/post-uproar-ecs-google-tie-plan-may-go-toss

[ii] Press Note No.ECI/PN/1/2014, Election Commission of India , January 9, 2014 available at http://eci.nic.in/eci_main1/current/PN09012014.pdf

[iii] Section 74, Indian Evidence Act, 1872

[iv] eci.nic.in/eci_main1/the_function.aspx

[v] http://eci.nic.in/eci_main1/Linkto_erollpdf.aspx

[vi] “At present, in most States and UTs the Electoral Database is kept at the district level. In some cases it is kept even with the vendors. In most States/UTs it is maintained in MS Access, while in some cases it is on a primitive technology like FoxPro and in some other cases on advanced RDBMS like Oracle or Sql Server. The database is not kept in bilingual form in some of the States/UTs, despite instructions of the Commission. In most cases Unicode fonts are not used. The database structure not being uniform in the country, makes it almost impossible for the different databases to talk to each other” – Election Commission of India, Revision of Electoral Rolls with reference to 01-01-2010 as the qualifying date – Integration and Standardization of the database- reg., No. 23/2009-ERS, January 6, 2010 available at eci.nic.in/eci_main/eroll&epic/ins06012010.pdf

[vii] http://www.theatlantic.com/technology/archive/2014/01/with-great-computing-power-comes-great-surveillance/282933/

[viii] Section 70, Information Technology Act, 2000

[ix] Computer resource which directly or indirectly affects the facility of Critical Information Infrastructure

[x] Rule 2(1)(i), Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

[xi] Press Note No.ECI/PN/1/2014, Election Commission of India , January 9, 2014 available at http://eci.nic.in/eci_main1/current/PN09012014.pdf

For more details visit https://cis-india.org/internet-governance/blog/electoral-databases-2013-privacy-and-security-concerns

Letter requesting public consultation on position of GoI at WGEC

snehashish — 2014-01-08T18:36:09Z

Snehashish Ghosh on behalf of the Centre for Internet and Society sent a letter to the Ministry of Communication and Information Technology, requesting for a public consultation on India's position at the Working Group on Enhanced Cooperation (WGEC).

January 3, 2014

Shri Kapil Sibal,
Honourable Minister for Communication and Information Technology
Ministry of Communication and Information Technology,
Government of India

Subject: Public consultation at the domestic level on the position of Government of India at WGEC

Dear Sir,

We at the Centre for Internet and Society, Bangalore (“CIS”) commend, Government of India’s participation at the Working Group on Enhanced Cooperation (WGEC), working under the aegis of United Nations Commission on Science and Technology and Development (CSTD). The Working Group was set up in pursuance of General Assembly Resolution A/Res/67/195, to identify a shared understanding of enhanced cooperation on public policy issues pertaining to the internet. The WGEC after its first meeting circulated a questionnaire to collect the views and positions of the stakeholders on various aspects of enhanced cooperation. The Government of India responded to the questionnaire and also represented its position at the second meeting of WGEC held in Geneva from November 6-8, 2013. We would like the Government to take cognizance of representations from concerned stakeholders before finalizing its position.

In this regard, we would like to note, Government of India’s commitment towards multi-stakeholder approach in formulation of public policy pertaining to the internet. At the Internet Governance Forum, 2012 held in Baku, the Honourable Minister for Communications and Information Technology noted that the “issues of public policy related to the internet have to be dealt with, by adopting a multi-stakeholder, democratic and transparent approach”. Furthermore, the Government of India’s stand at the World Conference on International Telecommunications, 2012 in Dubai supported and recognized the multi-stakeholder nature of the internet.

However, it seems that the Government has digressed from its previous stand on internet governance whereas it fell short of having a multi-stakeholder public consultation on India’s position on enhanced cooperation at the WGEC. We earnestly urge you to hold domestic public consultation before the next WGEC meeting.

Thank you.
Sincerely,

Snehashish Ghosh,
Policy Associate,
Centre for Internet and Society, Bangalore

Copied to: Dr. Ajay Kumar, Joint Secretary, DietY, MOCIT and Shri. J. Satyanarayana, Secretary, DietY, MOCIT

Download a copy of the letter here

For more details visit https://cis-india.org/internet-governance/blog/public-consultation-at-domestic-level-on-position-of-goi-at-wgec

The State is Snooping: Can You Escape?

snehashish — 2019-04-29T15:09:18Z

Blanket surveillance of the kind envisaged by India's Centralized Monitoring System achieves little, but blatantly violates the citizen's right to privacy; Snehashish Ghosh explores why it may be dangerous and looks at potential safeguards against such intrusion.

The Snowden Leaks have made it amply clear that the covert surveillance conducted by governments is no longer covert. Information by its very nature is prone to leaks. The discretion lies completely in the hands of the personnel handling your data or information. Whether it is through knowledge obtained by an intelligence analyst about the US Government conducting indiscriminate surveillance, or hackers infiltrating a secure system and leaking personal information, stored information has a tendency to come out in the open sooner or later.

This raises the question whether, with the advancement of technologies, we should trust our personal information and data with computers. Should we have more stringent laws and procedural safeguards to protect our personal information? Of course, the broader question that remains is whether we have a ‘Right to be Forgotten’.

Similar to PRISM in the US, India is also implementing a Centralized Monitoring System (CMS) which would have the capabilities to conduct multiple privacy-intrusive activities, ranging from call data record analysis to location based monitoring. Given the circumstances and the current revelations by a whistleblower in the US, it is more than imperative to take a closer look at the surveillance technologies which are being deployed by India and question what implications it might have in the future.

Technological shift and procedural safeguards
The need for procedural safeguards was brought to light in the Supreme Court case, when news reports surfaced about the tapping of politicians' phones by the CBI. The Court while deciding on the issue of phone tapping in the case of People’s Union of Civil Liberties v. Union of India (1996), observed that the Indian Telegraph Act, 1885 is an ancient legislation and does not address the issue of telephone tapping. Thereafter, the court issued guidelines, which were implemented by the Government by amending and inserting Rule 419A of the Indian Telegraph Rules, 1951. These procedural safeguards ensure that due process will be followed by any law enforcement agency, while conducting surveillance.

Section 5(2) of the Indian Telegraph Act, 1885 grants the power to the Government to conduct surveillance provided that there is an occurrence of any public emergency or public safety. If and only if the conditions of public safety and public emergency are compromised, and if the concerned authority is convinced that it is expedient to issue such an order for interception in the interest of “the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence” is surveillance legitimized. The same was reaffirmed by the Supreme Court in the 1996 judgment on wire tapping.

Now, as the Government of India is planning to launch a new technology, the Centralized Monitoring System (CMS) which would snoop, track and monitor communication data flowing through telecom and data networks, the question arises: can we have procedural safeguards which would protect our right to privacy against technologies such as the CMS?

The key component of a procedural safeguard is human discretion; either a court authorization or an order from a high ranking government official is necessary to conduct targeted surveillance and the reasons for conducting surveillance have to be recorded in writing. This is the procedure which is ordinarily followed by law enforcement agencies before conducting any form of surveillance. However, with the computational turn, governments have resorted to practices which would do away with the human discretion. Dragnet surveillance allows for blanket surveillance. Before getting to the problems in evolving a due process for systems like CMS, it is imperative to examine the capabilities of the system.

Centralized Monitoring System and death of due process
Setting up of a CMS was conceptualized in India after the 2008 Mumbai attacks. It was further consolidated and found a place in the Report of the Telecom Working Group on the Telecom Sector for the Twelfth Five Year Plan (2012-2017). The Report was published in August, 2011 and goes into the details of the CMS.

When machines and robots are deployed to conduct blanket surveillance and impinge on the most fundamental right to life and liberty, and also violate the basic tenets of due process, then much cannot be done by way of procedures. What then do we resort to, is the primary question. Can there be a compromise between the right to privacy and security?

The Report indicates that the technology will cater to “the requirements of security management for law enforcement agencies for interception, monitoring, data analysis/mining, antiâ€socialâ€networking using the country’s telecom infrastructure for unlawful activities.”

The CMS will also be capable of running algorithms for interception of connection oriented networks, algorithms for interception of voice over internet protocol (VoIP), video over IP and GPS based monitoring systems. These algorithms would be able to intercept any communication without any intervention from the telecom or internet service provider. It would also have the capability to intercept and analyze data on any communication network as well as to conduct location based monitoring by tracking GPS locations. Given such capabilities, it is clear that a computer system will be sifting through the internet/communication data and will conduct surveillance as instructed through algorithms. This would include identifying patterns, profiling and also storing data for posterity. Moreover, the CMS will have direct access to the telecommunication infrastructure and would be monitoring all forms of communication.

With the introduction of CMS, state surveillance will shift to blanket surveillance from the current practice of targeted surveillance which can be carried out under specific circumstances that are well defined in the law and in judgments. Moreover, when it comes to current means of surveillance, there are well-defined procedures under the law which have the ability to prevent misuse of the surveillance systems. This is not to say that the current procedural safeguards under the laws are not prone to abuse, but if implemented properly, there is less chance of them being misused. Furthermore, with strong privacy and data protection laws, unlawful and illegal surveillance can be minimized.

In the current legal framework, with respect to surveillance, if CMS is implemented then it will be in violation of the fundamental right to privacy and freedom of speech as guaranteed under our Constitution. It will be also in contravention of the procedural safeguards laid down in the Supreme Court judgement and the Rule 419A of Indian Telegraph Rules, thereof. Strong privacy laws and data protection laws may be put in place, which are completely absent now. But at the end of the day, a machine will be spying on every citizen of India or anyone using any communication services, without any specific targets or suspects.

In the People’s Union of Civil Liberties v. Union of India (1996), the Supreme Court laid down that “the substantive law as laid down in Section 5(2) of the [Indian Telegraph Act, 1885] must have procedural backing so that the exercise of power is fair and reasonable.” But with technologies such as CMS, it will be very difficult to have any form of procedural backing because the system would do away with human discretion which happens to be a key ingredient of any legal procedure.

The argument which can be made in favour of CMS, if any, is that a machine will be going through personal data and it will not be available to any personnel or law enforcement agency without authorization and therefore, it will adhere to the due process. However, such a system will be keeping track of all personal information. Right to privacy is the right to be left alone and any incursion on this fundamental right can only be allowed in special cases, in cases of public emergency or threat of public safety. So, electronic blanket surveillance without human intervention also amounts to violation of the substantive law, which specifically allows surveillance only to be conducted under certain conditions, and not through a system such as CMS that is designed to keep a constant watch on everyone, irrespective of the fact whether there is a need to do so.

Additionally, there exists a strong, pre-established notion that whatever comes out of a computer is bound to be true and authentic and there cannot be any mistakes. We have witnessed this in the past where an IT professional from Bangalore was arrested and detained by the Maharashtra Police for posting derogatory content on Orkut about Shivaji. Later, it was found that the records acquired from the Internet Service Provider were incorrect and the individual had been arrested and detained illegally.

Telephone bills, credit card bills coming out from a computer system are often held to be authentic and error-free. With UID, our identity has been reduced to a number and biometrics stored in a database corresponding to that number. It is this trust in anything which comes out of a computer or a machine that can lead to massive abuse of the system in the absence of any form of checks and balance in place. Artificial things taking control over human lives and our almost unflinching trust in technology will not only cause gross violations of privacy but will also be the death of due process and basic human rights as we know it.

In this regard, due emphasis should be given to the landmark Supreme Court judgment in the case of Maneka Gandhi v. Union of India (1978) which deals with issues related to due process and privacy. It states that "procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. Thus, understood, ‘procedure’ must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by canalised processes".

When machines and robots are deployed to conduct blanket surveillance and impinge on the most fundamental right to life and liberty and also violate the basic tenets of due process, then much cannot be done by way of procedures. What then do we resort to, is the primary question. Can there be a compromise between the right to privacy and security?

A no-win situation
In reality, dragnet surveillance or blanket surveillance is not very useful for gathering valuable intelligence to prevent instances of threat to national security, public safety and public emergency. For example, if the CMS is used to mine data, analyse content related to anti-social activities and even if the system is 99 per cent accurate, the remaining 1 per cent which is a false positive happens to be a large set. So, 1 out of every 100 individuals identified as an anti-social element by CMS may actually be an innocent citizen. Given the possibility of false positives and which may be more than 1 per cent, the number of innocent citizens caught in the terrorist net would be much higher.

Even though blanket surveillance or dragnet surveillance can keep a tab on everyone, it is nearly impossible for an algorithm to separate the terrorists from the rest. Moreover, the data set collected by the machine is too big for any human analyst, to actually analyze and identify the terrorist in the midst of a deluge of information. Therefore, the argument that a system like CMS will ensure security in lieu of minor intrusions of privacy is a flawed one. Implementation of CMS will not really ensure security but will be a case of blatant violation of individual’s right to privacy anyway.

What is perhaps more shocking is that not only will CMS be futile in preventing security breaches or neutralizing security threats, it will on the contrary expose individual Indian citizens to breach of personal security. If personal data and information are stored for future reference through a centralized mechanism, which is also the case with UID, it will be highly susceptible to attacks and security threats. It will be a Pandora’s Box with a potential to create havoc the moment someone is able to gain access to the information with intention to misuse that. Leaking of personal information and data on a large scale can be detrimental to society and give rise to instances of public emergency.

The ‘Right to be Forgotten’

Currently, the European Union is engulfed in the debate on the “Right to be Forgotten” laws. The Right to be Forgotten finds its origins in the French Law le droit Ã l’oubli or the right of oblivion, where a convict who has served his sentence can object to the publication of facts of his conviction and imprisonment or penalty. This law has a new found meaning in the context of social media and the internet, where we have the right to delete all our personal information permanently. This is an important issue which India should debate and discuss, as we live in an era where privacy comes at a cost.

