INDIAN INDIAN CONVERGENCE CONVERGENCE

LAWLAW

THE COMMUNICATION THE COMMUNICATION CONVERGENCE BILL, CONVERGENCE BILL,

20012001

A PRESENTATION A PRESENTATION BY BY

PAVAN DUGGAL,PAVAN DUGGAL,ADVOCATE, SUPREME COURT ADVOCATE, SUPREME COURT

OF INDIAOF INDIA PRESIDENT,CYBERLAW ASIA PRESIDENT,CYBERLAW ASIA

CYBERLAW CONSULTANT,CYBERLAW CONSULTANT,MEMBER, MAC, ICANNMEMBER, MAC, ICANN

DELHI , 22-7-2003

  India has taken a bold step India has taken a bold step forward in the field of regulating forward in the field of regulating the emerging industry of the emerging industry of convergence. Towards that end in convergence. Towards that end in view, the Government of India has view, the Government of India has proposed The Communication proposed The Communication Convergence Bill, 2001 which has Convergence Bill, 2001 which has been introduced in Parliament. been introduced in Parliament.

INDIA TAKES A BOLD STEPINDIA TAKES A BOLD STEP

• “ “A Bill to promote, facilitate A Bill to promote, facilitate and develop in an orderly and develop in an orderly manner, the carriage and manner, the carriage and content of communications content of communications (including broadcasting, (including broadcasting, telecommunications and telecommunications and multimedia), …multimedia), …

THE CC BILL,2001-THE CC BILL,2001-OBJECTSOBJECTS

• “ “ for the establishment of an for the establishment of an autonomous commission to autonomous commission to regulate carriage of all forms of regulate carriage of all forms of communications, and communications, and

• for establishment of an Appellate for establishment of an Appellate Tribunal and to provide for Tribunal and to provide for matters connected therewith or matters connected therewith or incidental thereto”. incidental thereto”.

THE CC BILL,2001-THE CC BILL,2001-OBJECTSOBJECTS

• Existing legislations are proving Existing legislations are proving inadequate in dealing with the inadequate in dealing with the scenario of convergencescenario of convergence

• The existing licensing and The existing licensing and

registration powers and the registration powers and the regulatory mechanisms for the regulatory mechanisms for the telecom, Information Technology & telecom, Information Technology & Broadcasting Sectors are currently Broadcasting Sectors are currently spread over different authorities, spread over different authorities,

THE CC BILL,2001-WHY THE CC BILL,2001-WHY NEEDEDNEEDED

• Government has proposed Government has proposed the new Bill as a flexible type the new Bill as a flexible type of legislation to of legislation to accommodate and encourage accommodate and encourage permutation and permutation and combination of technologies combination of technologies and services.and services.

THE CC BILL,2001-WHY THE CC BILL,2001-WHY NEEDEDNEEDED

It has provided It has provided that barring a public that barring a public service broadcaster, no person shall service broadcaster, no person shall own or provide any network own or provide any network infrastructure facility or provide any infrastructure facility or provide any networking service or any network networking service or any network application service or any value application service or any value added network application service added network application service or any content application service or any content application service without an appropriate license or without an appropriate license or registration under the new law.registration under the new law.

LICENSING& LICENSING& REGISTRATIONREGISTRATION

• It proposes the establishment It proposes the establishment of an independent statutory of an independent statutory commission called, The commission called, The Communications Commission Communications Commission of India (CCI in short ) which of India (CCI in short ) which has been given various has been given various powers, duties and functions. powers, duties and functions.

CCI PROPOSEDCCI PROPOSED

The objectives of CCI include interalia:-The objectives of CCI include interalia:-• the communication sector is the communication sector is

developed in a competitive developed in a competitive environment and in consumer environment and in consumer interests ;interests ;

• communication services are made communication services are made available at affordable costs to all ;available at affordable costs to all ;

• there is increasing access to there is increasing access to information for greater empowerment information for greater empowerment of citizens and towards economic of citizens and towards economic development. development. ..

CCI-OBJECTIVESCCI-OBJECTIVES

The Central Government has been The Central Government has been made responsible for made responsible for coordination with international coordination with international agencies in respect all matters agencies in respect all matters relating to spectrum management relating to spectrum management and also for allocation of and also for allocation of available spectrum for strategic available spectrum for strategic and non-strategic or commercial and non-strategic or commercial usages.usages.

SPECTRUM MANAGEMENTSPECTRUM MANAGEMENT

The CCI has been The CCI has been empowered to grant empowered to grant licenses in its discretion licenses in its discretion for five different for five different categories:-categories:-

FIVE CATEGORIES OF FIVE CATEGORIES OF LICENSESLICENSES

To provide or own network To provide or own network infrastructure facilities. This infrastructure facilities. This category has been defined by the category has been defined by the explanation to include earth stations, explanation to include earth stations, cable infrastructure, wireless cable infrastructure, wireless equipments, towers, posts, ducts and equipments, towers, posts, ducts and pits used in conjunction with other pits used in conjunction with other communication infrastructure, and communication infrastructure, and distribution facilities including distribution facilities including facilities for broadcasting facilities for broadcasting distribution; distribution;

NETWORK NETWORK INFRASTRUCTURE INFRASTRUCTURE

FACILITIESFACILITIES

To provide networking To provide networking services. This category has services. This category has been defined to include band-been defined to include band-width services, fixed links and width services, fixed links and mobile links; mobile links;

