Home / Opinion / Views /  Draft telecom bill 2022 promises a new licence-permit raj

That the government has put its draft telecom bill 2022 in the public domain for comments is welcome. Especially as some of its provisions are alarming, and must be excised from the bill presented to Parliament.

Treating applications that ride on the communication network as licensed services, as the bill proposes to, would build a command-and-control regime for India’s emergent digital economy, of which even the bureaucrats who ran India’s erstwhile licence-permit raj would be envious.

The bill renders Gmail and WhatsApp and other such applications — basically, any app on the phone that works by communicating with the server/servers on which the base program runs — communication services that will require a licence from the government.

This is achieved by an expansive definition of telecommunication service and by reserving to the central government the exclusive privilege of providing all telecommunication services. This expansive definition makes Gmail and WhatsApp services to be licensed. Before readers start seeing terrifying images of the government providing us our mail service and replacing all out digital entertainment with wholesome Doordarshan fare, they should take note of the saving grace: the bill also says that the government can license third parties to provide such services or, even, exclude some services from requiring a licence altogether.

Can governments, in this day and age, take such an approach to things? Let’s see what the draft bill says. It starts with the section on definitions.

“(T)elecommunication services" means service of any description (including broadcasting services, electronic mail, voice mail, voice, video and data communication services, audiotex services, videotex services, fixed and mobile services, internet and broadband services, satellite-based communication services, internet-based communication services, in-flight and maritime connectivity services, interpersonal communications services, machine-to-machine communication services, over-the-top (OTT) communication services) which is made available to users by telecommunication, and includes any other service that the Central Government may notify to be a telecommunication service.

Further, Chapter 3 of the draft bill reads as follows:

(1) The Central Government shall have the exclusive privilege, within India, to: (a) provide telecommunication services; (b) establish, operate, maintain and expand telecommunication network and telecommunication infrastructure; and (c) use, allocate and assign spectrum.

(2) The Central Government may exercise its privilege under sub-section (1) by granting to any entity, in the manner as may be prescribed: (a) licence for providing telecommunication services or establishing, operating, maintaining and expanding telecommunication networks; (b) registration for providing telecommunication infrastructure; (c) authorization for the possession of wireless equipment; or (d) assignment of spectrum.

(3) The Central Government, if it determines that it is necessary in the public interest to do so, may exempt from the requirement of licence, registration, authorization or assignment under sub-section (2), in the manner as may be prescribed.

If the government has a liberal licensing regime, including presumptive exemption from licensing for classes services, should we worry? Let’s see this in perspective.

The Constitution offers us, citizens, liberty and the due process of the law for any curtailment of liberty. Suppose it were the other way around. Suppose the Constitution vested zero liberty and rights with the citizens but empowered the state to grant citizens exemptions from such negation of liberty and rights. Would the two situations be symmetrical? A citizen’s liberty would be at the pleasure of the state and, thus, vulnerable.

When a new communication service takes shape in the mind of an entrepreneur and gets funding from an angel investor to be converted from idea to business, the entrepreneur’s first priority would be to get a licence for that service or an exemption from licensing.

A youth in Ukraine has come up with a drone with a synthetic aperture radar that can detect mines buried not too deep below the ground. If that were to happen in India under the new telecom regime, before the kid can save even one life, he would need to get a licence for this newfangled communication service and pray that the official in charge is not on leave when the application lands at their desk and that the application would not be buried under a thousand others.

For a country that hopes, realistically, to create a vibrant digital economy, to institute a law that would license every new application on the internet is innovation-throttling madness. If the aim is simply to bring messaging apps like WhatsApp to heel and force them to provide traceability and even transparency into the message in specific cases, in the interest of national security, it can be achieved by creating separate rules for messaging applications.

On 4G and 5G networks, calls are all data packets. When a call is put through on WhatsApp, it would use data, just as a regular call on the network would. The network operators would get revenue for the data used up, and the government would get its revenue share. WhatsApp steals revenue on calls from 2G service providers, true. But hey, so did light bulbs from candles.

What the government should license is the telecom network itself. Businesses and applications that run on the network should be regulated and taxed like other businesses that run offline, in the interest of consumer protection and security. The sweeping definition of communication services to be licensed covers any online business. This is illiberal and unnecessary. Offline businesses are not free to undermine national security because they are not licensed, nor would online businesses be. The revenue they generate should be taxed, they should follow extant labour codes and behave as regular corporate citizens, nothing more, nothing less.

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