COMMUNICATION CONVERAGE BILL
Pursuant to the hints of an professional institution, the Government of India (hereafter "GOI" or “Government") has lately finished and launched a draft Communication Convergence Bill, 2000 that pursuits to offer a clean regulatory framework for controlling the modes of communication.
One of the maximums first rate functions of the Bill is the advent of the Communications Commission of India (hereafter the "CCI" or the "Commission") and the consolidation of India’s ministries of Information Technology, Communications, and Information Broadcasting. The Commission is proposed to be riding because the regulatory authority in convergence of Information Technology, communications and broadcasting, and is anticipated to be answerable for dealing with the spectrum, granting of licenses and imposing their situations, figuring out tariff fees and making sure a aggressive market.
The Bill, and ultimately the Communication Convergence Act, is anticipated to repeal some of legislation inclusive of the Indian Telegraph Act (1885), the Indian Wireless Telegraphy Act (1933), the Cable Television Networks (Regulation) Act (1995) and the Telecom Regulatory Authority of India Act (1997).
Legal/Regulatory Issues In Providing Services Incorporating The Convergence Of Technologies
Regulatory demanding situations thrown up for the supply of convergent offerings are many. As withinside the case of maximum nations, separate licenses had been issued in India for simple, cell, ISP, satellite tv for pc and cable TV operators, every with separate enterprise shape, phrases of access and ranging necessities of making infrastructure. However, the truth that convergence now lets in operators to apply their centers to supply a few offerings reserved for different operators necessitated a re-investigate the prevailing coverage framework.
In India, at present, distinct departments of the Government adjust the Telecom, Broadcasting and IT industries in a different way. Whereas telecom offerings are regulated with the aid of using the Union Government thru the Ministry of Communications, separate and wonderful licenses are required for Internet get admission to offerings, fundamental telephony and mobile telephony below the antiquated Telegraph Act of 1885. On the alternative hand, radio and tv broadcasting offerings are regulated through the Ministry of Information and Broadcasting beneathneath the Telegraph Act, 1885. New tendencies facilitated through the convergence of technology, entailed this want for a paradigm shift withinside the regulatory framework to inspire the adoption of convergent technology, and eliminate differential remedy, ensuing thereby on this attempt to merge rules governing diverse offerings and cast off the multiplicity of licensing necessities.
Proposals Of The Expert Committee
As stated in advance, an professional institution became constituted with the intention to advise modifications to the regulatory shape withinside the mild of convergence. They made numerous some distance attaining suggestions, that have been included withinside the Bill.
The following are a number of the salient functions of the hints:
1.The proposed regulation to include diverse elements of the Broadcasting Bill, 1997, and to supercede and merge diverse different statutes, inclusive of the Telecom Regulatory Authority of India Act, 1997, the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933 and the Cable Television Networks Regulation Act, 1995.
2.The Telecom Regulatory Authority of India Act, 1997 to be repealed. However, neither the features of the Telecom Regulatory Authority nor the Appellate Tribunal constituted thereunder might be abolished. They most effective stand transferred to and get included into the brand-new enactment. Constitution of a unmarried and impartial regulatory authority for broadcasting and telecom offerings, specifically the Communications Commission of India.
3.The Commission to constantly have interaction with numerous sectors of enterprise to assist set requirements and formulate regulatory norms, each as to content material and carriage of records. It could be required to set up a licensing framework withinside the state of affairs of convergence of telecommunication, broadcasting, multimedia and different associated technology and installation a unmarried regulatory framework for carriage and data content material.
4.The proposed regulation envisages the Commission starting up and setting up a regime of "enforced self-law", this is, carrier vendors being persuaded to set up disciplinary regimes in their personal to keep away from the chance of formal prison intervention.
5.Frequency allocation in a truthful and facilitative way because the "frequency spectrum" is a crucial and scarce herbal aid, to make sure that no unmarried organization creates situations inimical to the boom of enterprise, and on the identical time, stopping any compromise of the united states’s safety necessities.
6. As regards licensing, the version followed envisages separate classes of licenses for community centers, community offerings, utility offerings and content material software offerings and now no longer to restriction licensing to sure precise offerings most effective. This is to make certain that the category is each era and provider-area impartial. The proposals additionally ponder a particular class of "composite licenses" that would be granted for supplying more than one telecommunication offerings or centers. The suggestion additionally envisages the Government thinking about amendments to present licenses.
