INTRODUCTION
Telecommunication refers to the sending of or transmission of messages and information through electronic mediums over long distances. The etymology of the word ‘telecommunication’ can be traced back to two words in the Greek language which are ‘tele’ meaning far-off and ‘communicare’ which denotes sharing. Thus, fittingly the word telecommunication is used to describe the sending or sharing of information to far-off places or over long distances.
According to section 2(1)(k) of the Telecom Regulatory Authority of India (TRAI) Act, 1997, telecommunication service “means service of any description (including electronic mail, voice mail, data services, audio tax services, video tax services, radio paging, and cellular mobile telephone services) which is made available to users using any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electromagnetic means but shall not include broadcasting services”[1]
Currently, the telecommunications sector in India is one of the most prominent and fastest-growing sectors in India. India’s telecommunication market is the second largest in the world with a current valuation of Rs 3000 billion and is projected to grow at a CAGR of 7-9% by the financial year 2024. [2]
The reason behind the massive surge in the Indian telecommunication market can be attributed to the availability of more affordable electronic devices, increasing internet penetration, access to pocket-friendly data services, and the expansion of infrastructure The market in India is saturated and is marked by intense competition among bigwigs like Reliance Jio, Bharati Airtel and Vi (Vodafone Idea). In a bid to reach the largest chunk of the subscriber base in India, these corporations offer broadband and data services and packages at competitive prices. Consequently, this has proved to be advantageous to the consumers in India and has led to a growing percentage of the population in India who can afford these services.
Due to rapid technological breakthroughs and the advent of 5G, the market is evolving very rapidly, and the service providers need to remain dynamic by expanding and updating their infrastructure to maintain their position in the industry.
BRIEF OVERVIEW OF THE EVOLUTION OF THE INDIAN TELECOM SECTOR
The modern telecom sector is a far cry from what it was in its nascent stage in the 1850s. The technology has evolved remarkably from the use of telegraphs and poles to the use of the internet, satellite networks, and wireless technology.
The start of the telecommunication sector in India was catalyzed by the British imperialists. Under the instructions of the Governor-General of India, Lord Dalhousie, the first electric telegraph was set up between Diamond Harbour and Calcutta in 1851. Its success prompted the development of telegraph infrastructure across India. This, in turn, brought forth the need for regulation of telegraphs in India. Consequently, the Electronic Telegraph Act, of 1854 came into existence under which the East India Company reserved the authority to lay down telegraph lines, however, the power to grant license for the establishment of telegraphs was vested in the Governor-General. In 1860, the Telegraph Act was substituted in place of the Electric Telegraph Act. This Act transferred the power from the East India Company to the British Crown.
In 1876, the first comprehensive legislation was introduced called the Indian Telegraph Act which contained important definitions and introduced penalties for the destruction of telegraph lines. In the next decade, several significant changes took place the first being the merger of telegraph and postal services. In 1885, a new legislation called the Telegraph Act was implemented to replace the earlier law. The new enactment broadened the scope of a few definitions to allow the Indian telegraph system to keep up with the technological advances made in Britain. It also provided for the conception of a Telegraph Authority. As per section 3(6), the authority refers to the Director General of Posts and Telegraph and any officer empowered by the same to carry out functions and duties under the Act.
As technology progressed and wireless telegraphs were conceived, the Indian Wireless Telegraphy Act, of 1933 was introduced. In 1950 the Telegraph Wires (Unlawful Possession) Act was enforced the main purpose of which was to prevent the illegal possession of telegraph wires and materials.
REGULATING BODIES IN THE TELECOM SECTOR AND THEIR DYNAMICS
TRAI AND DoT
After gaining independence, the telecom sector in India was regulated and managed by the central government. The Department of Telecommunications (DoT) under the Ministry of Communications is the body that presently grants licenses to service providers and allocates spectrum. However, in the 1990s when the wave of liberalization and privatization was taking place, the telecom market was also opened to private entities. With the influx of private bodies, a need for a more organized and efficient regulatory organ was felt. Consequently, in 1997, the TRAI Act was passed which provided for the establishment of TRAI for the regulation of the telecom and broadcasting industry in India and to ensure that the private entities adhere to the laws and regulations.
