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Connectivity: Let's Apply What We Know
https://cis-india.org/telecom/blog/connectivity-lets-apply-what-we-know
<b>Those who cannot remember the past are condemned to repeat it - George Santayana. Reprise good decisions, and avoid the missteps.</b>
<p>The Op-ed was published in <a class="external-link" href="http://www.business-standard.com/article/opinion/shyam-ponappa-connectivity-let-s-apply-what-we-know-116030201032_1.html">Business Standard</a> on March 2 and cross-posted on <a class="external-link" href="http://organizing-india.blogspot.in/2016/03/connectivity-lets-apply-what-we-know.html">Organizing India BlogSpot</a> on March 3.</p>
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<p style="text-align: justify; ">Past decisions deserve scrutiny when we can learn from them. The Budget expects about Rs 75,000 crore from spectrum auctions. What will be gained and lost? A study by the Telecom Regulatory Authority of India (TRAI) in 2005 has some pointers for policies going forward. These relate to decisions that enabled the proliferation of mobile telephony between 2003 and 2011. Other decisions had less salutary outcomes, which we would do well to recognise and avoid. Reviewing some of these could influence supportive policies, resulting in industry growth with enhanced user benefits and government revenues.<br /><br /> <strong>1. Reasonable fees increase govt revenues</strong><br /><br /> The TRAI report cited below states that as a consequence of the New Telecom Policy 1999's (NTP-99's) shift to revenue sharing for licence fees and spectrum usage charges, government revenues soared. Collections through March 2007 greatly exceeded the auction payment commitments of Rs 19,314 that were given up.<br /><br /> The NTP-99 stirred controversy because of this opportunity loss, as a suspected sellout to the private sector. However, government collections actually turned out to be much higher through revenue sharing. Operators did indeed benefit, but for a good reason: explosive growth in mobile services. Users also benefited immensely through the rapid spread of widely accessible services at relatively low cost, as did government revenues.<br /><br /> In the chart below, the second column shows the auction fees foregone through March 2007 after adopting the NTP-99, amounting to Rs 19,314 crore. The third column shows annual government revenues collected, while the fourth column shows cumulative government collections. Compared to the opportunity cost of auction revenues foregone of Rs 19,314 crore, government collections by March 2007 amounted to over Rs 40,000 crore, more than double the "loss". With revenue sharing, collections did not stop in March 2007, and by March 2010 were nearly Rs 80,000 crore, or four times the "loss". By March 2015, the "loss" had been made up by more than eight times, by collecting over Rs 1.6 lakh crore.</p>
<p style="text-align: justify; "><img src="https://cis-india.org/home-images/Spectrum.jpg" alt="Spectrum" class="image-inline" title="Spectrum" /></p>
<p style="text-align: justify; ">Sources<br />Column 1 - 1999-00 to 2006-07:Indicators for Telecom Growth, Study Paper No. 2/2005,TRAI:<a href="http://trai.gov.in/Content/StudyPaperDescription/ShowPDF.aspx?LNK_PATH=WriteReaddata/StudyPaper/Document/ir30june.pdf">http://trai.gov.in/Content/StudyPaperDescription/ShowPDF.aspx?LNK_PATH=WriteReaddata/StudyPaper/Document/ir30june.pdf</a>Columns 2 & 3 – 2002-03 to 2009-10:Peformance Audit Report on the Issue of Licences and Allocation of 2G Spectrum by the Department of Telecommunications, CAG:<a href="http://www.performance.gov.in/sites/default/files/departments/telecom/CAG%20Report%202009-10.pdf">http://www.performance.gov.in/sites/default/files/departments/telecom/CAG Report 2009-10.pdf</a>Columns 2 & 3 – 2010-11 to 2014-15 are from the TRAI web site:<a href="http://www.trai.gov.in/Content/PerformanceIndicatorsReports/1_1_PerformanceIndicatorsReports.aspx">http://www.trai.gov.in/Content/PerformanceIndicatorsReports/1_1_PerformanceIndicatorsReports.aspx</a><br /><br /> In hindsight, a combination of policies, market structure/competition, and technology resulted in enormous growth, much higher government collections, and tremendous user benefits. A key impetus was the adoption of the high-volume-low-margin approach of Henry Ford's "Model-T" strategy. This principle is an essential ingredient for achieving Digital India.</p>
<p style="text-align: justify; "><span><strong>2. Unenforced regulations lead to chaos</strong></span><br /><span><strong><br /></strong></span> <span>In our conditions of deficit infrastructure with constrained capital, the need for collaborative access to capital-intensive resources cannot be sufficiently emphasised. It's either that or do without the connectivity, as we've had to so far.</span></p>
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<p style="text-align: justify; "><span>Until around 1999-2000, only GSM technology was permitted in India for mobile telephony (Global System for Mobile Communications, originally Groupe Special Mobile). Thereafter, CDMA (Code Division Multiple Access) technology was introduced for wireless last-mile connections. While CDMA was supposedly restricted to the so-called Wireless-Local-Loop or WLL in place of fixed-lines for basic telephony, ambivalence/laxity in the enforcement of stated policies and the extension of this technology to mobile services led to unending contention and protracted legal battles between GSM and CDMA operators. While users benefited from price wars resulting from overly intense competition, both industry and users suffered considerable opportunity losses, as broadband development was constrained by a hypercompetitive environment roiled by unrelenting conflict. The marketplace was simply not conducive to the extension and evolution of broadband networks, particularly for less dense rural markets, so connectivity and services suffered.</span><br /><span><br /></span> <span>Although several operators negotiated a degree of resource-sharing among themselves that was permitted, the industry couldn't converge on collaborative approaches to highly capital-intensive network building and service delivery, nor did the government devise supportive policies. Those in favour of unbridled market forces may approve of such intense competition. However, the cost of creating capacity and expanding networks is so prohibitive that, as a study on EU networks suggests, "as market conditions appear to be insufficient in most countries so far to trigger broad-scale NGA [Next Generation Access (Networks)] roll-outs in view of high investment requirements… and risks, identifying the right policy measures becomes crucial." It concludes, "public subsidies are the dominant policy alternative in white [unprofitable] areas, whereas access regulations can be the preferred policy in white or "grey" areas, where only monopoly structure or co-investment models lead to private investment."</span><span>1</span><span> And this is for the Organisation for Economic Co-operation and Development.</span><br /><span><br /></span> <span>The takeaway: good policies are essential, but are meaningful only if they are enforced. Otherwise, we all suffer the opportunity loss.</span><br /><span><br /></span> <strong><span>3. Global developments in sharing infrastructure</span></strong><br /><span><br /></span> <span>A major change globally has been a move towards sharing infrastructure. One motivator is broadband usage needs for greater capacity including for wireless delivery. The US pioneered a solution for better spectrum utilisation by permitting secondary sharing while primary holders retain rights of priority access. The FCC permitted commercial access to 150 megahertz in the 3550-3700 MHz band (3.5 GHz Band) in its ruling of April 17, 2015.<sup><span>2</span></sup> Work is under way in Europe on Licenced Shared Access, eg, in 2300-2400 MHz.</span><br /><span><br /></span> <span>Another motivator for sharing infrastructure has been the financial challenge of providing rural and suburban coverage. Shared networks enable more effective and efficient coverage through multiple operators in such markets. Operators save on capital and operating expenses, while gaining access and higher profit potential. For users, better services improve financial prospects, convenience, and access to services that are otherwise inaccessible, including in areas like health care, education and skills development, and government services. Network sharing equipment is now available to support multiple operators and technologies to make sharing a reality.</span><br /><span><br /></span> <span>We need to stop obstructing ourselves with our own rules. Our regulations must instead enable us to make the most of our capital and potential.</span></p>
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<p><i>1 "The Impact of Alternative Public Policies on the Deployment of New Communications Infrastructure - A Survey", Briglauer et al: </i><a href="http://ftp.zew.de/pub/zew-docs/dp/dp15003.pdf" target="_blank"><i>http://ftp.zew.de/pub/zew-docs/dp/dp15003.pdf</i></a><br /><i><br /></i><em>2 </em><span><span><i>Amendment of the Commission’s Rules with </i></span></span><i>Regard to Commercial Operations in the 3550-</i><br /><span><span><i>3650 MHz Band: </i></span></span><em><a href="https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-47A1.pdf" target="_blank">https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-47A1.pdf</a></em></p>
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For more details visit <a href='https://cis-india.org/telecom/blog/connectivity-lets-apply-what-we-know'>https://cis-india.org/telecom/blog/connectivity-lets-apply-what-we-know</a>
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No publisherShyam PonappaTelecom2016-04-06T01:19:28ZBlog EntryConfiguring a 'Non-Toothless' Regulator (TRAI)
https://cis-india.org/telecom/blog/business-standard-may-9-2013-shyam-ponappa-configuring-a-non-toothless-trai
<b>A proposal to give the telecom regulator the right to impose penalties marks a sea change in the government's approach to regulation.</b>
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<p style="text-align: justify; ">Shyam Ponappa's column was published in <a class="external-link" href="http://organizing-india.blogspot.in/2013/05/configuring-non-toothless-regulator-trai.html">Organizing India Blogspot</a> on May 10, 2013 and in the <a class="external-link" href="http://www.business-standard.com/article/opinion/configuring-a-non-toothless-trai-113050900979_1.html">Business Standard</a> on May 9, 2013.</p>
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<p style="text-align: justify; "><span>On April 27, this newspaper carried a report on the department of telecom's proposed amendments to powers of the regulator in the Telecom Regulatory Authority (Amendment) Bill. These amendments are remarkable, because they are an institutional evolution of the kind that we have rarely experienced, but need much more. Such salutary changes are heartening at a time of perceived drift in governance and stalled decisions. They are also important for our institutional development as examples of change initiated from within for legacy systems.</span></p>
<p style="text-align: justify; "><span>According to the report, the Telecom Regulatory Authority of India (Trai's) role will be extended to include the power to:</span></p>
<ul>
<li> impose penalties on operators for non-compliance with its orders and regulations;</li>
</ul>
<ul>
<li> determine how to address consumer grievances and implement a plan; and</li>
</ul>
<p>recommend how spectrum should be audited for efficient usage, and penalise transgressors for inefficiencies.</p>
<p><span><span>In addition, Trai is to be on a par with other independent regulators.</span></span></p>
<p style="text-align: justify; "><span><span>The right to impose penalties reflects a sea change for the better in the government's approach to regulation. It is especially significant because of the difficulties in setting up the regulator years after privatisation began, as well as in the period thereafter. This amendment has the potential to correct many deficiencies, provided it is implemented properly. Good outcomes, however, are not a foregone conclusion because outcomes require a combination of properly designed systems, people with the required skills in place and functioning well in circumstances that are not adverse.</span></span></p>
<p style="text-align: justify; "><span><span>Together with the other changes, namely, addressing consumer grievances and recommending how spectrum should be monitored for optimal usage, with the stipulation of penalties for inefficiencies, Trai will be empowered to facilitate usage and access.</span><br /><br /><span>The question is whether these changes sufficiently empower our regulator for our communications needs. The recommendations are good, but do they need improvement? Ideally, what should be the structure, function and powers of the agency in practicable terms, without making the "best" the enemy of the "good"? To formulate answers to these, it is useful to consider relevant benchmarks and markers. Some of the following material is derived from the <a class="external-link" href="http://www.ictregulationtoolkit.org/en/PracticeNote.aspx?id=3120">ICT Regulation Toolkit</a> of the International Telecommunication Union.</span></span></p>
<p style="text-align: justify; "><b>Scope</b><br />Some countries have a single-sector regulator for telecommunications, as in Botswana, Spain and Peru. Others have multi-sector regulators, with responsibility over utility sectors that typically include telecommunications, water, electricity and transportation, such as in Jamaica, Costa Rica, Germany, Latvia and Panama. More recently, there has been an increase in "converged regulators" with responsibility over broadcasting, telecommunications and information technology. Today, such regulators are found in most European Union countries, including Finland, Italy and the UK, as well as in Australia, Hong Kong, China, Malawi, Malaysia, South Africa and Tanzania. This is because such structures are considered to be better equipped to address convergent environments where different services are offered over the same platform. Such a move also facilitates the transition to modern, packet-switched "Next Generation Networks".<br /><br /><b>Responsibilities</b><br />Regulators in several countries, such as the US, the UK, and Malaysia, are the designated authorities responsible for spectrum allocation and management for the government; they do not only make recommendations. Should Trai have such a role and responsibility? To understand why the answer needs to be worked out thoroughly, read on.<br /><br />Spectrum monitoring and management undoubtedly need modernised capabilities to provide information and decision support. This includes the use of online tools such as user-friendly databases and graphical user interfaces, and public access in areas not related to security or defence. These technological aspects are one dimension of need.<br /><br />A different dimension is that of institutional readiness and interfaces, and the state of institutional development in counterparty agencies. In other words, it is not simply a matter of elegant logic and organisational design, but also culture and work processes that fit as well as the interrelationships, such as between telecommunications, broadcasting and competition laws, that will ultimately result in effective governance in our context.<br /><br /><b>Qualifications</b><br />What are the desirable qualifications for the head of the regulatory agency? The requirement is for coordinating interdisciplinary issues effectively, in addition to integrity, intellectual capacity, and governance/administrative ability. The first Trai was headed by a judge; thereafter, there was a banker, then people from the Indian Administrative Service. In the US, lawyers head the agency, while in the UK, it is economists; both have very different cultures and institutions from ours. In addition to experience in administration and contracts, knowledge of economics, commercial dealings and coordination using multiple inputs is desirable. Technical expertise, while essential as an input, may not be a key criterion for effective regulation and oversight.</p>
<p style="text-align: justify; ">Here are some examples of national anomalies:</p>
<ul>
<li>In Canada, spectrum matters are addressed by Industry Canada rather than by the regulator, the Canadian Radio-television and Telecommunications Commission, or CRTC.</li>
<li style="text-align: justify; ">In Singapore, the Infocomm Development Authority has responsibility over telecommunications and information technology matters, but the Media Development Authority licenses over-the-air television and regulates content.</li>
<li style="text-align: justify; ">In Australia, the communications regulator has no authority over competition issues, whereas in the UK, Ofcom has jurisdiction concurrently with the Office of Fair Trading.</li>
</ul>
<p style="text-align: justify; "><span><span>For all these reasons, to properly configure Trai's role and powers, a consultative process is advisable (i.e., solutions collectively formulated that are likely to work) with the help of experienced facilitators who can help elicit convergence through stakeholder interactions. Such issues are ill-served by consultations in the form of a quasi-judicial hearing, which is predicated on the "rightness" of a position in the law.</span></span></p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/business-standard-may-9-2013-shyam-ponappa-configuring-a-non-toothless-trai'>https://cis-india.org/telecom/blog/business-standard-may-9-2013-shyam-ponappa-configuring-a-non-toothless-trai</a>
</p>
No publisherShyam PonappaTelecom2013-06-05T10:10:32ZBlog EntryComments to the Telecommunications Bill, 2023
https://cis-india.org/telecom/blog/cis-comments-to-the-telecommunications-bill-2023
<b>The Parliament has passed the Telecommunications Bill, 2023 which seeks to replace the Indian Telegraph Act, 1885. The Centre for Internet & Society (CIS) submits its comments to the bill. </b>
<p>The comments were reviewed by Tanveer Hasan. <a class="external-link" href="https://cis-india.org/telecom/files/cis-comments-to-telecommunications-bill-2023">Click to download the PDF</a></p>
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<h3>Key concerns</h3>
<ol type="1"></ol> <ol></ol>
<p><b>Definition of Telecommunication Service </b></p>
<ol></ol> <ol type="1"></ol>
<p style="text-align: justify; ">The definition of the terms telecommunication (section 2(p) and telecommunication service (section 2(t)) is extremely broad and would effectively include transmission of any signal by any electromagnetic systems. This wide definition increases the scope of the Bill to include almost all kinds of means of communication used in modern times including messaging services, email, OTT services, among others. Even if one were to accept the argument that the scope of the Bill has been deliberately kept wide so that the government has the power to regulate all means of telecommunication in order to prevent mischief and illegal activities, the problem arises with the onerous language of section 3(1) which makes it compulsory to obtain an authorisation from the Central Government for any and all telecommunication services, unless specifically exempted under section 3(3).</p>
<p style="text-align: justify; ">In simpler words the Bill not only seeks to regulate all communication services, but requires government permission to provide such services in the first place. Such an approach has the very likely potential to hamper future telecom innovation especially in light of the fact that the penalty for not obtaining permission is imprisonment upto 3 years as well as fine of upto Rs. 2 crores.</p>
<p style="text-align: justify; ">Such a wide definition leads to ambiguity and lack of regulatory certainty to businesses as well as users participating in the ecosystem. This proposal triggers immediate concerns, particularly a confusing definition of telecommunication services which may also incorporate the provision of a broad range of digital and online services. Such a wide definition could lead to confusion and arbitrary implementation on one hand, and if made applicable to the content layer of the internet architecture stifle innovation in the digital ecosystem due to onerous licensing/registration requirements on the other hand. It is also pertinent to note that some of the internet-based services listed in the definition in 2(21) are already regulated under the Information Technology (IT) Act 2000. For example, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 regulates intermediaries, including the significant social media intermediaries (SSMI) such as Facebook and Twitter. Putting an additional regulatory burden on these service layer companies will hamper innovation and competitiveness of the sector and also amount to regulatory overreach.</p>
<ol></ol>
<p><b>Power of authorisation and assignment</b></p>
<ol></ol> <ol type="1"></ol>
<p> </p>
<p style="text-align: justify; "><b>Section 3 (7) -</b> <i>Any authorised entity which provides such telecommunication services as </i><i>may be notified by the Central Government, shall identify the person to whom it provides telecommunication services through use of any verifiable biometric based identification as may be prescribed.</i></p>
<p> </p>
<p style="text-align: justify; ">All services do not require a biometric based identification of the person. While there is a legitimate need to verify a person in the case of financial transactions, however a similar level of scrutiny is not warranted for applications that a person might use once, or applications that do not pose a threat. For example the need to verify a person through Know Your Customer (KYC) or otherwise for an application to order food, or an application which is meant for communication can be excessive regulation. In addition to the enhanced burden of collecting and storing this data that will come on the telecommunication service, there will also be the added requirement to maintain strict data protection and security measures under the Digital Personal Data Protection Act 2023. Furthermore, as has been seen in multiple instances of data breaches and cyber security attacks such as the one at AIIMS<a href="#_ftn1" name="_ftnref1"><sup><sup>[1]</sup></sup></a>, Justpay<a href="#_ftn2" name="_ftnref2"><sup><sup>[2]</sup></sup></a> demonstrate that both public and private organisations can be affected by cyber attacks. It is therefore advisable to reduce the number of entities that store and collect sensitive personal data such as biometric information in the interest of privacy as well as national security.</p>
<p style="text-align: justify; ">The Supreme Court while looking at the constitutionality of the Aadhaar Act upheld the need for banking and financial institutions to require an individual’s Aadhaar number stating the legitimate aim of preventing money laundering; however, the Court struck down the provision that required any private entity to collect Aadhaar details. Justice Bhushan held that the collection by private entities violated the right to privacy, by failing the first prong of the test laid down in Puttaswamy judgement, the test of legality.<a href="#_ftn3" name="_ftnref3"><sup><sup>[3]</sup></sup></a></p>
<p> </p>
<p style="text-align: justify; ">More importantly, through the requirement of ‘verifiable biometric based identification’, the Bill is likely to nudge telecom service providers to incorporate Aadhar Based identification, even though the Indian Supreme Court in 2018 held that the mandatory linking of mobile connections with biometric identification is unlawful.</p>
<p><b> </b></p>
<h3>Standards, Public Safety, National Security and Protection of Telecommunication Networks</h3>
<p> </p>
<p> </p>
<ol type="1"></ol>
<p><b>Power to notify standards</b></p>
<ol type="1"></ol>
<p><b> </b></p>
<p style="text-align: justify; "><b>Section 19 (f)</b> The power to notify standards and conformity measures on encryption is a sweeping power that allows the central government to potentially request for backdoors on encryption, or ask for alternatives to end to end encryption such as client side scanning, which have been critiqued<a href="#_ftn4" name="_ftnref4"><sup><sup>[4]</sup></sup></a> as measures that undermine privacy for all users. If the objective is to provide recommendations for certain encryption techniques when dealing with sensitive government data, a more specific compliance certification can be issued to such firms. For example, the United States government mandates certain government agencies to comply with the Federal Information Processing Standards (FIPS)<a href="#_ftn5" name="_ftnref5"><sup><sup>[5]</sup></sup></a> which also apply to non-government firms holding government contracts. Standards like FIPS recommend specific cryptographic modules to ensure secure communication of sensitive data. Such conditions and cases must be explicitly scoped in defining the standard setting powers of government with regard to encryption, in consultation with the industry and civil society organisations.</p>
<p> </p>
<ol type="1"></ol>
<p><b>Provisions for public emergency or public safety</b></p>
<ol type="1"></ol>
<p> </p>
<p style="text-align: justify; "><b>Section 20(2) (a) -</b> Messaging apps such as WhatsApp and Signal enable end to end encryption, where messages are encrypted on endpoints such as user devices. Service providers and intermediaries cannot decrypt messages. Requiring messages to be amenable to disclosure in an 'intelligible format' is technically impossible within the end to end paradigm of privacy engineering<a href="#_ftn6" name="_ftnref6"><sup><sup>[6]</sup></sup></a>. Technical means of disclosing the contents of messages can either reside on a user’s device, in a middle-box that mediates communication, or on servers where some computation can occur. Restructuring end-to-end encrypted communication networks to facilitate these technical means of disclosure would result in the creation of potential points of vulnerability and encryption backdoors. These vulnerabilities can be exploited by malicious actors and backdoors act as ‘intentional vulnerabilities’<a href="#_ftn7" name="_ftnref7"><sup><sup>[7]</sup></sup></a> that can be used for excessive surveillance of communication that users believe to be private.</p>
<p> </p>
<p style="text-align: justify; ">Section 20 (2) states the grounds for which such information may be sought. These include sovereignty and integrity of India, defence and security of the State, friendly relations with foreign States, and public order. Prima facie, these may appear to be reasonable grounds for facilitating government access, however, the current phrasing is too wide and leaves room for an expansive interpretation. This is particularly true for maintenance of “public order” that is routinely invoked in a variety of situations.<a href="#_ftn8" name="_ftnref8"><sup><sup>[8]</sup></sup></a> According to research conducted in 2021 by Vrinda Bhandari and others on the “Use and Misuse of Section 144 found orders issued under the guise of public order restrictions to regulate a variety of activities, many of which would not qualify as illegal activities per se. For instance, orders were issued to prohibit flying of hot air balloons, unmanned aerial vehicles, unmanned aircraft systems, use of “special” or “metallic” manjhas to fly kites and carrying tiffin boxes inside cinemas.<a href="#_ftn9" name="_ftnref9"><sup><sup>[9]</sup></sup></a> And tracing encrypted messages to thwart such perceived public order threats would be excessive and disproportionate. The order to intercept, detain, disclose or suspend a communication made between private individuals, acts as a violation of privacy and provides extensive grounds to surveil people.<a href="#_ftn10" name="_ftnref10"><sup><sup>[10]</sup></sup></a></p>
<p> </p>
<p style="text-align: justify; ">These grounds may be used to intercept or monitor all communication where a particular word or set of words is used. And its implementation would require communication of all users to be monitored effectively leading to a lower degree of privacy for all users<a href="#_ftn11" name="_ftnref11"><sup><sup>[11]</sup></sup></a> - including internet communication based apps due to definitional ambiguity. The Supreme Court has held that any infringement of the right to privacy should be proportionate to the need for such interference.<a href="#_ftn12" name="_ftnref12"><sup><sup>[12]</sup></sup></a> The judgement in the Puttaswamy case provides some guidance to assess the limits and scope of the constitutional right to privacy in the form of the three prong test. The test requires the existence of a law, a legitimate state interest and the restriction (to privacy) should be ‘proportionate'. This provision violates a user’s fundamental right to privacy since it fails to meet the proportionality requirement as laid down by the Supreme Court.</p>
<p style="text-align: justify; ">Section 20 (2) (b) provides for suspension of telecommunication service or class of services on similar grounds. The Bill empowers the DoT to suspend telecommunication services and if applicable to internet based communication services such as WhatsApp, Signal, among others without the need for any judicial oversight or procedural safeguards as enunciated by the Supreme Court in Anuradha Bhasin vs Union Of India. The provision must incorporate an independent oversight mechanism for such orders and also incorporate safeguards laid down by the Supreme Court in the Anuradha Bhasin judgement<a href="#_ftn13" name="_ftnref13"><sup><sup>[13]</sup></sup></a> to prevent arbitrary, frequent, and prolonged suspension of telecommunication services in India.</p>
<h3>Protection of users</h3>
<p><b> </b></p>
<p><b> </b></p>
<h3><b> </b></h3>
<p><b> </b></p>
<ol type="1"></ol>
<p><b>Measures for protection of users</b></p>
<ol type="1"></ol>
<p><b> </b></p>
<p style="text-align: justify; "><b> Section 28 - </b>This section should also provide mechanisms for de-registering from “specific messages” . While this section mentions the need for prior consent of users for receiving the specified messages/ class of specified messages, it should look at the full spectrum of rights the Digital Personal Data Protection Act 2023 provides, which includes the right to withdraw consent. Hence we suggest that Section 28(3) adds that the authorised entity providing telecommunication services shall establish an online mechanism for withdrawal of consent, in addition to grievance redressal.</p>
<p> </p>
<ol type="1"></ol>
<p><b>Duty of users </b></p>
<ol type="1"></ol>
<p><b> </b></p>
<p style="text-align: justify; "><b>Section 29 - </b>While listing out the duties of the users the Act puts the onus on the user to furnish correct information. It fails to take into account instances where the information is fed into the system by third parties, due to issues of access and literacy on the part of the users. While the section heading states “duty of the user” the preceding text “no user shall” has the potential to penalise users for acts carried out without a malicious intent. Additionally, there is also a need to look at how notices and terms and conditions of most telecommunication services are primarily in English, making it even more difficult for a large number of Indian users to read and hence understand the requirements. Furthermore, the associated penalty for failing to comply with these provisions are, i.e. up to INR 25,000 for the first offence and for the second or subsequent offences, up to INR 50,000 for every day till the contravention continues. Considering the low digital literacy rates, the government would be well advised to reconsider imposition of such hefty fines.</p>
<p> </p>
<p style="text-align: justify; ">If applicable on internet based services, this will also impact the ability of a user to retain anonymity over the internet. Individuals may choose to remain anonymous online for a number of reasons. It is important to understand that an individual may remain anonymous for a variety of legitimate purposes such as expressing opinions about their employers and whistleblowers, providing anonymous tips to newspapers or law enforcement, expressing political opinions and criticism that may be subject to persecution, or simply someone saying something that they may be embarrassed about. <a href="#_ftn14" name="_ftnref14"><sup><sup>[14]</sup></sup></a> In India, in particular, an individual’s caste can be identified from their name, and they may choose to remain anonymous or adopt a pseudonym to escape centuries of stigma and discrimination that their communities have faced. The broad definition of telecommunication services as elaborated above places restrictions on anonymity online and severely degrades an individual’s ability to exercise their fundamental right to freedom of expression.</p>
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<div id="ftn1">
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1"><sup><sup>[1]</sup></sup></a>Business Today Desk, “Cyber attack at AIIMS Delhi: Hackers demand Rs 200 cr in crypto, says report” <i>Business Today,</i> 22 November 2022, https://www.businesstoday.in/latest/in-focus/story/cyber-attack-at-aiims-delhi-hackers-demand-rs-200-cr-in-crypto-says-report-354475-2022-11-28.</p>
</div>
<div id="ftn2">
<p style="text-align: justify; "><a href="#_ftnref2" name="_ftn2"><sup><sup>[2]</sup></sup></a>Ashwin Manikandan, Anandi Chandrashekhar, “Juspay Data Leak fallout: RBI swings into action to curb cyberattacks”, <i>The Economic Times, </i>6 January 2021, https://economictimes.indiatimes.com/tech/technology/juspay-data-leak-fallout-rbi-swings-into-action-to-curb-cyberattacks/articleshow/80125430.cms</p>
</div>
<div id="ftn3">