On the one hand, technology has made it easier to track, trace, monitor and snoop, on the other it has also seen innovation in the field of encryption and anonymity tools. Encryption tools such as Open PGP exist online, which can secure information from third party access. Tor Browser, allows an user to surf the web anonymously. The use of such technologies should be encouraged as there is no law which prohibits their use. If systems are being built to spy on us, it will be better if we use technologies which protect our personal information from such surveillance technologies.

For more details visit https://cis-india.org/internet-governance/blog/india-together-june-26-2013-snehashish-ghosh-the-state-is-snooping-can-you-escape

Market Structure in the Telecom Industry

snehashish — 2013-03-15T07:17:12Z

In this unit Snehashish examines the market structure of telecom industry — which include the teledensity, wireless, wireline, and internet services.

Teledensity

Teledensity means number of telephones per hundred people. The current teledensity in India is 78.10. However, there is a large disparity between urban teledensity and rural teledensity. The urban teledensity stands at 169.37 whereas rural teledensity is 38.53 only. The reason for the slow growth in teledensity in the rural areas is that it is less attractive for the telecom service providers to invest. Furthermore, providing service in the remote and rural areas also requires massive investment.


Teledensity in India (Rural, Urban and Cumulative) 2007 – December, 2011
Source: Department of Telecommunication, Annual Report 2011-2012

Public and Private Share in the Market

Annual Growth Rate in the Telecom Industry (1981 to December, 2011)


CAGR: Compounded Annual Growth Rate Source: TRAI, Telecom Sector in India: A Decadal Profile

After the Government of India gave up its monopoly in the telecom sector in 1992 the growth of the telecom industry was slow due to lack of roust policy. However, with the change in the policy and licensing regime in the 1999, it is evident from the above graph that the telecom industry recorded a phenomenal growth. There was 35 per cent growth in the compounded annual growth rate.

Wireless

Market share in the wireless subscription as on February, 2012

	The pie chart clearly shows that currently the private sector dominates the cellular market. However, this was not the case in the beginning. The changes in the market structure were due to the changes in telecom policy in 1999. The growth rate of number of wireless subscribers from 1996-2011 in the graph below, clearly depicts the growth in wireless subscribers after the change in policy in 1999. Currently, the three main players in the mobile services sector are Vodafone, Reliance and Bharti.

Wireline

Market share in the wireline subscription as on December, 2011

In the basic telecom services or wireline services the incumbent — Bharat Sanchar Nigam Limited (BSNL) has the majority share in the market. This is due to the expanse of the infrastructure available to the incumbent, and its ability to provide basic telecom services in the rural and remote areas. The private wireline service providers do not have the capital to invest in building such infrastructure and there is no profit in such capital investment as well. Therefore, the private players mainly concentrate in urban areas where they can earn more revenue.

Internet Services

Market share of ISPs as on December, 2011


Source: TRAI, Telecom Sector in India: A Decadal Profile

The broadband services came into forefront after the implementation of the Broadband Policy, 2004. It laid down that the minimum speed for a broadband connection has to be 256 kilo bits per second. This has been revised to 512 kilo bits per second under the National Telecom Policy, 2012. In India, 59.6 per cent internet subscription is broadband subscription.

Currently, the main technology used for broadband access is digital subscriber line (DSL). About 85.1 per cent of the broadband subscriptions are via DSL technology. While the other technologies such as fibre, leased line, wireless, ethernet, cable modem covers only 14.9 per cent of the market. The main internet service provider (ISP) in the market is BSNL which has a share of 54.97 per cent.

For more details visit https://cis-india.org/telecom/resources/market-structure-in-telecom-industry

Licensing Framework for Telecom: A Historical Overview

snehashish — 2013-03-15T07:13:56Z

In this unit, Snehashish Ghosh tells us about licence, and lists out the major changes in the telecom licensing schemes since 1991.

Before analyzing the telecom licensing framework in India, it is imperative that one must examine what is a liceince. Licence issued by the government is an authority, given to a person upon certain conditions to do something which would have been illegal or wrongful otherwise. For example, a driver’s licence issued by the government, gives the authority to a person to drive a motor vehicle. There are three main types of licence fee which the government charges: (i) initial licence fee, which generally is non-refundable, (ii) annual licence fee, and (iii) additional fee for allocation of spectrum.

Licensing framework has been an integral part of India’s telecommunication law. Under the Indian Telegraph Act, 1885, section 4 gives power to the government to grant licence to any person to establish, maintain or use a telegraph. However, in the telecom sector, the government had complete monopoly until the early 1990s. Since 1992, the government has allowed licensing in the telecom sector. The major changes in the telecom licensing schemes are listed below:

1991: The government allowed private telecom companies to manufacture telecom switches for telephone exchange.

1992: The Department of Telecommunication (DoT) invited bids for licences for cellular service across the four metros. The DoT offered two licences per metro city. The process involved two stages. First stage, technical evaluation of the bidder and the second stage involved financial evaluation of the bidder.

The rejected bidders challenged the selection process on the grounds that it was unclear and arbitrary.[1]The Supreme Court decided that it would not interfere into the government decision making function until and unless they are patently arbitrary and unfair.

The litigation delayed the launch of the cellular mobile services by three years. Finally the first mobile services were launched in Calcutta in the year 1995. It also brought to the fore-front the lack of policy with respect to licensing and regulatory framework for telecommunication.

Licence Fee and Tariff: A minimum licence fee was specified for each metro. The annual licence fee was highest in Bombay. It was set at Rs. 30 million, which was increased to Rs. 240 million by the seventh year, similarly licence fee for Delhi, Calcutta and Madras were set at Rs. 20 million, Rs. 15 million and Rs. 10 million, respectively. However, by the seventh year the licence fee for the three metros were 160 million, 120 million and 80 million, respectively.

The licence fee was revised and the DoT asked the operators to pay Rs. 5000 per subscriber as annual licence. The licence fee was again revised and service operators had to pay Rs. 6,023 per subscriber.

The DoT also placed caps on the rental and tariffs. The service providers could charge a maximum Rs. 156 only as rental. The call tariff was set at a standard rate of Rs. 8.40; off peak was set at half the standard rate and peak rate was double the standard rate. DoT placed a cap on security deposit which had to be paid by the subscriber; it was restricted to Rs. 3000.

The change in the annual licence fee in the four metro cities is illustrated in the table below:

Metros	Bombay	Delhi	Calcutta	Madras
Licensees	BPL Telecom Maxtouch	Bharti Cellular Sterling	Usha Martin Modi Telstra	Skycell RPG Cellular
Annual Licence Fee (Rs million)
Year 1	30	20	15	10
Year 2	60	30	30	20
Year 3	120	80	60	40
Year 4-6*	180	120	90	60
Year 7*	240	160	120	80

*The service operator has to pay either the annual licence fee or Rs. 5000 per subscriber, whichever was higher.

[Source: TRAI, (1999c: 24-25) as cited in Ashok V. Desai, Indian Telecommunication Industry: History, Analysis and Diagnosis, Sage Publication 2006, pp. 77].

May, 1993: The DoT commissioned ICICI to study and prepare a report on the possibility of private participation in the telecommunication sector.

1994: The DoT took a step back, after falling into controversy, in its previous attempt to allow licensing in the telecom sector. However, the Finance Ministry was in the favour of private participation in the telecom sector and it argued that the incumbents need assistance from the private telecom service providers for increasing the tele-density in the country. In order to study the issue, a committee was set up under ICICI. The report finally culminated into the National Telecom Policy, 1994.

The National Telecom Policy, 1994 laid down the following criteria for the entry of private operators:

Track record of the company
Compatibility of the technology
Usefulness of technology being offered for future development
Protection of national security interests
Ability to give best service to the customer at the most competitive cost
Attractiveness of the commercial terms to the Department of Telecommunication[2]

1995: DoT allowed bidding for cellular licences and wireline licences. Spectrum was bundled with the telecom service provider licence. For the implementation of the licensing scheme, the country was divided into 21 circles (excluding four metros) and it was categorized in to circles namely A, B and C on the basis of the potential of the circle to generate revenue. DoT awarded two licences in each circle; one to the state operator and the other to the private operator. The potential service providers in order to be eligible for bidding for licences had to partner up with a foreign company. The foreign shareholder was allowed to hold equity share

Metros: Delhi, Mumbai, Kolkata, Chennai

Cirlce A: Gujarat, Karnataka, Tamil Nadu, Andhra Pradesh, Maharashtra

Circle B: Haryana, Punjab, Kerala, Rajasthan, West Bengal, Uttar Pradesh (West), Madhya Pradesh, Uttar Pradesh (East)

Circle C: Bihar, Northeast, Assam, Orissa, Himachal Pradesh, Jammu & Kashmir

Eligibility for the private companies to bid for the licence: (i) financial net worth of the company making the bid and (ii) experience of the company in providing telecom services. The minimum net worth to qualify for bidding was set by DoT. A service provider in order to be eligible for bidding should have a minimum paid up capital of Rs. 1 billion and net worth of Rs. 10 billion. The auction of the licences was carried out through a first price sealed bid auction.[3] Two licences were awarded in each circle in order to avoid monopoly of service provider in a circle.

Licence fee and Tariff: A total of 34 licences were issued. The term of the licence was fixed at ten years which was revised to 15 years. The service providers had to pay an annual licence fee which was agreed upon during the auction of the licence. The annual licence fee was based on the projection of revenue generation. There was no allocation spectrum but the government levied charges for spectrum usage as well. The tariffs were same as for the metro licences.

Wire line Licences: DoT also issued six licences for basic telephone services.

Financial Breakdown: After the issue of cellular licences in 1995, six of the service providers were in default due to non-payment of licence fee by the early 1997. By the year 1998 the number of defaulters increased to eight.

The Bureau of Industry Cost and Prices (BICP) was requested to look into the matter. The BICP after investigation reported that 13 operators were running in loss. According to the BICP report, the telecom service providers were running in loss because of the high licence fee, interconnection charges and spectrum usage charges imposed by the DoT. One of the recommendations of the BICP was that the rental should be increased from Rs. 156 to Rs. 600. This would decrease the demand for mobile phones but allow service providers to sustain their business.

ICICI conducted a study, as well. The study revealed that 17 per cent of the consumers had not used their cell phone at all and 37 per cent of the subscriber had bills below Rs. 500 a month. This clearly showed that projection of revenue by the DoT was faulty.

Reasons for the Financial Breakdown (TRAI Report, 1999)

Later, in 1999 the TRAI studied the cellular operators. The study showed that main reasons for the financial failure of the telecom service provider were:

Heavy capital investment for setting up infrastructure, which was underutilized
Number of subscriber lower than projected
The average revenue per user (ARPU) was lower than the costs incurred by the service provider. The ARPU in circles A, B and C were Rs. 1100, Rs. 800 and Rs. 600 respectively.
Significant amount of the finances of the service provider were used to pay licence fees.
Operational charges also took a toll on the service providers.

None of the studies took into consideration that the industry was oligopolistic in nature and the incumbents flooded the market with basic telephone connections.[4] The obvious conclusion was that the revenue generated by the cellular operators was not able to cover their costs.

The financial failure of the telecom operator under the 1994 policy led to the implementation of New Telecom Policy, 1999.

1998: Internet services were rolled out in 1995 by Videsh Sanchar Nigam Limited (VSNL). In November, 1998, the government opened it up to the private sectors.

1999: The New Telecom Policy, 1999 allowed the migration of the licensees from a Fixed Licence Fee Regime to a Revenue Arrangement Scheme (w.e.f. 1/08/1999). Under the new scheme a licence fees was collected as proportional tax on the service provider’s revenue. Previously, there were two operators in each circle and the 1999 Policy allowed the government as the third operator in the circle.

The 1999 Policy issued licences for the following services:

Cellular Mobile Service Providers (CMSPs);
Fixed Service Providers (FSPs) and Cable Service Providers, collectively referred as ‘Access Providers’;
Radio Paging Service Providers;
Public Mobile Radio Trunking Service Providers;
National Long Distance Operators;
International Long Distance Operators;
Global Mobile Personal Communication by Satellite (GMPCS) Service Providers;
V-SAT based Service Providers

Licence and Tariff: Licence holders under the 1994 policy migrated to the new licensing regime, under the New Telecom Policy, 1999. In order to shift from the fixed licence fee regime to revenue arrangement scheme the service providers had to pay previous arrears in licence fee on a pro-rata basis till July 31, 1999. Under the new adjusted gross revenue, the service providers had to pay 15 per cent of their adjusted gross revenue.[5] The circle operators also had to pay spectrum usage charge.

TRAI regulated the tariff under the New Telecom Policy, 1999. It brought down the call tariff from the peak rate of 16.80 to Rs. 6 per minute with a pulse of 20 seconds. This allowed the consumers to make calls for a minimum of Rs. 2.00. TRAI also put a cap of Rs. 600 on the rental charges. After notification of tariffs in the year 1999, TRAI examined the accounts of the service providers and found out that under the 1999 licensing regime there was healthy competition and the service providers were providing mobiles services at price, below the TRAI ceilings.

Tariffs	DoT ceiling on tariffs under National Telecom Policy, 1994 (in rupees)	TRAI ceilings on tariffs under the New Telecom Policy, 1999 (in rupees)	Industry rates under the New Telecom Policy (in rupees) – average rates
Call Rates (peak-time)	16.80 per minute	6.00 per minute	2.03 per minutes
Rental	156	600	195
Security	3000	-NA-	-NA-

2000: The government issued licence for national long distance telephony (NLDO). There was no restriction on the number of operators to whom the licence was granted. The licence was issued for a period of 20 years on a non-exclusive basis and could be extended upto a period of 10 years once. The entry fee for NLDO licence is Rs. 2.5 crore.[6] There are 32 companies other than BSNL, the incumbent, which have been granted licence for national long distance services. This has facilitated healthy competition in the market.

