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Continued from previous article

Another unique concept relevant to the Telecom Bill is the “Right of Way”. This is a right under which a telecom infrastructure provider will be facilitated the use of public property upon application. Rejection can be only on very substantial grounds.

The “Right of Way” may also be used against “Private Property” under Section 14 which could have an impact on public through forced acquisition of private property.

Under this section, Any facility provider may submit an application to the person owning the property to  seek right of way for telecommunication infrastructure under, over,
along, across, in or upon such property.

On receipt of an application from a facility provider, such person may enter into an agreement, specifying such consideration as mutually agreed.

In the event the person  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. may enter into an agreement, specifying such consideration as mutually agreed.

It is very important to ensure that this provision is not misused and hence there should be an effective system for grievance redressal which does not appear to be available at present in the Act. Though Section 18 does recognize the need for dispute resolution, there is no clarity if individuals whose property is sought to be tress passed by the telecom companies would get access to proper compensation .

The act is heavily skewed towards the industry and may require some more balancing in favour of the public.

Naavi

The preliminary observations on the Bill is closed here. Further comments may be developed as required subsequently

Continued from the earlier article

One of the key elements of regulation is the “Spectrum”.

 This law adds a new “Asset Class” called Spectrum which is ” a range of frequency” of radio/electromagnetic waves.

Spectrum will be an exclusive asset of the Government and can be licensed.

The licensee will have the contractual rights of exploitation of the spectrum and this “Right” is having a value which should appear in their balance sheets.

If the licensing is for a period, the value should be depreciated over the period as a deferred expenditure.

The Government is recognizing “Re-farming” of the spectrum so that a licensed frequency range can be used for purposes other than for which it was earlier licensed. Government may also harmonize the frequency range for efficient use of the spectrum. (rearrangement of the frequency range). Government may also re-assign the spectrum allocation to improve efficiency.

Sharing, trading , leasing of the spectrum is also permitted under law.

However in case of insolvency the spectrum may revert to the Government under certain conditions of default.

All these provisions add a new dimension to valuation of intangible assets to which class Spectrum also belongs to. This is interesting and has extendibility to data valuation which is being promoted by the undersigned.

Naavi

Continued from previous article

The key purpose of the Telecom Bill is regulating the Telecom industry . Accordingly Chapter 3 covers Licensing, Registration, Authorization and Assignment.

The first point to be noted is the “Exclusive Privilege” created for the Government to provide tele communication services within India including setting up of the telecommunication network and use and assignment of spectrum.  The license will be subject to terms and conditions which becomes the basis of operation and determination of other obligations under the Act.

It is necessary to note that even possession of a wireless equipment requires authorization. Wireless equipment under the Act means

“any telecommunication equipment used or capable of use in wireless communication, including any wireless transmitter that is capable of use for broadcasting or emission of wireless communication”

Since the definition is broad and may cover even a wireless router and mobile, the Government needs to provide an exemption list while notifying the Act.

Similarly the possession of any equipment that can block tele communication is prohibited.

Possession of equipment that can pick “off the air telecommunication signals” also needs to be subject to strict licensing. Such equipment is used for surveillance by intelligence agencies and by unauthorized agencies.

An interesting provision is that

“Any entity which is granted a license under sub-clause (2) of Section 3, shall unequivocally identify the person to whom it provides services, through a verifiable mode of identification as may be prescribed.”

“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.”

The above provisions should be read with the wide definition of telecommunication services which states

“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;

This means that in both E-Mail and Mobile services, the identity of the sender of the message should be available to the receiver. 

This will put an end to the menace of fake E-Mails and Fake Voice calls at least to a substantial extent.

We will wait and see how the Gmail or WhatsApp will respond. Presently they are using “Anonymization” as a right and using “Privacy” as a fig leaf to let criminals act through their platforms. This should stop and probably they will oppose this provision as they did when it was first proposed in PDPB 2019. Even the domain name registrars have the tendency to hide the identity of the registrants on the pretext of Privacy and facilitate frauds of phishing etc.

We welcome this provision whole heartedly. At the same time, in order to make “Privacy” available through “Pseudonymization”, we have proposed “Regulated Anonymity” proposed by Naavi way back in 2012. May be this should be considered with some modification now and TRAI should provide it as an option under the rules.

…to be continued

Naavi

Continued from the previous article

Continuing our discussion on the Draft Indian Telecom bill, let us discuss the rovisions regarding civil penalties under the Act.

Under Section 38, the Central Government may prescribe civil liabilities, including compensation payable by any person causing damage to telecommunication network or
telecommunication infrastructure, to the licensee or registered entity, as the case may
be, and the applicable penalties.

This section is the penalty that may be payable by a member  of public to the licensee for causing damage. One example would be when the cable network set up by a licensee is damaged either wilfully or by negligence by individuals or civic authorities like the road authorities, corporation authorities, electricity boards etc.

Otherwise the compensation if any payable to public by any service provider is to be covered under Section 33 for Spamming and Do Not Disturb violations. It appears that at present compensation payable to users for spamming etc or any damage caused to the subscribers say by radiation etc., is not fully addressed. It is left to be covered by other laws like IPC and perhaps by the upcoming amended ITA 2000 or data protection act.

It may be essential that the Government retains the ability to provide compensation to users by adding in Section 38  or under Section 33 so that instead of invoking compensation under ITA 2000 through an Adjudicator remedy can be in-built into this Act itself for any contravention.

The main part of the Act covers administration of the telecom industry and hence it addresses several issues of licensing formalities  and associated penalties for breach of licensing conditions.