<p style="text-align: justify; "><a href="#_ftnref3" name="_ftn3"><sup><sup>[3]</sup></sup></a> “Judgement in Plain English Constitutionality of Aadhaar Act”, “<i>Supreme Court Observer</i>, accessed 22 December 2023,https://www.scobserver.in/reports/constitutionality-of-aadhaar-justice-k-s-puttaswamy-union-of-india-judgment-in-plain-english/</p>
</div>
<div id="ftn4">
<p style="text-align: justify; "><a href="#_ftnref4" name="_ftn4"><sup><sup>[4]</sup></sup></a> “Why Adding Client-Side Scanning Breaks End-To-End Encryption”, <i>The Electronic Freedom Foundation</i>, accessed 22 December 2023, https://www.eff.org/deeplinks/2019/11/why-adding-client-side-scanning-breaks-end-end-encryption.</p>
</div>
<div id="ftn5">
<p style="text-align: justify; "><a href="#_ftnref5" name="_ftn5"><sup><sup>[5]</sup></sup></a> “Compliance FAQs: Federal Information Processing Standards (FIPS)”, NIST, accessed December 22 2023. https://www.nist.gov/standardsgov/compliance-faqs-federal-information-processing-standards-fips</p>
</div>
<div id="ftn6">
<p style="text-align: justify; "><a href="#_ftnref6" name="_ftn6"><sup><sup>[6]</sup></sup></a> “Personal Data in the Cloud Is Under Siege. End-to-End Encryption Is Our Most Powerful Defense.”, <i>Lawfare,</i> accessed 22 December 2023, https://www.lawfaremedia.org/article/personal-data-in-the-cloud-is-under-siege.-end-to-end-encryption-is-our-most-powerful-defense</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7"><sup><sup>[7]</sup></sup></a> “Breaking Encryption Myths”, <i>Global Encryption Coalition,</i> accessed 22 December 2023, https://www.globalencryption.org/2020/11/breaking-encryption-myths/</p>
</div>
<div id="ftn8">
<p style="text-align: justify; "><a href="#_ftnref8" name="_ftn8"><sup><sup>[8]</sup></sup></a> Smriti Parsheera “Political misinformation is a problem. But asking WhatsApp to risk user privacy is the wrong solution”,<i> The Indian Express,</i> October 28 202 <a href="https://indianexpress.com/article/opinion/editorials/remedy-worse-than-malaise-9002600/">https://indianexpress.com/article/opinion/editorials/remedy-worse-than-malaise-9002600/</a>.</p>
</div>
<div id="ftn9">
<p style="text-align: justify; "><a href="#_ftnref9" name="_ftn9"><sup><sup>[9]</sup></sup></a> Vrinda Bhandari, <i>et al, </i>The Use and Misuse of Section 144 Cr.P.C, https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID4404496_code2801004.pdf?abstractid=4389147&mirid=1&type=2</p>
</div>
<div id="ftn10">
<p style="text-align: justify; "><a href="#_ftnref10" name="_ftn10"><sup><sup>[10]</sup></sup></a>CIS’ Comments to the (Draft) Indian Telecommunication Bill 2022 <i>“Centre for Internet and Society, </i>accessed 22 December 2023 https://cis-india.org/telecom/blog/cis-comments-to-draft-indian-telecom-bill-2022#:~:text=Comment%3A%20The%20draft%20bill%20attempts,power%20over%20the%20local%20government.</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11"><sup><sup>[11]</sup></sup></a> The Telecommunications Bill, 2023,<i> PRS Legislative Research,</i> accessed 22 December 2023, https://prsindia.org/billtrack/the-telecommunication-bill-2023</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12"><sup><sup>[12]</sup></sup></a> Justice K.S. Puttaswamy (Retd) vs Union of India, W.P.(Civil) No 494 of 2012, Supreme Court of India, September 26, 2018.</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13"><sup><sup>[13]</sup></sup></a> Writ Petition (Civil) NO. 1031 OF 2019, accessed 22 Decmber 2023, <a href="https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Judgement_10-Jan-2020.pdf">https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Judgement_10-Jan-2020.pdf</a>.</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14"><sup><sup>[14]</sup></sup></a>Palme, Jacob, and Mikael Berglund. <i>"Anonymity on the Internet</i>." Accessed 22 December 2023: 2009.</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/cis-comments-to-the-telecommunications-bill-2023'>https://cis-india.org/telecom/blog/cis-comments-to-the-telecommunications-bill-2023</a>
</p>
No publisherIsha Suri, Nishant Shankar, Shweta Mohandas, and Vipul KharbandaTelecom2024-01-06T01:21:55ZBlog EntryComments to the (Draft) Indian Telecommunication Bill
https://cis-india.org/telecom/comments-to-the-draft-indian-telecommunication-bill
<b></b>
<p>
For more details visit <a href='https://cis-india.org/telecom/comments-to-the-draft-indian-telecommunication-bill'>https://cis-india.org/telecom/comments-to-the-draft-indian-telecommunication-bill</a>
</p>
No publisherAbhishek Raj, Divyank Katira, Isha Suri, Shweta Mohandas, and Vipul KharbandaTelecom2022-11-11T16:13:25ZFileComments on the Telecom Commercial Communications Customer Preference Regulations
https://cis-india.org/internet-governance/blog/comments-on-the-telecom-commercial-communications-customer-preference-regulations
<b>This submission presents comments by the Centre for Internet & Society, India (“CIS”) on the Telecom Commercial Communications Customer Preference Regulations which was released to the public by the Telecom Regulatory Authority of India (TRAI) on 29th May 2018 for comments and views. </b>
<h3 style="text-align: justify; ">Preliminary</h3>
<p style="text-align: justify; ">This submission presents comments by the Centre for Internet & Society (“CIS”), India on ‘The Telecom Commercial Communications Customer Preference Regulations, 2018’ which were <a class="external-link" href="https://www.trai.gov.in/sites/default/files/DraftUCCRegulation29052018.pdf">released</a> on 29th May 2018 for comments and counter-comments.</p>
<p style="text-align: justify; ">CIS appreciates the intent and efforts of Telecom Regulatory Authority of India (TRAI) to curb the problem of Unsolicited Commercial Communication (UCC), or spam. Spam messages are constant irritants for telecom subscribers. Acknowledging the same, TRAI has <a class="external-link" href="https://www.trai.gov.in/sites/default/files/PRNo5829052018.pdf">proposed</a> regulations which aim to empower subscribers in effectively dealing with UCC. CIS is grateful for the opportunity to put forth its views and comments on the regulations. This submission was made on 18th June 2018. This text has been slightly edited for readability.</p>
<p style="text-align: justify; "><span>The first part of the submission highlights some general issues with the regulations. While TRAI has offered a technological solution to the menace of UCC, the policy documents have no accompanying technical details. TRAI has not made a compelling case for why Distributed Ledger Technologies (DLTs) should be used for storing data instead of a distributed database. There is no clarity on the technical aspects of the proposed DLTs: the participating nodes in the network, how these nodes arrive at a consensus, whether they are independent of each other, are questions that remain unanswered. The draft regulations also mention curbing Robocalls, but technical challenges associated with the same have not been discussed. Spam which is non-commercial in nature remains out of the scope of the current regulations.</span></p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">The second part of this submission puts forth specific comments related to various sections of the draft and suggests improvements therein. <span>While CIS appreciates the extension of the deadline from 11th June to 18th June, we would like to highlight that the Draft was released on 29th May, and despite the extension, the time to submit comments remains less than a month. Considering the fact that the draft regulations hold significance for the entire telecom industry and nearly 1.5 billion subscribers, TRAI should have granted at least a month’s time for the stakeholder’s sound scrutiny.</span></p>
<div style="text-align: justify; "></div>
<h2 style="text-align: justify; ">General Comments</h2>
<h3 style="text-align: justify; ">Distributed Ledger Technology (DLT)</h3>
<p style="text-align: justify; ">The draft greatly emphasizes the fact that data regarding Consent, Complaints, Headers, Preferences, Content Template Register and Entities are stored on distributed ledgers. The intent is to keep data cryptographically secure with no centralized point of control. However, the regulations do not go into the technical details of the working of these distributed ledgers leading to several potential pitfalls.</p>
<p style="text-align: justify; ">As per the draft, every access provider has to establish distributed ledgers for Complaints, Consent, Content, Preference, Header, Entities and so on. There are specific entities mentioned which will act as nodes in the network, and these nodes are preselected.</p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">Whenever a sender seeks to send commercial communications across a list of subscribers, the list is ‘scrubbed’ against the DL-Consent and DL-Preference, to check whether the subscriber has given consent and registered their preference. The sender can only send the commercial communication to the numbers which are present in the scrubbed list.</p>
<p style="text-align: justify; ">The objective of these regulations is to protect consumers’ rights but the consumer, i.e., the subscriber, is not a node in the distributed ledger. Since the primary benefits of decentralization are gained when the trust is devolved to the individual subscribers, and the individual users are not specified as participating nodes in the ledger, the justification behind a distributed ledger is unclear.</p>
<p style="text-align: justify; ">Additionally, the proposed regime requires the subscriber to place her trust in the access provider to register the complaint, thus offers no tangible benefit over the current regulation. While there are penalties for non-compliant Access Providers (APs), there are no business incentives for APs to expend the extra amount of resources required in for effective implementation of this technology, to act in the users’ interest. This builds a system where APs interests clash with subscribers, but they are nonetheless required to be the guardian of the subscribers’ concerns.</p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">Further, the nodes are entities constituted by the access providers (APs), and there is no mechanism to ensure that they behave independently of each other. In such case, it is wholly possible that all nodes on a distributed ledger are run by the same entity, thus defeating the purpose of establishing consensus. The proposed regulations do not address this scenario.</p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">One solution would be to add subscribers as nodes to the DLT network. But this would be impractical as the technical challenges associated therein, including generating public-private key pairs of each user, the computational complexity of the network, are immense. If this is indeed the intention of TRAI, this has not been spelled out clearly in the draft regulations. Additionally, in such a scenario, there would be no requirement for mandating every AP to maintain their own DLT for customer preference and consent artifacts.</p>
<p style="text-align: justify; ">Considering the points mentioned above, we request TRAI to publish the technical specifications of DLTs, which addresses the following issues:</p>
<div style="text-align: justify; "></div>
<div style="text-align: justify; "><ol>
<li>Who can participate in the network other than the entities mentioned in the regulations? Are these participating entities independent of each other? If not, then how will the conflict of interest be resolved?</li>
<li>What is the consensus algorithm used in the DLTs?</li>
<li>Will the code to implement DLTs be open-source?</li>
</ol></div>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">Our recommendations are three-fold in this regard:</p>
<p style="text-align: justify; ">If distributed ledger is used, then, mechanisms should be devised to ensure the integrity of the consensus. For this, participating nodes in the network must be independent of each other. Aforementioned points regarding consensus protocol should be taken into consideration as well.</p>
<p style="text-align: justify; ">In place of DLTs, we recommend the use of a distributed database with signature-based authentication and encryption of the data to be stored. The immutability and non-repudiation of data can be achieved in this way. Distributed ledgers such as DL-consent, DL-preference, DL-complaints are instances where authentication of data and subscriber can be done using simplers means such as OTP verification, etc. So, such ledgers need not necessarily utilize DLTs.</p>
<p style="text-align: justify; ">The regulations should mandate the open-source publication of the implementation of the DLTs. This will enable interoperability, add transparency to the functioning of the regulations, and enable security audits to ensure accountability of the APs.</p>
<h3 style="text-align: justify; ">Broadening the scope of the Regulations to non-commercial communication</h3>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">The proposed regulations attempt to specifically curb unsolicited commercial communications as defined in Regulation 2(bt). But, there are other forms of communication which are unsolicited and non-commercial, including political messages and market surveys.</p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">We recommend that the scope of the regulations should be broadened to include both commercial and non-commercial communications. And both of these should be grouped under the category of Institutional Communications. Wherever needed, changes should be made to the regulations dealing with UCC to suit the specific requirements of dealing with unsolicited non-commercial communications as well. At the same time, the regulations should ensure that individual communications are not brought within their ambit.</p>
<div style="text-align: justify; "></div>
<h3 style="text-align: justify; ">Technical challenges in combating Robocalls</h3>
<p style="text-align: justify; ">Robocalls are defined in Regulation 2(ba) and in Schedule IV, provision 3, it has been clubbed with other kinds of spam. However, there are some specific technical challenges in regulating robocalls. Right now, ‘block listing’ is a prevalent model where one can identify a number and then block it so that it cannot be used further. But with robocalls, spoofing of other numbers is easily achievable which makes the blocking of the real identity of caller difficult. The proposed regulations do not adequately address this challenge.</p>
<p style="text-align: justify; ">The Alliance for Telecommunications Industry Solutions, with working groups of the Internet Engineering Task Force (IETF), has been <a class="external-link" href="https://www.wired.com/story/robocall-getting-worse-but-help-is-here">working</a> on a different approach to solve this problem. They are working on standards for all mobile and VoIP calling services which would enable them to do cryptographic digital call signing, “so calls can be validated as originating from a legitimate source, and not a spoofed robocall system. The protocols, known as ‘STIR’ and ‘SHAKEN,’ are in industry testing right now through ATIS's Robocalling Testbed, which has been used by companies like Sprint, AT&T, Google, Comcast, and Verizon so far”.</p>
<p style="text-align: justify; ">TRAI should take into account these developments and propose a specific regime accordingly. One possible way forward, for now, could be the banning of robocalls unless there is explicit opt-in by subscribers.</p>
<div style="text-align: justify; "></div>
<div style="text-align: justify; "></div>
<h3 style="text-align: justify; ">Registration of content-template</h3>
<p style="text-align: justify; ">The draft envisages a distributed ledger system for registration of content template which would have both a fixed part and a variable part. The content template needs to be registered by the content template registrar, which would be an authorized entity.</p>
<p style="text-align: justify; ">Problematically, the content template is defined to include the fixed part as well as the variable part. Further, Schedule I, provision 4(3)(e) mandates that content template registration functions should be utilized to extract fixed and the variable portion from actual messages offered for delivery or already delivered. The variable portion of the message contains information specific to a customer, as defined in regulation 2(q)(ii). In addition to privacy concerns with accessing the variable part, there is no functional reason for variable portions to be extracted from the actual message, as only the fixed portion needs to be verified.</p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">The hash of the fixed portion of the message can be used to identify whether a user has received UCC or not. We, therefore, recommend that the variable portion of the message shall not be made accessible to entities because it is not required for the identification of a message as UCC.</p>
<h3 style="text-align: justify; ">‘Safe and Secure Manner’</h3>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">Throughout the draft, reference is made to the data collected being stored and/or exchanged in a ‘safe and secure manner’, without any clarification as to what this term implies.</p>
<p style="text-align: justify; ">We recommend that the term be defined as ‘measures in accordance with reasonable security practices and procedures’ as given in section 43A of the Information Technology Act, 2008 read with section 8 of the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011.</p>
<h3 style="text-align: justify; ">Bulk Registration</h3>
<div style="text-align: justify; "></div>
<div style="text-align: justify; ">
<div>In the Consultation paper <a class="external-link" href="http://trai.gov.in/sites/default/files/UCC_CP_14092017.pdf">published</a> by TRAI, bulk registration was envisaged as a way to curb UCC wherein one member of the family can register on behalf of the family. Australia has already <a class="external-link" href="https://www.donotcall.gov.au/consumers/bulk-applications-register-remove-check">implemented</a> this mechanism.</div>
<p>In India, evidence suggests that major victims of spam are the elderly and people with <a class="external-link" href="https://www.news18.com/news/tech/5-common-types-of-scam-calls-in-india-and-how-to-deal-them-1366587.html">limited</a> financial capacities. In such cases, consent and preference registration on behalf of these people by one person may help in the successful control of UCC.</p>
<p>Some telecom service providers <a class="external-link" href="http://trai.gov.in/sites/default/files/Reliance_Jio_Infocomm_Ltd_14112017.pdf">argued</a> against this by emphasizing the individual choice of a subscriber. However, in cases where there is authorization given by the customer, the primary user can <a class="external-link" href="http://trai.gov.in/sites/default/files/Bharti_Airtel_Ltd_10_11_2017.pdf">register</a> consent on his/her behalf. Similarly, since corporate connections are by definition owned and paid for by corporates, bulk registration in those situations can be also be done.</p>
<p>We recommend that given the situation in India, the provision for bulk registration be incorporated in the regulations for specific scenarios, as mentioned above. An authorization template giving the nominee power to register on behalf of a class can be incorporated to this effect. Also, an opt-out option must be incorporated in case an individual choice differs from the choice registered in the bulk-registration.</p>
</div>
<div style="text-align: justify; "></div>
<h2 style="text-align: justify; ">Specific Comments</h2>
<div style="text-align: justify; "></div>
<h3 style="text-align: justify; ">Inferred Consent [Regulation 2(k)(II)(A)]</h3>
<p style="text-align: justify; "><strong>Comments<br /></strong>Regulation 2(k)(ii)(a) of the Draft defines consent as “voluntary permission given by the customer to the sender to receive commercial communication”. However, the draft also includes, “inferred consent”, which is defined as consent that can be “reasonably inferred from the customer’s conduct or the business and the relationship between the individual and the sender”.</p>
<p style="text-align: justify; ">When consent is derived from the customer’s conduct, rather than being given explicitly, it defeats its ‘voluntary nature’. The provision of consent being ‘reasonably inferred’ from the customer’s conduct is also vague, and there is no indication given in the draft as to what kind of conduct would lead to a reasonable inference of implied consent. The definition can also be interpreted to mean that customer’s conduct will be subject to monitoring, which raises privacy concerns.</p>
<p style="text-align: justify; "><strong>Recommendations <br /></strong>Consent shall not be derived from the customer’s conduct unless the person provides it explicitly. We recommend amendment to the definition of ‘inferred consent’ accordingly.</p>
<div style="text-align: justify; "></div>
<h3 style="text-align: justify; ">Three years history to be stored in DL-Complaints [Regulations 24(3) and 24(4)]</h3>
<div style="text-align: justify; "></div>
<div style="text-align: justify; "><strong>Comments</strong></div>
<p style="text-align: justify; ">Regulation 24(3) and (4) states that the DL-Ledger for Complaints (DL-Complaints) shall record ‘three years history’ of both the complainant and the sender, with details of complaints made, date, time and status of the resolution of the complaint. It is not clear from the regulation whether the mentioned set of data is exhaustive or not.</p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; "><strong>Recommendations <br /></strong>We recognize that the legislative intent behind drafting Regulation 24(3) and (4) was to curb frivolous or false complaints, which has already been a concern of TRAI. Storing both the complainant and the sender’s history, in such cases, may aid in resolving these.</p>
<div style="text-align: justify; ">We recommend that the language of the regulations may be amended to “three years history which only includes details of all complaint(s) made by him, with date(s) and time(s) . . .”, thereby giving a limiting qualification to the broad scope of the term.</div>
<div style="text-align: justify; "></div>
<h3 style="text-align: justify; ">The responsibility of the APs to ensure that the devices support the requisite permissions [Regulation 34]</h3>
<div style="text-align: justify; "></div>
<p style="text-align: justify; "><strong>Comments<br /></strong>Regulation 34 mandates that the APs are to ensure that the devices “registered in the network” shall support the requisite permissions of the Apps under this regulations.</p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">In terms of jurisdiction, regulation of the functioning of electronic devices (which can be phones, tablets or smart watches) is outside the scope of the proposed regulations, and probably out of TRAI's regulatory competence.</p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">Even if TRAI can impose the regulation on end devices, this regulation puts the burden on the APs to ensure that devices support the pertinent app permissions. Considering that TRAI itself has been weighing legal recourse against device manufacturers on similar grounds, it is unclear why TRAI assumes that APs have any legal or technical method to ensure control of a device which has neither been manufactured by them nor is it under their physical or remote control.</p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">In modern smartphones, the end-user has full control over most app installations and permissions. This practice is consistent with a consumer's autonomy over the device and its functioning. Considering the fact that TRAI has not implemented basic security features in the 'Do Not Disturb' app, TRAI is putting at risk the privacy of millions of device owners by legally mandating permissions for an app with the second proviso. The proviso further gives TRAI the power to order APs to derecognize devices from their network. This regulation is draconic and inimical to the rights of consumers, who are at risk of losing network access and connectivity because of their device choice, which is a completely different business and market.</p>
<p style="text-align: justify; "><strong>Recommendations <br /></strong>Reporting unsolicited messages or calls is a consumer right, and the regulations are in furtherance of the same goals. TRAI should enable consumer rights by giving subscribers the option to report spam and has no reason to force users to report spam possibly through legal overreach and privacy invasion. Accordingly, we recommend the removal of Regulation 34.</p>
<div style="text-align: justify; "></div>
<h2 style="text-align: justify; ">Additional Suggestions</h2>
<div style="text-align: justify; "></div>
<h3 style="text-align: justify; ">Consumer and subscriber</h3>
<div style="text-align: justify; "></div>
<p style="text-align: justify; ">The usage of the terms ‘customer’ and ‘subscriber’ in Regulation 3(1) implies that the terms have two different meanings. This interpretation, however, clashes with the actual definition given in Regulation 2(u) and 2(bk), whereby a customer is a subscriber. This is an inconsistent interpretation.</p>
<p style="text-align: justify; ">Either the definition of a ‘customer’ must be clarified or differentiated from that of a ‘subscriber’ in regulation 2, or regulation 3 must be amended to indicate what its actual object of regulation is - the customer or the subscriber.</p>
<h3 style="text-align: justify; ">Drafting misnumbering</h3>
<p style="text-align: justify; ">There are a few instances of misnumbering of regulations and reference regulations which are non-existent.</p>
<p style="text-align: justify; ">Regulations 25(5)(b) and (c) make a reference to regulation 25(3)(a), which does not exist in the given draft. A bare reading of regulation 25, however, indicate that the intention was to refer to regulation 25(5)(a), and as such, this misnumbering should be rectified.</p>
<p style="text-align: justify; ">Regulation 34 makes a reference to regulation 7(2), which again, does not exist. In such case, either regulation 34 or regulation 7(2) must be amended to keep a consistent interpretation.</p>
<h3 style="text-align: justify; ">Ambiguous terms</h3>
<p style="text-align: justify; ">‘Allocation and assignment principles and policies’ - Provision 4(1)(a) of Schedule I of the regulations indicate that header assignment should be done on the basis of ‘allocation and assignment principles and policies’, without any clarification to the meaning of this term. We recommend an amendment to this provision accordingly.</p>
<div style="text-align: justify; "></div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/comments-on-the-telecom-commercial-communications-customer-preference-regulations'>https://cis-india.org/internet-governance/blog/comments-on-the-telecom-commercial-communications-customer-preference-regulations</a>
</p>
No publisherSandeep Kumar, Torsha Sarkar, Swaraj Barooah, Gurshabad GroverTelecomInternet Governance2018-06-23T00:44:47ZBlog EntryComments on the DoT Panel Report via MyGov
https://cis-india.org/telecom/blog/comments-on-dot-panel-report-via-mygov
<b>On behalf of the Centre for Internet and Society, I must commend the Department of Telecom Panel on its report. Overall, it displays a far better understanding of the underlying issues than the TRAI consultation paper did, and is overall a good effort at balancing the different sides. However, some of its most important recommendations are completely off-mark and would be disastrous if accepted by the government.</b>
<p style="text-align: justify; ">It is praiseworthy that the panel emphasizes the separation in regulatory terms between the network layer and the service layer. This also means that telecom carriers should be regulated differently from OTT services.</p>
<h3>Licensing of Communication OTT Services</h3>
<p style="text-align: justify; ">The proposal by the DoT panel of a licensing regime for communication OTT services is a terrible idea. It would presumptively hold all licence non-holders to be unlawful, and that should not be the case; as the panel itself notes, apps that lower the cost of communication are a welcome development and should be encouraged by the government and not made presumptively unlawful.<br /><br />While it is in India's national interest to want to hold VoIP services to account if they do not follow legitimate regulations, it is far better to do this through ex-post regulations rather than an ex-ante licensing scheme. <br /><br />A licensing scheme would benefit Indian VoIP companies (including services like Hike, which Airtel has invested in) over foreign companies like Viber, or free/open source technologies like WebRTC. The Universal Licence is designed for a world where all the licencees have an operational presence in India. This is not true of communications OTT services. Therefore a licensing regime would unjustly favour some services over others.<br /><br />Further, VoIP services need not be provided by a company: a person can choose to run XMPP, SIP, or Mumble — all of which are protocol that support VoIP — on their own computers. Will a licensing regime force such individuals' many of whom may not be Indian nationals — to become licence-holders if they facilitate domestic communications within India? The DoT panel report doesn't say. This would also result in a licensing regime unjustly favouring some services over others.<br /><br />The report also doesn't say how one would distinguish between OTT communication services and OTT application services, when many apps such as personal assistance apps like HelpChat, are centred around communications. It also does not mention what regulatory distinction exists between text communication services and video/voice communication services, or between purely domestic and international video/voice communications. Stating that certain telecom companies are currently earning most of their revenue from domestic voice traffic will not suffice as a regulatory, just as it did not suffice to say that VSNL's international telephony monopoly earned it a lot of money. Regulatory fairness is the important issue and not protecting specific business models. Thus, there is no rational distinction to be drawn. Even if the panel has some regulatory distinction that it has not stated, this is an impossibility to enforce. Much domestic IP traffic is 'round-tripped', with traffic leaving India and coming back in. How would the regulator propose to regulate that?<br /><br />Will there be a revenue-sharing mechanism, as is currently the case under the Unified Licence? If so, how will it be calculated in case of services like WhatsApp? These questions too find no answer in the report.<br /><br />Given these numerous objections and unanswered questions, the government would be well-advised not seek to license OTT communications services. Instead, it would be useful for the government to hold public consultations about:<br /><br /> 1. What Universal Licence conditions makes sense in the world of IP-based services, and international services?<br /> 2. How can we frame ex-post regulations that address legitimate concerns? Is there overlap with provisions of the IT Act such as s.69, s.69B, s.79, and others?<br /> 3. How can we ensure that the regulatory burden for telecom players with respect to their being able to provide IP-based services that are equivalent to OTT communication services?</p>
<h3>Net neutrality</h3>
<p style="text-align: justify; ">While the DoT panel reiterates a number of times that the core principles of Net neutrality should be adhered to, it nowhere defines what these core tenets are. We suggest the following definition:</p>
<ul>
<li style="text-align: justify; "> net neutrality is the principle that we should regulate gatekeepers to ensure they do not use their power to unjustly discriminate between similarly situated persons, content or traffic.</li>
</ul>
<p style="text-align: justify; ">The above definition applies to the way the ISPs treat consumers, treat interconnecting networks, as well as the way they treat traffic internally.<br />We agree with the panel that in that while Net neutrality should find place in a new law, for the time being Net neutrality principles can be enforced through the licence agreement between the DoT and telecom providers.</p>
<h3>Traffic Management</h3>
<p style="text-align: justify; ">It is unclear what precisely the DoT panel means by "application-agnostic" and "application-specific" network management. Different scholars on this issue — such as Barbara van Schewick and Christopher Yoo — mean different things when they use the word "application". Without a definition, it is difficult to say whether the panel's recommendation on that front are sound.<br />Instead, we suggest the following tests:<br />Discrimination between classes of traffic for the sake of network management should only be permissible if:</p>
<ul>
<li>there is an intelligible differentia between the classes which are to be treated differently, and</li>
<li>there is a rational nexus between the differential treatment and the aim of such differentiation, and </li>
<li style="text-align: justify; ">the aim sought to be furthered is legitimate, and is related to the security, stability, or efficient functioning of the network, or is a technical limitation outside the control of the ISP, and </li>
<li>the network management practice is the least harmful manner in which to achieve the aim.</li>
</ul>
<p style="text-align: justify; ">As for the provision of enterprise and managed services, which we more broadly term "specialized services", we would recommend:</p>
<ul>
<li> Provision of specialized services is permitted if and only if it is shown that</li>
<li>The service is available to the user only upon request, and not without their active choice, and</li>
<li style="text-align: justify; ">The service cannot be reasonably provided with "best efforts" delivery guarantee that is available over the Internet, and hence requires discriminatory treatment, or</li>