The proposals additionally offer for the incorporation of social duties or "Universal Service Obligations". However, because the variety of responsibilities and their man or woman and content material might be special in one-of-a-kind locations and situations, left to be prescribed by means of guidelines.
Under Chapter IV, the goal of the Bill is to create regulatory surroundings that aspires to be bendy sufficient to house and propagate any permutation and mixture of technology and offerings, with none tries to expect the destiny. In order to reap a generation-impartial and carrier zone-impartial surroundings, the Bill outlines the introduction of 4 classes of licenses that consist of community infrastructure centers, community offerings, software offerings and content material utility offerings
According to Section 19, the CCI whilst exercise its capabilities is needed to be guided with the aid of using the subsequent concepts:
To make certain that a contemporary-day and powerful verbal exchange infrastructure is installed taking into consideration the convergence of facts era, media, telecom and client electronics.
To make sure that the conversation region is evolved in a aggressive surroundings and that marketplace dominance is definitely regulated.
To make certain that communique offerings are made to be had at an lower priced price to exposed regions like rural, remote, hilly and tribal regions.
To make sure that there's growing get entry to to data for more empowerment of residents and closer to monetary improvement
To ensure that fine, plurality, variety and preference of offerings are promoted. To guard the safety pursuits of the u . s ..
To facilitate the creation of recent technology, funding in offerings and infrastructure, and to maximise communications centers and offerings (inclusive of phone density).
To make sure equitable and non-discriminatory interconnection throughout numerous networks.
To make sure that licensing standards are obvious and to offer for an open licensing coverage.
To offer for a stage gambling area for all operators serving purchaser hobby.
Licensing Provisions and Technologies/Services To Be Regulated By The Bill
The Bill states that no individual might be allowed to apply any a part of the spectrum without undertaking from the Central Government or the Commission (Section three). Furthermore, no man or woman could be allowed to personal or offer any community infrastructure facility, or offer any community carrier, software provider or content material utility carrier without a license granted beneathneath the proposed Act (Section four). In addition, no character is authorized to own any wi-fi system wit out acquiring a license (Section 30).
As consistent with Section 26, Chapter VII, the Commission might also additionally supply license to any man or woman for supplying the subsequent offerings technology/ offerings:
1. Network infrastructure facilities
4 . Content software services
It is anticipated that the class referred to above could be era-impartial and provider area-impartial because putting in place an infrastructural facility and its use isn't related to the supply of a selected provider by means of the use of a specific era. Therefore, offerings may be furnished with the aid of using the use of any facility and any era. The Bill envisages that during an technology of convergence, an software provider issuer or content material software carrier company ought to make use of the offerings of any community carrier issuer for wearing their software/content material. In turn, the community carrier company might have the ability to make use of the infrastructure furnished via way of any community facility issuer and to hold software/content material from any software carrier company or content material software carrier issuer. Similarly, the community facility issuer can offer the infrastructure to any community carrier issuer.
Powers And Functions Of The Commission Main Functions
According to Section 20, Sub Sections (1) and (2), the number one feature of the Commission could be to facilitate and modify all topics referring to the carriage and content material of communications. Specifically, it will be accountable for:
A) Carrying out control, making plans and tracking of the spectrum for business usages.
B) Granting licenses, figuring out and implementing license situations and prices.
C) Determining suitable price lists and prices for certified offerings.
D) Ensuring opposition withinside the marketplace, and that carrier carriers do now no longer emerge as dominant gamers to the detriment of different carrier companies or purchasers.
E) Promoting opposition and performance withinside the operation of communique offerings and community infrastructure centers.
F) Formulating and figuring out situations for honest, equitable and non-discriminatory get entry to a community infrastructure facility or community carrier such different associated subjects in appreciate thereof.
G) Taking measures to guard patron hobbies and to put in force customary provider responsibilities.
H) Formulating and laying down programme and marketing and marketing codes in admire of content material software offerings.
I)Formulating and laying down industrial codes in admire of verbal exchange offerings and community infrastructure centers.
J) Taking steps to adjust or curtail the damaging and unlawful content material at the net and different verbal exchange offerings.
K) Formulating and lay down codes and technical requirements and norms to make certain fine and interoperability of offerings and community infrastructure centers.