After TRAI was established, DoT didn’t need to consult the Authority before taking any decisions which naturally led to both the bodies constantly trying to prove their weight.
The provisos to Section 11(1) of the TRAI Act highlight the fact that the Central Government (CG) is not obligated to adhere to the recommendations provided by TRAI in respect of setting the terms of the license and the final decision remains with the CG.
Additionally, Section 25 empowers the CG to issue to the Authority such directions as it may think necessary in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, or morality.[3]
The history between the two bodies is riddled with constant spats and disagreements on different matters. Their hostile relationship continues even now as is evidenced by the disagreement that took place recently.
In 2022, keeping the advent of 5G technology in mind, TRAI recommended the introduction of a new category of license for Access Network Providers (ANP) which would allow the service providers to make their services available at a wholesale basis to companies and other operators which would increase investments and reduce costs allowing the sector to grow further. However, DoT rejected the recommendation on the basis that there might not be a market for a license for ANPS at present.
However, TRAI shot back at the government for rejecting its recommendation on the creation of a separate category of license for providing network services on a wholesale basis and reiterated its views.[4]
A sour relationship between the two organs has existed since the inception of TRAI and the constant back and forth between them does not bode well for the future either.
TRAI AND TDSAT
The main function of TRAI is to monitor the quality of service provided, establish terms and conditions of the license granted to the service providers, create an environment that promotes fair competition, and all other functions enlisted under Section 11 of the Act.
In addition to the function of regulating the telecom market, TRAI was also vested with the power to settle disputes between consumers and service providers or disputes between service providers themselves. However, no provision allowed TRAI to adjudicate disputes which arose between the licensor and the licensee. As mentioned earlier the licensor in India is DoT and the licensee refers to the telecom service providers. There was no regulatory body to adjudicate disputes between these two parties. This lacuna was rectified in 2000 with the amendment of the TRAI Act which introduced the Telecom Disputes Settlement Appellate Authority (TDSAT).
After the amendment in 2000, section 14 of the TRAI Act specifically mentions, inter alia, that TDSAT will settle disputes between the licensor and licensee. Thus, the glaring loophole was solved with the transfer of adjudicatory powers from TRAI to TDSAT.
Thus, TRAI is the primary regulatory body of the telecom sector, and TDSAT is the main adjudicating authority that is responsible for the settlement of all telecom disputes. In 2004, its jurisdiction was extended to broadcasting and cable disputes as well. In 2017, the Cyber Appellate Tribunal and Airports Economic Regulatory Authority Appellate Tribunal were merged with TDSAT, thereby expanding its jurisdiction to airport economic matters and cyber disputes.
CONCLUSION
The regulatory framework in India governing the telecom sector has undergone significant improvements, however, there’s still much left to be desired. The telecom sector in India needs to address various loopholes and complexities before it can achieve optimum efficiency. The governing bodies of this sector need to work in tandem to ensure maximum productivity is attained. As technology evolves, the framework and regulatory dynamics need to remain flexible and responsive to ensure that the telecom sector in India thrives and its trajectory remains on an upward slope.
Author(s) Name: Nishica Srivastava (Amity University, Kolkata)
Reference(s):
[1] Telecom Regulatory Authority of India Act 1997, s 2(1)(k)
[2] Purushottam KG, ‘Indian Telecom Industry in 2023: Setting on the pathway to global success’(ETTelecom, 20 December, 2023) <https://telecom.economictimes.indiatimes.com/blog/indian-telecom-industry-in-2023-setting-on-the-pathway-to-global-success/106138904> accessed 07 March 2024
[3] Telecom Regulatory Authority of India, Section 25(1)
[4] PTI, ‘Trai, DoT tussle over licence to access network providers’ (The Economic Times, 07 September, 2022) <https://economictimes.indiatimes.com/industry/telecom/telecom-news/dots-rejection-of recommendations-on-differential-licence-without-any-rationale-trai/articleshow/94035376.cms > accessed 07 March 2024
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