<li>The discriminatory treatment does not unduly harm the provision of the rest of the Internet to other customers.</li>
</ul>
<p style="text-align: justify; ">Lastly, we would recommend that the above regulatory guidlines only be applied against ISPs, and not against public providers of Internet connectivity, such as a library, a school, an airport, a hotel, etc.</p>
<h3>Zero-rating</h3>
<p style="text-align: justify; ">On the contentious issue of zero-rating, a process that involves both ex-ante and ex-post regulation is envisaged to prevent harmful zero-rating, while allowing beneficial zero-rating. Further, the report notes that the supposed altruistic or "public interest" motives of the zero-rating scheme do not matter if they result in harm to competition, distort consumer markets, violate the core tenets of Net neutrality, or unduly benefit an Internet "gatekeeper".<br /><br />Much of the discussion around zero-rating has been happening around an assumption of common understanding of the phrase. Unfortunately, that is not true. There is no consensus as to whether a "special Facebok pack of 200MB for Rs.20" offered by a telecom company constitutes zero-rating or not. Without a working definition of zero-rating, not much progress can be made.<br /><br />We propose the following as a definition:</p>
<ul>
<li> Zero-rating is the practice of not counting (aka "zero-rating") certain traffic towards a subscriber's regular Internet usage. </li>
</ul>
<p style="text-align: justify; "><br />The zero-rated traffic could be zero-priced or fixed-price; capped or uncapped; subscriber-paid, Internet service-paid, paid for by both, or unpaid; content- or source/destination-based, or agnostic to content or source/destination; automatically provided by the ISP or chosen by the customer.<br /><br />We believe that zero-rating can be non-discriminatory in nature, and such zero-rating should not be prohibited. Having a system with both ex-ante and ex-post checks is rather heavy-handed regulation, but since the issue is very contentious in India, we believe it might be merited.<br /><br />We thank you for giving us this opportunity to comment.<br />Pranesh Prakash, Policy Director at the Centre for Internet and Society</p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/comments-on-dot-panel-report-via-mygov'>https://cis-india.org/telecom/blog/comments-on-dot-panel-report-via-mygov</a>
</p>
No publisherpraneshTelecomFeatured2015-09-26T10:16:44ZBlog EntryCivil society & industry oppose India’s plans to modify ITRs
https://cis-india.org/news/the-hindu-nov-23-2012-shalini-singh-civil-society-and-industry-oppose-indias-plans-to-modify-itrs
<b>Industry fears ITU control over Internet; excessive content control and surveillance an issue for civil society.</b>
<hr />
<p style="text-align: justify; ">Shalini Singh's article was <a class="external-link" href="http://www.thehindu.com/news/national/civil-society-industry-oppose-indias-plans-to-modify-itrs/article4124046.ece">published in the Hindu</a> on November 23, 2012.</p>
<hr />
<p style="text-align: justify; ">India’s proposal on International Telecommunications Regulations (ITRs), submitted last month to the International Telecommunications Union (ITU), the U.N. agency responsible for information and communication technologies, has drawn opposition from, and fears of content control among, civil society and the industry alike.<br /><br />Sunil Abraham, Executive Director, Centre for Internet Society, told The Hindu: “The Indian government’s position on the ITRs can be improved, particularly with regard to the proposed definitions, approach to cyber security, scope of regulation.” However, he said, “we are confident that the Indian position will protect consumer and citizen interest once the government implements changes based on inputs from all… stakeholders.”</p>
<p style="text-align: justify; "><span><span>The National Association of Software and Services Companies (NASSCOM), which represents the $100-billion IT and BPO industry, has strong views against the Internet governance model of the Internet Corporation for Assigned Numbers and Names (ICANN), but favours self-regulation. Its president Som Mittal says: “NASSCOM does not favour oversight by an existing U.N. organisation like ITU. Internet and infrastructure have to be in the hands of expert organisations with proven experience.” NASSCOM has also expressed discomfort with the inclusion of “ICTs along with processing” in Section 21E of India’s proposal, since this would subject IT and BPO industries to inter-governmental regulation through the ITRs.</span></span></p>
<p style="text-align: justify; ">The Cellular Operators Association of India (COAI), which represents India’s largest mobile operators with nearly 700 million subscribers, has also opposed any role for ITU in the areas of international roaming and Internet governance, fearing a direct impact on domestic network architecture, costs and technology choices. COAI director-general Rajan Mathews said: “We are already regulated by the Department of Telecom (DoT) and the Telecom Regulatory Authority of India (TRAI). Placing the ITU’s jurisdiction over us — where we neither have voice nor recourse — is unacceptable.” The COAI’s position is consistent with the GSM Association (GSMA), the world’s largest association of mobile companies representing 800 operators spanning 220 countries. The COAI further alleges that most of its inputs “have been rejected without reasons assigned or even a meeting.” It has lodged a protest with the DoT.</p>
<p style="text-align: justify; ">The Internet Service Providers Association of India (ISPAI) has similarly protested against ITU’s jurisdiction over issues of Internet governance, architecture and cost.</p>
<p style="text-align: justify; ">Subho Ray, president, Internet & Mobile Association of India (IAMAI), said: “We represent a vast majority of Internet companies but have not been consulted by the DoT. We are completely opposed to ITU’s jurisdiction in any area related to Internet policy.”</p>
<p style="text-align: justify; ">The FICCI has also given detailed inputs on the dangers of allowing ITU’s jurisdiction, especially in areas of Internet policy and governance. It supports a bottom-up consultative and consensus-led multi-stakeholder approach, similar to the one propounded by Telecom Minister Kapil Sibal at the Internet Governance Forum, the world’s largest multi-stakeholder conference, held in Baku.</p>
<p style="text-align: justify; ">Several prominent civil society groups and members of academia involved in Internet governance also have apprehensions about expanding the ITU’s reach to Internet regulation through the ITRs. In a November 15, 2012 letter to Telecom Secretary R. Chandrashekhar, Society for Knowledge Commons, Internet Democracy Project, Free Software Movement of India, Delhi Science Forum, Media for Change and Software Freedom Law Center have complained about not having been consulted, while warning that India’s proposal “could have far reaching implications for the Internet.”</p>
<p style="text-align: justify; ">On the issue of cyber security, industry associations and several civil society groups are unanimously against any role for ITU, pointing out that including ill-defined terms such as ‘spam’ and ‘network fraud’ in a binding treaty is a terrible idea. Further, cyber security commitments can force India to cooperate with countries whose military and strategic interests are against it.</p>
<p style="text-align: justify; ">Kamlesh Bajaj, CEO, Data Security Council of India, and head of NASSCOM’s security initiatives, said: “Cyber security is sought to be taken over by ITU — an area in which it has little experience. Cyber security includes areas of application security, identity and access management, web security, content filtering, cyber forensics, data security, including issues such as cyber espionage and cyber warfare. The ITU has had no involvement in these matters over the last two decades, and should therefore stay out of them.”</p>
<p style="text-align: justify; ">Similar views have been expressed in varying degrees by the COAI, the IAMAI, the ISPAI and the FICCI. Dr. Ray of the IAMAI says: “cyber security is essentially a state prerogative and should not be part of an external treaty obligation. Any attempt to channel it through the ITU may be counter productive.”</p>
<p style="text-align: justify; "><span><span>Mr. Sibal, who has already been challenged by opposition to the domestic IT rules, is aware that if left unaddressed, opposition to India’s stance on ITRs will only escalate at a national and global level, and that if corrections have to be made in India’s position, those will have to be done consensually within the governance structure. Mr. Sibal confirmed that while cyber security was an area of discussion with the ITU, “the ITU does not have any role in Internet governance.”</span></span></p>
<p style="text-align: justify; ">According to him, either he or the Department will hold meetings on these issues with the industry to further evolve India’s position.</p>
<p style="text-align: justify; ">Mr. Chandrashekhar further confirmed that similar to several global national delegations, the government would include media and industry experts as part of its delegation to Dubai, the World Conference on International Telecommunications (WCIT-12) will be held from December 3 to 14. The final decisions on the ITRs and the composition of the delegation would be announced the coming week.</p>
<p style="text-align: justify; ">A deeply divided house in Dubai is a strong possibility, with countries which favour democracy and free speech taking a stance against those who, due to political compulsions, have proposed inter-governmental control through the ITRs by the ITU, not just on Internet policy, but also its traffic and content, most of which automatically fall under the definitions of the ICTs.</p>
<p style="text-align: justify; ">The 193-countries at THE WCIT may well spend 11 days discussing national proposals to separate issues that can be addressed nationally from those which require inter-governmental cooperation, while further debating which platforms may be best to address global cooperation.</p>
<p style="text-align: justify; ">It is equally clear that the existing Internet governance system is unacceptable to most countries, and therefore a more evolved democratic and internationally equitable system, which is managed through a multi-stakeholder process and yet with a definite role for countries like India, appears the only way forward.</p>
<p style="text-align: justify; ">Mr. Sibal, at meetings with global Internet governance bodies in Baku, is learnt to have bargained hard for India’s explicit role in the existing Internet governance processes.</p>
<p>
For more details visit <a href='https://cis-india.org/news/the-hindu-nov-23-2012-shalini-singh-civil-society-and-industry-oppose-indias-plans-to-modify-itrs'>https://cis-india.org/news/the-hindu-nov-23-2012-shalini-singh-civil-society-and-industry-oppose-indias-plans-to-modify-itrs</a>
</p>
No publisherpraskrishnaTelecomInternet GovernanceICT2012-11-30T09:42:17ZNews Item CIS’ Comments to the (Draft) Indian Telecommunication Bill 2022
https://cis-india.org/telecom/blog/cis-comments-to-draft-indian-telecom-bill-2022
<b>The Department of Telecommunications, Government of India invited comments on the Draft Indian Telecommunication Bill, 2022. The Centre for Internet & Society (CIS) submitted its comments. </b>
<div><span>Reviewed by </span><b><span>Pallavi Bedi</span></b>
<hr />
<h2>Preliminary</h2>
<p class="MsoNormal" style="text-align: justify; ">The Centre for Internet and Society (CIS) is a non-profit organization that undertakes interdisciplinary research on the internet and digital technologies from policy and academic perspectives. Through its diverse initiatives, CIS explores, intervenes in, and advances contemporary discourse and practices around the internet, technology, and society in India, and elsewhere. Over the last decade, CIS has worked extensively on policy issues related to telecommunication, internet access, digital inclusion, and so on.</p>
<p class="MsoNormal" style="text-align: justify; ">In the past, CIS has responded to various public consultations pertaining to telecommunication such as the Telecom Regulatory Authority of India (TRAI) consultation on 5G Auctions<a href="#_ftn1" name="_ftnref1"><sup><sup><span>[1]</span></sup></sup></a>, TRAI consultation on regulation of over-the-top (OTT) services<a href="#_ftn2" name="_ftnref2"><sup><sup><span>[2]</span></sup></sup></a>, to name a few .</p>
<p class="MsoNormal" style="text-align: justify; ">We appreciate the efforts of the Department of Telecommunications (DoT) for having consultation on the “Draft Indian Telecommunication Bill 2022”. We are grateful for the opportunity to put forth our views and comments to the draft bill.</p>
<h2><a name="_b3q6xpjyxit2"></a>Summary of Recommendations</h2>
<ul>
<li style="text-align: justify; ">At the outset, we recommend that in the interest of transparency and accountability, prior to enacting important legislations like the Telecom Bill, the government would be well-advised to conduct an “impact assessment” exercise such as “regulatory impact assessment” and put the report in public as practised in jurisdictions such as the European Union.<a href="#_ftn3" name="_ftnref3"><sup><sup><span>[3]</span></sup></sup></a> We would also recommend the government to disclose responses and submissions that it receives during the process to ensure a transparent and consultative process of policymaking.</li>
</ul>
<ul>
<li style="text-align: justify; ">We recommend that the scope of the bill should be reconsidered and internet-based services should be removed from the definition of telecommunication services. From this definition read with other clauses of the bill, it appears that the bill tries to licence (or control !) not just telecommunication but all kinds of communication and internet-based services. Putting onerous regulatory requirements on every bit and byte flowing through the internet is unnecessary and regulatory overreach.</li>
</ul>
<ul>
<li style="text-align: justify; ">The draft bill’s attempt to provide for a non-discriminatory and an affordable Right-of-way (RoW) regime is appreciable. However, the central government has been given an overriding power over the local government which has constitutional powers with regard to permissions in their jurisdiction. The bill must clarify the modalities to ensure coordination between centre, state, and local authorities.</li>
</ul>
<ul>
<li style="text-align: justify; ">We recommend that clause 46 of the draft bill which significantly dilutes TRAI’s power should be deleted. Moreover, the government must work towards further strengthening TRAI by hiring subject matter experts to ensure that India has a powerful sector regulator which is well prepared to usher in the next wave of innovation.</li>
</ul>
<ul>
<li style="text-align: justify; ">We recommend that the Bill be inline with the Puttaswamy Judgement, and that of Anuradha Bhasin vs Union of India. The Bill, while paying close attention to the protection of users and duty of the user, fails to uphold rights of the user such as the right to privacy and the freedom of speech and expression.</li>
</ul>
<ul>
<li style="text-align: justify; ">As per clause 29, the objectives for which Telecommunication Development Fund (TDF) can be utilised is broad and therefore the government would be well-advised to specify that TDF can only be utilised to ensure digital access, adoption and usage for digitally marginalised groups. Furthermore, TDF must be ring fenced and not credited to the Consolidated Fund of India to ensure timely implementation which has thus far remained a significant challenge with the universal funds (USOF) regime.</li>
</ul>
<ul>
<li style="text-align: justify; ">The bill does not have any provisions upholding the principles of net neutrality. The government must act on TRAI’s recommendations and set up the multistakeholder body to check adherence to net neutrality requirements by incorporating provisions to that effect.</li>
</ul>
<ul>
<li style="text-align: justify; ">In the interest of transparency and accountability, a clause requiring the government to report (quarterly or annually) vital statistics relating to the functioning and financial aspects of matters contained within the draft legislation. The reporting should also include the number of licences provided, licences revoked, number of blocking and suspension orders passed among others.</li>
</ul>
<b><span> </span></b>
<h2><a name="_ob9eaos6tpj2"></a></h2>
<h2><a name="_bi7gk5lchjuq"></a>Detailed Response</h2>
<table class="a">
<tbody>
<tr>
<td>
<h3>Preamble<a name="_wftvycmz1mv2"></a></h3>
</td>
</tr>
</tbody>
</table>
<p class="MsoNormal"><span>No comments</span></p>
<p class="MsoNormal"><span><span> </span></span></p>
<table class="a0">
<tbody>
<tr>
<td>
<h3>Chapter 1: Short <a name="_bpiqa0d8cjnm"></a>Title, Extent and Commencement</h3>
</td>
</tr>
</tbody>
</table>
<p class="MsoNormal"><span>No comments</span></p>
<p class="MsoNormal"><span><span> </span></span></p>
<table class="a1">
<tbody>
<tr>
<td>
<h3>Chapter 2: Definitions<a name="_d5nm0amfnq2w"></a></h3>
</td>
</tr>
</tbody>
</table>
<p class="MsoNormal"><span> </span></p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>2(9)</span></b><span>: “message” means any sign, signal, writing, image, sound, video, data stream or intelligence or information intended for telecommunication. </span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The terms “intelligence” and “data stream” are not clear in the definition and these terms have not been defined elsewhere in the bill. Moreover, the definition of message is broad and may have implications with regard to surveillance and privacy of users, when read with clause 4(8) and clause 24(2)(a).</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation: </b><span>We recommend that the terms “intelligence” and “data stream” are defined under the bill, in order to reduce chances of excessive surveillance and to maintain the informational privacy of the individual. Additionally the definition could have an expansive list of what could constitute a message in order to prevent mission creep</span>.</p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>2(18)</span></b><span>: “telecommunication equipment” means any equipment, appliance, instrument, device, material or apparatus, including customer equipment, that can be or is being used for telecommunication, and includes software integral to such telecommunication equipment;”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment:</b> The inclusion of customer equipment in the definition of telecommunication equipment has implications. The definition of the “customer equipment”<a href="#_ftn4" name="_ftnref4"><sup><sup><span>[4]</span></sup></sup></a> as provided in clause 2(5) of the Bill is broad enough to include personal devices such as phones, routers, among others. As per clauses 23 to 26 the Central Government has wide ranging powers with respect to telecommunications equipment and telecommunications networks such as issuing various directions for telecommunications networks and even has the power to take over such networks. As the definitions currently stand, these provisions would automatically become applicable to customer equipment as well which may be a violation of the right to privacy of the citizens of the country.</p>
<p class="MsoNormal" style="text-align: justify; ">Moreover, according to 3(2)(c), possession of wireless equipment requires authorization. On reading 3(2)(c) with the definitions of wireless equipment in 2(23) and customer equipment in 2(5), an argument could be framed that the customer equipment could technically also require a licence, and so would the software integral to such equipment. If customer equipment is in fact included in telecom equipment and software integral to it is also included therein, then arguably even Android OS or other OS can be licensable.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation:</b> <span>Thus, we suggest that the government should remove customer equipment from the definition of telecommunication equipment.</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>2(21)</span></b><span>: “telecommunication services" means service of any description (including broadcasting services, electronic mail, voice mail, voice, video and data communication services, audiotex services, videotex services, fixed and mobile services, internet and broadband services, satellite based communication services, internet based communication services, in-flight and maritime connectivity services, interpersonal communications services, machine to machine communication services, over-the-top (OTT) communication services) which is made available to users by telecommunication, and includes any other service that the Central Government may notify to be telecommunication services;”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Clause 2(21) expands the scope of “telecommunication services” significantly. The overly-broad definition of “telecommunication services”, and what constitutes a “message”<a href="#_ftn5" name="_ftnref5"><sup><sup><span>[5]</span></sup></sup></a>, brings within its ambit a host of internet services including but not limited to email, instant messaging, social media services, and even payments and e-commerce transactions. Neither the bill, nor the accompanying explanatory note provides a satisfactory rationale for an all-encompassing definition of “telecommunication services”. The explanatory note attached to the bill suggests that legislations in Australia, EU, UK, Singapore, Japan, and USA have been examined while drafting this bill. However, our research<a href="#_ftn6" name="_ftnref6"><sup><sup><span>[6]</span></sup></sup></a> suggests that none of these jurisdictions define “telecommunication services” so expansively and seek to regulate entities offering only internet based services companies through licensing, in particular. It may also be worthwhile to note that TRAI recommended against such an approach and also clarified that there is no issue of financial arbitrage.<a href="#_ftn7" name="_ftnref7"><sup><sup><span>[7]</span></sup></sup></a> However, the bill attempts to bring OTT communication services within the purview of licensing. From this definition read with other clauses of the bill, it appears that the bill tries to licence (or control !) not just telecommunication but all kinds of communication and internet-based services. Putting onerous regulatory requirements on every bit and byte flowing through the internet is unnecessary and regulatory overreach. There can be major implications of expanding the definition of telecommunication services, some of which are listed below:</p>
<p class="MsoNormal" style="text-align: justify; ">●<span> </span>The draft bill has stringent provisions on surveillance and shutdowns [clause 23 to clause 28]. These clauses would be naturally applicable to the expanded bucket of telecommunication services. This has serious implications on user’s right to privacy and freedom of expression online. For example, the bill gives the government the power to surveil citizens over apps such as WhatsApp, Telegram, to name a few, and even email. [some of this will be delved into greater detail in the foregoing sections]</p>
<p class="MsoNormal" style="text-align: justify; ">●<span> </span>Some of the internet-based services listed in the definition in 2(21) are already regulated under the Information Technology (IT) Act 2000. For example, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 regulates intermediaries, including the significant social media intermediaries (SSMI) such as Facebook and Twitter. Putting an additional regulatory burden on these service layer companies in the form of licensing, as envisaged in clause 3 and clause 4 of the bill would hamper the innovation in the sector. Furthermore, it has been observed that the compliance burden of regulations is higher on small businesses in cases where regulations impose identical requirements on entities regardless of the firm size.<a href="#_ftn8" name="_ftnref8"><sup><sup><span>[8]</span></sup></sup></a> Therefore, inserting such a requirement would have a detrimental impact on innovation because excessive compliance requirements would act as a significant entry barrier for smaller firms.</p>
<p class="MsoNormal" style="text-align: justify; ">Moreover, there is significant overlap between various services that are mentioned in the definition of telecommunication services which may lead to significant challenges. As these services are not defined elsewhere in the bill, it leaves scope for ambiguity. The bill makes a mention of “over-the-top (OTT) communication services” without defining it. We argue that making a distinction between communication and non-communication OTT services is superficial and does not take into account today’s realities where categorising applications into different categories is extremely difficult. A majority of the OTT applications such as e-commerce, healthcare, food delivery, payments, and so on, provide integrated communication channels. Disaggregation and making an artificial distinction of such apps into communication (with licensing requirements) and non-communication (without licensing requirements) would result in fragmentation of the internet which is definitely not a desirable outcome.</p>
<table class="a2">
<tbody>
<tr>
<td>
<p class="MsoNormal" style="text-align: justify; ">The “same-service same-rules” argument put forth by Telecommunication Service Providers (TSPs/ telcos) for the regulation of OTT apps which provide communication services [generally referred to as OTT communication services] at par with them is flawed for the reasons elaborated herein below:</p>
<p class="MsoNormal" style="text-align: justify; ">●<span> </span>It is well recognized that there are significant differences at the technical and architectural level between TSPs and OTT apps which provide communication services . Regulating OTT apps which provide communication services at par with TSPs just on the basis of functionality without considering the inherent technical and architectural differences between them is a definite recipe for failure.</p>
<p class="MsoNormal" style="text-align: justify; ">●<span> </span>Moreover, even at the functional level, OTT communication apps offer several additional features which are not available in the traditional TSP services.<a href="#_ftn9" name="_ftnref9"><sup><sup><span>[9]</span></sup></sup></a> Due to this, establishing functional equivalence between TSP’s services and OTT communication services is not only technically unfeasible but also unnecessary since those apps are better regulated by MEITY.</p>
<p class="MsoNormal" style="text-align: justify; ">●<span> </span>Furthermore, TSPs enjoy privileges which OTTs don't. For example, TSPs have exclusive rights to spectrum, right of Way (RoW), numbering resources, to name a few. TSPs have control over underlying broadband infrastructure which OTTs and other internet-based service companies do not have.</p>
</td>
</tr>
</tbody>
</table>
<p class="MsoNormal" style="text-align: justify; ">As opposed to what has been suggested in the bill i.e, licence all telecommunication services [clause 3(2)(a)] including the internet-based services, it may be prudent to explore alternative approaches to regulate this space. For instance, a “two-layered framework”<a href="#_ftn10" name="_ftnref10"><sup><sup><span>[10]</span></sup></sup></a> for regulatory intervention can be considered. In this two-layered framework, the first layer would be the network layer consisting of the network and infrastructure; and the second layer would be the service layer consisting of applications and services. The services in the second layer can be further refined into the following three categories: (i) services provided over a non-Internet Protocol (IP) based architecture e.g Public Switched Telephone Network (PSTN) voice calls provided over a circuit switched network; (ii) specialised services that are provided over an IP based architecture in a closed network including facility-based services e.g., facilities-based VoLTE calls to PSTN and IPTV; (iii) IP-based/ Internet-based services such as OTTs. The gist<a href="#_ftn11" name="_ftnref11"><sup><sup><span>[11]</span></sup></sup></a> of the framework is:</p>
<ul>
<li>The network layer <i>may</i> be regulated by way of licensing.</li>
</ul>
<ul>
<li>Non-IP Services and Specialised services <i>may</i> be regulated by way of licensing.</li>
</ul>
<ul>
<li>Internet-based services should be regulated by instruments other than licensing. Such instruments should preferably be in the form of legislations like the IT Act and its rules thereunder.</li>
</ul>
<p class="MsoNormal" style="text-align: justify; ">While there can be approaches apart from the one described above to regulate internet-based services such as the OTT and those approaches can be discussed and debated, putting licensing requirements for every internet-based service is not the way forward.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation</b>: <span>We recommend that the scope of the bill should be reconsidered and internet-based services should be removed from the definition of telecommunication services. In the interest of transparency and accountability, prior to enacting such a legislation the government would be well-advised to conduct a “regulatory impact assessment” exercise and put the report in public, as done in jurisdictions such as the European Union. </span></p>
<p class="MsoNormal"><span><span> </span></span></p>
<table class="a3">
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<h3>Chapter 3: Licensi<a name="_ffu23qf3tbmq"></a>ng, Registration, Authorization and Assignment</h3>
</td>
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</table>
<p><a name="_9xd53hebzg69"></a><b><span>Clause 4. Licensing, Registration Authorization and Assignment</span></b></p>
<p class="MsoNormal"><span>➔<span> </span></span><b><span>4(6): </span></b><span> “The possession and use of any equipment that blocks telecommunication is prohibited, unless authorised by the Central Government for specific purposes.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: While assuming jurisdiction over equipment capable of blocking telecommunication via this clause is a welcome step, it is not clear why equipment capable of intercepting telecommunications has been kept out of the scope of this clause. Since unlawful and unauthorised interception of telecommunications is a violation of the fundamental right to privacy of an individual,<a href="#_ftn12" name="_ftnref12"><sup><sup><span>[12]</span></sup></sup></a> it is imperative that the scope of this clause be increased to include interception equipment as well. Furthermore, the latter part of the provision mentions “specific purposes” without adequate checks and balances in place. As such, the specific purposes must be defined exhaustively to ensure that this power is not misused.</p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>4(7):</span></b><span> "Any entity which is granted a licence under sub-clause (2) of clause 3, shall unequivocally identify the person to whom it provides services, through a verifiable mode of identification as may be prescribed."</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: All services do not require a verification of the identity of a person. There is a legitimate need to verify a person in the case of financial transactions, however a similar level of scrutiny is not warranted for applications that a person might use once, or applications that do not pose a threat to anyone. For example the need to verify a person through Know Your Customer (KYC) or otherwise for an application to order food, or an application which is meant for communication can be excessive regulation. Furthermore, number based internet communication apps such as Whatsapp require users to sign in through a mobile number, which have already gone through a KYC process. Therefore, dual KYC would be redundant and serve no purpose.</p>
<p class="MsoNormal" style="text-align: justify; ">The Supreme Court while looking at the constitutionality of the Aadhaar Act upheld the need for banking and financial institutions to require an individual’s Aadhaar number stating the legitimate aim of preventing money laundering; however, the Court struck down the provision that required any private entity to collect Aadhaar details.<a href="#_ftn13" name="_ftnref13"><sup><sup><span>[13]</span></sup></sup></a> Justice Bhushan held that the collection by private entities violated the right to privacy, by failing the first prong of the test laid down in Puttaswamy, the test of legality.<a href="#_ftn14" name="_ftnref14"><sup><sup><span>[14]</span></sup></sup></a></p>
<p class="MsoNormal"><b>Recommendation<i> </i>:<i> </i></b><span>Clause 4(7) should be deleted.</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>4(8)</span></b><span> “The identity of a person sending a message using telecommunication services shall be available to the user receiving such message, in such form as may be prescribed, unless specified otherwise by the Central Government.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Although the intent behind this provision may have been to curb the menace of anonymous harassment of users, a blanket requirement to reveal the identity of the sender of a message in every instance may be considered a violation of the right to privacy of the sender. . There are clearly a number of competing rights involved here and the issue needs to be addressed in a more nuanced manner. Additionally there are a number of services such as chat applications providing support for mental health, that allow users to be anonymous in order to remove the concern and stigma around seeking help. A requirement that the user's name be revealed in these applications could hinder the functioning of these services as well as prevent more people from seeking help.</p>