Penalties  for breach of terms and conditions of a license are prescribed from “Written warning” in the case of non severe breaches to Rs 5 crore in respect of severe breaches.

The Act recommends use of ADR and intends to establish a suitable mechanism for mediation or arbitration or other forms of ADR.

The Central Government may also prescribe the procedure, the appropriate authority, the
appellate authority, and terms and conditions, including time period for resolution of
disputes, arising under the provisions of this chapter.

At present the TDSAT is the dispute resolution authority and it may continue with resolution before TDSAT being attempted through the ADR process.

…to be continued

Naavi

Continued from previous Article

Let us continue our discussion on the New Telecom Bill with the chapter on offences. The Act has listed the offences under a Schedule and provided the general aspects under Chapter 11.

The Scheduled list of offences have offences listed as “Cognizable” and “Non Cognizable” and all offences are “Bailable”. This provision over rides  Code of Criminal procedures. However no court can take cognizance of a non Cognizable offence except on a complaint made by the Central Government or the competent authority which may be notified by the Government. All offences shall only be tried by a Court not inferior to that of a Chief Metropolitan Magistrate or Chief Judicial Magistrate. Offences that are compoundable have also been identified in the schedule.

The liability for offences by companies can be extended to the employees who were responsible for the conduct  of the business.

The  list of offences are provided under Schedule 3.

While providing telecommunication service without a license is an offence punishable with imprisonment of 1 year, it is considered Cognizable and Non Compoundable. (fine upto Rs 50 lakhs)

Unauthorized access to a telecommunication network which could also qualify for an offence under ITA 2000 today again prescribes  an imprisonment of 1 year only though it is cognizable and non compoundable. (fine upto Rs 50 lakhs).

Wilful contravention that is detrimental to national security is another cognizable and non compoundable offence but with 3 years imprisonment and fine upto Rs 1 crore.

Possession or use of any equipment which can jam the telecom signals is an offence leading to 3 years imprisonment, cognizable and compoundable.

Wilful tampering of telecom equipment (which could even apply to cutting of Cable of a Cable TV supplier) could result in imprisonment of 1 year and would be a cognizable and compoundable offence.

Strangely “Causing Damage through negligence to telecommunication infrastructure or network” is listed for a fine of Rs 50 lakhs under “Offences” but without any imprisonment term.

Similarly, use by any person of a facility for which the supplier may not have license could lead to a fine of Rs one lakh but no imprisonment is prescribed.

Unlicensed possession of a wireless equipment could be a non cognizable and compoundable offence with only  a fine of Rs 50000/- for the first time and upto Rs 2 lakhs subsequently.

If a service provider impersonates a licensed entity, the offence would be punishable with 3 years imprisonment  and fine of Rs 50 lakhs. It would be cognizable and non compoundable.

Contravention of the provisions of Section 33 which covers spamming and violation of Donot Disturb provision could lead to a fine for  the first offence  upto Rs 50,000 and Rs 2 lakhs thereafter.  It would be non cognizable and compoundable.

Misrepresenting the identity availing a telecommunication service may be punished with an imprisonment upto one year and fine of Rs 50000/- with the offence being considered cognizable and compoundable.

In any other instance for which a specific penalty has not been provided, a fine upto Rs 25000/- may be imposed for the first time and Rs 50000/- thereafter.. It would be non cognizable and compoundable.

Thus we can observe that the description of offences in this Act differs from other Acts in certain respect and in some respects the punishment is less than what is applicable under ITA 2000 if we consider that access to a telecom equipment is equivalent to access to information residing there in.

Perhaps when the ITA 2000 is amended some of these changes like “Offence with fine only without imprisonment” may be included. Such contraventions go to the Magistrate Court as a criminal offence instead of the adjudication of a civil penalty. Whether this is advisable or not needs to be debated.

(To Be continued)

Naavi

(Continued from previous article)

In our previous discussions on the New Data Protection Bill, we had emphasised an approach to the construction of the act from the concept of “Rights” of the data principals.

It is good to see that the New Telecom Bill also has recognized the need for focussing on the users of Telecom services through Chapter 9 where two sections, section 33 and 34 deal with the Protection  and Duties of users.

Section 33 enables  a statutory backing for addressing “Spam” and includes “Do Not Disturb” register and complaints arising therefrom.  Since the definition of Telecom Service Providers may go beyond the known Mobile service community and includes e-mail service providers and others, Section 33 may be interpreted as covering spam through E Mails. With the penalties that may be prescribed for contravention of the Act and the extension of liability on companies to the employees, Section 33 could be a provision that needs to be taken note of. In a way this also protects the “Privacy” of the recipient of the unsolicited messages. This needs close attention for compliance by organizations. We also need to look forward to the rules to ensure that genuine business communication cases are not needlessly hurt.  This would link with the “Consent” to be obtained by organizations for sending marketing messages to individuals.

Section 34 is interesting as it is titled “Duty of users” and states as follows.

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.

This section casts a responsibility on the users of the services (including  perhaps Twitter and WhatsApp) not to create fake accounts or falsify any attempts by the service provider to check the identity of the users.

The definition of “Telecommunication Services” under Section 2(21) states

“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;

This definition is broad enough to cover the Social Media Intermediaries and unless the Government provides a reference White List and Black List of services coming under the Act,  there could be practical problems.

Hence users of any telecom services will be required to exercise due diligence and avoid the current practice of taking SIM cards in assumed names etc which could be construed as offences under this Act.

(To be continued)….

Naavi