2001: Licence for basic telephone services using wireless in local loop (WLL). This was the first time that the first-come-first-serve scheme was implemented for issuing licences.

2001: A bid for cellular licence for a fourth operator was introduced in January 2001. The auction was carried out in three stages. The fourth licensee had to pay a sum of 17 per cent of the revenue in addition to the entry fees.

2002: DoT issued licence to private operators for International Long Distance Telephony (ILD) services. The entry fee for ILD licence is 2.5 crores.[7] The licence was valid for a term of 30 years. Currently the annual licence fee on ILD service is 7 per cent on the adjusted gross revenue. However, DoT has revised it to a uniform rate of 8 per cent on the adjusted gross revenue from the year 2013-2014.[8]

2003: Introduction of calling party pays (CPP). Under CPP, no charges can be levied on receiving a call in the home circle.

2003: Unified Access Service Licensing (UASL) regime was introduced by DoT on the recommendation of the TRAI. The UASL “permitted an access service provider to offer both fixed and/or mobile services under the same licence, using any technology.”[9]

The country was divided into 23 service areas, 19 telecom circles and 4 metro circles for the purpose of implementing unified access services (UAS).

TRAI announced the guidelines for migration to the UASL regime on November 11, 2003.[10] An operator under the UASL was allowed to provide for free within its own area of operation, service which cover collection, carriage, transmission and delivery of voice and/or non-voice messages over licensee’s network by deploying circuit and/or packet switched equipment.

Licence Fees: The licence fee for the service operator was two-fold. Fee was charged for migration from Cellular Mobile Telephone Service (CMTS) licence to UASL. This fee was equal to the amount paid by the fourth licensee introduced in the market in the year 2001. Apart from the migration fee, an annual licence fee is also levied according to the circle in which the service provider is operating. The annual licence fee is 10 per cent, 8 per cent and 6 per cent on the adjusted gross revenue in the circles A, B and C respectively.

2007: DoT allowed issuing of licences for operating on dual technologies that is CDMA and GSM. DoT also allowed single licence to Internet Service Providers (ISP) but restriction was put in VoIP.

2011: The government introduced mobile number portability (MNP) which injected further competition in the telecom market. Under the MNP, a cellular subscriber can avail services of another service provider while keeping the same mobile number. Previously, change of mobile number used to be the biggest deterrent to change service provider, this was done away with the MNP scheme.

2012: National Telecom Policy, 2012 introduced Unified Licensing Regime. Under the regime, service operators can provide converged services. The spectrum has been delinked from the licence.

[1]. Tata Cellular v. Union of India, 1994 SCC (6) 651.
[2]. Para 9, National Telecom Policy, 1994 available at http://bit.ly/N4dlEk
[3]. In first price sealed bid auction, the bids are kept secret; the bids are then compared and the highest bidder wins and pays a sum equal to the bid amount.
[4]. Ashok V. Desai, India’s Telecommunication Industry: History, Analysis, Diagnosis, Sage Publication, 2006, pp. 83-84.
[5]. A licensee's adjusted gross revenue usually refers to the total amount of its gross revenue (including all charges, sees, sale proceeds, and miscellaneous revenue) minus interconnection and roaming charges paid to other licensees and service taxes paid to rhe government. See Model Cellular License, Schedule-II, at paragraph 20.1.
[6]. Department of Telecommunication, Annual Report 2011-12 pp. 18
[7]. Id. At pp. 19.
[8]. Notification no. 10-54/2010-CS-11 dated 28^th June, 2012 available at http://bit.ly/Q5nI5O
[9]. Recommendations on Spectrum Management and Licensing Frampework, TRAI, 11th May, 2010.
[10].Unified Access Services available at http://bit.ly/lOQZW7

For more details visit https://cis-india.org/telecom/resources/licensing-framework-for-telecom

Spectrum Management

snehashish — 2013-03-15T07:07:47Z

Snehashish takes us through the entire process of spectrum management — auctioning and allocation process for all kinds of spectrum, the initial process of auctioning, how the bidders are selected, criterion for allocation, time taken to allocate, selection of band, interference issues, spectrum refarming, and spectrum reallocation.

3.5.1. Unit 1: Auctioning and allocating process for all kinds of spectrum
3.5.2. Unit 2: The initial process of auctioning
3.5.3. Unit 3: How are the bidders selected
3.5.4. Unit 4: Criterion for allocation
3.5.5. Unit 5: Time taken to allocate
3.5.6. Unit 6: Selection of band
3.5.7. Unit 7: Interference issues
3.5.8. Unit 8: Spectrum Refarming
3.5.9. Unit 9: Spectrum Reallocation

3.5.1: Auctioning and allocating process for all kinds of spectrum

Auction of spectrums was introduced in the telecommunication market after the failure of the administrative process of allocating spectrum. In auction theory, an auction takes place when there is a seller who wishes to allocate an object to one of ‘n’ buyers.[1] Auctions use a price mechanism to allocate spectrum. Auction of spectrum can be used to increase efficiency and earn maximum revenue. However, auctions of spectrum also have certain drawbacks such as collusion and higher price of telecom services due to high licence fees.

Some of the different types of auction formats are:

First-price sealed bid auction: The highest bidder wins the auction. Such highest bidder pays an amount equal to the bid amount and it is not essential that the bidder with the highest value will place the highest bid. The bid is based on the speculation what other bidders will be bidding.
Second-price sealed bids auction (Vickery auction): This procedure of auction is similar to first price sealed bid auction. The highest bidder wins the auction but he has to pay the price equal to the second highest bid.
Dutch auction: The auctioneer quotes the highest price for the subject matter of the auction and gradually decreases price. The first one to bid for it wins the auction.
English or Japanese auction: In English auction, the auctioneer quotes the minimum price and the buyer bids an amount higher than the minimum price. The bidding is closed when there is no increase in the amount and the highest bidder wins the auction. The other variant of English auction is Japanese auction. In this format, the auctioneer quotes a low price and gradually increases the price which is pre-determined. The bidders should show willingness to buy at the price quoted by the auctioneer. The bidding closes when only one bidder is left, who is willing to buy the object at the price quoted by the auctioneer.

Minimum Reserve Price

The minimum reserve price is generally fixed with the purpose of increasing revenue. Minimum reserve price is the minimum amount which the auctioneer is ready to auction the object for. The computing of minimum reserve price is a complicated affair. The computing of minimum reserve price requires knowledge about the distribution of valuations of bidders.[2]

Beauty Contest

The other mode of allotment of spectrum is through beauty contest. In a beauty contest, generally a committee is constituted which sets a certain standard and requirements which has to be fulfilled for the allocation of the spectrum. Contenders for the spectrum allocation is then evaluated and decided upon an entity which has the best capabilities to carry out functions.

“In the case of spectrum allocation for mobile services, criteria set out beforehand can include general criteria such as financial resources, reliability and investment in research, as well as more specific criteria such as the speed of network rollout, the requirement for geographic and/or population coverage, pricing, quality, technology and competitiveness.”

In case of auction the price mechanism to be implemented is crucial whereas in a beauty contest it is one of the requirements.[3]

3.5.2. & 3.5.3.: The initial process of selection of operators for allocation of spectrum

This selection will explore the changes in the selection process for allocation of spectrum with changes in the policy. This will look at

Auctioning of spectrum under the National Telecom Policy, 1994
Bundling of spectrum with the service licence
Delinking of spectrum from the licence and return to the auction format for allocation of licence

India had an early start in the field of auctioning of spectrum. Initially, under the 1994 policy, spectrum was included within the telecom licence. The licences were auctioned by the Department of Telecommunication, the incumbent regulator, policy maker and enforcer.

The National Telecom Policy, 1994, acknowledged the fact that it was not possible for the Government, alone to achieve targets under the Policy and there was a need for private participation. As a result, in 1995, the Government invited bids for private investment through a competitive process in the field of basic telecom services sector.

For the implementation of the service the country was divided into 20 circles. It was further categorized in A, B and C on the basis of the potential of the region to generate revenue. The Department of Telecom awarded licences to two operators per service area for cellular mobile telephone services and in case of basic telephone services.

The potential service providers in order to be eligible for bidding for licences had to partner up with a foreign company. It was considered that a standalone Indian company will not have the financial capability and technical know-how to provide cellular/basic telecom services at a large scale.

The bidding was a two stage process for all licences. The first stage was to fulfill the criteria, which was based on the financial net worth of the company (in relation to the category of circle) and the experience of the company in providing telecom services. The second stage was with respect to the valuation of bids. The licence was awarded to the telecom service provider, which has fulfilled the pre-requisites and is the highest bidder for the licence. Single stage bidding process was followed in circles. There were separate licences issued for the four metropolitan cities (Kolkata, Chennai, Mumbai, and New Delhi). The licences were awarded through beauty contest in metros.

The technology preferred for cellular services was GSM and for basic telephone service, a combination of fibre optics and wireless in local loop technology was implemented. In 1995, Government auctioned 2*4.4. MHz of startup spectrum for the GSM based mobile services.

Drawbacks in the mechanism of issuing telecom licence

The problem which arose due to the implementation of the above model is that multiple licences were awarded to a single entity. A single company was able to secure licences for nine circles and had a very high bid. This created problems as to the ability of the company to pay the licence amount for all the circles. In figures the annual turnover of the company was $0.06 billion where as the estimated licence fee was $15 billion. There were also concerns with respect to replacing the public monopoly on telecom services with a private one. In order to counter these problems the Government changed its policy and allowed the winning bidder to choose 3 circles out of the nine circles. There was rebidding in 15 circles with the government specifying a reserve price. This was due to the change in policy as the highest bidder was not able to operate in more than 3 circles. The response to this was very poor and it was perceived by the bidders that the reserve price was too steep.

Spectrum Management under New Telecom Policy, 1999

The policy on spectrum management under the NTP, 1999:

With the immense growth in new technologies there has been an increase in demand for telecommunication services. This has led to increase in demand for spectrum and therefore it is necessary that the spectrum should be utilized efficiently, economically, rationally and optimally.
Transparent process of allocation of frequency spectrum.
Revision of the National Frequency Allocation Plan (NFAP) and such a Plan to be made public by the end of year 1999. The NFAP will detail information about allocation of frequency bands.
NFAP is to be reviewed no later than every two years and it should be in tune with regulation under the International Telecommunication Union.
Adequate spectrum should be available, to meet the increase in need of telecommunication services.
Revision of spectrum allocation, in a planned manner in order to make available required frequency bands to the service providers.
Allocation of spectrum of frequency should be in conformity with the ITU guidelines. The following action will be adopted:

Spectrum usage fee shall be charged
Inter-Ministerial Group to be constituted, it will be known as Wireless Planning Coordination Committee. It will be a part of the Ministry of Communication for the purpose of review of spectrum availability.
Computerization of WPC wing

Implementation of the Spectrum Management Policy under NTP, 1999

With the advent of the 1999 Policy, cellular mobile service providers were allowed to provide all kinds of mobile services (voice, non-voice messages, data services and PCOs), which would utilize any type of network equipment that meets the ITU/TEC (International Telecommunication Union/ Telecommunication Engineering Centre) standards. It is also to be noted that the mandate of only using GSM was done away with and the cellular licence was made technology neutral. The New Telecom Policy, 1999 allowed the migration of the licensees from a Fixed Licensee Fee Regime to a Revenue Arrangement Scheme (w.e.f. 1/08/1999). The National Telecom Policy also laid down that the licences will be awarded for a period of 20 years and it can be extended for a period of another 10 years. The Government entered the telecom market as the third mobile operator. It granted licence to MTNL in 1997 for two metros (Delhi and Mumbai). In 2000, cellular mobile operator licence was granted to BSNL, as the third operator for all areas except Mumbai and Delhi. The 900 MHz band was given to the government operator on a pro-bono basis. In 2001, a fourth cellular mobile service operator was allowed in the telecom sector. The licence for the fourth operator was issued through a three stage auction. A start-up spectrum of 2*4.4 MHz in 1800 MHz was allotted to the winner of the auction. The licensees were also required to pay a percentage of annual revenue as spectrum charge. This was collected in addition to the entry fees.[6]

The other licences which were rolled out under the NTP, 1999 are licences for National Long Distance Service operators (without any bar on number of operators), International Long Distance Service and Internet Service Providers.

Unified Access Service Licence

In 2003, TRAI proposed a Unified Licensing Regime which was introduced by the Government in November, 2003. The unified access service licence “permitted an access service provider to offer both fixed and/or mobile services under the same licence, using any technology.” [8] An entry fee was charged, which was based on the bid price paid by the fourth mobile operator.[9]

The TRAI reviewed the spectrum allocation process in the year 2005. It took into account spectrum availability and also considered efficient techniques for the utilization of already allocated spectrum. The consultation paper prepared by the TRAI in 2005 stated that the spectrums allocated by the GSM and CDMA operators are well below the international averages. TRAI recommended that the existing operators should be allocated sufficient spectrum before allocating spectrum to new service providers.

Allocation of 3G and Broadband Wireless Spectrum

Spectrum for 3G and Broadband Wireless Access (BWA) was auctioned using the simultaneous ascending auction process. It involved a two stage process. A clock stage in order to indentify the winner for each circle which was followed by a assignment stage, for identification of specific frequency band. The auction of spectrum for 3G and BWA generated a gross revenue of Rs. 106262 crores for the Department of Telecom, across the 22 telecom circles.

3.5.4 & 3.5.6.: Selection of Band and Criterion for further allocation of spectrum

This section will go into the details of the allocation of specific bandwidth across various frequency bands and also analyze the change in allocation criterion for allocation of spectrum. This will also look at the process of allocation followed by India which has been quite different from the international practices due to hoarding of spectrum by the defense forces. It will also bring out the concern showed by TRAI as to scarcity of spectrum and shortcomings in the allocation of spectrum as compared to the international practices.

