Internet regulations

Authorities involved:
The regulatory and policy framework encompassing the communications sector in India
comprises a number of statutes, rules, regulations, guidelines, etc, laid down by the
government of India. The primary statutes regulating the sector include:

 the Indian Telegraph Act 1885 (the Telegraph Act);

 the Indian Wireless Telegraphy Act 1933 (the Wireless Act);

 the Telecom Regulatory Authority of India (TRAI) Act 1997 (the TRAI Act);

 the telecoms policy amended from time to time, the latest being the National
Digital Communications Policy 2018 (the NDCP 2018), which was approved in
September 2018;

 the Broadband Policy 2004; and

 the Information Technology Act 2000 (the IT Act).

The Telegraph Act is the primary legislation underlying the telecommunications

regulatory framework for India and prescribing various powers of the government to
operate and regulate telecoms services in the country. Under the current regime, the
task of granting licences and approvals to telecoms players for providing telecoms
services in India has been assigned to the Department of Telecommunications, the
Ministry of Communications and Information Technology (DoT). The DoT formulates
and implements the telecoms licensing regime, under which licences and approvals are
granted to corporations to carry out telecoms services.

The Wireless Act was formulated and implemented to regulate wireless communication
and the possession of the concerned wireless telegraphy apparatus. It has been
explicitly stipulated that the possession of any apparatus, appliance, instrument or
material used or capable of use in wireless communication requires a licence from the
DoT to that effect. A penalty has been prescribed for possession without the requisite
licence.

In 1997, the government passed the TRAI Act and set up TRAI as the regulatory authority
for the telecoms and broadcasting sector with the power to make policy
recommendations on related issues. The TRAI Act also provides for the adjudication of
disputes between the telecoms licensees and the DoT through the Telecom Disputes
Settlement and Appellate Tribunal (TDSAT).

The DoT is responsible for formulating Policy Frameworks aimed at accelerating the
growth of the telecommunication services. Recognising that provision of world class
telecommunications infrastructure is the key to rapid socio-economic growth of the
country, the government has been announcing its telecom policy statements at regular
intervals since the onset of market liberalisation in the country in the early 1990s.
  National Digital Communications Policy 2018.

The NDCP 2018 seeks to unlock the transformative power of digital communications
networks - to achieve the goal of digital empowerment and well-being of the people of
India; and towards this end, attempts to outline a set of goals, initiatives, strategies and
intended policy outcomes

The vision of the government as stated in the NDCP 2018 is to fulfil the information and
communication needs of citizens and enterprises by establishment of a ubiquitous,
resilient, secure and affordable digital communications infrastructure and services; and
in the process, support India’s transition to a digitally empowered economy and society

Licensing
he licensing regime for the provision of the telecoms sector witnessed a sea change in
2013 with the introduction and implementation of the ‘unified licence regime’. The
unified licence regime has been implemented primarily with the objective of ‘one nation,
one licence’, as envisaged under the NTP 2012. It replaces the earlier regime where the
players were required to obtain separate licences for different telecoms services in India,
such as internet services, national long-distance (NLD) services, international long-
distance (ILD) services and so on.

The unified licence regime for the first time allows telecoms operators to offer all
telecoms services under one licence, subject to separate service authorisation for the
provision of different telecoms services, covered by the unified licence. The unified
licence covers within its ambit all the fixed, mobile and satellite services and
communication both on wireline and wireless media with full mobility, limited mobility
and fixed wireless access. The service authorisations covered by the unified licence are:

 access service;

 internet service;

 NLD service;

 ILD service;

 global mobile personal communication by satellite service;

 public mobile radio trunking service;

 very small aperture terminal closed user group service;

 Indian national satellite system mobile satellite system reporting service; and

 resale of international private leased circuit service.

Recognising the potential of Internet of Things (IoT) and Machine to Machine (M2M),
emphasis was laid down in the NTP 2012 as: ‘To facilitate the role of new technologies
in furthering public welfare and enhanced customer choices through affordable access
and efficient service delivery.
It was also believed that launch of various government programmes such as Digital
India, Make in India and Startup India will help immensely in driving the growth of the
M2M/IoT industry in the country. In addition, many mega projects have been undertaken
by the government of India, which will help in the effective and sustainable utilisation of
resources by the application of M2M/IoT technology.
The legal regime relating to the spectrum policy is contained under the Telegraph Act
and the Wireless Act and the rules and regulations thereunder. The Wireless Planning
and Coordination Wing of the DoT (WPC) has been constituted as the regulatory
authority responsible for frequency management, including licences. The WPC is divided
into a number of departments, one of the most important functions being the
formulation and implementation of the National Frequency and Allocation Plans.

Previously, spectrum allocation was linked to the granting of a licence by the DoT;
however, as contemplated by the NTP 2012, the unified licence has delinked spectrum
from the licence. The Supreme Court of India decided that all natural resources,
including spectrum, should be granted by way of auction (ie, market-related processes
only). However, spectrum can be used only for the purposes for which it was granted.

Net neutrality
Meaning:

Mechanisms for establishing rules ensuring Net neutrality in India, are at present mainly enforced by
the Telecom Regulatory Authority of India (TRAI). At present, there are no specific legislation
regarding Net Neutrality in India.
On 12 July 2018, The Department of Telecommunications made rules, approving the
recommendations from TRAI, which heavily favoured net neutrality in India. These rules barred any
form of data discrimination. Internet service providers which violate these rules may have their
licenses cancelled. The rules make an exception for "critical IoT services" or "specialized services"
such as autonomous vehicles and remote surgery operations.
The debate on network neutrality in India gained public attention in December 2014, after Airtel,
a mobile telephony service provider in India, announced additional charges for making voice calls
(VoIP) from its network using apps like WhatsApp, Skype, etc.
There are currently no regulations or guidelines in place in India with regard to net neutrality. Hence
it can be safely said that currently there are no limits on internet service providers’ freedom to
control and prioritise the type or source of data. Net neutrality has been contemplated by the NTP
2012. However, granting a general recognition and acceptance of the principle, the telecoms
regulator has in certain instances proposed investigations into the data plans and packages offered
by certain telecoms providers to their subscribers, to determine whether they are in violation of net
neutrality principles
Zero-rating is a practice where mobile operators do not charge end consumers for access to specific
websites or apps, but instead charge the latter for the data consumed by consumers in accessing the
website or app. As there is no specific regulatory legislation on net neutrality in India, zero-rating
practices are discretely prevalent, being, however, subject to certain limitations. The ISPs and the
telecom companies are prohibited from blocking, obstructing or delaying in any way, services and
other internet and telecom traffic, unless necessary for reasons of congestion management, security,
continuity of the network, etc. This blocking shall only be lawful, when necessary, to protect the
integrity and security of the network or users’ terminals.