By Mitaksh
“Technological convergence brings with it peculiar issues of policy, regulation, data privacy, and data security, hence it is important that policy and regulations evolve on a continuous basis to keep pace with the developments,” read the consultation paper by the Telecom Regulatory Authority of India (TRAI).
The paper deals with the issue of regulating converged digital technologies with a specific focus on enabling convergence of carriage of broadcasting and telecommunication services. The regulator added that regulating converging technology, which integrates multiple technologies, can be “challenging”.
The paper flagged issues like standards and technical license conditions as important areas from a policy perspective which includes “safety, interoperability and quality of service”.
Why it matters: The paper is notable as it examines challenges posed by converging technologies and explores changes needed in legal, administrative, and licensing frameworks to deal with them, as per TRAI. The proposal is important because it can cause significant disruption to internet businesses.
Moreover, the plan has also ruffled the feathers of the Ministry of Information and Broadcasting (MIB) which asked the Indian telecom regulator to focus on developing a single regulatory system instead.
The feedback on this paper can be sent to Sanjeev Kumar Sharma, Advisor (Broadband & Policy Analysis), TRAI, by February 27, 2023. The regulator will accept counter-comments till March 13, 2023. The feedback can be sent to advbbpa@trai.gov.in with a copy to jtadv-bbpa@trai.gov.in.
Key takeaways
Converged regulatory framework
Need for revisiting frameworks: “In the converged era, regulatory and licensing frameworks need to be revisited to enable industry players to offer new services in a converged era and provide it in a ubiquitous and cost-efficient manner,” read the paper. “convergence of telecom and broadcasting networks and services can ensure efficient utilization of the available resources,” the paper reasoned, stressing that administrative units responsible have not been converged/restructured.
It noted that disparate policy structures for telecom and broadcasting cause governance challenges like multiple license/permission authorities for the same converged service (e.g., IPTV), lack of regulatory clarity on the outcomes of converged technologies (e.g., OTT), demarcated administration of the converged digital services (e.g., converged cloud platforms).
What should the framework include: The telecom regulator wrote that the framework should be defined in such a way that it “provides sufficient flexibility and opportunities to connectivity providers, media providers and technology providers for adopting new business models”. It added that there may be a need to factor in the OTT (Over-The-Top) sector. It should also cover aspects like new entry, interconnection, consumer protection, sharing of infrastructure, and quality of service in the new structure.
Absence of convergence
As per TRAI, the absence of convergence at the statutory, licensing, regulatory, and administrative levels is causing challenges:
Statutory level: The regulator said that there are different Acts and Guidelines such as the Indian Telegraph Act, 1885, the Information Technology Act, 2000, Cable Television Networks (Regulation) Act, 1995, and TRAI Act, 1997, among others. “These Acts are inadequate to address regulatory concerns in a converged era,” the paper said. The regulator said that convergence of technologies warrants permissions from different ministries and oversight from different regulators which increases costs and causes delays.
Licensing level: “There is hardly any convergence at licensing,” the paper said, adding that the Department of Telecommunications (DoT) and MIB are both involved in the process. “The technology-specific approach would be too detailed in the converging environment, would lead to a slow licensing process, and would restrict competition in the industry and growth of the industry in the form of new investments, new technologies, products, and services,” the paper concluded.
Regulatory level: The telecom watchdog said that its regulatory powers are limited in comparison to the other regulators in many major countries. It said that it is limited only to prescribing and monitoring quality benchmarks, interconnect rules and pricing of services. It merely has recommendatory powers in critical areas like licensing administration, spectrum management etc., and areas like content regulation remain out of its purview.
Content regulation: The paper highlighted that there is convergence as far as regulation of carriage and content is concerned in several leading nationalities. It said that there were multiple bodies regulating content on televisions, print, advertising, films, etc. “As far as regulation of content in the broadcasting sector is concerned, the situation has become increasingly complex due to the onset of a large number of OTT streaming providers. The OTT revolution has led to many gaps in the policy space of content regulation. In India, OTT content oversight policy is still evolving and a work in progress,” the paper said.
The paper said that a fragmented regulatory approach for regulating content may not be conducive to promote the growth of the content sector which has employment and export potential.