Start-up Allocation of Spectrum (1995- 2001)

Before the liberalization of the telecom sector, the bandwidth intended for commercial exploitation was under the control of the Defence forces in India. This consisted of 800 MHz, 1800 MHz and 1900 MHz frequency bands. The commercial exploitation of the spectrum started with the grant of the Cellular Mobile Telephone services in the metro cities.

As discussed in Module 3.5.1(add link), the first round of auction of spectrum was for two CMTS licences in each circles. The DoT auctioned 2*4.4 MHz (paired frequency division duplex spectrum assignment) for GSM technology in the frequency band of 890-915 MHz paired with 935-960 MHz in each circle.

Subsequently, the Government entered the market as the third cellular operator in the 2001. A bandwidth of 2*4.4 was allocated to the start up government cellular operators free of charge in the 900 MHz band. The fourth cellular operator entered the market in 2001 and a start up spectrum of bandwidth 2*4.4 MHz was allocated to the operators in the frequency band 1710-1785 MHz paired with 1805-1880 MHz.

The Department of Telecom also allowed further allocation of spectrum apart from the start up spectrum allocations. This was based on the availability and justification provided by the operator for allocation of more bandwidth. In 2002, the Department of Telecom introduced the Subscriber Based Criterion for the allocation of spectrum. According to this criterion, surplus spectrum would be allocated to the operator, with a certain amount of subscriber base. This was followed by allocation of 2*12.5 MHz bandwidth to each operator within each circle.

However, this method of allocation of spectrum was totally different from the allocation of spectrum in the other countries. A sizeable bandwidth of 2*15 MHz was allocated as start-up spectrum in various countries. This was not the case in India and the Department of Telecom cited that due to non-availability and hoarding of spectrum by defence such a policy had to be adopted.

Table 1: Allocation of Spectrum on the basis of the “Subscriber Based Criterion”, 2002

Quantum of Spectrum Allotted	Minimum Subscriber Base Required (in millions)	Annual Spectrum Charges (per cent of the adjusted gross revenue)
2*4.4 MHz	-	2
2*6.2 MHz	-	3
2*8.0 MHz	0.5	3
2*10 MHz	1.0	4
2*12.5 MHz	1.2	5

*Source: Vardharajan Sridhar, The Telecom Revolution in India: Technology, Policy and Regulation, Oxford University Press, 2012, pp. 112

Post UASL Regime (2003-2005)

After the implementation of the Unified Access Service Licence, the basic telecom service operators were allowed to provide full mobility service for a payment of a entry fee which was equivalent to that paid by the fourth cellular operator. However, such operators migrating to UASL regime were not promised any start up spectrum but it would allocate as and when available.

Review of Spectrum Allocation Process by TRAI and setting up of new Subscriber Base Criterion (2006-2008)

TRAI reviewed the spectrum allocation process in 2005 with the intent to account for unused spectrum and optimum and efficient utilization of scarce resource such as spectrum. The TRAI found that the maximum spectrum allocated to an operator is 2*10 MHz whereas the international average is around 2*20 MHz.

The main problem faced by allocation of spectrum was due to use of spectrum by defence forces and the railways.

Ministry of Defence and Railways uses sizeable portion of the 900 MHz frequency band for navigation and other purposes. It also uses the 1900 MHz band. The Defence Forces utilize 2*20 bandwidth at 1880-1900 MHz paired with 1970-1990 MHz for fixed wireless local loop technology.
The 1900 MHz could not be utilized because the Air Force uses the frequency band.

The TRAI also commented that in the 800 MHz band only a maximum of 2*5 MHz had been allocated to the CDMA operators whereas the world average standards stand at 2*15 MHz for CDMA operations.

The TRAI while observing that the allocation of the spectrum for both GSM and CDMA operators was way below international average spectrum allocation standards recommended that the existing service operators should be provided with more spectrum than before allowing new players to enter the market as there was already a fair amount of competition in the market.

The 2006, TRAI Recommendations on implementation 3G, noted that the Ministry of Defence will vacate 2*20 MHz frequency band in the 1800 MHz band along with 25 MHz in the 2.1 GHz UMTS band. In its recommendation TRAI suggested that the additional spectrum vacated by the defence forces in the 1800 MHz band should be allocated to the operators providing 2G services and it specifically recommended that the Department of Telecom should not treat the allocation of 3G spectrum as a continuation of 2G spectrum allocation.

TRAI recommendations in 2007 suggested that there should not be any limitation on the number of players in the telecom sector. The grant of new licences resulted in a list of license holders who were to be assigned spectrum as and when available. TRAI in its 2007 recommendation noted that the spectrum allocation criteria should be formulated in such a manner so that maximum and efficient utilization of the spectrum can be achieved. This led to the tightening of the Subscriber Base Criterion previously laid down by the DoT (Table 1).

Quantum of Spectrum Allotted	Minimum Subscriber Base Required (in millions)	Annual Spectrum Charges (percentage of the adjusted gross revenue)
For GSM Services
2*4.4 MHz	-	2
2*6.2 MHz	0.5 – 0.8	3
2*7.2 MHz	1.5 – 3.0
2*8.2 MHz	1.8 – 4.1	3
2*9.2 MHz	2.1 – 5.3
2*10.2 MHz	2.6 – 6.8	4
2*11.2 MHz	3.2 – 6.8
2*12.2 MHz	4.0 – 9.0	5
2*14.2 MHz	5.7 – 10.7	5
2*15 MHz	6.5 – 11.6	6
For CDMA Services
2*3.75 MHz	0.15 – 0.40	2
2*5.0 MHz	0.5 – 1.2	2

*Source: Vardharajan Sridhar, The Telecom Revolution in India: Technology, Policy and Regulation, Oxford University Press, 2012, pp. 115

Allocation of 3G Spectrum (2010-Current)

In 2008, the Department of Telecom announced its policy on 3G mobile services. Pursuant to the 2006 TRAI Recommendations on Allocation and pricing of spectrum for 3G and Broadband Wireless Access, the Department of Telecom decided on a simultaneous ascending auction for allocation of spectrum. According to the recommendation, the Department of Telecom would allot 2*5 MHz bandwidth in the 2.1 GHz band.

3.5.5.: Time taken to allocate

This section will look at the issues with respect to time taken by the Department of Telecom to allocate spectrum to the winning bidders. The Department of Telecom on various occasions has delayed the process of assigning specific frequency bands after allocation of spectrum. This has in turn resulted in delay in rolling out of services by the telecom operators.

There has been substantive delay in allocation of spectrum due to various other reasons, which has been listed in the Report on Examination of Appropriateness of Procedures followed by Department of Telecommunications in Issuance of Licences and Allocation of Spectrum during the Period 2001- 2009. However, according to the Report, the main reasons for the delay are:

Deviation from laid down procedures
Inappropriate application of laid down procedures
Violation of underlying principles of laid down procedures[9]

For instance:

Ongoing litigation with respect to allocation of spectrum
During the first instance of allocation of spectrum for the metro cellular licences; the process was marred by litigation which resulted in delay in allocation of spectrum. Subsequently, there was delay in rolling out of service and the operators suffered huge losses and most of the telecom companies were rendered bankrupt.
Lack of availability/co-ordination with the defence for vacation of spectrum
Initial as well as additional spectrum was allocated as per availability. Such delays were sometime more than a year, which amounted in not only loss of profit for the licence holder but also huge losses in revenue for the Department of Telecom.
Delay in processing of application
For example in allocation of additional spectrum for Idea Cellular Limited in the Maharashtra Service Area, there was a delay of four months given that co-ordination with the Defence was done by December 10, 2004. Spectrum was only allocated by April 1, 2005.

3.5.7. Interference issues

This section will deal with the issues regarding interference in the telecommunication sector. Interference can be defined as noise or unwanted signals which are received by a reception device while receiving the wanted signals. Interference causes degradation of quality of service in the telecommunication.

There is no specific policy in India which deals with interference issues. Interference issues in the telecom sector in India, is generally addressed by Wireless Monitoring Organization which functions under the Wireless Planning Coordination Committee. Telecom operator licences also carries covenant which states:

"The licensee shall not cause or allow causing harmful interference to other authorized users of radio spectrum. For elimination of harmful interference to other user, licensee shall abide by all instructions and orders issued by the Government."[10]

Under the Use of low power Equipment in the frequency band 2.4 GHz to 2.4835 GHz (Exemption from Licensing Requirement) Rules, 2005, interference is defined as, "The effect of unwanted energy due to one or a combination of emissions, radiations or induction upon reception in a radio communication system, manifested by any performance degradation, misinterpretation, or loss of information which could be extracted in the absence of such unwanted energy."[11]

A licensee can approach the Wireless Monitoring Organization (WMO) and lodge a complaint if such operator is facing problems due to interference with other radio signals. In such a circumstance the WMO, enquires in to the matter and finds the source of interference addresses the issues accordingly. The WMO also has wireless monitoring stations which look in to and investigates any issue related interference. The WMO has introduced mobile monitoring vans to effectively find out the source of signals causing interference. The wireless monitoring stations intercepts the interfering signal to determine the source of the signal.

3.5.8. & 3.5.9.: Spectrum Refarming and Spectrum Reallocation

This section will look at the process of refarming of spectrum and also analyze the current (2012) debates on spectrum refarming in India.

Refarming of spectrum is defined as a process which is used to bring about any basic change in the use of different frequency band in the radio spectrum. This can be due to

Change in technology
Change in application and used of the frequency band
Change in Government policy on allocation of spectrum.

Refarming of spectrum entails freeing up of spectrum which is in use and reallocation of such spectrum for some other purpose. It can happen due to change in technology which allows more efficient use of spectrum and hence results in vacation of spectrum. The two main instruments which effects spectrum refarming and reallocation are

Market Driven
Policy or Regulation Driven

Market Driven

A need for spectrum refarming may arise due to the changes in the market such a entry of new players in the market. A market driven refarming and reallocation will take in to consideration financial and business related factors. For example a new entrant in the telecom market will always welcome refarming of spectrum in the 800 MHz or 900 MHz because it will bring down the infrastructure costs incurred by the new player in the market.[12]

Policy or Regulation Driven

The policy driven change is an administrative changes. The main aspects which are taken into consideration by the policy maker or regulator are:

Market Structure: The regulator may implement refarming of spectrum to allow refarming and reallocation of spectrum for facilitating competition in the market. The regulator has to take into consideration the costs incurred by the telecom operators or users of the spectrum for relocating to a different frequency band.
Access: The regulator may allow refarming of spectrum in order to implement new technologies which allows for better access and efficient use of spectrum.
Revenue: The regulator may consider refarming and reallocation of spectrum in order to earn revenue and also allow equity in distribution of spectrum. Spectrum being a scarce resource has to be judiciously allocated by the regulator. Spectrum which was previously allocated for almost two decade ago holds more value in the market due to change in technology as well as the market structure. Therefore, in order to earn revenue the government may refarm and reallocate spectrum.

The main challenge with respect to refarming and reallocation of spectrum is that who will bear the cost for such changes in the spectrum usage and allocation and the transition to a different frequency band. Normally, such a change in spectrum usage is compensated by the:

Telecom companies who have to re-buy the spectrum at a higher price
New telecom companies
Government may set up a refarming fund for such reallocation from the spectrum revenue. For example, such a fund exists in France and it is managed by the Agence Nationale Des Fréquences. (National Frequency Agency).

Refarming and Reallocation in India

According to TRAI in its Recommendation Auction of Spectrum, 2012 discusses the concept of spectrum refarming and states:

"Refarming of spectrum involves re-planning and reassigning of spectrum over a period of time for services with higher value. A key motive for refarming of spectrum is to use the refarmed frequency bands for communications services that yield greater economic or social benefit than existing use as well as to enable the introduction of new or emerging technologies." (para 2.6)

Previously the TRAI in its Recommendation on Licensing Framework and Spectrum Management, 2010 had pointed out that 800 MHz and 900 MHz should be refarmed for use of new technology (UMTS 900), which would allow more efficient use of the spectrum.

In the 2012 Recommendation, TRAI has made detailed suggestions by taking into consideration international practices, different methodologies of refarming of spectrum and comments from the stakeholders. The main recommendations are:

Spectrum in the 900 MHz band is a valuable asset both technologically and economically. Use of 900 MHz spectrum should be liberalized and restriction on the use of technology in the licence should be done away with.
It advises the government to take back 900 MHz from the licensees, who were granted licence in 1994-1995 and the two government operators. These licensees should be granted licence for liberalized spectrum at 1800 MHz frequency band at a price relevant in November, 2014
It also recommended that the 1800 MHz is not completely open for commercial exploitation and the government agencies should vacate the frequency band for successful refarming of 900 MHz.
The licence holder in the 800 MHz band should be reallocated to 1900 MHz band and it strongly recommends that the government should make immediate arrangements to refarm 800 MHz and reallocate licence holder to the 1900 MHz band.

Recently in October, 2012, The Telecom Commission under the Department of Telecom has also recommended refarming of all spectrum used by the telecom companies in the 900 MHz frequency bands during the next phase of renewal of licence. The Commission’s recommendation implies that the complete 900 MHz band has to be reallocated.

In the light of the above recommendation, the telecom companies will have the option of shifting from 900 MHz to 1800 MHz, for which auctions are happening in 2012m or it can bid for 900 MHz auctions schedule to happen in early 2013.These recommendations, if implemented may result in huge investments by the telecom companies and would affect the end users. In 2012, the minimum reserve for auction of 1800 MHz spectrum is set at Rs. 14000 crores and the minimum reserve price for auction of 900 MHz would be twice the amount. The existing licence holder in the 900 MHz band, who migrate to the 1800 MHz band would have not only make huge investment to procure spectrum but also have to install 1.5 times more cell sites to ensure adequate coverage. This would result in further investment and in turn affect the tariff rates.

