New rules build on previous efforts to facilitate telecoms network deployments, although industry remains frustrated by a lack of regulation on content and application providers
Overhauling regulation of the telecoms industry
On 17 September 2024, India’s Department of Telecommunications (DoT) notified the Telecommunication Right of Way Rules 2024. The rules, which come off the back of the Telecommunications Act 2023, set out how network infrastructure – such as mobile towers, ducts, poles, small cells and street furniture – can be installed on private and public property, including land. They are due to come into effect on 1 January 2025. Some sections of the new act came into force on 26 June 2024, handing (among other things) the Indian Government the power to halt transmission and intercept messages, as well as to suspend or remove telecoms services in the interest of public safety. The act has replaced legislation introduced in colonial times, namely the Indian Telegraph Act 1885 and the Wireless Telegraphy Act 1933, and is intended to streamline and modernise regulation of the sector.
New rights of way rules will guide the deployment of infrastructure on both public and private property
In addition to consolidating laws from previous acts and enhancing end user protections, the Telecommunications Act 2023 provides a framework for obtaining rights of way (RoW) permissions, which historically has been a bottleneck to increasing network coverage and capacity. In turn, the 2024 rules define provisions to guide the “establishment, operation and maintenance” of both underground and overground telecoms networks that use public property, including the required details for any application made by a “facility provider” and the deadline by which public entities must respond to access requests, as well as the charges that can – or cannot – be levied if an application is granted. They also allow for the impact of force majeure, enabling timelines for the completion of works to be extended following events such as war or hostilities, riots or natural disasters. Within the new measures, a number of specific rules stand out:
Rule 10: In the event of damage to infrastructure, an operator may deploy a temporary overground network on public property so as they provide notice to the property owner in writing and rectify the damage within no longer than 90 days;
Rule 12: In certain cases, the Indian Government may determine the rollout out of telecoms networks a “special project”, automatically granting a provider access to public property without charge;
Rule 15: Any operator seeking to deploy infrastructure on private property can only do so with prior consent from, and must enter into an agreement with, the person who has ownership, control or management over the property; and
Rule 16: If a facility provider fails to agree terms of access to private property, it may submit an application through a centralised online portal. A “designated officer” appointed by the Government will then decide whether or not to grant the application.
Industry believes the TRAI’s service authorisation regime will perpetuate an uneven playing field
Reforms to RoW provisions have been a welcome development, with the Cellular Operators Association of India (COAI) referring to the 2024 Rules as “progressive and forward-looking”, adding that they represent a continuation of amendments that together will help simplify and accelerate the rollout of robust telecoms infrastructure across the country. However, industry’s views on the broader package of reforms have not been quite as favourable, with the overall act criticised for causing ambiguity over whether so-called ‘over-the-top’ (OTT) services – e.g. messaging apps – are covered by the regulation. While this issue was later clarified by the Government, service authorisation has emerged as the latest battleground after recommendations from the Telecom Regulatory Authority of India (TRAI) for a revised licensing regime that would introduce new categories of authorisations but remove the contractual nature of the current system. Having published a consultation and held an “Open House Discussion” with stakeholders in August 2024, the regulator’s proposals now sit with the Government to consider. The COAI has already voiced concerns that the draft framework would cause uncertainty and spook investors, while overlooking financial challenges faced by operators and preserving an imbalanced regulatory playing field by once again finding internet-based services out of scope.