<p class="MsoNormal" style="text-align: justify; ">Anonymity was also explained in the Puttaswamy Judgment where it was stated that - “Privacy involves hiding information whereas anonymity involves hiding what makes it personal. An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy.” In his judgement, Justice F. Nariman talks about different aspects of the right to privacy in the Indian context and observes “Informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore recognises that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right”.<a href="#_ftn15" name="_ftnref15"><sup><sup><span>[15]</span></sup></sup></a></p>
<p class="MsoNormal" style="text-align: justify; ">In this backdrop it is perhaps preferable that the issue be addressed through separate guidelines rather than through a blanket direction in the Statute. Recently the Department of Telecom sent a reference to the TRAI for framing a mechanism for using KYC based identification.<a href="#_ftn16" name="_ftnref16"><sup><sup><span>[16]</span></sup></sup></a> It would be advisable if the TRAI in its response also takes into account the competing rights involved in this issue of caller identification and suggests a framework that addresses these concerns as well.</p>
<p class="MsoNormal" style="text-align: justify; "><span>Retaining anonymity on the internet</span>: Individuals may choose to remain anonymous online for a number of reasons. This includes employees expressing opinions about their employers and whistleblowers, people providing anonymous tips to newspapers or law enforcement, people expressing political opinions and criticism that may be subject to persecution, or simply someone saying something that they may be embarrassed about.<a href="#_ftn17" name="_ftnref17"><sup><sup><span>[17]</span></sup></sup></a> In India, in particular, an individual’s caste can be derived from their name, and they may choose to remain anonymous or adopt a pseudonym to escape centuries of stigma and discrimination that their communities have faced. Religious, gender and sexual minorities may also make this choice for similar reasons. The broad definition of telecommunication services in the bill places restrictions on anonymity online and severely degrades an individual’s ability to exercise their fundamental right to freedom of expression.</p>
<p class="MsoNormal" style="text-align: justify; "><span>Right to privacy</span>: The overly broad definition of “telecommunication services” and what constitutes a “message” also brings a number of digital services under the ambit of this bill. This can include email, instant messaging, social media services, and even payments and e-commerce transactions. Mandating identification of individuals as they navigate these services, which they require to go about their daily lives, creates an unprecedented potential for surveillance and abuse of personal information. To evaluate the legal validity of this infringement on privacy, we can utilise the necessity and proportionality tests put forth by the Puttaswamy Judgment. The explanatory note accompanying the bill states that the purpose of this provision is to “prevent cyber frauds”, establishing a legitimate aim for mandating identification. However, it fails to justify whether this is the least intrusive means necessary to achieve the stated aim. Law enforcement agencies have access to a wide variety of metadata, such as IP addresses, already collected by digital services today, which can be used to identify individuals committing cyber crimes. Furthermore, as the internet is a global network, bad actors can evade identification by routing their internet traffic through another country by using services such as Virtual Private Network (VPNs), proxies and onion routing. Well resourced actors can simply hire someone in another country to communicate on their behalf. The infringement upon the right to privacy by this provision is also disproportionate to the objective sought. By mandating storage of personally identifiable information that is not required for the operation of the wide range of services that fall under the ambit of this bill, it allows not only for state surveillance, but also creates the possibility of misuse by criminal actors and hostile states who may gain unlawful access to this information through data breaches. Overall, this provision can easily be circumvented by the bad actors it intends to catch, leaving us with a surveillance mechanism that is ripe for misuse against ordinary, law-abiding citizens.</p>
<p class="MsoNormal" style="text-align: justify; "><span>Misunderstanding how the internet works</span>: This draft bill assumes and propagates a centralised view of the internet. Unlike traditional telecommunication services, which require access to a finite spectrum or other physical infrastructure, the internet allows any individual or organisation to self-host their own communication service. Several organisations and technologically savvy individuals host their own email services, instant messaging services, blogs and social media networks. It is unclear how the licensing provisions in this bill apply to people developing and hosting their own communication equipment.</p>
<p class="MsoNormal"><b>Recommendation<i> </i>:<i> </i></b><span>Clause 4(8) should be deleted.</span></p>
<h3><a name="_h6yjqqt5bgdv"></a><span>Clause 5. Spectrum Management</span></h3>
<p class="MsoNormal"><span>➔<span> </span></span><b><span>5(2)(b)</span></b><span>: “administrative process for governmental functions or purposes in view of public interest or necessity as provided in Schedule 1; or”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment: </b>Even though the draft bill seeks to provide an explicit statutory framework and predictability for spectrum management policy in India, it appears that for the large part it would be relying on spectrum auctions for assignment of spectrum. While the bill provides for administrative allocation of spectrum for governmental functions or purposes in view of public interest or necessity as provided in Schedule 1, the explanatory note provided for the draft bill indicates auction to be the predominant method for spectrum assignment. Even though the explanatory memorandum cannot be used for legal interpretation, it can be used to indicate that for the foreseeable future the government intends to allocate spectrum predominantly through auctions. While it can be argued that an auction based regime ensures transparency, it also creates significant barriers to entry for smaller operators. It is also pertinent to mention that in the seven auctions held since 2010, the government has successfully sold 100 percent of the auction only once. Relying solely on auctions since 2010 has led to unsold spectrum, lost revenue, and deferring of the rural digital ecosystem.<a href="#_ftn18" name="_ftnref18"><sup><sup><span>[18]</span></sup></sup></a> Therefore, auctions should be supplemented with “administrative allocation” and other innovative approaches to ensure that affordable broadband connectivity does not remain within the remit of a few. For instance, Canada has initiated a consultation on a non-competitive local licensing framework in the 3900-3980 MHz Band and Portions of the 26, 28 and 38 GHz Bands, and one of its objectives is to facilitate broadband connectivity in rural areas.<a href="#_ftn19" name="_ftnref19"><sup><sup><span>[19]</span></sup></sup></a> <span>Therefore, we would like to recommend the DoT to explore other forms of spectrum assignment and not rely solely on auctions to ensure efficient utilisation of available spectrum and to also ensure affordable access to hitherto underserved regions. </span></p>
<p class="MsoNormal" style="text-align: justify; ">Moreover, the bill does not provide clarity with regard to unlicensed spectrum for public Wi-Fi, and assignment of shared spectrum for satcom services.<a href="#_ftn20" name="_ftnref20"><sup><sup><span>[20]</span></sup></sup></a> Spectrum allocation for satcom becomes all the more important as the draft bill seems to give a preference to auction for spectrum assignment, while the global practice on spectrum assignment for satcom has been administrative allocation.</p>
<p class="MsoNormal" style="text-align: justify; ">Furthermore, clause 5(2)(b) read with Schedule 1 suggests that BSNL and MTNL can acquire spectrum through an administrative process in view of public interest or necessity. However, we would like to submit that spectrum assignment to BSNL and MTNL may no longer serve the public interest and it only protects a very small interest group. For context, BSNL and MTNL have a combined market share of only 9.83%, as per TRAI subscription data of Aug 31, 2022.<a href="#_ftn21" name="_ftnref21"><sup><sup><span>[21]</span></sup></sup></a> For such a small subscriber share, it cannot be argued that these PSUs serve a public interest. The government can easily migrate these subscribers to the other three telcos. Moreover, this also provides the PSUs with an unfair advantage over its competitors and distorts the level playing field, thereby creating competition concerns in the market.</p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>5(8)</span></b><span>: “The Central Government may, to promote optimal use of the available spectrum assign a particular part of a spectrum that has already been assigned to an entity (“primary assignee”), to one or more additional entity/ entities (“secondary assignees”), where such secondary assignment does not cause harmful interference in the use of the relevant part of the spectrum by the primary assignee, subject to the terms and conditions as may be prescribed.” </span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment: “</b>Secondary assignment” of spectrum and the shift from “right to exclusive use” to “right to protection from interference”, as envisaged in 5(8) is a progressive move towards efficient utilisation of spectrum.</p>
<p class="MsoNormal" style="text-align: justify; ">CIS, in its past submission<a href="#_ftn22" name="_ftnref22"><sup><sup><span>[22]</span></sup></sup></a> to the TRAI had highlighted the merits of a “use-or-share” approach in spectrum. The chasm that exists between expensive exclusive spectrum licensing and the licence-exempt ecosystem can be bridged by enshrining “use-it-or-share-it” provisions in spectrum licences. As such, ‘use-it-or-share-it’ rules enable the regulator to grant secondary access to licensed or governmental spectrum that is unused or underutilised.<a href="#_ftn23" name="_ftnref23"><sup><sup><span>[23]</span></sup></sup></a> ‘Use-it-or-share-it’ rules expand the productive use of spectrum without risking harmful interference or undermining the deployment plans of primary licensees. Clauses such as 5(8) enable “use-or-share” provisions are a step in the right direction.</p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>5(9)</span></b><span>: “The Central Government, after providing a reasonable opportunity of being heard to the assignee concerned, if it determines that spectrum that has been assigned, has remained unutilized for insufficient reasons for a prescribed period, may terminate such assignment, or a part of such assignment, or prescribe further terms and conditions relating to spectrum utilization.”</span></p>
<p class="MsoNormal"><b>Comment</b>: There is lack of coherence between 5(8) and 5(9) when read together. 5(8) and 5(9) should be put as sub-clauses under a parent clause to ensure clarity.</p>
<p class="MsoNormal" style="text-align: justify; ">We believe that the provision must be articulated clearly to state that licensees would first be given an opportunity to share spectrum and in cases where the entity fails to do so within a reasonable amount of time, the spectrum licence would be cancelled to prevent wilful spectrum hoarding. The Independent Communications Authority of South Africa (ICASA) in the <i>2nd Information Memorandum </i>has expressed similar provisions with clarity. While, we feel five years may be an unnecessarily long timeframe for the government to enact spectrum sharing provisions, the language put forth by ICASA captures the essence of our argument:</p>
<p class="MsoNormal">“11.6.2 In cases where the spectrum is not fully utilised by the licensee within 5 years of issuance of the Radio Frequency Spectrum Licences, the Authority will initiate the process for the Licensee:</p>
<p class="MsoNormal" style="text-align: justify; ">11.6.2.1 to share unused spectrum in all areas to ECNS licensees who may, inter alia, combine licensed spectrum in any innovative combinations in order to address local and rural connectivity in some municipalities including by entrepreneurial SMMEs;</p>
<p class="MsoNormal" style="text-align: justify; ">11.6.2.2 to surrender the radio frequency spectrum licence or portion of the unused assigned spectrum in accordance with Radio Frequency Spectrum Regulations, 2015”</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation</b>:<span> Clause 5(8) and 5(9) must be brought under one clause and it must be clarified that licence holders would lose their licence in case they fail to successfully incorporate spectrum sharing.</span></p>
<h3><a name="_rnugk2cdpjik"></a><span>Clause 7. Breach of Terms and Conditions</span></h3>
<p style="text-align: justify; "><a name="_brr2sld72hgs"></a><span>➔<span> </span></span><b><span>7(1)</span></b><span>: “In case of breach of any of the terms and conditions of licence, registration, authorization or assignment granted under this Act, the Central Government may, after providing an opportunity of being heard to the party concerned, do any one or more of the following: ……”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Usually the consequences of breach are specifically illustrated in the licence. Listing the consequences of breach in the statute itself may lead to lack of clarity unless the terms of licence are also referenced. It could also be argued by a defaulting licensee that the powers listed in clause 7(1) are exhaustive and the Central Government cannot add any other conditions for breach of the conditions of the licence as in the licence agreement and any such conditions not specified in clause 7(1) are void and ultra vires the Statute.</p>
<p class="MsoNormal"><b>Recommendation</b>: <span>In order to avoid such a situation, the clause should clearly state whether the powers listed in clause 7(1) are in addition to the terms and conditions that may be specified in the licence. </span></p>
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<h2>Chapter 4: Right of Way for Telecommunication Infrastructure<a name="_1770c14pfm88"></a></h2>
</td>
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</table>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The draft bill attempts to provide for a non-discriminatory and an affordable Right-of-way regime, which is appreciable. However, the provision suggests that the central government has an overriding power over the local government. Provided that the Constitution of India defines certain powers which reside with the local authority in terms of providing permissions in the local areas, it is unclear from the bill on how the coordination between various authorities will take place. <span>We recommend that there needs to be a mechanism that ensures coordination between centre, state, and local authorities.</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>❖<span> </span></span><b><span>14(3)</span></b><span> : “In the event the person under sub-clause (1) does not provide the right of way requested, and the Central Government determines that it is necessary to do so in the public interest, it may, either by itself or through any other authority designated by the Central Government for this purpose, proceed to acquire the right of way for enabling the facility provider to establish, operate, maintain such telecommunication infrastructure, in the manner as may be prescribed.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The right of the Central Government to acquire the right of way should be in lieu of adequate and appropriate compensation to be paid to the property owner. This requirement should be clearly mentioned in sub-clause (3). The clause as it currently stands only mentions the Central Government’s right to acquire but contains no mention of said acquisition being in lieu of adequate and proportionate compensation.</p>
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<h2>Chapter 5. Rest<a name="_x52xctf02mif"></a>ructuring, Defaults in Payment and Insolvency</h2>
</td>
</tr>
</tbody>
</table>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>19(1)</span></b><span>: “Any licensee or registered entity may undertake any merger, demerger or acquisition, or other forms of restructuring, subject to provisions of applicable law, after providing notice to the Central Government of the same.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Sub-clause (1) only requires that the Central Government be given a notice in case of merger, demerger, acquisition or restructuring of the licensee. Although sub-clause (2) requires that the successor entity shall comply with all the terms and conditions of the licence, considering the strategic nature of the telecommunications sector<a href="#_ftn24" name="_ftnref24"><sup><sup><span>[24]</span></sup></sup></a> it would be advisable to change the requirement of notice to a requirement of permission from the Central Government for restructuring the business rather than a mere notice requirement. In order for this requirement to not be a hindrance to the growth of the industry there could be a provision for deemed approval if the approval is not granted within a particular period of time.<a href="#_ftn25" name="_ftnref25"><sup><sup><span>[25]</span></sup></sup></a></p>
<p class="MsoNormal"><b>Recommendation: </b><span>Any merger in the sector must be approved by the DoT. In order to ensure that this does not lead to unnecessary delays, a deemed approval route may be considered.</span></p>
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<h3>Chapter 6: Standards, Public Safety and National Security<a name="_dzmhkxq4hr9n"></a></h3>
</td>
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</table>
<p class="MsoNormal" style="text-align: justify; "><span>❖<span> </span></span><b><span>24(2)</span></b><span>: “On the occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central or a State Government, may, if satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence, for reasons to be recorded in writing, by order:</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(a) direct that any message or class of messages, to or from any person or class of persons, or relating to any particular subject, brought for transmission by, or transmitted or received by any telecommunication services or telecommunication network, shall not be transmitted, or shall be intercepted or detained or disclosed to the officer mentioned in such order; or </span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(b) direct that communications or class of communications to or from any person or class of persons, or relating to any particular subject, transmitted or received by any telecommunication network shall be suspended”.</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The pre-conditions for interception contained in the Bill are similar to those contained in the Telegraph Act, 1885, i.e. “occurrence of any public emergency or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central or a State Government, may, if satisfied that it is necessary or expedient to do so, in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence”. Although more stringent, these conditions are different from those contained in the Information Technology Act, 2000 which does not contain the added safeguard of there being a “public emergency or in the interest of public safety”.<a href="#_ftn26" name="_ftnref26"><sup><sup><span>[26]</span></sup></sup></a> With consumers spending more and more time on the internet and using internet based technologies and applications for communications, there is significant regulatory overlap between the Telecommunications Bill and the Information Technology Act, 2000. It is therefore advisable that the interception and blocking provisions under both the legislations should be aligned and standardised.</p>
<p class="MsoNormal" style="text-align: justify; ">The judgement in the Puttaswamy case provides some guidance to assess the limits and scope of the constitutional right to privacy in the form of the three prong test. The test requires the existence of a law, a legitimate state interest and the restriction (to privacy) should be ‘proportionate'. The order to intercept, detain, disclose or suspend a communication made between private individuals, acts as a violation of privacy and to ensure that this does not provide extensive grounds to surveil people, the three prong test especially the grounds of proportionality combined with the necessity provision are essential to ensure that this provision is not used disproportionately.</p>
<p class="MsoNormal" style="text-align: justify; ">More recently in <i>Anuradha Bhasin vs Union Of India</i> the Supreme Court stated “A public emergency usually would involve different stages and the authorities are required to have regards to the stage, before the power can be utilised under the aforesaid rules. The appropriate balancing of the factors differs, when considering the stages of emergency and accordingly, the authorities are required to triangulate the necessity of imposition of such restriction after satisfying the proportionality requirement.” The court while passing the judgement also stated “The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed.”<a href="#_ftn27" name="_ftnref27"><sup><sup><span>[27]</span></sup></sup></a> The judgement while examining the duration of the suspension mentioned that any order which suspends the internet must adhere to the principle of proportionality and must not extend beyond necessary duration.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation</b>: <span>There is a need to look at the implications of such an order enabling blocking or suspension of services post the Puttaswamy judgement where informational privacy, and dignity were considered as some of the aspects of privacy. While this clause uses the test of necessity and expediency, we suggest that along with these two the clause also introduce the three prong test laid out in Puttaswamy I. In addition to this since this legislation has been drafted subsequent to the Anuradha Bhasin judgement the provisions of the legislation must be in conformity with the same in order to avoid confusion and reduce litigation. </span></p>
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<h3>Chapter 7: Telecommunication Development Fund<a name="_3naj84qcw1se"></a></h3>
</td>
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</tbody>
</table>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>Clause 29:</span></b><span> “The sums of money received towards the Telecommunication Development Fund under clause 27, shall first be credited to the Consolidated Fund of India, which shall be appropriated by the Central Government, in accordance with law made by the Parliament, to the Telecommunication Development Fund from time to time for being utilised to meet any or all of the following objectives:</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(a) support universal service through promoting access to and delivery of telecommunication services in underserved rural, remote and urban areas;</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(b) research and development of new telecommunication services, technologies, and products;</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(c) support skill development and training in telecommunication;</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(d) support pilot projects, consultancy assistance and advisory support towards provision of universal service under sub-clause (a) of this clause; and</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>(e) support introduction of new telecommunication services, technologies, and products.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Clause 27 of the draft bill proposes to rename the Universal Service Obligation Fund (USOF) to Telecommunication Development Fund (TDF) and expand its scope to include underserved urban areas in addition to rural and remote areas. This has been done, ostensibly to expand the scope of current USOF to include within its ambit underserved urban areas, research and development, and skill development, among others.<a href="#_ftn28" name="_ftnref28"><sup><sup><span>[28]</span></sup></sup></a> While there is a need to spend the vast amount of unspent balance within the USOF, and spending it on skill development, investments in innovative low cost-technology that enables affordable broadband connectivity for all is important, the manner in which the TDF is currently defined is loose and vague. In order to ensure that the fund is spent to include digitally marginalised groups only, the purpose for which the TDF can be used needs to have an “exact” and “specific definition”. The purpose should be narrowly defined to include only those activities that have the potential to mitigate and bridge the many digital divides that exist in our country because in its absence TDF may be misused to subsidise urban middle class users as opposed to originally intended beneficiaries - the hitherto marginalised sections of the society.</p>
<p class="MsoNormal" style="text-align: justify; ">Furthermore, the Bill suggests that the money received towards the TDF shall first be credited to the Consolidated Fund of India, which shall be appropriated by the Central Government, in accordance with law made by the Parliament. This is a relic of the erstwhile USOF policy funds, and allocations are made on a demand and review basis. One of the reasons that India has an unspent balance of nearly INR 50,000 crore in USOF is owing to a delay in its implementation due to bureaucratic delays since all credits to this fund require parliamentary approvals.<a href="#_ftn29" name="_ftnref29"><sup><sup><span>[29]</span></sup></sup></a> In order to ensure that funds received through USOF/TDF are utilised efficiently, the government must ring fence these funds and ensure that they are only spent on the objectives envisaged under the TDF. Furthermore, funds collected for this purpose must not be credited to the Consolidated Fund of India since requiring additional approvals delays implementation of the fund. For instance, the rural road fund is ring fenced which has ensured smoother flow of funds.<a href="#_ftn30" name="_ftnref30"><sup><sup><span>[30]</span></sup></sup></a> Moreover, auction proceeds, and other levies on the sector such as service tax and GST are already credited to the Consolidated Fund of India, therefore the government can afford to ring fence funds collected for universal service as opposed to crediting them to the Consolidated Fund of India.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation:</b> <span>The objectives for which the TDF can be utilised is vague and too broad and therefore the government would be well-advised to specify that TDF can only be utilised to ensure digital access, adoption and usage for digitally marginalised groups. This would go a long way in ensuring that the funds are not misspent on providing subsidies to users that may not be in need for such a subsidy. Furthermore, TDF must be ring fenced and not credited to the Consolidated Fund of India to ensure timely implementation.</span></p>
<table class="a8">
<tbody>
<tr>
<td>
<h3>Chapter 9: Protection of users<a name="_z0cogooipp2d"></a></h3>
</td>
</tr>
</tbody>
</table>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>Clause 34</span></b><span> : “In the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence, no user shall furnish any false particulars, suppress any material information or impersonate another person while establishing identity for availing telecommunication services.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The intent behind this provision appears to be to prevent misrepresentation or identity and the giving of false information for availing telecom services. Whilst it is understandable that there may be privacy issues involved in the matter of revealing one’s identity for availing telecommunications services, the requirement to provide correct identity documents is a well established and accepted norm in the industry today which is manifest in the KYC requirements that have to be fulfilled by every customer. Therefore there is no need to qualify the obligation to provide true and accurate documents with the phrase “in the interest of the sovereignty, integrity or security of India, friendly relations with foreign states, public order, or preventing incitement to an offence”.</p>
<table class="a9">
<tbody>
<tr>
<td>
<h3>Chapter 10: Miscellaneous<a name="_bthxwgtsxcmv"></a></h3>
</td>
</tr>
</tbody>
</table>
<p class="MsoNormal"><span>➔<span> </span></span><b><span>Clause 46: Amendment to Act 24 of 1997</span></b></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: Clause 46 of the Bill significantly dilutes the power of TRAI and effectively renders the Regulator to the role of the government’s rubber stamp through proposed amendments to clause 11<a href="#_ftn31" name="_ftnref31"><sup><sup><span>[31]</span></sup></sup></a> of the TRAI Act. Section 11 of the TRAI Act as it currently stands requires DoT to solicit recommendations from TRAI on issues pertaining to licensing, new services, and spectrum management, where the powers vest with the government. However, if the Bill becomes a law, this would not be mandatory on the government’s part. It may or may not seek the Regulator’s recommendations, thus eroding the transparency which was built in the process of policymaking. Consequently, as per the current Bill, the government will effectively be the licensor, operator, and the Regulator. Since the government owns BSNL/MTNL (a telecom operator) the role of an independent regulator assumes even more significance. Even without the proposed amendments, the Indian regulator has been largely ineffective since it lacks significant functional autonomy including negligible penalisation powers, limited role in its hiring decisions, and lack of financial autonomy since it needs DoT’s approvals for its budget.<a href="#_ftn32" name="_ftnref32"><sup><sup><span>[32]</span></sup></sup></a> Even in its present form, TRAI has lesser power as compared to many regulators across the globe. For instance Federal Communications Commission (FCC) of the USA, Ofcom of the UK, and regulators in Pakistan, Bangladesh, and Sri Lanka have powers over spectrum and licensing, while TRAI has only recommendatory powers.<a href="#_ftn33" name="_ftnref33"><sup><sup><span>[33]</span></sup></sup></a> With the advent of 5G, the lines between telecom and digital services are likely to blur even more and in order to ensure that we are able to exploit the vast potential this new wave of innovations could unleash, it is important to have skilled policymakers well-versed with technology at the helm of affairs. Amidst this backdrop, it is important to invest in enhancing TRAI’s competence by hiring subject matter experts, and ensuring that TRAI functions as an independent and transparent regulator.</p>
<p class="MsoNormal" style="text-align: justify; ">Furthermore, the bill empowers the government to set up an alternate dispute resolution mechanism effectively making the role of Telecom Disputes Settlement and Appellate Tribunal (TDSAT) redundant. Currently, TDSAT is the first body which looks into any dispute between two (i) telecom operators, (ii) telecom operators and the government, and (iii) between operators, the government and as well as the regulator. Only once the TDSAT has passed orders on such disputes can they be appealed in the Supreme Court. Therefore, clauses diluting the power of TRAI must be deleted. The government must also clarify what it means by an alternate dispute resolution mechanism, and the role it envisages for TDSAT.</p>
<p class="MsoNormal" style="text-align: justify; ">Lastly, TRAI process is consultative by design providing various stakeholders with an opportunity to participate in the policymaking process. However, the proposed bill does not have any provisions mandating the DoT to hold transparent stakeholder consultations.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation</b>: <span>Clause 46 of the proposed bill should be deleted. Furthermore, the government must work towards further strengthening TRAI by hiring subject matter experts and further empowering TRAI by giving it penalising powers. Also, TRAI must be responsible for conducting spectrum audits and ensuring that licensees are adhering to licensing conditions. </span></p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>46(k)</span></b><span>: “Provided further that the Authority may direct a licensee or class of licensees to abstain from predatory pricing that is harmful to the overall health of the telecommunication sector, competition, long term development and fair market mechanism” shall be inserted.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The Bill through clause 46 (k) empowers the TRAI to decide on ‘predatory pricing’, which falls within the remit of the Competition Commission of India (CCI) which could potentially create jurisdictional overlaps between the two regulators. Even in the past, there has been friction between the two regulators on whether TRAI has jurisdiction to decide on matters relating to competition and predatory pricing in telecom tariffs.<a href="#_ftn34" name="_ftnref34"><sup><sup><span>[34]</span></sup></sup></a> In <i>Competition Commission of India v. Bharti Airtel Limited & Ors</i><a href="#_ftn35" name="_ftnref35"><sup><sup><span>[35]</span></sup></sup></a>, Supreme Court of India rejected the contention by the incumbent dominant operators (IDOs) that TRAI, as the sectoral regulator, had exclusive jurisdiction to rule on competition-related aspects in the industry. It ruled that if TRAI had determined that the IDOs had formed a cartel or colluded to block Jio’s entry, the CCI then would have jurisdiction to decide whether the IDOs’ actions had an appreciable adverse effect on competition. While TRAI’s powers of sanction were limited by the TRAI Act, the CCI had the power to prescribe and enforce structural remedies to promote genuine competition in the telecom sector. The court prescribed comity between TRAI and the CCI in the discharge of their roles.<a href="#_ftn36" name="_ftnref36"><sup><sup><span>[36]</span></sup></sup></a> Over time, the telecom sector has evolved from being a rudimentary voice service to being a complex data-centric converged service, and even though overlapping jurisdictions cannot be completely wished away,<a href="#_ftn37" name="_ftnref37"><sup><sup><span>[37]</span></sup></sup></a> there is a need for clearly defined roles for various ministries and regulators. And there will also be a need to adopt a consultative approach towards policymaking through inter-departmental consultations, an area that India has thus far been lacking in. As evidenced by the International Telecommunication Union’s (ITU) Global ICT Regulatory Outlook 2020, which ranks India at 94 (out of a total of 193) countries in terms of the maturity and collaborative approach shown by telecom regulatory bodies, lower than countries such as Japan, Singapore, Korea, Pakistan, Kenya, and Nigeria.<a href="#_ftn38" name="_ftnref38"><sup><sup><span>[38]</span></sup></sup></a></p>