However, this has been welcomed by the new players in the market, who will have the opportunity to bid for 900 MHz spectrum band which economically and technologically more viable and if liberalized it can also introduce new technologies such as UMTS 900 which would ensure better utilization of the spectrum.

Therefore, it is quite evident that the main challenge so far has been who is liable to compensate for refarming and reallocation. On one hand refarming will ensure deployment of new technology and efficient use of spectrum and also create level playing field for all the telecom companies on the other hand, reallocation or re-auction of spectrum would hit the incumbent telecom companies.

Bibliography

TRAI Recommendations and Consultations available at http://trai.gov.in
Ashok V. Desai, India’s telecommunications industry: history, analysis and diagnosis, Sage Publications India Pvt. Ltd., 2006
Vikram Raghavan, Communications Law in India (Legal Aspects of Telecom, Broadcasting and Cable Services), Lexis Nexis Butterworths, 2007
Varadharajan Sridhar, The Telecom Revolution in India: Technology, Regulation and Policy, Oxford University Press, 2012

Notes
[1]. Andrea Prat, Tommaso Valletti, Spectrum Auctions versus Beauty Contests: Costs and Benefits, Prepared for the OECD - Working Party on Telecommunications and Information Services Policies, (First draft - November 2000) available at http://istituti.unicatt.it/economia_impresa_lavoro_OECD-draft.pdf (last visited on 7/06/2012).
[2]. Consultation Paper on Auction of Spectrum , Telecom Regulatory Authority of India, (7^th March, 2012) available at http://www.trai.gov.in/WriteReaddata/ConsultationPaper/Document/consultation paper spectrum of auction.pdf (last visited on 4/6/2012).
[3]. Id.
[4]. Rohit Prasad and V. Sridhar, A Critique of Spectrum Management in India, Economic and Political Weekly, Vol. 43, No. 38 (Sep. 20 - 26, 2008), pp. 13-17.
[5]. See, R.S. Jain, Spectrum auctions in India: lessons from experience, Telecommunications Policy 25 (2001) 671–688 available at http://rru.worldbank.org/Documents/PapersLinks/spectrum_auctions_india.pdf (last visited on 05/06/2012) "The bidders could apply for any number of service areas, subject to the fulfillment of the specified entry conditions. The existing licensees could not bid for the same service area. Rollout obligations would be imposed on the winning bidders such as covering at least 10% of the district headquarters in the first year and 50 percent within 3 years of the effective date of the license. Having been criticized for the single round highest bid mechanism that caused inflated licence fee in earlier rounds, the government produced a bidding process which it called the informed ascending bidding process. The bidding process would have three rounds. The highest pre-qualified offer in the first financial bid would be treated as the reserve price for subsequent rounds of bidding. The lowest bidder in any round would not be allowed to participate in the next round, provided there were four or more bidders in any round. In case there were only two short listed bidders, both would qualify. The highest bidder in the third round would be declared successful for the grant of a licence."
[6]. Id.
[7]. Recommendations on Spectrum Management and Licensing Framework, TRAI, 11th May, 2010
[8]. Supra note iv at pp.14, "The fixed fee based licence (as opposed to auction based) theoretically allowed any number of mobile licences to be provided and implicitly de- linked spectrum allocation from licensing."
[9]. Justice Shivraj V. Patil (Former Judge, Supreme Court of India), Report on Examination of Appropriateness of Procedures followed by Department of Telecommunications in Issuance of Licences and Allocation of Spectrum during the Period 2001- 2009. (One man committee report), Published on January 31, 2011, pp. 100 available at http://www.dot.gov.in/miscellaneous/OMC/report.pdf
[10]. Clause 43.6, Licence Agreement for Provision of Unified Access Services after Migration from CMTS.
[11]. Rule 5, Use of low power Equipment in the frequency band 2.4 GHz to 2.4835 GHz (Exemption from Licensing Requirement) Rules, 2005
[12].Lower frequencies bands such as 800 MHz or 900 MHz have a greater wavelength and covers larger areas as opposed to higher frequency bands such 1800 MHz or 2.1 GHz. Therefore the telecom company with lower frequency spectrum has to set up less telecom infrastructure to provide adequate network coverage.

For more details visit https://cis-india.org/telecom/resources/spectrum-management

TRAI Telecommunication Tariff Orders

snehashish — 2013-03-15T07:04:18Z

This section will deal with the Telecommunication Tariff Order, 1999 which was issued by the Telecom Regulatory Authority of India, in order to put a cap on the call rates and other allied services.

The Tariff order mandates that transparency is tariff and consumer protection. The Telecommunication Tariff Order, 1999 has gone through numerous amendments due to changes in the technology and the competition in the market. The Telecommunication Tariff Order, 1999 has gone through 53 amendments as on October, 2012. The TRAI also has laid down tariff orders for broadcasting and cable services.

The main highlights of the Telecommunication Tariff Order, 1999 are:

Review of Tariffs: The TRAI has the authority to review and modify the tariff of any telecommunication service.
Standard Package: The telecom service provider has to provide a standard package to all its consumers.
Limits on Tariff: In case there is a specific ceiling on the tariff of a certain telecommunication service, then the service provider has to fix any rate above that ceiling. Similarly, if the TRAI sets a tariff as the floor then the operator cannot provide such service below the rates specified by the authority.
Reporting Requirement: The telecom operator has to report to the TRAI about the introduction of tariff and the changes subsequent to it.
Transparency and Consumer Protection: Tariffs charged by the operators should be published along with the terms and conditions attached to it in a manner as prescribed by the TRAI from time to time. It should also project the tariffs in a comparison table and the charges to be paid by the subscriber vis-a-vis the specified standard packages.

For more details visit https://cis-india.org/telecom/resources/trai-telecommunication-tariff-orders

TRAI Regulations

snehashish — 2013-03-15T06:35:23Z

This section will deal with all regulations issued by TRAI in the course of its functions.

It issues regulations with respect to various aspects of the telecom industry. TRAI regulations generally, deal with:

Interconnection issues (usage charges, agreement, revenues sharing).
Quality of the telecom services.
Consumer protection and redressal of grievance including unsolicited commercial communication.
Access to essential infrastructure such as cable landing stations.
Mobile number portability.

For more details visit https://cis-india.org/telecom/resources/trai-regulations

Government Policy and Guidelines

snehashish — 2013-03-15T06:27:26Z

In this unit Snehashish dwells upon the four main policy guidelines that were formulated by the Government of India.

The above were the four main telecom policies formulated by the government.

One of the main functions of DoT is to issue guidelines with respect to issuing of licence, allocation of spectrum, interconnection, etc. These guidelines operate as additional conditions, laid down by DoT with respect to conduct and functioning of telecom operators. For example, the DoT issued guideline for radiation standards in respect of electromagnetic radiations (EMR) for mobile towers, which came into effect on September 1, 2012.

The DoT has issued numerous guidelines across the years. However, it is important to discuss the DoT guidelines with respect to issuance of telecom service licences.

Basic Telephone Services Licences (BTS)
Cellular Mobile Telephone Service Licence (CMTS)
Unified Access Service Licence (UASL)
National Long Distance (NLD) and
International Long Distance Licence (ILD)

Guidelines on issuing of Basic Telephone Services

DoT issued guideline for issuing of BTS licences in January, 2001. The key features of the guidelines are:

The applicant must be an Indian company. There was no restriction on the number of BTS licensees in a circle. The applicants were also required to have a minimum amount of paid up equity capital. This varied from circle to circle. There was a cap of 49 per cent foreign equity on companies applying for the BTS licence
BTS licences were issued for a period of 20 years on a non-exclusive basis
The licences had to pay an entry fee before the grant of the licence. Consequently, the basic telecom service operators had to pay an annual licence fee based on their annual gross revenue
The basic telecom service operators also had to submit two bank guarantee as an assurance to meet the contractual and roll out obligation under the BTS licence
The Guideline also laid down that the license holders can also provide limited mobility services, by using the spectrum allocated to them for last mile delivery. However, service operators provided limited mobility services had to pay additional 2 per cent fee.
The Guidelines declared that a CMTS licensee can also provide fixed services using GSM networks within their service area. *This was done to satisfy cellular operators who were protesting against permission given to the basic telephone operators to provide limited mobility services.
The basic operators could carry intra-circle long distance traffic. However, the operators had to provide the subscribers, the option to choose their own long distance carriers. For this purpose, BTS licensee could enter into an arrangement with the national long distance licensee.
Basic operators were required to make their own arrangements for the installation of infrastructure, network equipment and, right of way. They were also allowed to enter into agreements related to interconnection with other licensee in other service areas. The terms and conditions of such interconnectivity agreement were subject to TRAI regulations and directions.

Guidelines on issuing of Cellular Mobile Telephone Service Licences

The DoT issued Guidelines for CMTS licences along with guidelines for the issuing of the basic telecom licences. These two sets of guidelines are generally similar to each other but they vary in certain issues.

In the light of the criticism of the previous licensing policy, the DoT guidelines on issuing CMTS licence proposed “informed ascending bidding process”[1] for auctioning of CMTS licence.
The CMTS licence was issued for a period of 20 years on a non-exclusive basis, extendable by 10 years.
The licensee can transfer; assign the licence only with the permission of the DoT, the licensor.
The prospective cellular operator had to submit roll-out plans and financial arrangements with the application.
The licence period was set at 20 years, extendable by another 10 years.
The winning bidder had to pay an entry fee. They also had to pay an annual fee which is a percentage of the annual gross revenue.
The cellular operator also had to pay an additional sum for spectrum.
The cellular operator, were given freedom to use any kind of network equipment as long as they satisfied certain international and domestic standards.
The cellular operators were allowed to enter into any interconnection arrangements subject to TRAI regulations.
The guideline also laid down that cellular operators will fully co-operate with law enforcement and government agencies in providing access to their infrastructure.
The licensees have to make their own arrangement for installing infrastructure and equipment and for right of way.

Guidelines for issuing Unified Access Service Licences

The UASL Guidelines were issued in November, 2003. They were consistent with the TRAI recommendations. Option was given to the existing licensees to continue under their basic telecom and cellular mobile telecom licences or migrate to the new unified access service licence regime. The main highlights of the Guidelines on issuing of UASL were:

Cellular licensees can offer limited mobility service within their short distance coverage areas.
Basic telecom service operators had to pay an entry fee for the UASL which was equal to the entry fee paid by the fourth cellular operator for the specific service area or the entry fee paid by the basic telecom provider in that circle, whichever is higher.
No additional entry fee had to be paid by the cellular mobile service providers.
The basic telecom service operator, who choose not to completely migrate to full mobility regime may pay additional licence fee for providing services in wireless in local loop (WLL). However, such service will be restricted to the short distance charging areas.
There was no additional spectrum allotted to the licensee for migrating to the UASL regime.
The unified access service providers can use any technology without any restrictions.

Additional Entry fee to be paid by the existing Basic Service Operators for migration to Unified Access Service License[2]

S.No.	Name of the operator	Service Area of the basic service operator (BSO)	Date of signing of licence agreements	Entry fee paid by BSO (in crores)	Entry fee paid by 4^th cellular operator(in crores)	Additional entry fee to be paid for migration to UASL(in crores)
1.	Reliance Infocomm Ltd.	Rajasthan	20.7.2001	20	32.25	12.25
		UP(East)	20.7.2001	15	45.25	30.25
		Maharashtra	20.7.2001		189+203.66*
				115	392.66	277.66
		Karnataka	20.7.2001	35	206.83	171.83
		Punjab	20.7.2001	20	151.75	131.75
		Andhra Pradesh	20.7.2001	35	103.01	68.01
		Haryana	20.7.2001	10	21.46	11.46
		Kerala	20.7.2001	20	40.54	20.54
		Uttar Pradesh (West)	20.7.2001	15	30.55	15.55
		West Bengal	20.7.2001		0+78.01*
				25	78.01	53.01
		Madhya Pradesh	20.7.2001	20	17.4501	0
		Bihar	20.7.2001	10
		Himachal Pradesh	20.7.2001	2	1.1	0
		Orissa	20.7.2001	5
		Tamil Nadu	26.9.2001		79+154*
				50	233	183
		Delhi	20.7.2001	50	170.7	120.7
		Andaman & Nicobar **	20.7.2001	1		0
2.	RTL	Gujarat	18.3.1997	179.0859030	109.01	0
3.	Tata Teleservices Ltd.	Gujarat	31.8.2001	40	109.01	69.01
		Karnataka	31.8.2001	35	206.83	171.83
		Andhra Pradesh	4.11.1997	161.47(old)	103.01	0
		Tamil Nadu	31.8.2001		79+154*
				50	233	183
		Delhi	31.8.2001	50	170.7	120.7
4.	TTL (Mah.) Ltd.	Maharashtra	31.8.2001		189+203.66*	-
5.	Bharti Telenet Ltd.	Karnataka	29.10.2001	35	206.83	171.83
		Madhya Pradesh	28.2.1997	35.33 (old)	17.4501	0
		Tamil Nadu	29.10.2001	50	79+154*
					233	183
		Delhi	29.10.2001	50	170.7	120.7
6.	Shyam Telelink	Rajasthan	4.3.1998	29.29(old)	32.25	2.96
7.	HFCL Infotel Ltd.	Punjab	7.11.1997	177.59(old)	151.75	0

Guidelines on issuing of National Long Distance (NLD) Services Licence

The DoT issued guidelines for NLD operations along with the licences. The main aspects of the Guidelines are:

Unlimited entry for carrying inter-circle and intra-circle calls
Total foreign equity of the operator should not exceed 74 per cent.
Private operators had to enter into an agreement with fixed service providers with in a circle for traffic between long distance and short distance charging centres
A timeframe of seven years was set for rolling out services. This timeframe was divided into four phases. If in any of the phases the operator failed to achieve its network coverage target then it would result in encashment and forfeiture of the bank guarantee of that phase
Private operators had to pay an entry fee of 25 million and a financial bank guarantee of Rs. 200 million.
Under the revenue sharing agreement, the DoT would charge maximum 6 per cent revenue generated by the private operator.
Private operators were allowed to set up landing facilities for accessing submarine cables and make use of available excess bandwidth.