L)Carrying out research on topics of significance to the clients, carrier vendors and the communications enterprise.
M) Institutionalizing suitable mechanisms to have interaction on a persistent foundation with all sectors of enterprise and clients.
N) Making tips on topics that the Central Government refers to it.
Adjudication of Disputes
According to Section 22, the Commission shall listen and determine lawsuits from any individual concerning contravention of the provisions the proposed Act, guidelines, guidelines or orders made thereunder. In specific, the Commission shall listen and determine:
In attempting suits, the Commission shall have the identical powers as are vested in a civil courtroom docket below the Code of Civil Procedure. It might now no longer be certain by means of the process laid down via way of the Code of Civil Procedure, however will be guided with the aid of using the concepts of herbal justice and shall have powers to adjust its personal process.
Regulation of Content of Communications
According to Section 21, the Commission is predicted to specify programme codes and requirements that can consist of inter alia practices:
1. To Ensure That Nothing Prejudicial to the Interests Of The Sovereignty And Integrity Of India, The Security Of State, Friendly Relations With Foreign States, Public Order Or Which May Constitute Contempt Of Court, Defamation Or Incitement To An Offence Is Contained In Any Programme.
2.To Ensure Fairness and Impartiality in Presentation of News and Other Programmes.
3.To Ensure Emphasis on Promotion of Indian Culture, Values Of National Integration, Religious And Communal Harmony, And A Scientific Temper.
4. To Ensure in All Programmes Decency in Portrayal of Women, And Restraint In Portrayal Of Violence And Sexual Conduct.
5. To Enhance General Standards Of Good Taste, Decency And Morality.
Obtaining A License
Conditions for Obtaining a License
The license may be for any individual of the types detailed above, or can be withinside the nature of a composite license - together for one or greater classes. While granting a license, the Commission may also confine or restriction the scope of the carrier to be supplied. It might also specify via way of manner of policies (Section 26):
1. Eligibility situations for trouble of licenses;
2.Cross-media regulations having regard to accumulation of hobby; and
3.Restrictions or in any other case at the wide variety of licenses or volume of accumulation of hobby in such licenses by means of someone.
Conditions for the Grant of a License to apply Wireless Equipment
Under Section 30, any individual who intends to possess any wi-fi gadget ought to make an software with the considered necessary charges to the Commission for the provide of a license. The Commission isn't always to reject any software besides on grounds of safety of State, public order or different public hobby. Every license issued with the aid of using the Commission will be difficulty to such situations and regulations because the Commission may also decide by means of policies.
Duties Imposed upon Service Providers
According to Section 28, the Commission might also additionally, from time to time, decide responsibilities, situations, regulations, price lists and fees difficulty to which the carrier company shall offer offerings. As the variety of responsibilities and their man or woman and content material could be extraordinary in exclusive locations and situations, it's been left to be prescribed through guidelines and isn't always furnished for withinside the Bill.
The Bill specifies that each carrier issuer shall:
Provide such offerings to present impact to ordinary carrier duties that can be prescribed;
Provide such lifestyles saving offerings that can be prescribed; Provide provider to any individual on call for (inside an affordable length of time) and on a non-discriminatory foundation;
1.Follow the codes and requirements laid down and precise via way of the Commission; and
2.Register with the Commission any shareholder agreements,
3.promoters’ agreements or inter-connectivity agreements.
4. In addition, each content material software carrier issuer shall:
5.. Endeavor to offer a appropriate share of programmes of indigenous origin; and
6.Ensure that none of its programmes infringes any copyrights.
According to Section 72, withinside the occasion of struggle fare or every other herbal calamity, the Central Government may also take over the manipulate and control of any verbal exchange carrier or any community infrastructure facility linked therewith, droop its operation or entrust any organization of that Government to control it.
Similarly, in expediencies, the Central Government may also request the Commission to direct a licensee to transmit bulletins on its broadcasting carrier. It can also forestall any broadcasting carrier this is prejudicial to the sovereignty or safety of India, pleasant family members with overseas States, or to public order, decency or morality, or communal harmony.
Penalties and Adjudication Consequences of Breach of the Terms of the License
Under bankruptcy X, Section 33, the Bill proposes to levy a stiff penalty of Rupees 50 crores if a licensee commits fails to study any of the phrases and situations concern to which a license turned into issued. The equal might practice to a failure to look at a rule, law or order made beneathneath the Act.