<p class="MsoNormal" style="text-align: justify; ">Therefore, inserting such a provision may create more chaos and regulatory uncertainty. <span>It is advisable that the government ensures there are no jurisdictional issues between the two regulators by clearly defining the role of TRAI and inserting provisions to facilitate inter regulatory consultation mechanism.</span></p>
<p class="MsoNormal" style="text-align: justify; "><span>➔<span> </span></span><b><span>Clause 48</span></b><span>: “If the person committing an offence under this Act is a company, the employee(s) who at the time the offence was committed, was responsible to the company for the conduct of the business relating to the offence, shall be liable to be proceeded against and punished accordingly.</span><span>”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: While there is a need to ensure that offenders and violators of provisions under this Act are provided with penalties, there is a need to look at ways to ensure that the fear of penalties does not stifle innovation. This legislation intends to bring into its ambit a number of new stakeholders who might not be able to comply with all the requirements due to the inexperience, which could lead to inadvertent offences and violations. The current wording of clause 48, does not make any distinction between offences that were done with prior knowledge and malafide intentions and those done without knowledge of its commission.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation</b>: <span>We suggest that the Act keeps the wordings in line with similar legislations such as the draft Personal Data Protection Bill 2019. The revised text could have a proviso that reads as “Nothing contained in sub-clause (1) shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.”</span></p>
<p class="MsoNormal" style="text-align: justify; ">Keeping in mind the existing burden of work both on the executive and the judiciary, and the time sensitive nature of the provisions of the Bill there is a need to look at different, swift, and inexpensive strategies. One possible way could be through Informal Guidances, similar to Security and Exchange Board of India (SEBI)’s Informal Guidance Scheme, which enables regulated entities to approach the Authority for non-binding advice on the position of law.<a href="#_ftn39" name="_ftnref39"><sup><sup><span>[39]</span></sup></sup></a> As there will be a number of new players that will be under the Bill, it would be useful for entities to get guidance. Another possible step could be to use Undertakings, where the regulator enforces the errant party to seek contractual undertakings to take certain remedial steps.<a href="#_ftn40" name="_ftnref40"><sup><sup><span>[40]</span></sup></sup></a></p>
<p class="MsoNormal" style="text-align: justify; ">➔<span> </span><b><span>Clause 51</span></b><span>: “Notwithstanding anything contained in any law for the time being in force, where the Central Government, a State Government or a Government of a Union Territory is satisfied that any information, document or record in possession or control of any licensee, registered entity or assignee relating to any telecommunication services, telecommunication network, telecommunication infrastructure or use of spectrum, availed of by any entity or consumer or subscriber is necessary to be furnished in relation to any pending or apprehended civil or criminal proceedings, an officer, specially authorised in writing by such Government in this behalf, shall direct such licensee, registered entity or assignee to furnish such information, document or record to him and the licensee, registered entity or assignee shall comply with the direction of such officer.”</span></p>
<p class="MsoNormal" style="text-align: justify; "><b>Comment</b>: The requirement to provide information or document even for “pending or apprehended civil or criminal proceedings” is too wide and could be misutilised, specially given the fact that there is no judicial authority making the determination that the information or document is required for such proceedings. Even in clause 91 of the Cr.P.C. , the requirement to provide documents or information is only for existing investigations, inquiries, trials or proceedings. <span>Therefore the requirement to provide information, document or record for apprehended civil proceedings should be deleted.</span></p>
<table class="aa">
<tbody>
<tr>
<td>
<h3>Additional Comments<a name="_drm48hrug1gb"></a></h3>
</td>
</tr>
</tbody>
</table>
<p class="MsoNormal" style="text-align:justify; ">➔<span> </span><b>Comment: </b>The bill fails to incorporate net neutrality requirements</p>
<p class="MsoNormal" style="text-align:justify; ">Technological convergence and vertical integration within the sector make adherence to net neutrality critical to keep discrimination and anti-competitive conduct in check. While extant TRAI regulations, forbid TSPs from discriminating on the basis of content, sender or receiver, protocols or user equipment based on prior arrangements, by slowing down one application or providing fast lanes to another. However, there is lack of clarity on how adherence to net-neutrality principles is currently being monitored. In 2020, TRAI had recommended setting up a Multistakeholder body for monitoring adherence to net neutrality by licensees.<a href="#_ftn41" name="_ftnref41"><sup><sup><span>[41]</span></sup></sup></a> However, the draft bill fails to codify net neutrality requirements and as such non-discriminatory treatment of traffic does not find a mention in the bill or the explanatory note accompanying it.</p>
<p class="MsoNormal"><b>Recommendation</b>:<span> The government must act on TRAI’s recommendations and set up the multistakeholder body to check adherence to net neutrality requirements by incorporating provisions to that effect.</span></p>
<p class="MsoNormal"><span><span> </span></span></p>
<p class="MsoNormal" style="text-align: justify; ">➔<span> </span><b>Comment: </b>There is no provision in the bill that requires the government to report vital statistics and other information relating to the sector. We understand that both TRAI and DoT have taken efforts in publishing those statistics through DoT dashboard and reports such as the annual report, performance indicator reports, and subscriber reports. But, putting reporting requirements in the statute would be better.</p>
<p class="MsoNormal" style="text-align: justify; "><b>Recommendation: </b><span>In the interest of transparency and accountability, a clause requiring the government to report (quarterly or annually) vital statistics relating to the functioning and financial aspects of matters contained within the draft legislation. The reporting should also include the number of licences provided, licences revoked, number of blocking and suspension orders passed among others.<br /> </span></p>
<hr />
<div id="ftn1">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref1" name="_ftn1"><sup><sup><span>[1]</span></sup></sup></a><span> “Response to TRAI consultation on Auction of Spectrum in frequency bands identified for IMT/5G”, Centre for Internet and Society, accessed 10 November 2022,</span><a href="https://cis-india.org/telecom/blog/response-to-trai-consultation-auction-of-spectrum-in-frequency-bands-identified-for-imt-5g"><span>https://cis-india.org/telecom/blog/response-to-trai-consultation-auction-of-spectrum-in-frequency-bands-identified-for-imt-5g</span></a><span> </span></p>
</div>
<div id="ftn2">
<p class="MsoNormal"><a href="#_ftnref2" name="_ftn2"><sup><sup><span>[2]</span></sup></sup></a><span> “Response to TRAI Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services”,Centre for Internet and Society, accessed 10 November 2022, </span><a href="https://cis-india.org/internet-governance/blog/response-to-trai-consultation-paper-on-regulatory-framework-for-over-the-top-ott-communication-services"><span>https://cis-india.org/internet-governance/blog/response-to-trai-consultation-paper-on-regulatory-framework-for-over-the-top-ott-communication-services</span></a><span> </span></p>
</div>
<div id="ftn3">
<p class="MsoNormal"><a href="#_ftnref3" name="_ftn3"><sup><sup><span>[3]</span></sup></sup></a><span> “Impact Assessments”, <i>European Commission,</i> accessed 10 November 2022,<</span><a href="https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/impact-assessments_en#:~:text=Impact%20assessments%20examine%20whether%20there,support%20the%20decision%2Dmaking%20process"><span>https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/impact-assessments_en#:~:text=Impact%20assessments%20examine%20whether%20there,support%20the%20decision%2Dmaking%20process</span></a><span>.></span></p>
</div>
<div id="ftn4">
<p class="MsoNormal"><a href="#_ftnref4" name="_ftn4"><sup><sup><span>[4]</span></sup></sup></a><span> Clause 2(5) defines customer equipment as follows: “ “customer equipment” means equipment deployed on the premises of a person, other than the equipment of the licensee or registered entity, to originate, route or terminate telecommunication, or equipment used by such person for accessing telecommunication services;”</span></p>
</div>
<div id="ftn5">
<p class="MsoNormal"><a href="#_ftnref5" name="_ftn5"><sup><sup><span>[5]</span></sup></sup></a><span> As defined in clause 2(9) of the draft bill.</span></p>
</div>
<div id="ftn6">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref6" name="_ftn6"><sup><sup><span>[6]</span></sup></sup></a><span> Japan: "Telecommunications service" means intermediating communications of others through the use of telecommunications facilities, or any other acts of providing telecommunications facilities for the use of communications by others; Singapore: “telecommunication service” means any service for telecommunications but excludes any broadcasting service; UK: “electronic communications service” means a service of any of the types specified in subsection (2A) provided by means of an electronic communications network, except so far as it is a content service. Those types of service are— (a)an internet access service; (b)a number-based interpersonal communications service; and (c)any other service consisting in, or having as its principal feature, the conveyance of signals, such as a transmission service used for machine-to-machine services or for broadcasting.</span></p>
</div>
<div id="ftn7">
<p class="MsoNormal"><a href="#_ftnref7" name="_ftn7"><sup><sup><span>[7]</span></sup></sup></a><span> Muntazir Abbas, “Regulating OTT players complicated: Trai”, <i>The Economic Times, </i>30 January 2020,<</span><a href="https://economictimes.indiatimes.com/industry/telecom/telecom-policy/regulating-ott-players-complicated-trai/articleshow/73759307.cms?from=mdr"><span>https://economictimes.indiatimes.com/industry/telecom/telecom-policy/regulating-ott-players-complicated-trai/articleshow/73759307.cms?from=mdr</span></a><span> ></span></p>
</div>
<div id="ftn8">
<p class="MsoNormal"><a href="#_ftnref8" name="_ftn8"><sup><sup><span>[8]</span></sup></sup></a><span> Justin Douglas and Amy Land Pejoska, Regulation and Small Business, <</span><a href="https://treasury.gov.au/sites/default/files/2019-03/p2017-t213722-Roundup_Sml_bus_regulation-final.pdf"><span>https://treasury.gov.au/sites/default/files/2019-03/p2017-t213722-Roundup_Sml_bus_regulation-final.pdf</span></a><span>></span></p>
</div>
<div id="ftn9">
<p class="MsoNormal"><a href="#_ftnref9" name="_ftn9"><sup><sup><span>[9]</span></sup></sup></a><span> See, for instance, “Features, <i>Whatsapp </i>(2020), <https://www.whatsapp.com/features>; “Signal</span></p>
<p class="MsoNormal"><span>Messenger Features”,<i> Signal</i> (2020)</span></p>
</div>
<div id="ftn10">
<p class="MsoNormal"><a href="#_ftnref10" name="_ftn10"><sup><sup><span>[10]</span></sup></sup></a><span> CIS has recommended this “two layered framework” in its previous submissions to TRAI.</span></p>
</div>
<div id="ftn11">
<p class="MsoNormal"><a href="#_ftnref11" name="_ftn11"><sup><sup><span>[11]</span></sup></sup></a><span> “Response to TRAI Consultation Paper on Regulatory Framework for Over-The-Top (OTT) Communication Services”,<i>Centre for Internet and Society.</i></span></p>
</div>
<div id="ftn12">
<p class="MsoNormal"><a href="#_ftnref12" name="_ftn12"><sup><sup><span>[12]</span></sup></sup></a><span> “Internet Privacy in India”,Centre for Internet and Society, accessed 10 November 2022,https://cis-india.org/telecom/knowledge-repository-on-internet-access/internet-privacy-in-india</span></p>
</div>
<div id="ftn13">
<p class="MsoNormal"><a href="#_ftnref13" name="_ftn13"><sup><sup><span>[13]</span></sup></sup></a><span>Justice K. Puttaswamy and Others v. Union of India and Others 1 SCC 1 (2019)</span></p>
</div>
<div id="ftn14">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref14" name="_ftn14"><sup><sup><span>[14]</span></sup></sup></a><span>“Judgement in Plain English Constitutionality of Aadhaar Act”, “Supreme Court Observer, accessed 10 November 20222,https://www.scobserver.in/reports/constitutionality-of-aadhaar-justice-k-s-puttaswamy-union-of-india-judgment-in-plain-english/</span></p>
</div>
<div id="ftn15">
<p class="MsoNormal"><a href="#_ftnref15" name="_ftn15"><sup><sup><span>[15]</span></sup></sup></a><span> “Right to Encrypt : Subset of Right to Privacy?”, SFLC, accessed 10 November 20222,</span><a href="https://sflc.in/right-encrypt-subset-right-privacy"><span>https://sflc.in/right-encrypt-subset-right-privacy</span></a><span> </span></p>
</div>
<div id="ftn16">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref16" name="_ftn16"><sup><sup><span>[16]</span></sup></sup></a><span> PTI, “Trai to moot mechanism for KYC-based caller name display”,The Economic Times, 20 May 2022,</span><a href="https://economictimes.indiatimes.com/industry/telecom/telecom-news/trai-to-moot-mechanism-for-kyc-based-caller-name-display/articleshow/91695117.cms?from=mdr"><span>https://economictimes.indiatimes.com/industry/telecom/telecom-news/trai-to-moot-mechanism-for-kyc-based-caller-name-display/articleshow/91695117.cms?from=mdr</span></a><span> </span></p>
</div>
<div id="ftn17">
<p class="MsoNormal"><a href="#_ftnref17" name="_ftn17"><sup><sup><span>[17]</span></sup></sup></a><span> Palme, Jacob, and Mikael Berglund. "Anonymity on the Internet.” <</span><a href="https://people.dsv.su.se/~jpalme/society/anonymity.pdf"><span>https://people.dsv.su.se/~jpalme/society/anonymity.pdf</span></a><span> ></span></p>
</div>
<div id="ftn18">
<p class="MsoNormal"><a href="#_ftnref18" name="_ftn18"><sup><sup><span>[18]</span></sup></sup></a><span> Rajat Kathuria, Isha Suri “Why spectrum needs a change in approach”, <i>Indian Express</i>, 20 October 2022, </span><a href="https://indianexpress.com/article/opinion/columns/why-spectrum-needs-a-change-in-approach-8235997/"><span>https://indianexpress.com/article/opinion/columns/why-spectrum-needs-a-change-in-approach-8235997/</span></a><span> </span></p>
</div>
<div id="ftn19">
<p class="MsoNormal"><a href="#_ftnref19" name="_ftn19"><sup><sup><span>[19]</span></sup></sup></a><span> </span><a href="https://www.ic.gc.ca/eic/site/smt-gst.nsf/eng/sf11793.html"><span>Consultation on a Non-Competitive Local Licensing Framework, Including Spectrum in the 3900-3980 MHz Band and Portions of the 26, 28 and 38 GHz Bands - Spectrum management and telecommunications</span></a></p>
</div>
<div id="ftn20">
<p class="MsoNormal"><a href="#_ftnref20" name="_ftn20"><sup><sup><span>[20]</span></sup></sup></a><span> Aneesh Phadnis“Extant rules choke growth, telecom bill needs review: Broadband India Forum”, <i>Business Standard</i>, 23 September2022<</span><a href="https://www.business-standard.com/article/companies/extant-rules-choke-growth-telecom-bill-needs-review-broadband-india-forum-122092301265_1.html"><span>https://www.business-standard.com/article/companies/extant-rules-choke-growth-telecom-bill-needs-review-broadband-india-forum-122092301265_1.html</span></a><span> ></span></p>
</div>
<div id="ftn21">
<p class="MsoNormal"><a href="#_ftnref21" name="_ftn21"><sup><sup><span>[21]</span></sup></sup></a><span> Highlights of Telecom Subscription Data as on 31st August, 2022, <i>TRAI, </i>accessed 10 November 2022, </span><a href="https://www.trai.gov.in/sites/default/files/PR_No.67of2022.pdf"><span>https://www.trai.gov.in/sites/default/files/PR_No.67of2022.pdf</span></a><span> </span></p>
</div>
<div id="ftn22">
<p class="MsoNormal"><a href="#_ftnref22" name="_ftn22"><sup><sup><span>[22]</span></sup></sup></a><span> “Response to TRAI consultation on Auction of Spectrum in frequency bands identified for IMT/5G”, Centre for Internet and Society.</span></p>
</div>
<div id="ftn23">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref23" name="_ftn23"><sup><sup><span>[23]</span></sup></sup></a><span> Calabrese, M. (2021). Use it or Share It: A New Default Policy for Spectrum Management. <i>Available at SSRN 3762098. </i><</span><a href="https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3762098_code2826029.pdf?abstractid=3762098&mirid=1"><span>https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3762098_code2826029.pdf?abstractid=3762098&mirid=1</span></a><span> > </span></p>
</div>
<div id="ftn24">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref24" name="_ftn24"><sup><sup><span>[24]</span></sup></sup></a><span> “Guidelines for Implementation of New Public Sector Enterprises (PSEI Policy for CPSEs in Non-Strategic Sector' regarding”, “Government of India Ministry of Finance Department of Public EnterPrises, 10 November 2022, </span><a href="https://dpe.gov.in/sites/default/files/DPE_OM_DTD_13.12.21_Guidelines_on_New_PSE_Policy_0.pdf"><span>https://dpe.gov.in/sites/default/files/DPE_OM_DTD_13.12.21_Guidelines_on_New_PSE_Policy_0.pdf</span></a><span>, Economic Survey 2021-2022, <i>India Budget, </i>accessed 10 November 2022, <</span><a href="https://www.indiabudget.gov.in/economicsurvey/ebook_es2022/index.html#p=86"><span>https://www.indiabudget.gov.in/economicsurvey/ebook_es2022/index.html#p=86</span></a><span> ></span></p>
</div>
<div id="ftn25">
<p class="MsoNormal"><a href="#_ftnref25" name="_ftn25"><sup><sup><span>[25]</span></sup></sup></a><span> A similar approach has been taken in the new Occupational Safety, Health and Working Conditions Code, 2020 for registration of establishments under clause 3(3) of the Code.</span></p>
</div>
<div id="ftn26">
<p class="MsoNormal"><a href="#_ftnref26" name="_ftn26"><sup><sup><span>[26]</span></sup></sup></a><span> Sections 69 and 69A of the Information Technology Act, 2000.</span></p>
</div>
<div id="ftn27">
<p class="MsoNormal"><a href="#_ftnref27" name="_ftn27"><sup><sup><span>[27]</span></sup></sup></a><span> Anuradha Bhasin vs Union Of India, 3 SCC 637 (2020)</span></p>
</div>
<div id="ftn28">
<p class="MsoNormal"><a href="#_ftnref28" name="_ftn28"><sup><sup><span>[28]</span></sup></sup></a><span> Explanatory Note to the draft Indian Telecommunication Bill, 2022, Pg. 14.</span></p>
</div>
<div id="ftn29">
<p class="MsoNormal"><a href="#_ftnref29" name="_ftn29"><sup><sup><span>[29]</span></sup></sup></a><span>“USOF Scheme for Aspirational Districts in 5 states”, “Drishti IAS”, accessed 10 November 2022, https://www.drishtiias.com/daily-updates/daily-news-analysis/usof-scheme-for-aspirational-districts-in-5-states </span></p>
</div>
<div id="ftn30">
<p class="MsoNormal"><a href="#_ftnref30" name="_ftn30"><sup><sup><span>[30]</span></sup></sup></a><span>“What BharatNet can learn from the rural-roads scheme: involve states, local bodies, private sector” “ Centre for Internet and Society, accessed 10 November 2022, https://cis-india.org/telecom/blog/what-bharatnet-can-learn-from-the-rural-roads-scheme-involve-states-local-bodies-private-sector</span></p>
<p class="MsoNormal"><span> </span></p>
<p class="MsoNormal"><span> </span></p>
</div>
<div id="ftn31">
<p class="MsoNormal"><a href="#_ftnref31" name="_ftn31"><sup><sup><span>[31]</span></sup></sup></a><span> Functions of Authority, clause 11, TRAI Act, 1997.</span></p>
</div>
<div id="ftn32">
<p class="MsoNormal"><a href="#_ftnref32" name="_ftn32"><sup><sup><span>[32]</span></sup></sup></a><span> Pratap Vikram Singh, “Trai, try again: India’s toothless telecom regulator fights for more powers”, Aug 31, 2021, <i>The Ken</i>, <</span><a href="https://the-ken.com/story/trai-try-again-indias-toothless-telecom-regulator-fights-for-more-powers/"><span>https://the-ken.com/story/trai-try-again-indias-toothless-telecom-regulator-fights-for-more-powers/</span></a><span>></span></p>
</div>
<div id="ftn33">
<p class="MsoNormal"><a href="#_ftnref33" name="_ftn33"><sup><sup><span>[33]</span></sup></sup></a><span> <i>Ibid</i>.</span></p>
</div>
<div id="ftn34">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref34" name="_ftn34"><sup><sup><span>[34]</span></sup></sup></a><span> “PTI” “Have power to settle competitive tariff issues: TRAI to CCI”, Aug 7, 2017, <i>The Economic Times</i>, </span><a href="https://economictimes.indiatimes.com/news/economy/policy/have-power-to-settle-competitive-tariff-issues-trai-to-cci/articleshow/59959144.cms?from=mdr"><span>https://economictimes.indiatimes.com/news/economy/policy/have-power-to-settle-competitive-tariff-issues-trai-to-cci/articleshow/59959144.cms?from=mdr</span></a><span><span> </span></span></p>
</div>
<div id="ftn35">
<p class="MsoNormal"><a href="#_ftnref35" name="_ftn35"><sup><sup><span>[35]</span></sup></sup></a><span> CIVIL APPEAL NO(S). 11843 OF 2018</span></p>
</div>
<div id="ftn36">
<p class="MsoNormal"><a href="#_ftnref36" name="_ftn36"><sup><sup><span>[36]</span></sup></sup></a><span> Ibid at Para 90</span></p>
</div>
<div id="ftn37">
<p class="MsoNormal"><a href="#_ftnref37" name="_ftn37"><sup><sup><span>[37]</span></sup></sup></a><span> “Market Study on the Telecom Sector”, Jan 22, 2021, Competition Commission of India</span></p>
</div>
<div id="ftn38">
<p class="MsoNormal"><a href="#_ftnref38" name="_ftn38"><sup><sup><span>[38]</span></sup></sup></a><span> Global ICT Regulatory Outlook 2020 - Pointing the way forward to collaborative regulation (2020), <i>ITU, </i>https://www.itu.int/dms_pub/itu-d/opb/pref/D-PREF-BB.REG_OUT01-2020-PDF-E.pdf</span></p>
</div>
<div id="ftn39">
<p class="MsoNormal"><a href="#_ftnref39" name="_ftn39"><sup><sup><span>[39]</span></sup></sup></a><span>Informal Guidance Scheme of SEBI: Understanding the Concept and Analyzing the Guidance Provided by SEBI, Vijay Kumar Singh</span> <a href="https://www.researchgate.net/publication/228226352_Informal_Guidance_Scheme_of_SEBI_Understanding_the_Concept_and_Analyzing_the_Guidance_Provided_by_SEBI"><span>https://www.researchgate.net/publication/228226352_Informal_Guidance_Scheme_of_SEBI_Understanding_the_Concept_and_Analyzing_the_Guidance_Provided_by_SEBI</span></a><span>> </span></p>
</div>
<div id="ftn40">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref40" name="_ftn40"><sup><sup><span>[40]</span></sup></sup></a><span> We have made similar recommendations to the Personal Data Protection Bill 2019, on the offences and penalties under the Bill. The comments can be viewed here: <</span><a href="https://cis-india.org/accessibility/blog/cis-general-comments-to-the-pdp-bill-2019"><span>https://cis-india.org/accessibility/blog/cis-general-comments-to-the-pdp-bill-2019</span></a><span>></span></p>
</div>
<div id="ftn41">
<p class="MsoNormal" style="text-align: justify; "><a href="#_ftnref41" name="_ftn41"><sup><sup><span>[41]</span></sup></sup></a><span>Recommendations On Traffic Management Practices (TMPs) and MultiStakeholder Body for Net Neutrality,<i> TRAI,</i> accessed 10 November 2022, </span><a href="https://www.trai.gov.in/sites/default/files/Recommendations_22092020_0.pdf"><span>https://www.trai.gov.in/sites/default/files/Recommendations_22092020_0.pdf</span></a><span> </span></p>
</div>
<hr />
The comments were drafted by Abhishek Raj, Divyank Katira, Isha Suri, Shweta Mohandas and Vipul Kharbanda, and reviewed by Pallavi Bedi. Click to download the <a href="https://cis-india.org/telecom/comments-to-the-draft-indian-telecommunication-bill" class="internal-link">submission here</a></div>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/cis-comments-to-draft-indian-telecom-bill-2022'>https://cis-india.org/telecom/blog/cis-comments-to-draft-indian-telecom-bill-2022</a>
</p>
No publisherAbhishek Raj, Divyank Katira, Isha Suri, Shweta Mohandas, and Vipul KharbandaTelecom2022-11-22T13:22:24ZBlog EntryCIS Submission to TRAI Consultation on Proliferation of Broadband through Public WiFi Networks
https://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks
<b>The Centre for Internet and Society (“CIS”) is grateful for the opportunity to comment on this Consultation Paper (“Paper”). The comments were prepared by Sunil Abraham, Sharath Chandra Ram, Vidushi Marda, and Thejaswi Melarkode. Special thanks to Shyam Ponappa and Arjun Venkatraman for their inputs and feedback.</b>
<h2 style="text-align: justify; ">Preliminary Comments</h2>
<ol style="text-align: justify; "></ol>
<p style="text-align: justify; ">Even in the early to mid-seventies, many Indians who wanted to own a radio receiver were expected to get a license from the government. If not then they were in violation of the law and there was nothing the government could do to enforce policies for their benefit. The deregulation of radio ownership has been key to its unfettered adoption and popularity today. Similarly, Wi-Fi, a radio transceiver must be deregulated further to bridge India's digital divide.</p>
<p style="text-align: justify; ">Before addressing specific questions posed by the Paper, we would like to make the following observations:</p>
<ol style="text-align: justify; ">
<li> The Paper considers only commercial models for the provision of public Wi-Fi networks. This is a problematic assumption as it ignores the potential of not-for-profit models that involve grassroots communities, academia and civil society.</li>
<li>The Paper is infused with a vision and philosophy that is reminiscent of a colonial, license raj, centralized, top-down, command and control based, state monopoly paradigm. This is diametrically opposed to the foundational ethos of the Internet.</li>
<li>The Paper assumes that more regulation is required in order to ensure mass adoption of public Wi-Fi. In fact, the exact opposite is true - the rapid proliferation of broadband through public Wi-Fi networks will only be accomplished by aggressive deregulation.</li>
<li>The technological architecture being advanced by the Paper signals support of governance cum surveillance projects such as Aadhaar aka UID, India Stack, UPI and related projects which only undermine cyber-security and interferes with healthy competitive market dynamics between commercial and non-commercial actors. Again this is diametrically opposed to the foundational ethos of the Internet and a modern democratic information society. </li>
</ol>
<h3 style="text-align: justify; "><a name="_1fl95fmecs67"></a> Q1. Are there any regulatory issues, licensing restrictions or other factors that are hampering the growth of public Wi-Fi services in the country?</h3>
<p style="text-align: justify; ">The most pressing issue which is hampering the growth of public Wi-Fi services in the country is that of over regulation. Under the current regulatory framework, public Wi-Fi is subject to licensing requirements, data retention, and Know-Your-Customer ("KYC") policies. The next issue is paucity of spectrum. So far the approach has been to assign exclusive property rights to certain frequencies and also raise billions of US Dollars through spectrum auctions based on the Supreme Court's understanding of spectrum as a national resource. Given the advancements in transceiver technologies, such as cognitive radios, it is possible for us to transcend the grid-lock of property rights and embrace paradigms like shared and unlicensed spectrum. Innovative technologies and neutral allocation of unlicensed spectrum will result in the growth of public and community wireless networks including those built on the Wi-Fi standard.</p>
<h3 style="text-align: justify; "><a name="_3hwmagyo3b5n"></a> Q2. What regulatory/licensing or policy measures are required to encourage the deployment of commercial models for ubiquitous city-wide Wi-Fi networks as well as expansion of Wi-Fi networks in remote or rural areas?</h3>
<p style="text-align: justify; ">The regulatory approach should be to <b>deregulate </b>the radio transceiver as much as possible so as to encourage innovation with lower barriers for participation.</p>
<p style="text-align: justify; ">The question falsely assumes that only commercial players can provide public Wi-Fi, Para 1.9 of the Paper only identifies scenarios where Unified License (UL) holders can take advantage of unlicensed spectrum to provide public Wi-Fi services. It fails to recognize that civil society, academia, and grassroots communities can also bring about ubiquitous city-wide Wi-Fi networks and expansion to remote and rural areas. For example, Village Telco and mesh networks are community-driven Wi-Fi models that are allowing a large number of individuals to gain access to Internet services using a public spirited or peer-to-peer philosophy.<a href="#_ftn1" name="_ftnref1"><sup><sup>[1]</sup></sup></a></p>
<p style="text-align: justify; ">In terms of regulatory measures, CIS would recommend minimal and proportionate regulation, i.e. the regulation of entities involved in the provision of public Wi-Fi networks based on their capacity to harm the public interest and/or individual rights. By this we mean that only public Wi-Fi networks that have a large number of users (say, more than 5,000 individual users) should be subject to any regulation. Small-scale public Wi-Fi network providers, like public Wi-Fi networks in small villages or apartment complexes, should be left to self-regulation. Regulatory burdens which serve no purpose only deter these providers from providing such services at all.</p>
<p style="text-align: justify; ">Regulation must be technology-neutral, and should focus on the entities using these technologies who are capable of unlocking good or causing harm. This neutrality should be reflected in the name of the policy: "community-networking policy" and not "community Wi-Fi policy". The necessary changes must also be incorporated in the Paper and the draft policy to make this clear. The current definition of Wi-Fi is closely coupled with certain frequencies, and public wireless networks should be promoted regardless of technology and specific frequency bands.</p>
<p style="text-align: justify; ">In cases where private data services, (such as mobile telephony/ other private application specific data infrastructures) which may have been granted permission to deploy on an open-unlicensed or delicensed part of the spectrum, experience interference from a Public Wi-Fi setup. On the same frequency band, we call for the Public Wi-Fi to be given priority. This will prevent spectrum squatting.</p>
<h3 style="text-align: justify; "><a name="_bbdam8kpm2d2"></a> Q3. What measures are required to encourage interoperability between the Wi-Fi networks of different service providers, both within the country and internationally?</h3>
<p style="text-align: justify; ">This is a requirement for elite parts of society only but not a deal breaker for the provision of public Wi-Fi in India. There are a variety of existing market-based approaches. The further deregulation of Wi-Fi will result in the rise of public, community and non-commercial players which in turn will lead to further innovation and competition when it comes to interoperability across disparate Wi-Fi networks and providers.</p>
<h3 style="text-align: justify; "><a name="_mu1y5gasks48"></a> Q4. What measures are required to encourage interoperability between cellular and Wi-Fi networks?</h3>
<p style="text-align: justify; ">No measures are required. Millions of consumers in India already are able to interoperate between cellular networks and their home and office networks as they are in charge of the authentication or they have left these networks open. The reason they are unable to operate more easily with other networks is due to data retention, and KYC policies. Even in countries with much more challenging national security concerns, the data retention and KYC policies are not so strict. We are paying a terrible price in terms of broadband adoption because of our flawed approach to surveillance and cyber security. The answer here lies in deregulation of existing requirements, especially for community based organisations, NGOs, research institutions, educational institutions, galleries, museums, archives and public libraries. This will address the needs of those who cannot pay and are vulnerable. For those who can pay - commercial actors will innovate and provide the high-quality interoperability that they seek - this will not require any action on the part of the government.</p>