Guidelines on issuing of International Long Distance (ILD) Services licences

The DoT issued new guidelines for ILD licences in December, 2005. This was done to implement licence simplification measures and also to allow higher foreign investment. The key features of the Guidelines were:

The ILD service, under the Guidelines was defined as network carriage or bearer service which allows NLD licensees international connectivity to foreign networks
The ILD service provider was allowed to provide all kinds of bearer services from an integrated platform. However, a separate licence was required for satellite and global mobile personal communication services.
The terms for the license: (i) the applicant must be an Indian company; (ii) the company must have net-worth and paid up capital of 2.5 crores; (ii) the total foreign equity should not exceed 74 per cent
The ILD licence was issued for a period of 20 year on a non-exclusive basis, and it would be automatically renewed for another term of five year subject to satisfactory performance.
The entry fee for the ILD licence was Rs. 2.5 crores and an unconditional bank guarantee of the same amount has to be submitted, which could be forfeited subject to failure in fulfilling the roll out obligations. The licensee had to also submit an additional financial bank guarantee of Rs. 20 crores. The ILD operators also had to pay a 6 per cent of the annual adjusted gross revenue as annual licence fee. The Guideline also laid down that an additional fee will be charged for the universal service obligation and use of spectrum
The ILD operator has to submit to the DoT detailed plan of the rollout obligation and also commission at least one gateway switch in order to interconnect with NLD licensees. Such networks must be in conformity with the international and national standards.
For provide ILD services, the operator may obtain leased lines from other access providers.
The ILD operators can provide lower-than-toll quality service, provided that there is no degradation in the quality of services.
The gateway and landing stations may be established. However, this will be subject to security and monitoring requirements.
The ILD operator had to furnish detailed accounts periodically and furnish any such information requested by TRAI.
An ILD operator, must co-operate provide facilities to law enforcement and government agencies for monitoring and surveillance. However, the licensee must also ensure protection of privacy of communication.

[1]. The auction process consisted of three rounds of bidding. A minimum bid price was prescribed for each round. The highest bid in the first round was declared the minimum reserve price in the second round. Subsequently the highest bid in the second round was set as the reserve price in the third round. The lowest bidders in each round were rejected to participate in the next round of bidding.

[2]. Annexure 1, Guidelines for Unified Access (Basic and Cellular) Service Licence, November 11, 2003 available at www.dot.gov.in/uas/Guidelines-Unified_License111103.doc

For more details visit https://cis-india.org/telecom/resources/govt-policy-and-guidelines

DoT — Its Powers and Responsibilities

snehashish — 2013-03-15T06:24:19Z

The Department of Telecommunication (DoT) works under the aegis of the Ministry of Communications and Information Technology. DoT is headed a secretary, who is a senior member of the Indian Administrative Services. The secretary of the DoT reports to the Union Minister for Communications and Information Technology.

DoT used to provide basic telecommunication services. This function was shifted to BSNL after its formation in October, 2000. Presently, the main powers and responsibilities of the DoT as laid down in the Government of India (Allocation of Business) Rules, 1961 are:

Formulation of policy, allocation of licence and co-ordination with matters relating to telegraphs, telephones, wireless, data, facsimile and telematic services and other like forms of communications.
Co-operation with international bodies on matters related to telecommunication
Promotion of standardization and research and development in the telecom sector.
Promotion of private investment in telecommunication industry
Allocation of spectrum mobile and radio communications.
Administration of laws with respect to any of the matters specified in this list, namely: The Indian Telegraph Act, 1885 (13 of 1885); The Indian Wireless Telegraphy Act, 1933 (17 of 1933); and The Telecom Regulatory Authority of India Act, 1997 (24 of 1997).
Supervision over the functioning of the following organizations: Telecom Commission, Telecom Regulatory Authority of India, Telecom Disputes Settlement Appellate Tribunal, Centre for Development of Telematics, Bharat Sanchar Nigam Limited, Mahanagar Telephone Nigam Limited, ITI Limited, Telecommunication Consultants (India) Limited and Administrative office of the Universal Service Obligation Fund.

For more details visit https://cis-india.org/telecom/resources/dot-its-powers-and-responsibilities

The Telecom Regulatory Authority of India Act, 1997

snehashish — 2013-03-15T06:21:43Z

The main objective of the Telecom Regulatory Authority of India Act, 1997 (TRAI Act) was to establish the Telecom Regulatory Authority of India (TRAI) and Telecom Dispute Settlement Appellate Tribunal (TDSAT). The main purpose of these two institutions established under the TRAI Act is to regulate telecommunication services, adjudicate disputes, dispose appeals and protect the interest of the service providers as well as the consumers. The Act also aims at promoting and ensuring orderly growth of the telecom sector.

A bill to establish a non-statutory telecom regulator was proposed in the Parliament by the Government through an amendment to the Indian Telegraph Act, 1985. However, this proposal was dropped by the Parliament because several Members of the Parliament argued for a statutory telecom regulator. TRAI was then constituted under the presidential ordinance[1] issued in 1997, later it was ratified by the Parliament by enacting the TRAI Act. Subsequently, TRAI Act went through major amendments in the year 2000.

Amendment to the TRAI Act

The TRAI Act was amended through the TRAI (Amendment) Act, 2000 (“Amendment Act”). Before the amendment, TRAI exercised both regulatory and dispute resolution functions. The Amendment Act established the Telecom Dispute Settlement Appellate Tribunal to solely deal with relevant disputes. There was ambiguity in the Act as to whether TRAI recommendations are binding upon the Government; this was clarified by the Amendment Act.

Independent Telecom Regulatory Authority

In Delhi Science Forum v. Union of India, the Supreme Court while deciding on the constitutionality of the National Telecom Policy, 1994 observed that it is necessary that the telecom regulator should be an independent body. National Telecom Policy, 1994 allowed for private participation in the telecommunication sector, and in the light of this policy change the Supreme Court also emphasized on the necessity of an independent statutory authority in a deregulated and competitive telecom market.

Government Control over TRAI

TRAI is not a completely independent telecom regulator. The Government exercises certain amount of control over TRAI. Under section 25 of the Act it has the power to issue directions which are binding on TRAI. The TRAI is also funded by the Central Government. Moreover, under section 35 of the TRAI Act, the Central Government has the power to make rules on various subjects and such rules are binding upon TRAI. Therefore, TRAI is not a completely independent telecom regulator as envisioned by the Supreme Court.

Scheme of the TRAI Act

The TRAI Act contains six chapters. Chapter 1 deals with applicability of the Act, key concepts and definitions. Chapter 2 contains provisions for constitution of the TRAI. Chapter 3 deals with the powers and functions of TRAI. Chapter 4 deals with establishment of appellate tribunal, TDSAT and the procedure of the appellate tribunal. Chapter V deals with finance, accounts and audit of the two institutions established under the Act. Chapter 6 consists of miscellaneous provisions for the purpose of smooth functioning of the two institutions created under the Act.

Constitution of TRAI

Telecom Regulatory Authority of India (TRAI) was established as a corporation under Section 3 of the Act. The head office of TRAI is in New Delhi. TRAI constitutes of a chairperson and less than two, full time and part-time members. The chairperson and the members of TRAI are appointed by the Central Government and the duration for which they can hold their office is three years or until they attain the age of 65 years, whichever is earlier. The persons who are appointed should have special knowledge and prior experience in the field of telecommunication, industry, finance, accountancy, law, management or consumer affairs. If someone, who has been in the service of the Government prior to appointment then he should have served the Government in the capacity of a Secretary or Additional Secretary for a period more than three years.

Section 8 deals with procedure to be followed with respect to meetings of TRAI. All questions before TRAI will be decided by a majority vote of the members, present and voting. The person who is presiding the meeting will entitled to a second or casting vote.

The TRAI may also appoint officers and employees in order to carry out its function under this Act. Currently the officers and employees of TRAI are divided into nine divisions. The divisions are:

Mobile network division;
Fixed network division;
Converged network division; (iv) quality of service division;
Broadcast and cable services division;
Economic division (vii) financial analysis and internal finance and accounts division;
Legal division and (ix) administration and personnel division.

Powers and Functions of TRAI

The functions of the TRAI are enumerated under section 11 of the TRAI Act. The function mentioned under the provision has an overriding effect on any provision of the Indian Telegraph Act, 1885.

The 2000 Amendment classified the TRAI’s functions into four broad categories:

Making recommendations on various issues;
General administrative and regulatory functions;
Fixing tariffs and rates for telecom services; and
Any other functions entrusted by the Central Government.

The functions of the TRAI are:

The recommendations made by the TRAI are not binding on the Central Government. However, the Central Government has to mandatorily ask for recommendations from TRAI with respect to need and timing of new service provider and terms and conditions of the licence to be granted to the service provider. TRAI has the obligation to forward the recommendation to the Central Government within 60 days from the date of the request for recommendation. TRAI may also request for relevant information or documents from the Central Government to make such recommendations and the Central Government has to furnish such information within seven days from the date of the request.

The Central Government can issue licence to the service provider, if TRAI fails to give any recommendation within the stipulated period. Where the Central Government is of the opinion that the recommendations made by TRAI cannot be accepted or need modification, then it can send them back to TRAI for reconsideration. TRAI may reply within a period of 15 days from the date of reference.

TRAI also has the power to notify in the official gazette the rates at which telecommunication services are being provided in and outside India. TRAI shall ensure transparency while exercising its powers and discharging its functions.

TRAI under section 12 has the power to call for information and conduct investigation. It also has got powers to issue directions under section 13.

Telecom Disputes Settlement Appellate Tribunal

The Telecom Dispute Settlement Appellate Tribunal (Tribunal) is established under section 14 of the Act. It is the sole dispute resolution body in the communication sector. It can adjudicate upon any dispute between:

Licensor (Central Government) and a licensee.
Two or more service providers.
Between a service provider and a group of consumers.

However, the Tribunal does not have any jurisdiction to try any matter which deals with anti-competitive trade practices or any consumer complaint.

Grounds and Procedures for Appeal to the Tribunal (Section 14A)

The Central Government, State Government, any local authority or any person can approach the Tribunal for adjudication on matters related to dispute between parties mentioned above.

It can make recommendation either on its own accord or on the request of the Government on the following matters:
- Need and timing of new service provider.
- Terms and conditions of the licence which may be granted to the service provider.
- Revocation of licence for not following the term and conditions of the licence.
- Measures to facilitate competition in the market and promote efficiency and growth in the telecom sector.
- Type of equipment to be used by service provider.
- Technological improvements in the services.
- Measure for development of telecommunication technology.
- Spectrum management.
The TRAI also has to discharge certain functions apart from making recommendations to the Government:
- Ensure compliance with the terms and conditions of the licence.
- Fix the terms and conditions of inter-connectivity between service providers.
- Ensure technical compatibility and effective inter-connection between different service providers.
- Regulate any arrangement between service providers for sharing of revenue derived from providing telecommunication services.
- Lay down standards for quality of service and also ensure and conduct periodal survey as to implementation of standards for quality of service.
- Lay down and ensure the time period for implementing local and long distance circuits of telecommunication between different service providers.
- Maintain register of interconnect agreements between service providers and such register should be made available to any member of the public for inspection on payment of a fee.
- Ensure effective compliance with the universal service obligations.
- Levy fees and charges at such rate and for services as determined by regulations.[2]

TRAI under section 12 has the power to call for information and conduct investigation. It also has got powers to issue directions under section 13.

Telecom Disputes Settlement Appellate Tribunal

Licensor (Central Government) and a licensee.
Two or more service providers.
Between a service provider and a group of consumers.

However, the Tribunal does not have any jurisdiction to try any matter which deals with anti-competitive trade practices or any consumer complaint.

Grounds and Procedures for Appeal to the Tribunal (Section 14A)

The Central Government, State Government, any local authority or any person can approach the Tribunal for adjudication on matters related to dispute between parties mentioned above.
An appeal can be referred to the Tribunal in case any party [3] is aggrieved by the decision of TRAI. However, such appeal has to be made to the Tribunal within 30 days from the date on which the party receives a copy of the decision or direction given by TRAI. However, the Telecom Tribunal may condone the delay provided that there is a reasonable ground justifying the delay.[4]
The Tribunal will pass an order after giving an opportunity to be heard, to the parties to the dispute.
The Tribunal is also obligated to send a copy of the order passed by it to TRAI.
In case of appeal from the decision of TRAI, the Tribunal should try to dispose of the case at the earliest and try to give a decision within 90 days from the date of appeal.

Composition of the Tribunal (Section 14B)

The Tribunal consists of a chairperson and two other members, appointed by the Central Government. Selection of chairperson and the two members is done in consultation with Chief Justice of India.

Qualification and term of office of the Chairperson and Members

The minimum qualification for a Chairperson is that he is or has been a judge of the Supreme Court or a Chief Justice of a High Court and the minimum qualification for a member is that he should have been at the post of a secretary to the Central Government or at any equivalent post in the Central Government. A person can also be qualified as a member of the Tribunal if he has held the position of Secretary under the State Government for a period more than two years and has knowledge and experience in technology, telecommunication, industry, commerce or administration.