In addition, beneathneath the bankruptcy the Commission might also additionally direct the licensee to do or abstain from doing any act, droop the license, curtail the duration of the license, or revoke the license. It can also authorize the seizure of the system getting used for provision of such carrier. The device can't be retained for over 90 days without the approval of the Appellate Tribunal.
As regards the result of offering verbal exchange offerings the usage of unlicensed device, if someone transmits any conversation by means of the usage of unlicensed device, or gadget that is operated in contravention of the provisions of the proposed Act or any regulations, or rules made thereunder, he will be at risk of a penalty which may also enlarge to Rupees 10 crores.
As for the results of handing over content material via unlicensed device, if someone provides content material for transmission or accepts transport of any content material despatched with the aid of using system which he is aware of or has cause to consider is operated without a license or in contravention of the provisions of this Act or any guidelines or rules made thereunder, he will be vulnerable to a penalty which might also additionally make bigger to ten crores.
Failure to Register Agreements
Under Section 37, if a carrier issuer fails to sign up an settlement that's required to be so registered, for instance, shareholder agreements, promoters agreements or inter-connectivity agreements, he will be susceptible to a penalty which may also increase to Rupees 10 lakhs.
Failure to Comply with Orders of the Commission
Under Section 38, if someone willfully fails to conform with an order of the Commission, he will be susceptible to a penalty which may also make bigger to Rupees five crores. In the occasion of a 2d failure, he will be prone to pay a similarly penalty of as much as Rupees 10 crores. In the occasion of persevering with failure, his penalty can also additionally increase to Rupees 2 lakhs for each day in the course of which such failure continues.
The Complaint Mechanism
Complaints to the Commission should be filed inside 60 days of the prevalence of the occasion. If the Commission believes that a prima facie case exists, it'll refer the problem to the Adjudicating Officer who might be an officer of the Commission. The Commission may also suo moto refer contraventions of the proposed Act to the Adjudicating Officer. In listening to the grievance and determining it, the Adjudicating Officer shall have the powers of a civil courtroom docket in some of subjects.
Calculation of Penalties
Under Section 41, whilst adjudging the quantum of penalty beneathneath this Chapter, the Adjudicating Officer is to have due regard to the provisions of this Act in addition to the sales loss to the Government, the quantity of disproportionate advantage, the loss brought about to any man or woman, the repetitive nature of the default and that truth that the penalty have to act as a deterrent.
The Appellate Structure
Under chapter XII, The Bill envisages the status quo of the Communications Appellate Tribunal to listen appeals from orders of the Commission or Adjudicating Officer. The Tribunal is anticipated to cope with subjects expeditiously and get rid of topics inside ninety days. In order to discharge its capabilities, its miles vested with a few of the powers of a civil courtroom docket. However, it shall now no longer be certain by means of the provisions of the Code of Civil Procedure, however shall have the energy to modify its process guided by means of standards of herbal justice. Appeals from the Tribunal shall deceive the Supreme Court inside ninety days. Decisions of the Tribunal will be executable as selections of a civil courtroom docket. Failure to conform with orders of the tribunal may also cause a penalty of Rupees 50 million.
Bar on Jurisdiction of Civil Courts
Under Section 79, the Bill excludes the jurisdiction of civil courts over topics which an Adjudicating Officer or the Appellate Tribunal or the Commission is empowered by means of this Act to decide. They also are prohibited from issuing injunctions in opposition to moves taken or to be taken below the Act.
We agree with that the Bill represents a enormous leap forward in growing a destiny orientated imaginative and prescient for India’s Information Technology, Communications and Broadcast industries. For a rustic with a tele density stage nicely under each the Asian and worldwide average, the proposed Bill is enormous in that it marks a primary step in the direction of revolutionizing telecommunications in India. In beginning this Bill, India has made a super stride in growing bendy regulatory surroundings overseeing the converged pursuits of its Information Technology, Communications and Broadcast industries. Furthermore, with the aid of using persevering with to broaden revolutionary and ahead wondering regulatory techniques that sell enterprise led, marketplace orientated trends on this critical zone, India is positioning itself to grow to be one of the main locations of the worldwide facts economy, and a main exporter of multi-media merchandise and offerings. .