NETWORKING SERVICESNETWORKING SERVICES

   To provide network application To provide network application

services. This category has been services. This category has been defined to include public switched defined to include public switched telephony, public cellular telephony, telephony, public cellular telephony, global mobile personal communication global mobile personal communication by satellite, internet protocol by satellite, internet protocol telephony, radio paging services, telephony, radio paging services, public mobile radio trunking services, public mobile radio trunking services, public switched data services and public switched data services and broadcasting (radio or television broadcasting (radio or television service excluding continued); service excluding continued);

NETWORK APPLICATION NETWORK APPLICATION SERVICESSERVICES

To provide content To provide content application services. This application services. This category has been defined to category has been defined to include satellite include satellite broadcasting, subscription broadcasting, subscription broadcasting, terrestrial free broadcasting, terrestrial free to air television broadcasting to air television broadcasting and terrestrial radio and terrestrial radio broadcasting; broadcasting;

CONTENT APPLICATION CONTENT APPLICATION SERVICESSERVICES

To provide value added To provide value added network application services network application services such as internet services and such as internet services and unified messaging services. unified messaging services. This category has been This category has been defined to specifically exclude defined to specifically exclude information technology information technology enabled services. enabled services.

VALUE ADDED VALUE ADDED NETWORK NETWORK

APPLICATION SERVICESAPPLICATION SERVICES

IT enabled services such as call IT enabled services such as call centers, electronic-commerce, centers, electronic-commerce, tele-banking, tele-education, tele-banking, tele-education, tele-trading, tele-medicine, tele-trading, tele-medicine, videotex and video conferencing videotex and video conferencing shall not be licensed under the shall not be licensed under the new legislation.new legislation.

IT ENABLED SERVICES IT ENABLED SERVICES EXCLUDEDEXCLUDED

The new proposed law seeks to establish a The new proposed law seeks to establish a distinction between civil wrongs and penal distinction between civil wrongs and penal offences. offences.

  Adjudication has been provided for by Adjudication has been provided for by Adjudicating Officers in the proposed law Adjudicating Officers in the proposed law who would have the power to decide civil who would have the power to decide civil liability which may not exceed 50 crore liability which may not exceed 50 crore rupees.rupees.

CIVIL WRONGS & CIVIL WRONGS & ADJUDICATIONADJUDICATION

The law provides for establishment The law provides for establishment of a Communications Appellate of a Communications Appellate Tribunal to hear appeals against Tribunal to hear appeals against orders passed by the CCI or the orders passed by the CCI or the Adjudicating Officer. Adjudicating Officer.

COMMUNICATIONS COMMUNICATIONS APPELLATE TRIBUNALAPPELLATE TRIBUNAL

• The new proposed law also The new proposed law also deals with the important deals with the important issues concerning right of issues concerning right of way for laying cables and way for laying cables and erection of posts.erection of posts.

RIGHT OF WAYRIGHT OF WAY

• Various offences have been Various offences have been detailed under the proposed new detailed under the proposed new law which have been made law which have been made cognizable and triable by a cognizable and triable by a Court of SessionsCourt of Sessions

• Include cyber stalking, use of Include cyber stalking, use of unlicensed services, possession unlicensed services, possession of wireless equipment etc of wireless equipment etc without license etcwithout license etc

OFFENCESOFFENCES

The proposed law seeks to The proposed law seeks to repeal five laws|-repeal five laws|-

• The Indian Telegraph Act, The Indian Telegraph Act, 1885, 1885,

• The Indian Wireless Telegraph The Indian Wireless Telegraph Act, 1931, Act, 1931,

• The Telegraph Wires (Unlawful The Telegraph Wires (Unlawful Possession) Act, 1950, Possession) Act, 1950,

REPEALREPEAL

• The Telecom Regulatory The Telecom Regulatory Authority of India Act, Authority of India Act, 1987 1987

• The Cable Television The Cable Television Networks (Regulation) Networks (Regulation) Act, 1995. Act, 1995.

REPEALREPEAL

• Internet Telephony made Internet Telephony made legal in India legal in India

• Problems in the sense that it Problems in the sense that it is only limited to legalizing is only limited to legalizing PC to PC phone calls in IndiaPC to PC phone calls in India

• PC to land phones are still PC to land phones are still not permissible in India not permissible in India under the Government of under the Government of India’s guidelinesIndia’s guidelines

INTERNET TELEPHONYINTERNET TELEPHONY

• Not much headway made in Not much headway made in the Convergence Bill, 2001the Convergence Bill, 2001

• Conditional Access System Conditional Access System being brought in placebeing brought in place

• Appropriate amendments Appropriate amendments made in the Cable Television made in the Cable Television Networks Networks ( Regulation) Act, 1995( Regulation) Act, 1995

REALITYREALITY

TRAI’s new White Paper on TRAI’s new White Paper on Unified Licensing RegimeUnified Licensing Regime

Tremendous debate likely in the Tremendous debate likely in the coming timescoming times

New pragmatic steps have to be New pragmatic steps have to be taken by India if it wants to taken by India if it wants to establish a place of pre-establish a place of pre-eminence in the converged eminence in the converged environmentenvironment

NEW DEVELOPMENTS NEW DEVELOPMENTS

THAT WAS APRESENTATION THAT WAS APRESENTATION BY BY

PAVAN DUGGAL,PAVAN DUGGAL,ADVOCATE, SUPREME COURT ADVOCATE, SUPREME COURT

OF INDIAOF INDIA PRESIDENT,CYBERLAW ASIA PRESIDENT,CYBERLAW ASIA

CYBERLAW CONSULTANT,CYBERLAW CONSULTANT,MEMBER, MAC, ICANNMEMBER, MAC, ICANN