Term of Office

The Chairperson can hold office till he attains the age of 75 or completes three years, whichever is earlier. The members of the Tribunal can hold office till they attain the age of 65 years or complete three years, whichever is earlier.

Procedure of the Tribunal

Procedure and powers of the Tribunal is laid down under section 16 of the TRAI Act. The Civil Procedure Code, 1908 which lays down the procedure of the conventional courts is not applicable to the Tribunal.

An appeal from the Tribunal’s final order in a matter can be directly referred to the Supreme Court under section 18 of the TRAI Act. However, in the circumstance where the Tribunal has passed an order with the consent of the parties to the dispute, no appeal can be made to any court or tribunal.

Within five years of its creation the Tribunal has already decided 400 cases consisting of complex questions of law.

[1].Presidential ordinance is TRAI Ordinance (No. 11 of 1997).
[2].Regulation means regulations made by the TRAI under this Act.
[3].Any party includes the Central Government, State Government, any local authority or any person.
[4].Bharati Telnet v. Union of India, (2005) 4 SCC 72.

For more details visit https://cis-india.org/telecom/resources/trai-act-1997

The Indian Wireless Telegraphy Act, 1933

snehashish — 2013-03-15T06:16:55Z

In this module, Snehashish Ghosh throws light on the main objective of the Act — that of regulating the possession of wireless telegraphy apparatus.

The main objective of the Indian Wireless Telegraphy Act, 1933 is ‘to regulate the possession of wireless telegraphy apparatus’. One of the major sources of revenue for the Indian State Broadcasting Service was revenue from the licence fee from working of wireless apparatus under the Indian Telegraph Act, 1885.

The Indian State Broadcasting Service was losing revenue due to lack of legislation for prosecuting persons using unlicensed wireless apparatus as it was difficult to trace them at the first place and then prove that such instrument has been installed, worked and maintained without licence. Therefore, the current legislation was proposed, in order to prohibit possession of wireless telegraphy apparatus without licence.

Presently the Act is used to prosecute cases, related to illegal possession and transmission via satellite phones. Any person who wishes to use satellite phones for communication purposes has to get licence from the Department of Telecommunications. Recently foreign tourists were charged under this Act for illegal possession of satellite phones.[*]

The extent of the Act, definitions and key concepts are covered under sections 1 and 2 of the Act. Section 3 prohibits any person from possessing a ‘wireless telegraphy apparatus’ without a licence. Under section 2(2) of the Act, ‘wireless telegraphy apparatus’ is defined as:

"any apparatus, appliance, instrument or material used or capable of use in wireless communication, and includes any article determined by rule made under section 10 to be wireless telegraphy apparatus, but does not include any such apparatus, appliance, instrument or material commonly used for other electrical purposes, unless it has been specially designed or adapted for wireless communication or forms part of some apparatus, appliance, instrument or material specially so designed or adapted, nor any article determined by rule made under section 10 not to be wireless telegraphy apparatus."

The key ingredients of the definition are:

The definition covers all types of apparatus, appliance, instrument or material which can be used or utilized for the purpose of wireless communication.
It also covers all articles which are determined to be a wireless apparatus according to the rules made by the government.
The definition excludes any apparatus, appliance, and instrument or materials which are generally used for other electrical purposes. However, if such devices are designed or modified for wireless communication or is used as a part of such wireless communication device.
It also excludes articles determined by the government not to be wireless apparatus. The government may make rules to that effect.

The Central Government under section 4 has the power to make rules to exempt persons from the provision of the Act. Such exemption given by the Central Government may be a general exemption or based on certain conditions. It may exempt certain persons from the application of the Act, for certain wireless telegraphy apparatus only.

Under section 5, the telegraph authority constituted under the Indian Telegraph Act, 1885 shall be the competent authority to issue licences under this Act.

Section 6 deals with offences and penalties under the Act.

Section	Ingredients	Penalty/Fine
6(1)	Whoever possesses any wireless telegraphy apparatus, other than a wireless transmitter, without a licence	In the case of the first offence: Fine which may extend to Rs. 100. In the case of a second or subsequent offence: Fine which may extend to two hundred and fifty rupees.
6(1A)	Whoever possesses any wireless transmitter without a licence	Imprisonment: extend to three years, or with fine which may extend to Rs. 1000 or with both.

In the context of evidentiary value, the court might presume that a person is in possession of a wireless telegraphy apparatus under the circumstances that such apparatus is under his ostensible charge or it is present in a place or premise over which he as effective control.

In a trial of an offence under section 6, if the accused is convicted then the court shall also decide whether the apparatus used or involved in the offence should be confiscated. If the court decides in favour of confiscation then it must also pass an order of confiscation.

Under section 7 the Act, gives power to any officer specially empowered by the Central Government to search any building, vessel or place if he has reason to believe that there is any wireless telegraphy apparatus which has been used to commit offence under section 6 of the Act, is kept or concealed. The office also has the power to confiscate the apparatus.

Under section 8, all wireless telegraphy apparatus which has been confiscated by the Central Government under section 6(3) shall be considered as the property of the Central Government. All wireless telegraphy apparatus which does not have any ostensible owner shall also belong to the Central Government.

Section 9 was repealed by the India Wireless Telegraphy (Amendment) Act, 1940.

Section 10 gives power to the Central Government to make rules through notification in the official gazette with respect to give effect to provisions under the Act. The Act lays down few general subjects on which the Central Government has the power to make rules under the Act. They are:

Rules to determine whether any article or class of article shall fall within the definition of ‘wireless telegraphy apparatus’ under the Act.

Rules regarding licences. (manner, conditions, issue, renewal, suspension and cancellation of licence).

Eligibility for the purpose of being exempted from the application of this Act (Sec.4).

Maintenance of records as to sale, acquisition of wireless telegraphy apparatus by dealers.

Conditions with respect to sale of wireless telegraphy apparatus by dealer and manufactures of such apparatus.

The Central Government may impose a fine of upto hundred rupees in the case of breach of such rules.

Section 11 expressly mentions that no provision under the Act shall authorise any person to do any act which is prohibited under the India Telegraph Act, 1885. It also mentions that any licence under the Act shall not authorise any act in contravention of the Indian Telegraph Act, 1885.

[*].Rajeev Dikshit, DoT nod for use of satellite phones a must, The Times of Inda Jun 27, 2012 available at http://articles.timesofindia.indiatimes.com/2012-06-27/varanasi/32440227_1_satellite-phone-thuraya-dot-nod

For more details visit https://cis-india.org/telecom/resources/indian-wireless-telegraphy-act

Indian Telegraph Act, 1885

snehashish — 2013-03-15T06:13:26Z

The main object of the Telegraph Act was to give power to the Government to install telegraph lines on private as well as public property.

The Telegraph Act since then gone through numerous amendments in order to accommodate new communication technologies. This is evident from the current definition of ‘telegraph’ under Telegraph Act. It defines ‘telegraph’ as:“

"any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means.

Explanation - "Radio waves" or "Hertzian waves" means electro-magnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide."

Framework of the Act

The Indian Telegraph Act, 1885 (Telegraph Act) contains six parts. Part I deals with definitions of key words used in the Telegraph Act. Part II grants government the exclusive privilege with respect to telegraph. Part II also gives power to the issue licence to private operators to offer telegraph services. Part IIA was inserted in the Telegraph Act by the Indian Telegraph (Amendment) Act, 2003. It deals with setting up of the Universal Service Obligation Fund (USOF) for the purpose of meeting universal service obligation. (For further details see the Module on USOF). Part III deals with procedures and guidelines to be followed; for installing and maintaining communication equipments. It also lays down guidelines for setting up communication devices in private property and also the procedure for resolution of any dispute which may arise between the service provider and the owner of the private property. Part IV lays down the offences and penalties with respect to unauthorized use of communication or telegraph services. Part V deals with other supplementary provisions.

Exclusive Privilege of the Government with respect to Telegraphs

Section 4 of the Act deals with exclusive privilege of the government to establish, maintain and use telegraphs. It also provides for the government to grant licence to establish, maintain or work a telegraph. The government may grant such licence on certain conditions and for a licence fee.

Section 5 of the Telegraph Act is commonly known as the wire-tapping clause. It gives power to the government to take possession of any licensed telegraphs in case of a public emergency or in the interest of public safety. It can also order interception of communication in the interests of the sovereignty and integrity of India, the security of the state, friendly relation with foreign states or public order or for preventing incitement to the commission of an offence. However, the government has to follow the procedure established by law for issuing such order.

The procedures and guidelines for lawful interception was laid down in the case of People’s Union for Civil Liberties v. Union of India.[1] In this case the Supreme Court of India ruled that telephone tapping is a serious invasion upon an individual’s privacy. However, lawful interception can be carried out under certain circumstances mentioned in the wiretapping provision.[2] This kind of law interception has to be carried in conformity with certain guidelines which will act as a check on indiscriminate wire-tapping by the law enforcement agencies. It also directed the government to make rules and procedures for carrying out lawful interception of communication. In addition to that it also laid down the basic guidelines for such interception. The main guidelines are:

An order for law interception can only be made by the Home Secretary to the Government of India and home secretaries of state governments. In urgent situations the power may be delegated to an officer of the Home Department of Government of India and state governments and such officer should not be below the rank of joint secretary.
A copy of the order has to be sent to the review committee within one week of issuance of such order.
The authority which issues the order should also record the following information:
- the intercepted communications;
- the extent to which the material is disclosed;
- the number of persons and their identity to whom any of the material is disclosed;
- the extent to which the material is copied; and
- the number of copies made of any of the materials.
The intercepted material can be used only for purposes mentioned under the wire-tapping clause.
The interception will be valid for two month unless it is renewed. However, the total period of interception should not exceed six months.

The government also has the power to notify rates for transmission of messages to countries outside India. While notifying such rates the government must take into consideration: (i) the rates which are applicable at the time; (ii) foreign exchange rates at the time; (iii) rates applicable for transmission of message with India, at the time and (iv) such other circumstance that the Central Government may think fit to be considered.

Section 7 of the Telegraph Act vests with the government the power to make rules for the conduct of telegraphs.

The government has the power to make rule with regard to following issues:

Rates and other conditions and restrictions subject to which messages will be transmitted within India.

Precautions to be taken to prevent improper interception or disclosure of message

Conduct regarding telegram

Conduct and charges regarding use of telegraph lines[3]

Central Government may impose fine if there is any breach of rules made by it under the Telegraph Act. It may also impose fine upon licensees’ if they are found to be in violation of the rules laid down by the Central Government under the Telegraph Act. The Central Government may also revoke any licence granted under the Telegraph Act, in case of breach of any condition or default of payment with respect to the licence.

Section 9 deals with government liability with respect to loss or damage. The government does not take any responsibility for any loss or damage caused by telegraph officer fails in performing his duties. However, such telegraph officer can be held liable if acts negligently, maliciously or fraudulently.

Universal Service Obligation Fund (USOF)

USOF is established under Section 9A of the Act. The USOF is under the control of the Central Government under the Act. Section 9D deals with administration and utilisation of such funds. (For further details please refer to the module on USOF).

Power of the Government to place telegraph lines and posts

The telegraph authority has to follow certain procedure for taking possession of land for installing and maintaining telegraph line and posts. The telegraph authority# under section 10 of the Telegraph Act has the power to place, maintain telegraph line on or under or over any immovable property. The telegraph authority has limited powers with respect to installation of telegraph lines and posts. It can only take possession of land for the purpose of installing and maintaining telegraph lines and posts. The telegraph authority will only have the right to use the property for purposes specific to installation and maintenance of telegraph poles and lines. The telegraph authority while installing communication equipment should try to do minimum damage to the property. It will be liable to pay adequate compensation to all the persons who have a stake in such property. The Telegraph Act also gives power to the telegraph authority to enter on property for the purpose of repairing or removing telegraph lines or posts.

Sections 12-15 are the procedure applicable to take possession of property vested in or under the control of or management of local authorities. The telegraph authority has to take permission and pay any expenses for setting up communication equipment on property under the control of a local authority. The local authority may also ask the telegraph authority to remove any telegraph lines or post if it finds it necessary to do so. Any dispute between telegraph authority and local authority will be decided by an officer appointed by the Central Government.

Sections 16 and 17 are applicable to property other any property owned, controlled or managed by any local authority. Sections 18, 19, 19A and 19B are applicable to all kinds of property. Section 18 deals with procedure for removing trees which are interrupting telegraphic communication. Section 19 deals with lines and posts before the passing of this Act. Section 19A states that any person who has legal right over the property where communication equipment is install in accordance with the procedure under this Act has to give notice to the telegraph authority in writing, if such persons act is likely to interfere with telegraph communication or damage telegraph equipment. Section 19B allows the Central Government to confer certain powers of the telegraph authority upon the licensee.

