Impact of India's Telecom Bill on startups, innovation and consumers

CUTS Comments are available at https://cuts-ccier.org/pdf/comments-on-the-draft-telecom-bill-2022.pdf

Our key suggestions are:

1. Need for cross-jurisdictional analysis to learn from the experience of other countries which have undertaken regulatory reforms in the telecom sector.
2. Conducting Cost-Benefit Analysis (CBA), with due stakeholder consultation, to ascertain the least intrusive regulatory alternative to meet valid regulatory objectives, especially for clause 2(10), clause 4, clause 44, clause 23(a), and schedule 4, among others.
3. Deferred reforms, missed consumer-facing issues, and missed objectives of the National Digital Communications Policy2018 (NDCP’18) must be incorporated in the draft bill.
4. It is imperative to clarify the draft bill’s jurisdictional scope, and incorporate a transitional period for service providers to comply with different provisions.
5. The definitions of telecommunication services (exclude Over The Top (OTT)
   services, consumer internet companies, and broadcasting services, and regulate them separately), telecommunication equipment (exclude consumer telecommunication equipment), and broadcasting services need to be reconsidered.
6. Key terms which have been left undefined need to be appropriately defined. These include: ‘unauthorised access’ to a telecommunication network, intercepting a message ‘unlawfully’, wilful contravention that is detrimental to ‘national security’, the occurrence of any ‘public emergency’, in the interest of the ‘public safety’, what comprises of ‘public property’ etc.
7. The draft bill should not reinvent the wheel but focus on the optimal implementation of existing initiatives by learning from past mistakes and improving the prevailing mechanisms of Do Not Disturb (DND).
8. The Government of India (GOI) should partner with credible consumer organisations for – providing alternate grievance redress mechanisms; raise awareness and build the apacity of consumers on evolving telecom technologies and related issues; and explore ways to implement DND; among other issues.
9. Ensure regulatory harmonisation on issues such as the duty of users, which may be better dealt with under the Indian Penal Code (IPC); jurisdictional issues between the Telecom Regulatory Auhtority of India (TRAI) and the Competition Commission of India (CCI), as well as between different ministries – Ministry of Electronics and Information Technology (MeitY), MoC and Ministry of Information Broadcasting (MIB); different existing and upcoming legislation as a part of new digital governance
   architecture – Digital India Act, Data Protection Bill, Information Technology (IT) Act, and this draft bill.
10. Imposing criminal liability in case of various offences under the draft bill should be viewed with caution, given its likely adverse impact on Ease of Doing Business (EoDB).
11. Need for appropriate checks and balances in granting government powers to data access, internet shutdowns, and power-sharing with TRAI. These may include: incorporating principles of necessity, legality and proportionality; the need for reasoned orders; giving opportunities to be heard to different stakeholders; need for judicial oversight, among others, while exercising such powers.
12. Undertake a detailed analysis on whether to create a category of special creditors for DoT in case of insolvency and bankruptcy of a service provider.
13. Ensure harmonisation of domestic standards with international standards.