The updated legislation will offer end users better protection against scams; however, the line between national security and privacy has become blurry
New legislation seeks to reflect the modern day telecoms industry
On 24 December 2023, India’s Telecommunications Bill 2023 received the President’s assent, four days after gaining approval from the upper and lower houses of the Parliament (Rajya Sabha and Lok Sabha, respectively). Now officially the Telecommunications Act, the law will be applied nationwide, replacing legislation introduced in colonial times – namely the Indian Telegraph Act 1885 and the Wireless Telegraphy Act 1933. The new act aims to streamline and modernise regulation governing the telecoms sector, while keeping up with the evolving landscape of technology. The legislation covers a wide range of issues, including:
Consolidation of laws from previous acts, with guidance for telecoms firms undergoing restructuring;
Provisions and penalties for the enforcement of regulation; and
Enhancing end user protection and rights, for example through improved dispute resolution mechanisms.
A crack down on scams
Scams are an ongoing international challenge, with more successful fraud attempts than those failed. In an effort to protect end users, the new legislation provides multiple measures against fraudulent activity. One measure to prevent unsolicited and potentially fraudulent communications, requires consumers to provide prior consent before receiving any messages that promote goods, services or opportunities. Supporting this measure is a framework that allows users to report any messages received that violate this law. As a further deterrent, the Department of Telecommunications has stated that those found guilty of SIM swapping or spoofing could be subject to imprisonment for up to three years or face a fine of up to INR5m (£47,350).
Government powers raise privacy concerns
The act also outlines rules for spectrum allocation and utilisation, potentially enabling frequencies for satellite broadband services to be assigned via an administrative process (i.e. without an auction). This decision has led to concerns over the transparency of the process and the impact on competition, although it reflects a previous decision to allocate spectrum directly for private 5G networks. An additional contentious aspect of the act is that of national security provisions, which grant the state powers extending beyond surveillance. The Government is now able to halt transmission and intercept messages, as well as suspend or remove telecoms services from individuals or from the market as a whole. Operators have also been required to capture verifiable biometric information from their customers. The new act provides a much-needed update to telecoms legislation; however, the extent of government control laid out by this bill has raised concerns about censorship and privacy.
No progress with operators’ push for ‘fair share’
Reforms to rights of way provisions will have been welcomed by industry, with the act seeking to facilitate non-discriminatory access to public and private property, which could help accelerate the rollout of digital infrastructure. However, operators will likely be displeased with the lack of any provisions for a ‘network usage fee’, which they consider tech firms should pay in order to contribute to telecoms network costs. Also, the act does not explicitly refer to ‘over-the-top’ (OTT) services, triggering some confusion as to whether internet-based communications such as messaging apps are captured. Despite arguments from operators that traditional telecoms services and those provided by OTTs should be regulated in the same way, the Government has clarified that OTT services will not be covered under the Telecommunications Act and will continue to be regulated by the IT Act 2000.
