The Centre has proposed to bring Meta-owned WhatsApp, Zoom, and Google Duo under the ambit of telecom licence, as written in the draft of the “Indian Telecommunication Act, 2022”. In the bill it has proposed several significant changes, including provisions for waiving off dues for financially stressed operators, bringing over-the-top platforms (such as WhatsApp, Zoom, Netflix) within the ambit of telecom services that require a licence to operate and provisions for message interception in case of public emergency.
On February 9th, 2019, the Indian government proposed to include popular messaging apps such as WhatsApp and Zoom under India’s Telecom Regulatory Authority of India (TRAI) regulations.
This is being met with heavy criticism from many who believe this will lead to censorship and surveillance of users. The Indian government cited that these apps have been used extensively for commercial purposes during the pandemic and they need to be regulated. The government also believes that this will help in boosting the revenue of the telecom sector which has been hit hard by the pandemic. Along with WhatsApp and Zoom, other popular messaging apps such as Facebook Messenger, Google Hangouts, and Skype are also included in this proposal.
In an interview with Reuters, India’s IT minister Pradeep Singh Kharola said that “People are now using these apps not just for personal communications but for video calling, video conferences and video chats.”
The government has defended its decision by saying that they are only regulating what is already happening on these apps. However, critics complain that introducing so much regulation will adversely affect user experience.
“If we control their business by giving them a license, what if they don’t play by our rules?” said Naveen Patnaik, President of the Odisha State Council of Cable Operators Association.
Telecom Minister Ashwini Vaishnaw said on Thursday, “It’s not just government as big regulator and industry the regulated, but an interactive system in which industry’s concerns are addressed by the government and the government’s concern are duly taken into consideration by the industry. That is important because we have to look at the protection of users…”.
Prashant Tarwadi, Director – Corporates, India Ratings and Research, said the draft Bill provided clarity upon two critical aspects
- Insolvency proceedings for stressed telecom companies and bringing Over-The-Top (OTT)
- Internet Service Providers (ISPs) under the umbrella of the Ministry of Telecommunications.
“The draft bill stipulates that ownership of spectrum remains with government, and value of spectrum cannot be sold by creditors under the Insolvency and Bankruptcy Code (IBC). Government reserves the right to take back the spectrum if the ailing telecom operator fails to pay government dues.”
Kazim Rizvi, Founder of Delhi-based think tank The Dialogue pointed out that OTT services are currently regulated under IT Act which is better suited to govern OTT and digital platforms. Bringing them under the telecom services will “have a significant impact on the innovation in this sector because of the licensing requirements, added compliance burden and associated costs. Secondly, the power given to the State and Central government to order interception…would now be applicable to the messaging platforms which provide encrypted services. There is still no clarity as to how this provision will operate on such platforms where they themselves hold no records of the communication. Further, the discretionary powers provided under the draft bill without adhering to the necessity and proportionality mandate as envisaged in Puttaswamy judgement might lead to the cases of unchecked surveillance”.
The Centre said in the note, “Spectrum is a valuable and inexhaustible natural resource, which has an element of public good. Therefore, it is vital to ensure efficient use and management of spectrum”.
The draft Bill, which was released late on Wednesday night inviting comments from stakeholders, seeks to replace the existing legal framework comprising the Indian Telegraph Act, 1885, the Wireless Telegraphy Act, 1933 and the Telegraph Wires (Unlawful Possession) Act, 1950, that currently govern the telecom sector.
“For provision of Telecommunication Services and Telecommunication Networks, an entity shall have to obtain a license,” according to the draft. The last date for public comment on the draft is October 20. The draft bill was put up on social media by IT Minister Ashwini Vaishnaw.
What’s in the bill?
- The government in the bill has proposed a provision to waive fees and penalty of telecom and internet service providers. The ministry has also proposed a provision for the refund of fees in case a telecom or internet provider surrenders his license.
- According to the draft, the central government may, “waive in part or full any fee, including entry fees, license fees, registrations fees or any other fees or charges, interest, additional charges or penalty” for any licence holder or registered entity under the telecom rules.
- The bill proposes to exempt “press messages that are intended to be published in India” of correspondents accredited to the central or state government from interception.
- However, the exemption will not be granted in case of any public emergency or in the interest of the public safety, sovereignty, integrity or security of India, friendly relations with foreign states, public order, or to prevent incitement to an offence, according to the draft.
- In such cases 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 authorized officer, according to the draft bill.
The bill has also diluted the powers of the Telecom Regulatory Authority of India and removed the parts wherein the government had to take recommendations from the authority before issuing licenses, along with removing the currently existing prohibition on appointing government officials as chairpersons below the rank of secretary and additional secretary, Mr Rizvi.
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