<h3 style="text-align: justify; "><a name="_cu58z42hlrt2"></a> Q5. Apart from frequency bands already recommended by TRAI to DoT, are there additional bands which need to be de-licensed in order to expedite the penetration of broadband using Wi-Fi technology? Please provide international examples, if any, in support of your answer.</h3>
<p style="text-align: justify; ">In a 2012 policy brief on unlicensed spectrum<a href="#_ftn2" name="_ftnref2"><sup><sup>[2]</sup></sup></a>, CIS recommended the changes, listed below [in italics]. Since then, more modern approaches may have emerged which merit revisiting this question. These advances also merit delicensing bands more aggressively as the proprietary approach becomes more and more dated. This approach should also be technology neutral and must find a balance between proprietary, unlicensed, and shared spectrum.<a href="#_ftn3" name="_ftnref3"><sup><sup>[3]</sup></sup></a></p>
<ol style="text-align: justify; ">
<li> Frequencies in the 6, 11, 18, 23, 24, 60, 70, and 80 GHz bands<i>, </i>to facilitate replicating examples like Webpass (USA) which has radios capable of delivering up to 2Gbps both upstream and downstream.<a href="#_ftn4" name="_ftnref4"><sup><sup>[4]</sup></sup></a></li>
<li><i>Frequencies in the <b>5.15 GHz-5.35 GHz</b> bands, as well as<b> 5.725-5.775 GHz</b> bands are unlicensed for indoor use only. These bands should be unlicensed for outdoor use as well in order to facilitate the creation of wider wireless communication networks and the use of innovative technologies.</i></li>
<li><i>There should be more unlicensed spectrum in the <b>2.4 GHz range</b>, beyond what is already unlicensed, for the expansion of wireless communication networks.</i></li>
<li><i>The <b>1800-1890 MHz band</b>, which is earmarked for the operations of low power cordless communication in India, should be unlicensed in line with international practices. Many bands for this use have already been unlicensed in Europe and the United States. <a href="#_ftn5" name="_ftnref5"><sup><b><sup>[5]</sup></b></sup></a></i></li>
<li><b>50 Mhz in the</b> <b>700Mhz - 900Mhz</b> <b>band, </b>earmarked for broadcast should be made available to better utilize available spectrum, almost 100Mhz is currently unused in most parts of the country. </li>
</ol>
<h3 style="text-align: justify; "><a name="_t8aujvprhoz9"></a> Q6. Are there any challenges being faced in the login/authentication procedure for access to Wi-Fi hotspots? In what ways can the process be simplified to provide frictionless access to public Wi-Fi hotspots, for domestic users as well as foreign tourists?</h3>
<p style="text-align: justify; ">The challenge here is that of over regulation and the belief that elaborate KYC requirements will solve problems of national security. What these requirements achieve is a lot of inconvenience for the general population while criminals are able to evade detection through fake IDs, burner phones, etc. as KYC requirements only create barriers without security payoffs. The fact that jurisdictions such as the UK, and other countries in Europe allow for purchase of SIM cards without KYC norms goes to show that there are effective ways of gathering intelligence that do not involve a KYC regime.</p>
<p style="text-align: justify; ">In terms of authentication, a healthy ecosystem will allow for both anonymous access to Wi-Fi hotspots as well as access through authentication.</p>
<p style="text-align: justify; ">There is a need for deregulation in order to allow anonymous access. For access through authentication, some providers may wish to have light KYC norms whereas others may choose to have rigorous KYC norms that are integrated with Aadhaar, India Stack, etc. The decision should ultimately be taken by the provider and thus deregulation is the key. The most frictionless model is the unauthenticated model that allows anonymous access, followed by a light KYC regime, and the model with the most friction is that with intensive KYC requirements.</p>
<p style="text-align: justify; ">The existing customer log-in procedure requirements that have been laid down by the Department of Telecommunications (DoT), Ministry of Communications, Government of India, which necessitate a user to provide a photo ID or to avail a one-time password (OTP) through SMS should be done away with for two reasons. <b>First</b>, it does not allow for a user to access the public Wi-Fi network without authentication and this leads to a loss of anonymity over that network when the user accesses any Internet-based services. <b>Secondly</b>, it assumes that all people will have access to mobile phones/smartphones. So far as the Indian scenario is concerned, this is certainly not the case in many households where only the head of the family, who is more often than not a male member, has access to such devices. Many individuals also use much simpler devices which may not be able to receive OTPs (<i>see</i> Raspberry Pi models, for example). Such a requirement would, in effect, deprive a large number of individuals from accessing public Wi-Fi services and would defeat the purpose of even setting up such networks.</p>
<h3 style="text-align: justify; "><a name="_m5cx0q9llg2d"></a> Q7. Are there any challenges being faced in making payments for access to Wi-Fi hotspots? Please elaborate and suggest a payment arrangement which will offer frictionless and secured payment for the access of Wi-Fi services.</h3>
<p style="text-align: justify; ">This question is backed by three assumptions. First, it assumes that only commercial provision of Wi-Fi is possible. Second, it assumes that "a (singular) payment arrangement" is the preferred approach. Third, it assumes that it is possible for regulators to predict the most appropriate business / technological model for payments online. This is best left to competition between commercial and noncommercial players in the market. The existing regulations from the RBI and laws that govern electronic transactions are sufficient. No specific regulations are required for access to Wi-Fi hotspots.</p>
<h3 style="text-align: justify; "><a name="_f057f6vzcz3w"></a> Q8. Is there a need to adopt a hub-based model along the lines suggested by the WBA, where a central third party AAA (Authentication, Authorization and Accounting) hub will facilitate interconnection, authentication and payments? Who should own and control the hub? Should the hub operator be subject to any regulations to ensure service standards, data protection, etc.?</h3>
<p style="text-align: justify; ">"A central third party AAA (Authentication, Authorization and Accounting) hub" is antithetical to the foundational ethos of the Internet. Any attempt to foist that on Indian citizens will lead to a slowing down of wireless broadband adoption. From a cyber-security perspective this can only lead to large-scale and irreversible disasters and on the contrary policy measures should be taken to prevent centralization. For Indian cyberspace to be a resilient and free market, competition amongst both commercial and noncommercial players must be enabled for Authentication, Authorization and Accounting.</p>
<h3 style="text-align: justify; "><a name="_idfswzxywg43"></a> Q9. Is there a need for ISPs/ the proposed hub operator to adopt the Unified Payment Interface (UPI) or other similar payment platforms for easy subscription of Wi-Fi access? Who should own and control such payment platforms? Please give full details in support of your answer.</h3>
<p style="text-align: justify; ">As we submitted in response to the earlier question: "a central third party AAA (Authentication, Authorization and Accounting) hub" is antithetical to the foundational ethos of the Internet. Aadhaar aka UID, India Stack and the Unified Payment Interface (UPI) are similar state sanctioned monopolies that only increase fragility and interfere with the functioning of markets. Also this question assumes that citizens will have to pay for access to WiFi. Therefore, we recommend that the government does not regulate payments beyond the existing measures in Banking Law.</p>
<h3 style="text-align: justify; "><a name="_ffura5n97nm"></a> Q10. Is it feasible to have an architecture wherein a common grid can be created through which any small entity can become a data service provider and able to share its available data to any consumer or user?</h3>
<p style="text-align: justify; ">The government or the regulator should not be making recommendations on technical architectures. All that is required to the lift all limits on reselling or sharing data via law.</p>
<h3 style="text-align: justify; "><a name="_c8nuutpxjf12"></a> Q11. What regulatory/licensing measures are required to develop such architecture? Is this a right time to allow such reselling of data to ensure affordable data tariff to public, ensure ubiquitous presence of Wi-Fi Network and allow innovation in the market?</h3>
<p style="text-align: justify; ">CIS would ask for forbearance in this regard, as anything else will be a case of over regulation.</p>
<h3 style="text-align: justify; "><a name="_w4subepdd8z"></a> Q12. What measures are required to promote hosting of data of community interest at local level to reduce cost of data to the consumers?</h3>
<p style="text-align: justify; ">There are two measures that can be taken. The first is to change the public procurement policy to promote openness in the form of free and open source software, open standards, open content, open access, open educational resources and open data.</p>
<p style="text-align: justify; ">The second is to use public funds to shape the market and create publicly licensed material, or material available under exceptions and limitations of copyright law. To promote hosting data of community interest at a local level, public funds must be used to create intellectual property that can be freely licensed to the public. India already has a progressive copyright law, and the exceptions available under it should be seeded by the government through public funding. These exceptions include the statutory exception of copyright cess/ levy to broadband bills, exceptions for the disabled, libraries and archives and also education.</p>
<h3 style="text-align: justify; "><a name="_wkhha0i1vdq7"></a> Q13. Any other issue related to the matter of Consultation.</h3>
<p style="text-align: justify; ">Figure 2.2 of the Paper depicts Wi-Fi Monetization Pyramid based on Cisco's Wi-Fi Opportunity Pyramid.[2] As pointed out earlier, this ignores the possibility of non-commercial models. To quote Bruce Schneier, "<i>surveillance is the business model of the Internet</i>" <a href="#_ftn6" name="_ftnref6"><sup><sup>[6]</sup></sup></a> and this business model is one that should not be encouraged. The pyramid only allows for a for-profit model and it is inherently based on needless surveillance of users. While monetization may be one of the main incentives, it is by no means the only way to sustain such public Wi-Fi networks and for this reason, CIS recommends that such a depiction be discarded.</p>
<p style="text-align: justify; ">The balancing of this monetization pyramid is one of the requirements to put in place an effective public Wi-Fi network structure. Another issue arises with respect to the definition of Wi-Fi. Currently, spectrum is limited to the 2.4 GHz or the 5 GHz bands but this has been expanded upon to encompass the LTE (4G) Core during the GSMA, Wireless Broadband Alliance and Wi-Fi Alliance 3GPP following the Mobile World Congress in 2013. Such a set-up would allow for frequency hopping between bands and to prevent (or allow) this, the definition of Wi-Fi in the context of public Wi-Fi networks must be clarified.</p>
<div style="text-align: justify; ">
<hr />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1"><sup><sup>[1]</sup></sup></a> <i>See </i> Centre for Internet and Society, Unlicensed Spectrum Brief for the Government of India, June 2012;<i> Available at </i> http://cis-india.org/telecom/unlicensed-spectrum-brief.pdf</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2"><sup><sup>[2]</sup></sup></a> <i>Supra </i> note 1.</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3"><sup><sup>[3]</sup></sup></a> Example of shared spectrum being advanced in the US: " <i> Specifically, the FCC adopted rules for CBRS, opening 150 MHz of spectrum in the 3550-3700 MHz band for commercial use. A Spectrum Access System (SAS), which is now in the process of being hammered out at the FCC with prospective coordinators, will make it possible to share spectrum where it hasn't been done before </i> ." <i>See, </i>Monica Alleven, <i>"</i><i>Google, Intel, Nokia and more partner to advance U.S. 3.5 GHz CBRS", </i>Fierce Wireless, (February 18, 2016) available at <a href="http://www.fiercewireless.com/tech/google-intel-nokia-and-more-partner-to-advance-u-s-3-5-ghz-cbrs"> http://www.fiercewireless.com/tech/google-intel-nokia-and-more-partner-to-advance-u-s-3-5-ghz-cbrs </a> .</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4"><sup><sup>[4]</sup></sup></a> " <i> Webpass buildings have radios capable of delivering up to 2Gbps both upstream and downstream… Anything beyond 5,000 meters will still work but you lose bandwidth… Webpass radios operate in many different frequencies, including the unlicensed 2.4GHz and 5GHz bands used by Wi-Fi, Barr said. Webpass also uses the 6, 11, 18, 23, 24, 60, 70, and 80GHz bands. These include a mix of licensed and unlicensed frequencies…" </i> <i>See, </i> Jon Brodkin, "500 Mbps broadband for $55 a month offered by wireless ISP", arsTECHNICA, (June 18, 2015), available at: <a href="http://arstechnica.com/information-technology/2015/06/500mbps-broadband-for-55-a-month-offered-by-wireless-isp/"> http://arstechnica.com/information-technology/2015/06/500mbps-broadband-for-55-a-month-offered-by-wireless-isp/ </a></p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5"><sup><sup>[5]</sup></sup></a> <i>Supra</i> note 1, at 17.</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6"><sup><sup>[6]</sup></sup></a> <i>See</i> Bruce Schneier, <i>'Stalker economy' here to stay</i>, CNN, (Nov. 26, 2013, 17:53 GMT), <i>available at </i> http://edition.cnn.com/2013/11/20/opinion/schneier-stalker-economy/index.html</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks'>https://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks</a>
</p>
No publisherSunil Abraham, Sharath Chandra Ram, Vidushi Marda, and Thejaswi MelarkodeTelecom2016-10-02T06:16:46ZBlog EntryCIS Submission to TRAI Consultation on Free Data
https://cis-india.org/internet-governance/blog/cis-submission-trai-consultation-free-data
<b>The Telecom Regulatory Authority of India (TRAI) held a consultation on Free Data, for which CIS sent in the following comments.</b>
<p> </p>
<p>The Telecom Regulatory Authority of India (TRAI) asked for <a href="http://trai.gov.in/WriteReadData/ConsultationPaper/Document/CP_07_free_data_consultation.pdf">public comments on free data</a>. Below are the comments that CIS submitted to the four questions that it posed.</p>
<p> </p>
<h2 id="question-1">Question 1
<p><em>Is there a need to have TSP agnostic platform to provide free data or suitable reimbursement to users, without violating the principles of Differential Pricing for Data laid down in TRAI Regulation? Please suggest the most suitable model to achieve the objective.</em></p>
</h2>
<h3 id="is-there-a-need-for-free-data">Is There a Need for Free Data?</h3>
<p>No, there is no <em>need</em> for free data, just as there is no <em>need</em> for telephony or Internet. However, making provisions for free data would increase the amount of innovation in the Internet and telecom sector, and there is a good probability that it would lead to faster adoption of the Internet, and thus be beneficial in terms of commerce, freedom of expression, freedom of association, and many other ways.</p>
<p>Thus the question that a telecom regulator should ask is not whether there is a <em>need</em> for TSP agnostic platforms, but whether such platforms are harmful for competition, for consumers, and for innovation. The telecom regulator ought not undertake regulation unless there is evidence to show that harm has been caused or that harm is likely to be caused. In short, TRAI should not follow the precautionary principle, since the telecom and Internet sectors are greatly divergent from environmental protection: the burden of proof for showing that something ought to be prohibited ought to be on those calling for prohibition.</p>
<h3 id="goal-regulating-gatekeeping">Goal: Regulating Gatekeeping</h3>
<p>TRAI wouldn’t need to regulate price discrimination or Net neutrality if ISPs were not “gatekeepers” for last-mile access. “Gatekeeping” occurs when a single entity establishes itself as an exclusive route to reach a large number of people and businesses or, in network terms, nodes. It is not possible for Internet services to reach their end customers without passing through ISPs (generally telecom networks). The situation is very different in the middle-mile and for backhaul. Even though anti-competitive terms may exist in the middle-mile, especially given the opacity of terms in “transit agreements”, a packet is usually able to travel through multiple routes if one route is too expensive (even if that is not the shortest network path, and is thus inefficient in a way). However, this multiplicity of routes is generally not possible in the last mile.<a id="fnref1" class="footnoteRef" href="#fn1"><sup>1</sup></a> This leaves last mile telecom operators (ISPs) in a position to unfairly discriminate between different Internet services or destinations or applications, while harming consumer choice.</p>
<p>However, the aim of regulation by TRAI cannot be to prevent gatekeeping, since that is not possible as long as there are a limited number of ISPs. For instance, even by the very act of charging money for access to the Internet, ISPs are guilty of “gatekeeping” since they are controlling who can and cannot access an Internet service that way. Instead, the aim of regulation by TRAI should be to “regulate gatekeepers to ensure they do not use their gatekeeping power to unjustly discriminate between similarly situated persons, content or traffic”, as we proposed in our submission to TRAI (on OTTs) last year.</p>
<h3 id="models-for-free-data">Models for Free Data</h3>
<p>There are multiple models possible for free data, none of which TRAI should prohibit unless it would enable OTTs to abuse their gatekeeping powers.</p>
<h4 id="government-incentives-for-non-differentiated-free-data">Government Incentives For Non-Differentiated Free Data</h4>
<p>The government may opt to require all ISPs to provide free Internet to all at a minimum QoS in exchange for exemption from paying part of their USO contributions, or the government may pay ISPs for such access using their USO contributions.</p>
<p>TRAI should recommend to DoT that it set up a committee to study the feasibility of this model.</p>
<h4 id="isp-subsidies">ISP subsidies</h4>
<p>ISP subsidies of Internet access only make economic sense for the ISP under the following ‘Goldilocks’ condition is met: the experience with the subsidised service is ‘good enough’ for the consumers to want to continue to use such services, but ‘bad enough’ for a large number of them to want to move to unsubsidised, paid access.</p>
<ol style="list-style-type: decimal;">
<li>Providing free Internet to all at a low speed.
<ol style="list-style-type: lower-alpha;">
<li>This naturally discriminates against services and applications such as video streaming, but does not technically bar access to them.</li></ol>
</li>
<li>Providing free access to the Internet with other restrictions on quality that aren’t discriminatory with respect to content, services, or applications.</li></ol>
<h4 id="rewards-model">Rewards model</h4>
<p>A TSP-agnostic rewards platform will only come within the scope of TRAI regulation if the platform has some form of agreement with the TSPs, even if it is collectively. If the rewards platform doesn’t have any agreement with any TSP, then TRAI does not have the power to regulate it. However, if the rewards platform has an agreement with any TSP, it is unclear whether it would be allowed under the Differential Data Tariff Regulation, since the clause 3(2) read with paragraph 30 of the Explanatory Memorandum might disallow such an agreement.</p>
<p>Assuming for the sake of argument that platforms with such agreements are not disallowed, such platforms can engage in either post-purchase credits or pre-purchase credits, or both. In other words, it could be a situation where a person has to purchase a data pack, engage in some activity relating to the platform (answer surveys, use particular apps, etc.) and thereupon get credit of some form transferred to one’s SIM, or it could be a situation where even without purchasing a data pack, a consumer can earn credits and thereupon use those credits towards data.</p>
<p>The former kind of rewards platform is not as useful when it comes to encouraging people to use the Internet, since only those who already see worth in using in the Internet (and can afford it) will purchase a data pack in the first place. The second form, on the other hand is quite useful, and could be encouraged. However, this second model is not as easily workable, economically, for fixed line connections, since there is a higher initial investment involved.</p>
<h4 id="recharge-api">Recharge API</h4>
<p>A recharge API could be fashioned in one of two ways: (1) via the operating system on the phone, allowing a TSP or third parties (whether OTTs or other intermediaries) to transfer credit to the SIM card on the phone which have been bought wholesale. Another model could be that of all TSPs providing a recharge API for the use of third parties. Only the second model is likely to result in a “toll-free” experience since in the first model, like in the case of a rewards platform that requires up-front purchase of data packs, there has to be a investment made first before that amount is recouped. This is likely to hamper the utility of such a model.</p>
<p>Further, in the first case, TRAI would probably not have the powers to regulate such transactions, as there would be no need for any involvement by the TSP. If anti-competitive agreements or abuse of dominant position seems to be taking place, it would be up to the Competition Commission of India to investigate.</p>
<p>However, the second model would have to be overseen by TRAI to ensure that the recharge APIs don’t impose additional costs on OTTs, or unduly harm competition and innovation. For instance, there ought to be an open specification for such an API, which all the TSPs should use in order to reduce the costs on OTTs. Further, there should be no exclusivity, and no preferential treatment provided for the TSPs sister concerns or partners.</p>
<h4 id="example-sites">“0.example” sites</h4>
<p>Other forms of free data, for instance by TSPs choosing not to charge for low-bandwidth traffic should be allowed, as long as it is not discriminatory, nor does it impose increased barriers to entry for OTTs. For instance, if a website self-certifies that it is low-bandwidth and optimized for Internet-enabled feature phones and uses 0.example.tld to signal this (just as wap.* were used in for WAP sites and m.* are used for mobile-optimized versions of many sites), then there is no reason why TSPs should be prohibited from not charging for the data consumed by such websites, as long as the TSP does so uniformly without discrimination. In such cases, the TSP is not harming competition, harming consumers, nor abusing its gatekeeping powers.</p>
<h4 id="ott-agnostic-free-data">OTT-agnostic free data</h4>
<p>If a TSP decides not to charge for specific forms of traffic (for example, video, or for locally-peered traffic) regardless of the Internet service from which that traffic emanates, as as long as it does so with the end customer’s consent, then there is no question of the TSP harming competition, harming consumers, nor abusing its gatekeeping powers. There is no reason such schemes should be prohibited by TRAI unless they distort markets and harm innovation.</p>
<h4 id="unified-marketplace">Unified marketplace</h4>
<p>One other way to do what is proposed as the “recharge API” model is to create a highly-regulated market where the gatekeeping powers of the ISP are diminished, and the ISP’s ability to leverage its exclusive access over its customers are curtailed. A comparison may be drawn here to the rules that are often set by standard-setting bodies where patents are involved: given that these patents are essential inputs, access to them must be allowed through fair, reasonable, and non-discriminatory licences. Access to the Internet and common carriers like telecom networks, being even more important (since alternatives exist to particular standards, but not to the Internet itself), must be placed at an even higher pedestal and thus even stricter regulation to ensure fair competition.</p>
<p>A marketplace of this sort would impose some regulatory burdens on TRAI and place burdens on innovations by the ISPs, but a regulated marketplace harms ISP innovation less than not allowing a market at all.</p>
<p>At a minimum, such a marketplace must ensure non-exclusivity, non-discrimination, and transparency. Thus, at a minimum, a telecom provider cannot discriminate between any OTTs who want similar access to zero-rating. Further, a telecom provider cannot prevent any OTT from zero-rating with any other telecom provider. To ensure that telecom providers are actually following this stipulation, transparency is needed, as a minimum.</p>
<p>Transparency can take one of two forms: transparency to the regulator alone and transparency to the public. Transparency to the regulator alone would enable OTTs and ISPs to keep the terms of their commercial transactions secret from their competitors, but enable the regulator, upon request, to ensure that this doesn’t lead to anti-competitive practices. This model would increase the burden on the regulator, but would be more palatable to OTTs and ISPs, and more comparable to the wholesale data market where the terms of such agreements are strictly-guarded commercial secrets. On the other hand, requiring transparency to the public would reduce the burden on the regulator, despite coming at a cost of secrecy of commercial terms, and is far more preferable.</p>
<p>Beyond transparency, a regulation could take the form of insisting on standard rates and terms for all OTT players, with differential usage tiers if need be, to ensure that access is truly non-discriminatory. This is how the market is structured on the retail side.</p>
<p>Since there are transaction costs in individually approaching each telecom provider for such zero-rating, the market would greatly benefit from a single marketplace where OTTs can come and enter into agreements with multiple telecom providers.</p>
<p>Even in this model, telecom networks will be charging based not only on the fact of the number of customers they have, but on the basis of them having exclusive routing to those customers. Further, even under the standard-rates based single-market model, a particular zero-rated site may be accessible for free from one network, but not across all networks: unlike the situation with a toll-free number in which no such distinction exists.</p>
<p>To resolve this, the regulator may propose that if an OTT wishes to engage in paid zero-rating, it will need to do so across all networks, since if it doesn’t there is risk of providing an unfair advantage to one network over another and increasing the gatekeeper effect rather than decreasing it.</p>
<h2 id="question-2">Question 2</h2>
<p><em>Whether such platforms need to be regulated by the TRAI or market be allowed to develop these platforms?</em></p>
<p>In many cases, TRAI would have no powers over such platforms, so the question of TRAI regulating does not arise. In all other cases, TRAI can allow the market to develop such platforms, and then see if any of them violates the Discriminatory Data Tariffs Regualation. For government-incentivised schemes that are proposed above, TRAI should take proactive measure in getting their feasibility evaluated.</p>
<h2 id="question-3">Question 3</h2>
<p><em>Whether free data or suitable reimbursement to users should be limited to mobile data users only or could it be extended through technical means to subscribers of fixed line broadband or leased line?</em></p>
<p>Spectrum is naturally a scarce resource, though technological advances (as dictated by Cooper’s Law) and more efficient management of spectrum make it less so. However, we have seen that fixed-line broadband has more or less stagnated for the past many years, while mobile access has increased. So the market distortionary power of fixed-line providers is far less than that of mobile providers. However, competition is far less in fixed-line Internet access services, while it is far higher in mobile Internet access. Switching costs in fixed-line Internet access services are also far higher than in mobile services. Given these differences, the regulation with regard to price discrimination might justifiably be different.</p>
<p>All in all, for this particular issue, it is unclear why different rules should apply to mobile users and fixed line users.</p>
<h2 id="question-4">Question 4</h2>
<p><em>Any other issue related to the matter of Consultation.</em></p>
<p>None.</p>
<div class="footnotes">
<hr />
<ol>
<li id="fn1">
<p>In India’s mobile telecom sector, according to a Nielsen study, an estimated 15% of mobile users are multi-SIM users, meaning the “gatekeeping” effect is significantly reduced in both directions: Internet services can reach them via multiple ISPs, and conversely they can reach Internet services via multiple ISPs. <em>See</em> Nielsen, ‘Telecom Transitions: Tracking the Multi-SIM Phenomena in India’, http://www.nielsen.com/in/en/insights/reports/2015/telecom-transitions-tracking-the-multi-sim-phenomena-in-india.html<a href="#fnref1">↩</a></p>
</li></ol>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/cis-submission-trai-consultation-free-data'>https://cis-india.org/internet-governance/blog/cis-submission-trai-consultation-free-data</a>
</p>
No publisherpraneshTelecomHomepageTRAINet NeutralityFeaturedInternet GovernanceSubmissions2016-07-01T16:04:27ZBlog EntryCIS Submission to TRAI Consultation Note on Model for Nation-wide Interoperable and Scalable Public Wi-Fi Networks
https://cis-india.org/telecom/blog/cis-submission-trai-note-on-interoperable-scalable-public-wifi
<b>This submission presents responses by the CIS on the Consultation Note on Model for Nation-wide Interoperable and Scalable Public Wi-Fi Networks published by the TRAI on November 15, 2016. Our analysis of the solution proposed in the Note, in brief, is that there is no need of a solution for non-existing interoperability problem for authentication and payment services for accessing public Wi-Fi networks. The proposed solution in this Note only adds to over-regulation in this sector, and does not incentivise new investment in the sector, but only establishes UIDAI and NPCI as the monopoly service providers for authentication and payment services.</b>
<p> </p>
<p>The comments were authored by Japreet Grewal, Pranesh Prakash, Sharath Chandra, Sumandro Chattapadhyay, Sunil Abraham, and Udbhav Tiwari, with expert comments from Amelia Andersdotter.</p>
<hr />
<h2>1. Preliminary</h2>
<p><strong>1.1.</strong> This submission presents responses by the Centre for Internet and Society (“CIS”) <strong>[1]</strong> on the <em>Consultation Note on Model for Nation-wide Interoperable and Scalable Public Wi-Fi Networks</em> (“the Note”) published by the Telecom Regulatory Authority of India (“TRAI”) on November 15, 2016 <strong>[2]</strong>.</p>
<p><strong>1.2.</strong> The CIS welcomes the effort undertaken by TRAI to map regulatory and other barriers to deployment of public Wi-Fi in India. We especially appreciate that TRAI has recognised <strong>[3]</strong> two key barriers to provision of public Wi-Fi networks identified and highlighted in our earlier response to the <em>Consultation Paper on Proliferation of Broadband through Public WiFi</em> <strong>[4]</strong>: 1) over regulation (including, licensing requirements, data retention, and Know Your Customer policy), and 2) paucity of spectrum <strong>[5]</strong>.</p>
<h2>2. General Responses</h2>
<p><strong>2.1.</strong> Before responding to the specific questions posed by the Note, we would like to make the following observations.</p>
<p><strong>2.2.</strong> There is no need of a solution for non-existing interoperability problem for authentication and payment services for accessing public Wi-Fi networks. The proposed solution in this Note only adds to over-regulation in this sector. The proposed solution does not incentivise new investment in the sector, but only establishes UIDAI and NPCI as the monopoly service providers for authentication and payment services.</p>
<p><strong>2.3.</strong> As the TRAI has consulted widely with industry and other stakeholders before it settled on the list of priority issues contained in Section C.6 of the Note, we are surprised to find that this Note aims to address only the problem of lack of “seamless interoperable payment system for Wi-Fi networks” (Section C.6.d. Of the Note), and does not discuss and propose solutions for any other key barriers identified by the Note.</p>
<p><strong>2.4.</strong> The Note fails to clarify the “interoperability” problem in the payment system for usage of public Wi-Fi networks that it is attempting to solve. The Note identifies that lack of “single standard” for “authentication and payment mechanisms” for accessing public Wi-Fi networks as a key impediment to provide scalable and interoperable public Wi-Fi networks across the country <strong>[6]</strong>. By conceptualising the problem in this manner, TRAI has bundled together two completely different concerns - authentication and payment - into one and this is at the root of the problems emanating from the proposed solution in this Note.</p>
