The new Telecommunications Act, 2023 replaces the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933, and the Telegraph Wires (Unlawful Possession) Act, 1950, in order to adapt Indian regulation to changes in technology that are reshaping communications markets globally. These shifts include the rise of emerging digital technologies and machine-to-machine communications over the Internet. The law improves on a previous draft Bill that was floated for public consultations earlier in the year, as it recognises a key regulatory first principle — the need to separate governance frameworks for content and carriage services.
Carriage providers offer network infrastructure and internet access as a service. Simply put, they provide pipelines for content and data. On the other hand, content services such as games, movies, music, and e-retail use these pipelines to reach end-users. Naturally, pipelines and the content flowing through them require distinct forms of State supervision. For instance, telecom and internet pipelines are laid on public land and require the right of way. This is a peculiar need with no analogue in the universe of content applications. Similarly, the constitutional right to disseminate content online has no analogue in the world of carriage infrastructure and requires specialised regulatory treatment.
The law responds to the duality of content and carriage chiefly by defining a “message” to include all types of content. A message is defined to mean any sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through carriage infrastructure. That is, a message is the content that flows through telecom or internet carriage infrastructure. Conversely, the law makes no reference to over-the-top (OTT) or internet-based services that deal in content, unlike its draft which clubbed them with telecom. The holistic definition of a message and exclusion of references to OTT helps to distinguish between regulatory frameworks for content and carriage services. Only the latter will require State authorisation under the new law.
The new law also recognises that content businesses depend on telecom and internet infrastructure to reach end-users, not the other way around. Similarly, end-users like digital nagriks (citizens) and all manner of institutions and firms dependent on the Internet require last-mile carriage infrastructure to access content applications. The law, therefore, defines “users” as “natural or legal person(s)”, which effectively means that both content services and individuals are users of carriage services that provide telecom and internet. Therefore, content services cannot be users of carriage services and, at the same time, qualify as operators of network infrastructure under the law, further cementing their distinction. Such separation of content and carriage is in line with international best practices. For example, Singapore and Malaysia explicitly recognise their differences and regulate the two separately.
The clear regulatory treatment of content and carriage services in the telecom law is a good practice that should be replicated in other ongoing legal reforms. For instance, the Broadcasting Services (Regulation) Bill, 2023 qualifies OTT content services as carriage services, obviating the distinctions made in the telecom law. Specifically, the Bill includes OTT services in the same category as cable and satellite providers that carry TV signals to end-users. Not only does this homogenisation fly in the face of the new telecom law, but the broadcasting Bill also overlaps with a dedicated regulatory framework for OTT services in the form of the Information Technology Act, 2000. OTT services providing curated content are further governed under the specialised Information Technology Rules, 2021, which are tailor-made to oversee them. These rules include several unique requirements that simply cannot apply to carriage services. OTT services that provide curated content are mandated to age-classify each movie, show and documentary they make available to end-users. Just imagine if carriage services were made to do this instead — they would effectively have to inspect data packets, invade citizens’ privacy, and violate the commercial privileges of OTT service providers.
The telecom law is fit-to-purpose for governing network infrastructure and its specialised approach should be reflected in all future legislation aimed at regulating content or carriage in the digital age. Doing so will mark a commitment towards the even application of regulatory best practices across Indian technology markets. This, in turn, will provide a much-needed fillip to private investment in digital India.
Vivan Sharan and Achyutam Bhatnagar are with Koan Advisory Group, a technology policy consulting firm. The views expressed are personal