Part IV: Penalties

Sections 20 to 32 deal with offences and penalties under the Telegraph

Offence	Ingredients of the Offence	Penalty/Fine
S.20: Establishing, maintaining or working unauthorised telegraph	any person: establishes, maintains or works a telegraph within India without proper licence or authorization from the government	In case of wireless telegraph: Imprisonment which may extend to 3 years, or with fine, or with both Any other case: Fine which may extend up to Rs. 1000 Offences under this section with respect to wireless telegraph is bailable and non-cognizable
S.20A: Breach of condition of licence	If a licensee is held to be in breach of any condition contained in license.	Fine which may extend to Rs. 1000. Further fine of Rs. 500 per week for the duration the licensee is in violation of the licence conditions.
S.21: Using unauthorized telegraph	If any person, knowing or having reason to believe that a telegraph has been established or is maintained or worked in contravention of this Act, transmits or receives any message by such telegraph, or performs any service incidental thereto, or delivers any message for transmission by such telegraph or accepts delivery of any message sent thereby	Fine which may extend to fifty rupees
S.22: Opposing establishment of telegraphs on railway land	If a Railway Company, or an officer of a Railway Company, neglects or refuses to comply with the provision which gives power to the Central Government to establish telegraph on land of Railway Company	Fine which may extend to Rs. 1000 for every day during which the neglect or refusal continues.
S.23: Intrusion into signal-room, trespass in telegraph office or obstruction	If any person without permission of -competent authority, enters the signal-room of a telegraph office of the government, or of a person licensed under this Act, or enters a fenced enclosure round such a telegraph office in contravention of any rule or notice not to do so, or refuses to quit such room or enclosure on being requested to do so by any officer or servant employed therein, or wilfully obstructs or impedes any such officer or servant in the performance of his duty,	Fine which may extend to Rs. 500.
S.24: Unlawfully attempting to learn contents of messages	If any person does any of the acts mentioned in section 23 with the intention of unlawfully learning the contents of any message, or of committing any offence punishable under this Act	Imprisonment for a term which may extend to 1 year in addition to the fine with which he is punishable under section 23 i.e. fine upto Rs. 500
S. 25: Intentionally damaging or tampering with telegraphs	If any person intending to prevent or obstruct the transmission or delivery of any message, or to intercept or to acquaint himself with the contents of any message, or to commit mischief, damages, removes, tampers with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in or about any telegraph or in the working thereof,	Imprisonment for a term which may extend to 3 years, or with fine or with both.
S.25A: Injury to or interference with a telegraph line or post.	If, in any case not provided for by section 25, any person deals with any property and thereby wilfully or negligently damages any telegraph line or post duly placed on such property in accordance with the provisions of this Act Exception: the provisions of this section shall not apply where such damage or interruption is caused by a person dealing with any property in the legal exercise of a right if he has complied with the provisions of section 19A (1).]	Expenses (if any) as may be incurred in making good such damage, and shall also, if the telegraphic communication is by reason of the damage so caused interrupted, be punishable with a fine which may extend to Rs. 1000.
S.26: Telegraph officer or other making away with or altering , or unlawfully intercepting or disclosing, messages, or divulging purport of signals	If any telegraph officer, or any person, who is not a telegraph officer but has official duties at any telegraph office: willfully, conceals, makes away with or alters any message which he has received for transmission or delivery, or willfully, and otherwise than in obedience to an order of the Central Government or of a State Government, or of an officer specially authorized [by the Central or a State Government] to make the order, omits to transmit, or intercepts or detains, any message or any part thereof, or discloses the contents or any part the contents of any message, to any person not entitled to receive the same, or divulges the purport of any telegraphic signal to any person not entitled to become acquainted with the same, Except in pursuance of his official duty or in obedience to the direction of a competent Court does such an act.	Imprisonment for a term which may extend to three years, or with fine, or with both.
S.27: Telegraph officer fraudulently sending messages without payment.	If any telegraph officer transmits by telegraph any message on which the charge prescribed by the Central Government, or by a person licensed under this Act, as the case may be, has not been paid, intending thereby to defraud the Central Government, or that person.	Imprisonment for a term which may extend to 3 years, or with fine, or with both.
S.28: Misconduct	If any telegraph officer, or any person not being a telegraph officer but having official duties connected with any office which is used as a telegraph office is guilty of any act of drunkenness, carelessness of other misconduct whereby the correct transmission or the delivery of any message is impeded or delayed or if telegraph officer loiters or delays in the transmission or delivery of any message.	Imprisonment for a term which may extend to 3 months, or with fine which may extend to Rs. 1000, or with both
S.29A: Penalty	If any person, without due authority, - makes or issues any fake or forged document which is believed to be issued by, or under the authority of, the Director-General of [Posts and Telegraphs], or forged or fake stamp or mark of any Telegraph Office under the Director General of [Posts and Telegraph]	Fine which may extend to Rs. 50
S.30: Retaining a message delivered by mistake	If any person fraudulently retains, or conceals removes holds without any reason any message which ought to have been delivered to some other person, or, being required by a telegraph officer to deliver up any such message, neglects of refuses to do so	Imprisonment for a term which may extend to 2 years, or with fine, or with both.

Section 31 deals with bribery and section 32 states that, “whoever attempts to commit any offence punishable under this Act shall be punished with the punishment herein provided for the offence.

Part V: Supplementary Provisions

Section 33 deals with the power of the State Government to employ additional police force in place where mischief to telegraph is repeatedly committed.

[1].(1997) 1 SCC 318
[2].Section 5(2), Indian Telegraph Act.
[3].Section 3(4), Telegraph Act, 1885 – “telegraph line” means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same.
[4].Section 3(6), Telegraph Act.

For more details visit https://cis-india.org/telecom/resources/indian-telegraph-act

Cable Television Networks (Regulation) Act, 1995

snehashish — 2013-03-15T06:10:46Z

In this module, Snehashish examines the purpose of the legislation, the persons affected by it, the administrative bodies which come under the Act, the penalties (including the consequences in case of non-compliance), appeal process and the debates surrounding the legislation.

Before the introduction of cable television in India, broadcasting was solely under the control of the State. The Government of India was caught unprepared with the emergence of cable networks and broadcasting through satellites in the early 1990s. The Government was not able to put a check on transmission and broadcast of television through foreign satellites.

The necessity of procuring licence for operating cable networks was first mentioned by the Rajasthan High Court in the case of Shiv Cable TV System v. State of Rajasthan.[1] In this case, the district magistrate ordered a ban on cable networks as they were being operated without licence. Subsequently the order of the district magistrate was challenged in the Rajasthan High Court on the ground that the order was in violation of fundamental right to freedom trade and profession. The high court held that there was no violation of the right to freedom of trade because cable networks fall within the definition of “wireless telegraph apparatus” under the Indian Wireless Telegraphy Act and therefore it necessary to have licence to operate such network. This highlighted the need for having a framework for the regulation of cable networks in India which led to the enactment of the Cable Television Networks (Regulation) Act, 1995.

Object of the Act

The object of the Act was to regulate the ‘haphazard mushrooming of cable television networks’. Due to the lack of licensing mechanism for cable operators; this resulted in large number of cable operators, broadcasting programmes without any regulation. The Act aimed at regulating content and operation of cable networks. This was due to the availability of signals from foreign television networks via satellite communication. The access to foreign television networks was considered to be a “cultural invasion” as these channels portrayed western culture. It also wanted to lay down the "responsibilities and obligations in respect of the quality of service both technically as well content wise, use of materials protected under the copyright law, exhibition of uncertified films, and protection of subscribers from anti-national broadcasts from sources inimical to national interests".

There were three amendments made to the Act.

The Act is divided into five chapters. The first chapter discusses the scope and extent of the Act and meaning of the terms used in the Act. The second chapter deals with "Regulation of Cable Television Network". The third chapter relates to "Seizure and Confiscation of certain Equipments". The fourth chapter focuses on "Offences and Penalties". The fifth chapter covers other miscellaneous provisions.

Regulation of Cable Television Network

The regulation of cable television network under the Act is ensured through a two step process. In order to keep track of cable operators, it has mandate a compulsory registration for cable operators. It also lays down provisions to regulate content to be broadcasted by the cable operator.

Registration of Cable Operators

In order to regulate cable television networks, it was made mandatory for cable television network operators to be registered.[2] Procedure for registration is laid down is section 5 of the Act. Any person who is operating or desires to operate a cable network may apply for registration to the registering authority.

An application for registration of cable operator has to be made under Form 1 along with the payment of fees of Rs.50 to the head post master within whose territorial jurisdiction the office of cable operator is situated. The registration certificate which is issued by the registering authority after inspection is valid for 12 months and can be renewed.

The registering authority may also refuse the registration of a cable operator. The reason for such refusal has to be recorded in writing and communicated to the applicant.

Section 4A was inserted into the Act by the TRAI (Amendment) Act, 2002. Section 4A deals with "transmission of programmes through addressable system". [Refer to section on “2003- Amendment to the Cable Television Networks (Regulation) Act, 1995 (Amendment Act)"].

Content Regulation

The Central Government, in public interest can put an obligation on every cable operator to transmit or retransmit a programme[3] of any pay channel through addressable system. In public interest the central government may also ‘specify one or more free-to-air channels to be included in the package of channels’ (basic service tier). The Central Government may also, in public interest specify the maximum amount which can be charged by the operator to the subscriber for receiving the programmes transmitted in the basic service tier provided by such cable operators. The cable operators have to publicize to subscribers the subscription rates of each pay channel at regular intervals.

Sections 5 and 6 of the Act deal with advertisement code and programme code. All cable services should be in conformity with the codes. Under section 7, cable operators have to maintain a register as to the content transmitted or retransmitted. All cable operators shall compulsorily re-transmit Doordarshan channels.

Section 9 of the Act mandates ‘use of standard equipment in cable television network’. It is the duty of the cable operator to make sure that the cable television networks do not interfere with authorized telecommunication systems.

Offences and Penalties

Section 11 gives power to the authorized government authority to seize any cable operator’s equipment, if such officer has reason to believe that the cable operator is using the equipment without proper registration.

Sections 16, 17 and 18 of the Act deal with offences under the Act. They lay down punishments for any act which is in contravention with the provisions of the Act.

Section	Ingredients of the Offence	Penalty/ Fine
16	Anyone who is held to be in violation of the provisions of this Act	For the first offence: Imprisonment for a term which may extend to 2 years or with fine which may extend to Rs. 1000 or with both. For every subsequent offence: Imprisonment for a term which may extend to 5 years and with fine which may extend to Rs. 5000.

Section 17 deals with when an offence under this Act is committed by a company; in this case the person in charge will be liable.

The Act also gives power to the authorized officer[4] to prohibit the transmission of certain programmes in public interest under section 19 of the Act.

Under section 20 of the Act, the Central Government in public interest may prohibit the operation cable television network. The Central Government may make such an order in the interest of the (i) sovereignty and integrity of India; or (ii) security of India; or (iii) friendly relations of India with any foreign state; or (iv) public order, decency or morality.

2003- Amendment to the Cable Television Networks (Regulation) Act, 1995 (Amendment Act)

Numerous complaints were received by the Government stating that there has been unreasonable price hike in cable television by the cable operators. Moreover, the cable operator were not paying appropriate revenue by concealing there income and under-reporting their income. The cable operators defended themselves by stating that the broadcasting industry is unregulated and they are forced to increase the price for proving cable television services as the broadcasting companies can increase the charges as per their wish. In order to address these problems, the government appointed a specialized task force.

Special task force in its study noted that the consumers do not have the choice to select the premium channels they wanted to watch rather it is provided to them in a bundle irrespective of the fact they want to subscribe to such channel or not. In order to give choice to the consumer it recommended the introduction of conditional access systems (CAS). This would require the consumers to set up set-top boxes which will allow the consumers to view all the free to air channel and he can choose to watch any of the premier channels for a charge.

This recommendation of the task force was introduced through the 2003 amendment to the Act. The main objective of the Amendment Act was to address to the frequent and arbitrary increase in cable charges. This was introduced section 4A which allowed operators to transmit pay channels through an addressable system[5]apart from basic package of free-to-air channels.

There was a lot controversy with respect to implementation of the CAS. In order to explain the controversy, it is important to understand the structure of the cable market. The cable market is divided into three categories. Broadcasters, who are at the top of the pyramid, the Multi-System Operators are in the middle and the local cable operators are at the bottom of the pyramid.

The 2003 Amendment introduced to CAS was welcomed by the broadcasters and the MSOs. But the consumer and the local cable service providers were unhappy with this decision because the consumers feared that they have to pay special rates for pay channels whereas the local operators were outraged because they believed that CAS would affect their revenue. Due to the adverse reaction from the consumers and the local cable operator, the government delayed the implementation of CAS indefinitely. This finally culminated in a case[6] before the Delhi High Court.

The Delhi High Court decided that implementation of CAS cannot be delayed. Subsequently to this, the government announced in 2004 that Telecom Regulatory Authority of India (TRAI) will be handling the problems regarding CAS and make recommendations on the same. TRAI recommended that CAS should be denotified and it can be re-introduced later when there is adequate regulation to properly implement it.

The government on the recommendation of TRAI withdrew the implementation of CAS. However, this decision was faced with a new challenge[7]and this time the single judge bench of the Delhi High Court held that the Government does not have any ground to suspend the CAS and it has disregarded the previous decision of the Delhi High Court in Jay Polychem case. Finally, the government re-introduced CAS but after issuing rules as to its working and implementation.

[1]. AIR 1993 Raj. 1997
[2]. Section 4 of the Act: "No person shall operate a cable television network unless he is registered a cable operator under this Act..."
[3]. Section 2(g): “programme means any television broadcast and includes –
i exhibition of films, features, dramas, advertisements and serials through video cassette recorders or video cassette player;
ii any audio or visual or audio-visual live performance or presentation and the expression “programming service” shall be construed accordingly
[4]. Section 2(a): authorized officer means within his local limit of jurisdiction
i a District Magistrate, or
ii a Sub Divisional Magistrate, or
iii a Commissioner of Police, and includes any other officer notified in the Official Gazette, by the Central Government or the State Government, to an authorized officer for such local limits of jurisdiction as may be determined by the Government.
[5]. Section 4-A, Explanation (a), Cable Television Networks (Regulation) Act, 1995; Addressable system is defined as, "an electronic device or more than one electronic devices put in an integrated system through which signals of a cable television network can be sent in encrypted or unencrypted form, which can be decoded by the device or devices at the premises of the subscriber within the limits of authorisation made, on the choice and request of such subscriber, by the cable operator to the subscriber."
[6]. Jay Polychem v. Union of India, (2004) IV AD 249 (Del)
[7]. Hathaway Cable Datacom v. Union of India, 128 (2006) DLT 180

For more details visit https://cis-india.org/telecom/resources/cable-television-networks-regulation-act