<p><strong>2.5.</strong> Lack of standard process for authentication is created by over-regulation via Know Your Customer (“KYC”) policies, and selection of eKYC service provided by UIDAI as the only acceptable authentication mechanism for all users of public Wi-Fi networks across India, creating further economic and legal challenges for smaller would-be providers of public Wi-Fi networks as they assess their liabilities and start-up costs. Additionally, since this would amount to making UID/Aadhaar enrolment mandatory for any user of public wi-fi networks, it seems to create a contradiction with previously communicated policy from the UIDAI and the Government that no such obligation should arise. Supreme Court has also mandated over successive Orders that enrolment for UID/Aadhaar number should remain optional for the citizens and residents.</p>
<p><strong>2.6.</strong> As was observed by the respondents to the TRAI Consultation concluded earlier this year, there is no interoperability problem that needs to be solved regarding payments for accessing public Wi-Fi networks. Payment services continue to be evolved and payment aggregator services provided by existing companies may be expected to resolve many of the outstanding issues of service proliferation in the upcoming years, at least in the absence of additional mandatory technical measures imposed by the government. Bundling of payment with authentication will only undermine the already existing independent market for payment aggregators, and further enforce mandatoriness of UID/Aadhaar number.</p>
<p><strong>2.7.</strong> Further, the payment mechanism proposed would seem to worsen difficulties for tourists and foreigners in accessing public Wi-Fi in India, as well adds an additional layer of authentication in a system already identified (even in the Note itself) to be overburdened by regulations regarding KYC and data retention. Section C.6.b of the Note highlights the problems faced by foreigners and tourists when the authentication mechanism is premised upon use of One Time Password (OTP) that requires a functioning local mobile phone number. It contradicts itself later by proposing an authentication method that requires the user to not only download an application onto their mobile/desktop device, but also to enrol for UID/Aadhaar number and/or to use their existing UID/Aadhaar number. Instead of reducing the existing barriers to provision of and access to public Wi-Fi, which the Note is supposed to achieve, it creates significant new barriers.</p>
<p><strong>2.8.</strong> The technological architecture advanced by the Note upholds support of governance and surveillance projects that, in addition to being costly in their implementation and thereby slowing down the objective of getting India connected, are also of questionable value to the security of the Indian polity. UID, UPI, and related projects risk undermining cyber-security through their reliance on centralised architectures and interfere with healthy competitive market dynamics between commercial and non-commercial actors.</p>
<p><strong>2.9.</strong> The Note continues to only consider and enable commercial models for the provision of public Wi-Fi networks. We have identified this as a problematic assumption in our last submission <strong>[7]</strong>. It is most crucial that TRAI does not ignore and fail to promote and facilitate the possibility of not-for-profit models that involve grassroot communities, academia, and civil society.</p>
<p><strong>2.10.</strong> Last but not the least, the term “Wi-Fi” refers to a particular technology for establishing wireless local area networks. Further, the term is a trademark of the Wi-Fi Alliance <strong>[8]</strong>. It is this not a neutral term, and it must not be used as a general and universal synonym for wireless local area networks. We recommend that TRAI may consider using a technology-neutral term, say “public wireless services” or “public networking services”, to describe the sector. Following the terminology used in the Note, we have decided to continue using the term “Wi-Fi” in this response. This does not reflect our agreement about the appropriateness of this term. Important: The recommendation for technology-neutral regulation also comes with the qualification that safeguards like regulations on Listen Before Talk and Cycle Time are required to prevent technologies like LTE-U from squatting on spectrum and interfering with connections based on other standards.</p>
<h2>3. Specific Responses</h2>
<h4>Q1. Is the architecture suggested in the consultation note for creating unified authentication and payment infrastructure will enable nationwide standard for authentication and payment interoperability?</h4>
<p><strong>3.1.</strong> No. The proposed infrastructure is likely to be costly for a large number of actors to implement and undermine some of the ongoing innovation in the Indian digital payment services industry. Rather than being helpful, it risks introducing additional requirements on an industry that TRAI has already identified as facing a number of large challenges.</p>
<p><strong>3.2.</strong> There is no need for a unified architecture that provides nationwide standard for authentication and payment interoperability. It does not offer any incentive towards provision of public Wi-Fi networks. Neither is there an interoperability problem at the physical or data link layers that has been pointed out, nor is government mandated interoperability required at the payment or ID layer since there are private entities that provide such interoperability (like, payment aggregators). Additionally, we believe it is inappropriate that the TRAI is trying to predict the most suitable business/technological model for digital payments to be used for accessing commercial Wi-Fi networks. India has a booming online payments industry, and it must be allowed to evolve in an enabling regulatory environment that allow for competition and ensures responsible practices.</p>
<p><strong>3.3.</strong> The Note identifies several structural impediments to expansion of public Wi-Fi networks in India, namely paucity of backhaul connectivity infrastructure (Section C.6.a), Inadequate associated infrastructure to offer carrier grade Wi-Fi network (Section C.6.c), dependency of authentication mechanism on pre-existing (Indian) mobile phone connection (Section C.6.b), and limited availability of spectrum to be used for public Wi-Fi networks (Section C.6.e). All these are crucial concerns and none of them have been addressed by the architecture suggested in the Note.</p>
<h4>Q2. Would you like to suggest any alternate model?</h4>
<p><strong>3.4.</strong> Yes. The model proposed in the Note is likely to exclude several types of potential users (say, foreigners and tourists), and impose a single authentication and payment service provider for accessing public Wi-Fi networks, which may undermine both competition and security in the market for these services.</p>
<p><strong>3.5.</strong> Internationally, there are cities and regions (say, the city of Barcelona and the Catalonia region in Spain) where public Wi-Fi networks have been provided in a pervasive and efficient manner by taking a light regulatory approach that enables opportunities for potential providers to set up their own infrastructures and additionally have access to backhaul. Further, reducing legal requirements on authentication should be considered in place of government mandated technical architectures for authentication and payment. In particular, allowing for anonymous access to Public Wi-Fi or wireless connectivity would reduce both the administrative and the technical burden on potential providers at the hyper-local level, especially for providers whose main activity it is not, and cannot be, to provide internet services (say, event venues, malls, and shops).</p>
<p><strong>3.6.</strong> The CIS suggests the following steps towards conceptualising an “alternative model”:</p>
<ol><li>remove existing regulatory disincentives,<br /><br /></li>
<li>urgently explore policies to promote deployment of wired infrastructures in general, and to enable a larger range of actors, including local authorities, to invest in and deploy local infrastructures by reducing licensing requirements in particular,<br /><br /></li>
<li>examine spectrum requirements for provision of public Wi-Fi, and<br /><br /></li>
<li>provide incentives, such as allowing telecom service providers to share backhaul traffic over public Wi-Fi, and ways for telecom service providers to lower their costs if they also make Internet access available for free.</li></ol>
<h4>Q3. Can Public Wi-Fi access providers resell capacity and bandwidth to retail users? Is “light touch regulation” using methods such as “registration” instead of “licensing” preferred for them?</h4>
<p><strong>3.7.</strong> CIS holds that capacity and bandwidth are neither comparable to tangible goods nor to digital currency. They are a utility, and the provider of the utility has to accept that their customers use the utility in the way they see fit, even if that use entails sharing said capacity and bandwidth with downstream private persons or customers. Wi-Fi capabilities are currently a built-in standardised feature of all consumer routers. Any individual, community, or store with access to an internet connection and a consumer router could become a public Wi-Fi access provider at no additional cost to themselves, furthering the goals of the Indian government in its Digital India strategy to ensure public and universal access to the internet.</p>
<p><strong>3.8.</strong> In order to exploit the opportunities awarded by a large amount of entities in the Indian society potentially becoming Public Wi-Fi providers, TRAI should require neither registration nor licensing of these actors. Imposing administrative burdens on potential public Wi-Fi access providers creates legal uncertainty and will cause a lot of actors, who may otherwise contribute to the goals of Digital India, not to do so. This is particularly true for community organisers and citizens, who may not have access to legal assistance and therefore may avoid contributing to the goals of the government.</p>
<p><strong>3.9.</strong> Light touch regulation when it comes to both granting license to public Wi-Fi access providers as well as authentication of retail users, however, are needed not only as an exceptional practice for such instances but as a general practice in case of entities offering public Wi-Fi services, either commercially or otherwise. Further, additional laxity in administrative responsibilities is needed to incentivise provision of free, that is non-commercial, public Wi-Fi networks.</p>
<h4>Q4. What should be the regulatory guidelines on “unbundling” Wi-Fi at access and backhaul level?</h4>
<p><strong>3.10.</strong> The Note refers to unbundling of activities related to provision of Wi-Fi but it does not define the term. It is neither explained which specific activities at access and backhaul levels must be considered for unbundling.</p>
<p><strong>3.11.</strong> While unbundling should clearly be allowed and any regulatory hurdles to unbundling should be removed, any such decision must be taken with a focus on urgently addressing the stagnated growth in landline and backhaul, as identified in Section C.6.a of the Note. Relying only on spectrum intensive infrastructures, such as mobile base stations, for providing connectivity, creates a heavy regulatory burden for the TRAI, while simultaneously not ensuring optimal connectivity for business and private users. The CIS is concerned that the focus of the Note on standardising a government-mediated authentication and payment mechanism detracts attention from this urgent obstacle to the fulfillment of the Digital India plans of accelerated provision of broadband highways, universal access, and public, especially free, access to internet services.</p>
<p><strong>3.12.</strong> From the example of European telecommunications legislations, implementation of policy measures to ensure that vertical integration between infrastructure (say, cables, switches, and hubs) providers and service (say, providing a subscriber with a household modem or a SIM card) providers in the telecommunications sector does not become a barrier to new market entrants has yielded much success in countries that have pursued it, like Sweden and Great Britain.</p>
<p><strong>3.13.</strong> Further, there should be no default assumption of bundling by the TRAI. In particular, the TRAI should consider reviewing all regulations that may cause bundling to occur when this is not necessary, and put in place in a monitoring mechanism for ensuring that bundled practises (especially in electronic networks, base station infrastructures, backhaul and similar) do not cause competitive problems or raise market entry barriers <strong>[9]</strong>. In most EU countries, especially where the corporate structure of incumbent(s) is not highly vertically integrated, interconnection requirements for electronic network providers of wired networks in the backhaul or backbone (effectively price regulated interconnection), and a conscious effort to ensure that new market players can enter the field, have ensured a competitive telecommunications environment. TRAI may consider reviewing the European regulation on local loop unbundling (1999) and discussions on functional separation (especially by the British regulatory authority Ofcom), within an Indian context.</p>
<h4>Q5. Whether reselling of bandwidth should be allowed to venue owners such as shop keepers through Wi-Fi at premise? In such a scenario please suggest the mechanism for security compliance.</h4>
<p><strong>3.14.</strong> Yes. Venue owners should be allowed to provide public Wi-Fi service both on a commercial and non-commercial basis.</p>
<p><strong>3.15.</strong> It is not clear from the Note and the question what type of security concerns the TRAI is seeking to address. In terms of payment security, the payment industry already has a large range of verification and testing mechanisms. The CIS objects to the mandatory introduction of the proposed payment system so as to ensure greater security for Wi-Fi access providers and the users.</p>
<p><strong>3.16.</strong> As far as hardware-related security issues are concerned, it is again unclear why consumer equipment compliant with existing Wi-Fi standards would not be sufficiently secure in the Indian context. Wi-Fi has proven to be a sturdy technical standard, its adoption is high in multiple jurisdictions around the world, and it also enjoys great technical stability. Similar security assessments could easily be made for alternative wireless technologies, such as WiMaX.</p>
<p><strong>3.17.</strong> The CIS foresees problems is in the allocation of risk and liability by law. The already existing legal obligation to verify the identity of each user, for instance, is likely to introduce a large administrative burden on potential Public Wi-Fi providers, which may lead to such potential providers abstaining from entering the market. Should the identification requirement be removed, however, other concerns pertaining to legal obligations may arise. These include liability for user activities on the web or on the internet (cf. copyright infringement, libel, hate speech). We propose a “safe harbour” mechanism in these cases, limiting the liability of the potential public Wi-Fi provider.</p>
<h4>Q6. What should be the guidelines regarding sharing of costs and revenue across all entities in the public Wi-Fi value chain? Is regulatory intervention required or it should be left to forbearance and individual contracting?</h4>
<p><strong>3.18.</strong> The market segments identified by the TRAI in Section F.18 of the Note should normally all be competitive markets themselves, and so do not require regulatory assistance in sharing of costs and revenues. The more elaborate the requirements imposed on each actor of each market segment identified by the TRAI in Section F.18, the more costly the roll-out of public Wi-Fi is going to be for the market actors. Such a cost is not avoided by price regulation.</p>
<p><strong>3.19.</strong> The TRAI may instead consider introducing public funding for backhaul roll-out in remote areas, where the market is unlikely to engage in such roll-out on its own. Presently, some Indian states (such as Karnataka) are committing to public funding for wireless access in remote areas. The Union Government can assist such endeavours.</p>
<h2>Endnotes</h2>
<p><strong>[1]</strong> See: <a href="http://cis-india.org/">http://cis-india.org/</a>.</p>
<p><strong>[2]</strong> See: <a href="http://trai.gov.in/Content/ConDis/20801_0.aspx">http://trai.gov.in/Content/ConDis/20801_0.aspx</a>.</p>
<p><strong>[3]</strong> See Section C.6 of the Note.</p>
<p><strong>[4]</strong> See: <a href="http://trai.gov.in/Content/ConDis/20782_0.aspx">http://trai.gov.in/Content/ConDis/20782_0.aspx</a>.</p>
<p><strong>[5]</strong> See: <a href="http://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks">http://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks</a>.</p>
<p><strong>[6]</strong> See Section E.11. of the Note.</p>
<p><strong>[7]</strong> See: <a href="http://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks">http://cis-india.org/telecom/blog/cis-submission-to-trai-consultation-on-proliferation-of-broadband-through-public-wifi-networks</a>.</p>
<p><strong>[8]</strong> See: <a href="https://www.wi-fi.org/">https://www.wi-fi.org/</a>.</p>
<p><strong>[9]</strong> See: Monitoring bundled products in the telecommunications sector is also recommended by the OECD: <a href="http://oecdinsights.org/2015/06/22/triple-and-quadruple-play-bundles-of-communication-services-towards-all-in-one-packages/">http://oecdinsights.org/2015/06/22/triple-and-quadruple-play-bundles-of-communication-services-towards-all-in-one-packages/</a>.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/cis-submission-trai-note-on-interoperable-scalable-public-wifi'>https://cis-india.org/telecom/blog/cis-submission-trai-note-on-interoperable-scalable-public-wifi</a>
</p>
No publisherJapreet Grewal, Pranesh Prakash, Sharath Chandra, Sumandro Chattapadhyay, Sunil Abraham, and Udbhav Tiwari, with expert comments from Amelia AndersdotterDigital PaymentPublic Wireless NetworkTRAIInternet GovernanceTelecomFeaturedAadhaarHomepageUID2016-12-12T13:59:00ZBlog EntryCIS Comments on TRAI Consultation Paper on Promoting Local Telecom Equipment Manufacturing
https://cis-india.org/telecom/blog/cis-comments-on-promoting-local-telecom-equipment-manufacturing
<b>The Centre for Internet & Society (CIS) sent comments to the TRAI Consultation Paper on promoting telecom equipment manufacturing. CIS submission drew primarily from the research done in the Pervasive Technologies project.</b>
<p><b><a class="external-link" href="http://trai.gov.in/sites/default/files/CP_on_Manufacturing_18_09_17.pdf">Read TRAI's Consultation Paper on Promoting Local Telecom Equipment Manufacturing </a></b></p>
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<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><b><span>Preliminary</span></b></p>
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<p style="text-align: justify; "><b><span> </span></b></p>
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<li style="text-align: justify; "><span>This submission presents comments by the Centre for Internet and Society, India ("<b>CIS</b>") on the <i>Consultation Paper on Promoting Local Telecom Equipment Manufacturing </i>dated 18.09. 2017, released by the Telecom Regulatory Authority of India (TRAI), under Department of Telecom, Ministry of Communications and Information Technologies (“<b>the TRAI Consultation Paper</b>”).</span><span> </span></li>
<li style="text-align: justify; "><span>We commend TRAI for its efforts at seeking inputs from various stakeholders on this important and timely issue and are thankful for the opportunity to put forth our views.</span></li>
<li style="text-align: justify; "><span>We have addressed questions 3 and 5 of the TRAI Consultation Paper. Question numbers referred to in our submission correspond to those in the TRAI Consultation Paper.</span><span> </span></li>
<li style="text-align: justify; "><span>Further, the Department of Industrial Planning and Promotion (DIPP) invited comments on SEPs and their availability on FRAND terms on 01. 03. 2016.<a href="#_ftn1" name="_ftnref1"><span>[1]</span></a> CIS submitted a detailed response to the consultation, and our present submission will draw significantly from our earlier response<a href="#_ftn2" name="_ftnref2"><span>[2]</span></a>, as well as new empirical research concluded in the since the time of the consultation.</span></li>
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<p style="text-align: justify; "><span> </span></p>
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<p style="text-align: justify; "><b><span>About CIS<br /></span></b></p>
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<p style="text-align: justify; "><span> </span></p>
<ol style="text-align: justify; ">
<li style="text-align: justify; "><span>CIS<a href="#_ftn3" name="_ftnref3"><span>[3]</span></a> is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. Our areas of focus include IP rights, openness, internet governance, telecommunication reform, free speech, intermediary liability, digital privacy, cyber-security, and accessibility for persons with diverse abilities.</span><span> </span></li>
<li style="text-align: justify; "><span>We strive to maximise public benefit, useful innovation, vibrant competition and consumer welfare. This submission is consistent with our commitment to the domestic goals (as enumerated in Make in India and Digital India), and the protection of India's national interest at the international level. </span></li>
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<p style="text-align: justify; "><span> </span></p>
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<p style="text-align: justify; "><b><span>Submission on the Issues for Resolution<br /></span></b></p>
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<p style="text-align: justify; "><b><i><span>“Q.3 Are the existing patent laws in India sufficient to address the issues of local manufacturers? If No, then suggest the measures to be adopted and amendments that need to be incorporated for supporting the local telecom manufacturing industry.</span></i></b><span>”</span></p>
<p style="text-align: justify; "><span>We submit that amendments to the Patents Act, 1970 may not be preferred, presently. It may be noted that there have been no judgments concluded by Indian courts on disputes relating to licensing of SEPs, yet. Justice Bakhru’s landmark order in <i>Telefonaktiebolaget LM Ericsson (Publ) </i>v. <i>Competition Commission of India (2016) </i>provided valuable clarity on the issue of conflict between remedies under Patents Act, 1970 and Competition Act, 1970. As various other matters are yet to be conclusively decided, and given the complex legal questions involved around the interpretation of Patents Act, 1970 and Competition Act, 2002, and constitutional issues around the jurisdiction of regulators and the power of judicial review of the courts, we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.</span></p>
<p style="text-align: justify; "><span>However, to support the local telecom manufacturing industry the Government of India may adopt and implement the following measures: </span></p>
<ol style="text-align: justify; ">
<li style="text-align: justify; "><b><span> <span>Develop Model Guidelines to improve the working of Indian Standard Setting Organisations (SSOs</span>): </span></b><span>Given the increasing complexity and time-consuming nature of SEP litigation in India, there is a tangible threat of the abuse of the FRAND process, it might be useful for the government to make suggestions on the working of Indian SSOs. The functioning of Indian SSOs has not been satisfactory and it is suggested that the government develop Model Guidelines that may be adopted by Indian SSOs, taking into account India specific requirements. The India specific requirements include a large and exponentially growing mobile device market which has made it possible for manufacturers, patent owners and implementers alike to achieve financial gains even with a low margin. We believe that this measure will also enable the fulfillment of the objectives of the Make in India and Digital India initiatives.</span><span><br /><br />We recommend that various stakeholders, including IP holders, potential licensees and users of IP, civil society organizations, academics, and, government bodies, including the Indian Patent Office, the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.</span><span><br /><br />In our opinion, the Model Guidelines may cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.<br /><br /></span></li>
<li style="text-align: justify; "><b><span><span>Initiate the formation of a patent pool of critical mobile technologies and cap royalty payments</span></span></b><span><span>:</span></span><span> In light of the observed inadequacies in the IPR policies of various SSOs in India, as well the spate of ongoing patent infringement lawsuits around mobile technologies, we recommend that the government intervene in the setting of royalties and FRAND terms by setting up a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty. Further, patent pools should be required to offer FRAND licenses on the same terms to both members and nonmembers of the pool.</span><span> </span><span><br /><br />Our motivations for this proposal are manifold. In our opinion, it is nearly impossible for potential licensees to avoid inadvertent patent infringement. As a part of our research on technical standards applicable to mobile phones sold in India, we have found nearly 322 standards so far.<a href="#_ftn4" name="_ftnref4"><span>[4]</span></a> It is submitted that carrying out patent searches for all the standards would be extremely expensive for potential licensees. Further, even if such searches were to be carried out, different patent owners, SSOs and potential licensees disagree on valuation, essentiality, enforceability, validity, and coverage of patents. In addition, some patent owners are non-practising entities and may not be members of SSOs. The patents held by them are not likely to be disclosed. More importantly, homegrown manufacturers that have no patents to leverage and may be new entrants in the market would be especially disadvantaged by such a scenario. Budget phone manufacturers, standing to incur losses either as a result of heavy licensing fees, or, potential litigation, may close down. Alternatively, they may pass on their losses to consumers, driving the now affordable phones out of their financial reach. With the objectives of Make in India and Digital India in sight, it is essential that Indian consumers continue to have access to devices within their purchasing power.</span><span> </span><span><br /><br />Further, how did we arrive at a cap of 5 percent? The rationale for this figure is the royalty cap imposed by India in the early 1990s. As part of regulating foreign technology agreements, the (former) Department of Industrial Development (later merged with DIPP) capped royalty rates in the early 1990s. Payment of royalties was capped at either a lump sum payment of $2 million, or, 5 percent on the royalty rates charged for domestic sale, and, 8 percent for export of goods pertaining to “high priority industries”.<a href="#_ftn5" name="_ftnref5"><span>[5]</span></a> Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government. While the early 1990s (specifically, 1991) was too early for the mobile device manufacturing industry to be listed among high priority industries, the public announcement by the government covered computer software, consumer electronics, and electrical and electronic appliances for home use. The cap on royalty rates was lifted by the DIPP in 2009.<a href="#_ftn6" name="_ftnref6"><span>[6]</span></a> It is submitted in the case of mobile device technology, we are witnessing a situation similar to that of the 1990s. In this sphere, most of the patent holders are multinational corporations which results in large royalty amounts leaving India. At the same time, litigation over patent infringement in India has limited the manufacture and sale of mobile devices of homegrown brands. While SEP litigation in India is indeed comparable to international SEP litigation on broader issues raised, specifically competition law concerns, but differs crucially where the parties are concerned. International SEP litigation is largely between multinational corporations with substantial patent portfolios, capable of engaging in long drawn out litigations, or engaging in other strategies including setting off against each other’s patent portfolios. Dynamics in the Indian market differ – with a larger SEP holder litigating against smaller manufacturers, many of whom are indigenous, homegrown.</span><span><br /><br />In June, 2013, we had recommended to the erstwhile Hon’ble Minister for Human Resource Development<a href="#_ftn7" name="_ftnref7"><span>[7]</span></a> that a patent pool of essential technologies be established, with the compulsory licensing mechanism. Subsequently, in February, 2015, we reiterated this request to the Hon’ble Prime Minister.<a href="#_ftn8" name="_ftnref8"><span>[8]</span></a> We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license.<a href="#_ftn9" name="_ftnref9"><span>[9]</span></a> As we have stated in our request to the Hon’ble Prime Minister, we believe that such a pool would “<i>possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anticompetitive practices.</i>”<a href="#_ftn10" name="_ftnref10"><span>[10]</span></a> We believe that such a measure will not be in breach of our international obligations under the TRIPS Agreement.<br /><br /></span></li>
<li style="text-align: justify; "><b><span><span>Increase transparency in the patent system by making patentees comply with the law</span></span></b><span>: </span><span>The Patents Act, 1970 requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year.<a href="#_ftn11" name="_ftnref11"><span>[11]</span></a> Form 27 under section 146(2) of the Act lists the details necessary to be disclosed for compliance of the requirement of “working”. A jurisprudential analysis reveals the rationale and objective behind this mandatory requirement. Undeniably, the scheme of the Indian patent regime makes it amply clear that “working” is a very important requirement, and the public as well as competitors have a right to access this information in a timely manner, without undue hurdles. Indeed, as the decision<a href="#_ftn12" name="_ftnref12"><span>[12]</span></a> in <i>Natco Pharma </i>v. <i>Bayer Corporation<a href="#_ftn13" name="_ftnref13"><b><span>[13]</span></b></a></i> reveals, the disclosures in Form 27 were crucial to determining the imposition of a compulsory license on the patentee. <b>Thus, broadly, Form 27 disclosures can critically enable willing licensees to access patent “working” information in a timely manner</b>.</span><span> </span><span><br /><br />However, there has been little compliance of this requirement by the patentees, despite the Indian Patent Office (<b>IPO</b>) reiterating the importance of compliance through the issuance of multiple public notices<a href="#_ftn14" name="_ftnref14"><span>[14]</span></a> (suo motu and in response to a public interest litigation filed in 2011<a href="#_ftn15" name="_ftnref15"><span>[15]</span></a>), and, reminding the patentees that noncompliance is punishable with a heavy fine.<a href="#_ftn16" name="_ftnref16"><span>[16]</span></a> Findings of research submitted by one of the parties<a href="#_ftn17" name="_ftnref17"><span>[17]</span></a> in the writ of the 2011 public interest <i>litigation Shamnad Basheer v. Union of India</i> <i>and others</i><a href="#_ftn18" name="_ftnref18"><span>[18]</span></a> reveal as follows. First, a large number of Form 27s are unavailable for download from the website of the IPO. This possibly indicates that the forms have either not been filed by the patentees with the IPO, or have not been uploaded (yet) by the IPO. Second, a large number of filings in the telecom sector remain incomplete.</span><span><br /><br />In 2015, CIS queried the IPO website for Form 27s of mobile device patents to arrive at a similar conclusion. We obtained 4,916 valid Form 27s, corresponding to 3,126 mobile device patents from public online records. These represented only 20.1% of all Forms 27 that should have been filed and corresponded to only 72.5% of all mobile device patents for which Forms 27 should have been filed. Forms 27 were missing for almost all patentees, and even among Forms 27 that were obtained, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Indian Patent Rules.<a href="#_ftn19" name="_ftnref19"><span>[19]</span></a></span><span><br /><br />Further, in our study, we observed that patentees adopted drastically different positions regarding the definition of patent working, some arguing that importation of products into India or licensing of Indian suppliers constituted working, while others even went so far as to argue that the granting of a worldwide license to a non-Indian firm constituted working in India. Several significant patentees claimed that they or their patent portfolios were simply too large to enable the provision of information relating to individual patents, and instead provided gross revenue and product sale figures, together with historical anecdotes about their long histories in India.</span><span><br /><br />The Indian government has made little or no effort to monitor or police compliance with Form 27 filings, undoubtedly leading to significant non-compliance. We also propose the alteration of the Form 27 template<a href="#_ftn20" name="_ftnref20"><span>[20]</span></a> to include more disclosures.<a href="#_ftn21" name="_ftnref21"><span>[21]</span></a> Presently, patentees are required to declare number of licensees and sub-licensees. We specifically propose that the format of Form 27 filings be modified to include patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.<br /><br /></span></li>
<li style="text-align: justify; "><span><b>Require royalty rates to be decided on the basis of the Smallest Saleable Patent Practicing Component: </b>Most modern telecommunication and IT devices are complex with numerous technologies working in tandem. Different studies indicate that the number of patents in the US applicable to smartphones is between 200,000 and 250,000.<a href="#_ftn22" name="_ftnref22"><span>[22]</span></a> A comprehensive patent landscape of mobile device technologies conducted by CIS reveals that nearly 4,000 patents are applicable to mobile phones sold in India.<a href="#_ftn23" name="_ftnref23"><span>[23]</span></a> It is thus extremely difficult to quantify the exact extent of interaction and interdependence between technologies in any device, in such a way that the exact contribution of the patented technology to the entire device can be determined. Thus, we submit that royalty rates for SEPs should be based on the <i>smallest saleable patent practising component</i>, and not on the net price of the downstream product.</span><span><br /><br />The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al<a href="#_ftn24" name="_ftnref24"><span>[24]</span></a> have found that the cost of a 4G baseband chip costs up to $20 including royalties in a hypothetical $400 phone sold in the US. One of the litigating parties in the ongoing patent infringement lawsuits in India has stated that one of the reasons for preferring to leverage its patents as downstream as possible in the value chain is that it will earn the company more royalties.<a href="#_ftn25" name="_ftnref25"><span>[25]</span></a> In instances where patent exhaustion occurs much earlier in the value chain, such as in the case of the company’s cross-licenses with Qualcomm (another company that owns patents to chip technologies), the company does not try to obtain royalties from the selling prices of devices for the cross-licensed technologies. It is submitted that such market practices could be detrimental to the government’s objectives such as providing a mobile handset to every Indian by 2020 as a part of the Digital India programme.<a href="#_ftn26" name="_ftnref26"><span>[26]</span></a> It is also worth noting in this context that the mobile device is the first and only medium of access to the Internet and telecom services for a large number of Indians, and, consequently, the only gateway to access to knowledge, information and critical services, including banking.<a href="#_ftn27" name="_ftnref27"><span>[27]</span></a></span><b><i><span><br /><br /> “Q.5 Please suggest a dispute resolution mechanism for determination of royalty distribution on FRAND (Fair Reasonable and Non Discriminatory) basis.”</span></i></b><span><br /><br />The licensing of SEPs on FRAND terms requires the parties to negotiate “reasonable” royalty rates in good faith, and apply the terms uniformly to all willing licensees. It is our submission that if the parties cannot agree to FRAND terms, they may enter into <b>binding arbitration</b>. Further, if all efforts fail, there exist remedies under the Patents Act and the Competition Act, 2002 to address the issues.</span><span><br /><br />Section 115 of the Patents Act empowers the court to appoint an independent scientific adviser “<i>to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose.</i>”<a href="#_ftn28" name="_ftnref28"><span>[28]</span></a> Such an independent adviser may inform the court on the technical nuances of the matter.</span><span><br /><br />Further<b>, </b>under the Patents Act, pending the decision of infringement proceedings the Court may provide interim relief, if the plaintiff proves <i>first, </i>a prima facie case of infringement; <i>second, </i>that the balance of convenience tilts in plaintiff’s favour; and, <i>third, </i>that if an injunction is not granted the plaintiff shall suffer irreparable damage. However, it is our suggestion that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation. <i>First, </i>in our opinion, injunctions may prove to be a deterrent to arrive at a FRAND commitment, in particular, egregiously harming the willing licensee. <i>Second, </i>especially in the Indian scenario, where litigating parties operate in vastly different price segments (thereby targeting consumers with different purchasing power), it is difficult to establish that “irreparable damage” has been caused to the patent owner on account of infringement. <i>Third, </i>we note the approach of the European Court of Justice, which prohibited the patent holder from enforcing an injunction provided a willing licensee makes an offer for the price it wishes to pay to use a patent under the condition that it deposited an amount in the bank as a security for the patent holder.<a href="#_ftn29" name="_ftnref29"><span>[29]</span></a> <i>Fourth, </i>we also note the approach of the Federal Trade Commission in the USA, which only authorizes patent holders to seek injunctive relief against potential licensees who have either stated that they will not license a patent on any terms, or refuse to enter into a license agreement on terms that have been set in the final ruling of a court or arbitrator.<a href="#_ftn30" name="_ftnref30"><span>[30]</span></a> Further, as Contreras (2015)<a href="#_ftn31" name="_ftnref31"><span>[31]</span></a> observes, that the precise boundaries of what constitutes as an unwilling licensee remains to be seen. We observe a similar ambiguity in Indian jurisprudence, and accordingly submit that courts should carefully examine the conduct of the licensee to injunct them from the alleged infringement.</span></li>
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<p style="text-align: justify; "><b>Concluding Remarks</b></p>
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<p style="text-align: justify; "><span>We are thankful to TRAI for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these comments with the TRAI; and, supplement these with further submissions if necessary. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India.</span></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1"><span>[1]</span></a> Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms, available at <a href="https://cis-india.org/a2k/blogs/discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms">https://cis-india.org/a2k/blogs/discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms</a> (last accessed November 13, 2017)</p>
<p style="text-align: justify; "><a href="#_ftnref2" name="_ftn2"><span>[2]</span></a> Anubha Sinha, Nehaa Chaudhari and Rohini Lakshane, “CIS’ Comments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms” (April 23, 2016); available at <a href="https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms">https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms</a></p>
<p style="text-align: justify; "><a href="#_ftnref3" name="_ftn3"><span>[3]</span></a> <a href="http://www.cis-india.org">www.cis-india.org</a></p>
<p style="text-align: justify; "><a href="#_ftnref4" name="_ftn4"><span>[4]</span></a> Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref5" name="_ftn5"><span>[5]</span></a> Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at http://www.businessstandard.com/article/economypolicy/newsonroyaltypaymentbringscheerinnewyear11001 0400044_1.html (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref6" name="_ftn6"><span>[6]</span></a> See Sanjana Govil, Putting a Lid on Royalty Outflows How the RBI Can Help Reduce India’s IP Costs <i>, </i>available at <a href="http://cisindia.org/a2k/blogs/lidonroyaltyoutflows">http://cisindia.org/a2k/blogs/lidonroyaltyoutflows</a> (last accessed 13 November, 2017) for a discussion on the introduction of royalty caps in the early 1990s, and its success in reducing the flow of money out of India.</p>
<p style="text-align: justify; "><a href="#_ftnref7" name="_ftn7"><span>[7]</span></a> Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low cost Access Devices through Compulsory</p>
<p style="text-align: justify; ">Licenses, available at <a href="http://cisindia.org/a2k/blogs/letterforestablishmentofpatentpoolforlowcostaccessdevices">http://cisindia.org/a2k/blogs/letterforestablishmentofpatentpoolforlowcostaccessdevices </a>(last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref8" name="_ftn8"><span>[8]</span></a> See Rohini Lakshané, Open Letter to PM Modi, available at <a href="http://cisindia.org/a2k/blogs/openlettertoprimeministermodi">http://cisindia.org/a2k/blogs/openlettertoprimeministermodi</a> (last accessed 13 November, 2017) for further details of CIS’ proposal.</p>
<p style="text-align: justify; "><a href="#_ftnref9" name="_ftn9"><span>[9]</span></a> Rohini Lakshané, FAQ: CIS’ proposal to form a patent pool of critical mobile technology, September 2015, available at <a href="http://cisindia.org/a2k/blogs/faqcisproposalforcompulsorylicensingofcriticalmobiletechnologies">http://cisindia.org/a2k/blogs/faqcisproposalforcompulsorylicensingofcriticalmobiletechnologies </a>(last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref10" name="_ftn10"><span>[10]</span></a> Id.</p>
<p style="text-align: justify; "><a href="#_ftnref11" name="_ftn11"><span>[11]</span></a> Section 146(2) of the Patents Act, 1970.</p>
<p style="text-align: justify; "><a href="#_ftnref12" name="_ftn12"><span>[12]</span></a> Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at <a href="http://spicyip.com/2013/02/patentofficefinallytakesform27s.html">http://spicyip.com/2013/02/patentofficefinallytakesform27s.html</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref13" name="_ftn13"><span>[13]</span></a> Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at <a href="http://www.ipab.tn.nic.in/0452013.htm">http://www.ipab.tn.nic.in/0452013.htm</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref14" name="_ftn14"><span>[14]</span></a> Intellectual Property India, Public Notice, available at</p>
<p style="text-align: justify; "><a href="http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf">http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf</a> ((last accessed 13 November, 2017) <i>and </i>Intellectual Property India, Public Notice, available at <a href="http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf">http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref15" name="_ftn15"><span>[15]</span></a> Supra note 11.</p>
<p style="text-align: justify; "><a href="#_ftnref16" name="_ftn16"><span>[16]</span></a> Id.</p>
<p style="text-align: justify; "><a href="#_ftnref17" name="_ftn17"><span>[17]</span></a> See research findings available at <a href="http://spicyip.com/wpcontent/uploads/2015/05/FORM27WP1Rcopy.pdf">http://spicyip.com/wpcontent/uploads/2015/05/FORM27WP1Rcopy.pdf</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref18" name="_ftn18"><span>[18]</span></a> In the High Court of Delhi, W.P.(C) 5590/2015. This litigation is currently ongoing. See, illustratively, Mathews P. George, <i>Patent Working in India: Delhi HC issues notice in Shamnad Basheer </i>v<i>. Union of India & Ors. – I </i>, available at <a href="http://spicyip.com/2015/09/patentworkinginindiadelhihcissuesnoticeinshamnadbasheervunionofindiaorsi.html">http://spicyip.com/2015/09/patentworkinginindiadelhihcissuesnoticeinshamnadbasheervunionofindiaorsi.html</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref19" name="_ftn19"><span>[19]</span></a> Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law, Forthcoming. Available at SSRN: <a href="https://ssrn.com/abstract=3004283">https://ssrn.com/abstract=3004283</a></p>
<p style="text-align: justify; "><a href="#_ftnref20" name="_ftn20"><span>[20]</span></a> Form 27, The Patents Act, available at <a href="http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20%20html/Forms/Form27.pdf">http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20%20html/Forms/Form27.pdf</a> (last accessed November 13, 10`7).</p>
<p style="text-align: justify; "><a href="#_ftnref21" name="_ftn21"><span>[21]</span></a> However, we came across some complaints raised by patentees and industry observers regarding the structure of the Form 27 requirement - namely, patents covering complex, multi-component products that embody dozens of technical standards and thousands of patents are not necessarily amenable to the individual-level data requested by Form 27. See Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law, Forthcoming. Available at SSRN: <a href="https://ssrn.com/abstract=3004283">https://ssrn.com/abstract=3004283</a></p>
<p style="text-align: justify; "><a href="#_ftnref22" name="_ftn22"><span>[22]</span></a> Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking, <i>85 Tex. L. Rev. at 2015 </i>; See also, for e.g.,</p>
<p style="text-align: justify; ">RPX Corporation, Amendment No. 3 to Form Sl,11 Apr. 2011, at 59, available at http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm (last accessed 22 April, 2016), quoting <i>“Based on our research, we believe there are more than 250,000 active patents relevant to today’s</i></p>
<p style="text-align: justify; "><i>smartphones…” </i>.; See further Steve Lohr, Apple Samsung Case Shows Smartphone as Legal Magnet, New York Times, 25 Aug. 2012, available at <a href="http://www.nytimes.com/2012/08/26/technology/applesamsungcaseshowssmartphoneaslawsuitmagnet">http://www.nytimes.com/2012/08/26/technology/applesamsungcaseshowssmartphoneaslawsuitmagnet</a>.html (last accessed November13, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref23" name="_ftn23"><span>[23]</span></a> Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref24" name="_ftn24"><span>[24]</span></a> Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The SmartphoneRoyalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at <a href="https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/TheSmartphoneRoyaltyStackArmstrongMuellerSyrett.pdf">https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/TheSmartphoneRoyaltyStackArmstrongMuellerSyrett.pdf</a> (last accessed 13 November, 2017)</p>
<p style="text-align: justify; "><a href="#_ftnref25" name="_ftn25"><span>[25]</span></a> Florian Mueller, Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at <a href="http://www.fosspatents.com/2014/01/ericssonexplainedpubliclywhyits.Html">http://www.fosspatents.com/2014/01/ericssonexplainedpubliclywhyits.Html</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref26" name="_ftn26"><span>[26]</span></a> Romit Guha and Anandita Singh Masinkotia, PM Modi’s Digital India Project:Government to Ensure that Every Indian has a Smartphone by 2019, available at <a href="http://articles.economictimes.indiatimes.com/20140825/news/53205445_1_digitalindiaindiatodayfinancialservices">http://articles.economictimes.indiatimes.com/20140825/news/53205445_1_digitalindiaindiatodayfinancialservices</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref27" name="_ftn27"><span>[27]</span></a> Nehaa Chaudhari, Standard Essential Patents on Low Cost Mobile Phones in India: A Case to Strengthen Competition Regulation? available at <a href="http://www.manupatra.co.in/newsline/articles/Upload/08483340C1B94BA4B6A9D6B6494391B8.pdf">http://www.manupatra.co.in/newsline/articles/Upload/08483340C1B94BA4B6A9D6B6494391B8.pdf</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref28" name="_ftn28"><span>[28]</span></a> Section 115 of the Patents Act, 1970.</p>
<p style="text-align: justify; "><a href="#_ftnref29" name="_ftn29"><span>[29]</span></a> <i>Huawei Technologies Co. Ltd </i>v. <i>ZTE Corp. and ZTE Deutschland </i>, Judgment of the Court (Fifth Chamber) of 16 July 2015 in GmbH C170/13.</p>
<p style="text-align: justify; "><a href="#_ftnref30" name="_ftn30"><span>[30]</span></a> Third Party United States Fed. Trade Commission’s Statement on the Public Interest, <i>In re Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof</i>, U.S. Int’l Trade Comm’n, Inv. No. 337TA745 (Jun. 6, 2012).</p>
<p style="text-align: justify; "><a href="#_ftnref31" name="_ftn31"><span>[31]</span></a> Jorge L. Contreras, A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens <i>, </i>80 Antitrust Law Journal 39 (2015), available at h ttp://ssrn.com/abstract=2374983 or <a href="http://dx.doi.org/10.2139/ssrn.2374983">http://dx.doi.org/10.2139/ssrn.2374983</a> (last accessed 13 November, 2017).</p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/cis-comments-on-promoting-local-telecom-equipment-manufacturing'>https://cis-india.org/telecom/blog/cis-comments-on-promoting-local-telecom-equipment-manufacturing</a>
</p>
No publishersinhaTelecomFeaturedHomepage2017-11-26T02:56:15ZBlog EntryCIS anniversary
https://cis-india.org/news/the-hindu-business-line-may-5-2013-cis-anniversary
<b>The Centre for Internet and Society will celebrate five years of its existence with an exhibition showcasing its works and accomplishments. </b>
<hr />
<p class="body" style="text-align: justify; ">This was published in <a class="external-link" href="http://www.thehindubusinessline.com/news/cis-anniversary/article4686344.ece">Hindu Business Line</a> on May 5, 2013</p>
<hr />
<p class="body" style="text-align: justify; ">The exhibition will be held concurrently at both Bangalore and Delhi offices from May 20 to 24, 2013, said a press release.</p>
<p class="body" style="text-align: justify; ">“To promote transparency, we're getting the general public to be our auditors by throwing open our account books and contracts which show how we have spent the Rs 8.3 crore received from our donors.”</p>
<p class="body" style="text-align: justify; ">The exhibition will also see artists like Kiran Subbaiah, Tara Kelton, Navin Thomas, Abhishek Hazra, among others exhibiting their works, as well as lectures.</p>
<p>
For more details visit <a href='https://cis-india.org/news/the-hindu-business-line-may-5-2013-cis-anniversary'>https://cis-india.org/news/the-hindu-business-line-may-5-2013-cis-anniversary</a>
</p>
No publisherpraskrishnaAccess to KnowledgeDigital NativesTelecomAccessibilityInternet GovernanceOpennessResearchers at Work2013-05-06T07:28:07ZNews ItemChina Club instead of Bombay Club?
https://cis-india.org/telecom/blog/China-club-Bombay-club
<b>Emulate China's coordinated policies for strategic sectors, and we'll rely less on commodity exports, says Shyam Ponappa in his article in the Business Standard on May 13, 2010.</b>
<p>With the momentum of the past few years, India’s potential for growth is enormous, despite the chaotic loose linkages. In sectors like power and telecommunications, this translates to demand far outstripping capacity. Some contend that domestic inability to build capacity — i.e., being able to actually pull it off, as against the perpetual potential — will conscribe not only these sectors, but also limit overall growth. So the argument goes, e.g., let China build India’s power plants, because we need the power and don’t have capacity/they do it cheaper.</p>
<p>Comparative advantage notwithstanding, this reasoning is fallacious given the realities of national interests and self-interest. To understand why, consider the naïveté of the underlying assumptions — about “rational man”, that capitalism is fair, capital is immobile, surplus value accrues to countries and not to companies, or that the pursuit of self-interest maximises societal <a class="external-link" href="http://www.lsd.ic.unicamp.br/~oliva/papers/free-software/BMind.pdf">benefits</a>.</p>
<p>Our quandary is aggravated by our inability so far to orchestrate supportive policies for even a level playing field. Ironically, one need only consider India’s approach to IT and IT-enabled services (ITeS) in the initial growth years to realise this. India’s policies in IT and ITeS, while far from perfect — in fact, sneaked through by stealth, as in the preferential 64 kbps communications lifeline, and the tax breaks for software service exporters — provided the foundations for transforming IT and then ITeS/BPO/KPO (Business Process and Knowledge Process Outsourcing).</p>
<p>These sectors also benefited from a controlled exchange rate, as the Reserve Bank of India (RBI) managed a steady depreciation during those years. But they did not have another vital ingredient of coordinated policies as did the Asian tigers: low borrowing rates (<a class="external-link" href="http://www.business-standard.com/general/pdf/050610_03.jpg">see the diagram</a>)</p>
<p>This is one reason why, for instance, India’s machine tool manufacturers or shipbuilders have not matched the growth of knowledge-based services. The former need inexpensive, long-term capital for production and marketing, as well as for continuous innovation, upgrade and <a class="external-link" href="http://www.wu.ac.at/europainstitut/noeg/raju_s2.3-2">scale</a>.</p>
<h3>Why labour arbitrage and not products</h3>
<p>This is also one reason why we lack product orientation, because product design, development and marketing require the support of easy access to cheap capital for a long period. Labour arbitrage needs little capital. Therefore, we have been better mercenaries than producers of products, compared with the chaebols (Samsung, Hyundai) or keiretsu (Mitsubishi, Dai-Ichi/Mizuho). There are, of course, many additional reasons: their education, training, work practices, our policies against large corporations, etc.</p>
<p>With growth in domestic markets across a broad range — telecom equipment, engineering goods, power — there are domestic manufacturing initiatives, such as L&T and Bharat Forge in power generation joining Bhel, or Tejas Networks in optical switching. But for the transformational changes we have witnessed in IT, we need coordinated industrial policies that support domestic manufacturing, because that’s the competition. Unthinking acceptance of “open markets” without heed to how others — including developed economies — cosseted and built their manufacturing capacity will ensure that India stays a raw materials and commodities exporter, while importing trains, aircraft, machine tools, and equipment for power generation, telecommunications and defence.</p>
<h3>Integrated policies work</h3>
<p>Ideally, supportive policies comprise a coordinated range, such as state and central taxes, favoured locations with good infrastructure — energy, transport and communications, subsidised land, favourable exchange and interest rates, preferred access to domestic markets, and barriers to unfair competition, like import tariffs not below the WTO floor, and safeguard duties. Without this orchestration, the victors are companies and countries that have understood these principles, and have these systems in place. (This applies equally to farm products.)</p>
<p>Many are apprehensive that what works elsewhere will not work in India because of malpractices, as seen in recurring scams. There is every need for systems with integrity, and for enforcement with penalties. But just as corruption in government or civil society does not do away with the need for either, misuse does not negate the need for incentives. It would be self-damaging to lose the opportunity to try and get our act together simply because of apprehensions of corruption and/or incompetence. That would be like not subsidising food for the poor; it’s a different matter that we need better methods to prevent gross misappropriation.</p>
<p>The consequence of heedless, ad hoc muddling through instead of orchestrated strategies is that manufactured imports will dominate our markets, while domestic manufacturing is fragmented, hamstrung or absent. Having said that, consider India’s needs in electricity or communications — telecom, Internet and broadcasting — and it is apparent that crafting policies is not simple. So many conflicting images, some based on facts, others, mere impressions, which are often more important than facts. What should policy-makers do for our needs on such a massive scale with growing shortfalls?</p>
<h3>Emulate China</h3>
<p>The short answer: learn from China. In the power sector, Chinese suppliers have the following advantages:</p>
<ul><li>
<p>Low-cost access to capital.</p>
</li><li>
<p>An exchange rate advantage (10-30 per cent).</p>
</li><li>
<p>No sales tax and octroi, aggregating to about 11 per cent.</p>
</li><li>
<p>Zero customs duty on equipment for large plants (China imposes a 30 per cent import duty)</p>
</li></ul>
<p>Corrective action discussed for years has not resulted in concrete steps. The power ministry, citing supposed user benefits, opposes the planning commission’s recommendation of a safeguard duty. This is as shortsighted as “free electricity” that undercuts investments in power.</p>
<p>In telecommunications, consider Huawei, with revenues of over $20 billion, nurtured for 20 years with the People’s Liberation Army (PLA) as an R&D partner and guaranteed customer, vis-à-vis, say, Tejas Networks from Bangalore, with no government support.</p>
<p>Our policies need to focus on our long-term interests with strategic intent and execution, as in other countries, balancing costs with the benefits of domestic capabilities. These sectors need government procurement support, not criteria that disqualify Indian companies in strategic sectors like power and communications. They also need interim methods for Chinese companies to contribute while upgrading our skills and processes. Our aim needs to be a level playing field.</p>
<p>Read the original article in the <a class="external-link" href="http://www.business-standard.com/india/storypage.php?autono=393889">Business Standard</a></p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/China-club-Bombay-club'>https://cis-india.org/telecom/blog/China-club-Bombay-club</a>
</p>
No publisherShyam PonappaTelecom2012-05-10T10:35:05ZBlog EntryChanging Our Game
https://cis-india.org/telecom/organizing-india-blogspot-in-shyam-ponappa-sep-5-2012-changing-our-game
<b>Adopting 'co-ordination models' like the Stag Hunt could reduce contention and improve outcomes.</b>
<hr />
<p style="text-align: justify; ">Shyam Ponappa's column was originally published in the <a class="external-link" href="http://business-standard.com/india/news/shyam-ponappa-changing-our-game/485364/">Business Standard</a> on September 5, 2012 and also posted in <a class="external-link" href="http://organizing-india.blogspot.in/2012/09/changing-our-game.html">Organizing India blogspot</a>.</p>
<hr />
<p style="text-align: justify; ">Consider the handling of irregularities in spectrum allocation and in coal mining rights. Instead of swiftly ring-fencing problem areas where there are allegations of culpability supported by prima facie evidence, then striving for good policies going forward, the ruling coalition and the Opposition are in a war of attrition. What began with the United Progressive Alliance’s turning a blind eye to the spectrum awards has turned into the Bharatiya Janata Party’s heedless flailing to tear down their opponents. Meanwhile, the confusion created by the pronouncements of the Comptroller and Auditor General and previously of the Telecom Regulatory Authority of India has vitiated conditions for constructive reform. Any solution that fails a populist screen is likely to be guillotined in the streets.</p>
<h3 style="text-align: justify; ">Contention versus co-operation</h3>
<p style="text-align: justify; ">There seems to be quite a contrast between our manifest contentiousness and our apparent friendliness. From our chaotic ways in traffic to dealing with each other and with our surroundings more generally, often, self-centred, short-term opportunism appears to override our better nature. As evidenced in the coalgate stand-off in Parliament, or our inability to establish adequate infrastructure, this cuts across all levels of individuals and groups. The irony is that no one gains, except the perpetrators and supporters of rip-offs and stand-offs. They, too, gain only in the short run, unless they’re not caught out. In the long run, everyone is worse off except the rogues who get away.</p>
<p>How did we get to this self-destructive state, and how might we get out? Insights from game theory could provide some perspective. One stark fact is that our interactions are predominately driven by self-interest that leads to contention, on the lines of a Prisoner’s Dilemma, <a href="#fn1" name="fr1">[1]</a> instead of a co-operative group- or common-interest model like the Stag Hunt.<a href="#fn2" name="fr2">[2]</a></p>
<p>The two models are described briefly below. For those who want to skip the description, read on after the next two paragraphs.</p>
<h3>Prisoner’s Dilemma</h3>
<p style="text-align: justify; ">Two men attempting a burglary with a weapon, A and B, are caught, with insufficient incriminating evidence for the burglary. They are questioned separately and not allowed to communicate. If both deny the burglary, they escape a 10-year sentence and will be imprisoned for two years for possession of a weapon. A is told separately that if B pleads guilty and A does not, B will get a reduced sentence of four years, while A will get 10. So A has an incentive to confess and get four years, too. A is also told that if he confesses, he can go free, while B gets 10 years. Therefore, the logical choice for A is to confess. The same logic applies to B. So, both confess and get four years, instead of both denying and getting only two years. The logical trap is that acting in one’s self-interest without communication and co-operation leads to a worse position.</p>
<h3 style="text-align: justify; ">Stag Hunt</h3>
<p style="text-align: justify; ">A group of hunters agree to wait for a stag in their assigned positions. If one sees a hare and shoots at it, the stag takes flight and the group loses out. The group and individuals gain most if individuals stick with their commitment and get the big prize. However, individuals may be tempted to defect by a less risky, smaller pay-off like a hare.</p>
<h3 style="text-align: justify; ">Logical trap: Self-interest leads to contention and lowest equilibrium</h3>
<p style="text-align: justify; ">In zero-sum games like cricket, tennis or football, where the total pay-off is the same no matter who wins, one participant gains at the expense of another. In most real-world encounters, however, players can improve their outcomes by co-operation and co-ordination. In other words, many everyday situations can be likened to non-zero-sum games, where one party’s win is not necessarily another’s loss. If individuals (or teams/groups) pursue their self-interest without co-operating and co-ordinating with other players, the pattern is like the Prisoner’s Dilemma, and a logical trap leads to a position of lowest equilibrium (the Nash Equilibrium). This position results from each player/group making the best decision that he/she/they can while taking into account the decisions of the others, and no one can act independently without worsening their position.</p>
<h3 style="text-align: justify; ">Co-ordinating better outcomes</h3>
<p style="text-align: justify; ">By contrast, if players can (a) co-operate and (b) decide through effective co-ordination, everyone gains. Examples are centrally sponsored projects executed in Opposition-run states – for highways or power, for example – or the backing of political parties for India’s 123 Agreement with America on nuclear co-operation.</p>
<p style="text-align: justify; ">Can we escape a logical trap and contention by adopting models that elicit co-operation and co-ordination? Game theory suggests that models based on trust and co-ordination like the Stag Hunt work for a big prize (the stag). The question is whether it is possible to move to a co-ordination model and, if so, how to do it. While there are no simple fixes, the University of Vienna’s evolutionary game theory models hold out some promise through providing insights into how patterns of co-operation can spread in populations.<a href="#fn3" name="fr3">[3]</a></p>
<p style="text-align: justify; ">There’s also the long, slow haul of structured education and training in collaborative problem solving. The techniques that need incorporation in our curricula from junior school through higher education, vocational training, and at work, are co-operative problem solving as an approach, and project management as a method. The latter starts with a clear definition of goals and objectives, followed by standard operating procedures covering the gamut of the logic of process flow for tasks, setting milestones/sub-objectives, critical paths, and individual and group responsibilities on timelines.</p>
<p style="text-align: justify; ">A second aspect where governments have to step in is institutional design — boldly initiating systems and processes after eliciting convergence in each sector from all stakeholders on sound plans in the public interest. Driven by goal-directed project management, this requires systematic action braving populist pressure and distractions.</p>
<p style="text-align: justify; ">These initiatives would significantly improve India’s ability to act in the public interest.</p>
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<p>[<a href="#fr1" name="fn1">1</a>].<a class="external-link" href="http://bit.ly/Q6IeVp">http://bit.ly/Q6IeVp</a><br />[<a href="#fr2" name="fn2">2</a>].“The Stag Hunt and the Evolution of Social Structure”, Brian Skyrms, <a class="external-link" href="http://bit.ly/TlNJnC">http://bit.ly/TlNJnC</a><br />[<a href="#fr3" name="fn3">3</a>].VirtualLabs, Christoph Hauert: <a class="external-link" href="http://bit.ly/90W392">http://bit.ly/90W392</a></p>
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For more details visit <a href='https://cis-india.org/telecom/organizing-india-blogspot-in-shyam-ponappa-sep-5-2012-changing-our-game'>https://cis-india.org/telecom/organizing-india-blogspot-in-shyam-ponappa-sep-5-2012-changing-our-game</a>
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No publisherShyam PonappaTelecom2012-09-06T11:14:42ZBlog Entry