“The existing regulatory oversight framework for content regulation, which is patchy and inadequate at its best, may need a complete overhaul in a converged era in line with many other nations, where a converged regulator regulates carriage and content,” the paper concluded.
Challenges in enabling convergence of carriage of telecom and broadcasting services
The paper said that the carriage part (access network) is regulated/licensed by the DoT under Indian Telegraph Act, 1885, and the content part is regulated by MIB under the Cable Television Network (Regulation) Act, 1995.
Logical step: “It can be argued that in (the) converged era, a logical step can be of converging the licensing framework,” the paper suggested. The regulator proposed that entities can be authorised to operate under a unified license instead of being issued different licences for broadcasting, through a modified legal framework. The paper thought that this authorisation can be provided by the ministry or department that oversees the provision of the communication service or infrastructure network which would be the DoT in this case.
Single law: The telecom watchdog said that the convergence will be needed at a statutory level as “certain broadcasting registrations are issued under the Cable TV Act while DTH license is issued by MIB under the Telegraph Act”.
What can be the considerations: The paper said that “key considerations” for developing a single code may involve consolidating laws governing the provision of communication services, development, establishment, operation and expansion of communication services, infrastructure and networks. It should cover the following—
Traditional Telecommunication Services
Broadcasting & TV Services
IP-based communication services
OTT Communication/Broadcasting Services
Subscription/ User-ID-based Video on Demand services.
Linear/ Live Linear Television Channels through various OTT platforms
Machine-to-Machine (M2M) Communication Services.
AR/VR communication
Coordination among ministries: The paper said that the new framework should consist of new definitions so that communication services can be comprehensively governed and converged. It should also involve coordination among related ministries and departments, the paper continued.
Administrative clarity: “Will the authorisations under the Unified License (UL) be issued by respective ministries?,” wondered the paper, adding that many issues will arise if authorisations are handled by respective ministries. “Thus, to avoid confusion and delays, it can be argued that apart from the requirement for convergence of the legal and licensing framework, there will also be a requirement for convergence at administrative level,” read the paper cautiously. It added that there may not be a need to introduce changes as concerns can be addressed by implementing Ease of Doing Business (EoDB).
What did the MIB say: The ministry was not convinced with the proposal, and stated that “shifting of licensing functions to another department, say DoT, will not serve any good but will only disturb the established practices,” as per a letter sent by it. You can read MediaNama’s report on the letter here.
What did TRAI recommend?
The consultationpaper recommended that the “DTH licence and terminal stations can be brought under the jurisdiction of DoT while leaving the content part to be regulated by MIB. Similarly, the carriage part of the Cable TV service providers may also be brought under the jurisdiction of DoT while content regulation continues with MIB.”
The regulator said that there is a case for “provisioning of registration/licenses on the basis of use cases instead of on the basis of type of technology for service provisioning”. “The march of technology continues to move at a faster pace and therefore the definitions of services need to be technology agnostic and also all encompassing,” the paper concluded.
Changes in spectrum management: The telecom watchdog noted that the DoT exercises the statutory functions of issuing licenses to telecommunication services. However, for the delivery of services for broadcasters, say for example, licenses for DTH services and Cable TV are issued by the MIB. It noted that the spectrum to all broadcasting services and telecommunication services is assigned by the DoT. “…the convergence of broadband services and broadcasting services will bring substantial efficiencies. It may be desirable that similar services are regulated in a similar manner from regulatory and policy perspective,” read the paper. The regulator added that there must be a deliberation on the issue of changes in the spectrum management regime in India for carriage of broadcasting services and telecommunication services.
Holistic convergence: The paper noted that the aspect of convergence goes beyond telecom and broadcasting and involves convergence with the IT sector as well. “Network functions are getting virtualized and can be optimized to be hosted in edge data centres. Convergence of networking and cloud/edge computing will ultimately affect the way the telecom as well as broadcasting services are delivered,” the paper said. “In the coming years, it would almost be impossible to demarcate and assign responsibilities between cloud and telecom service providers from a regulatory perspective,” it concluded.
The regulator pointed out that it was imperative to look at the convergence not just from a telecom and broadcasting lens, but in a holistic manner which involves ITeS (Information Technology enabled Services) and the space sector as well.
Looking at other countries: “Large economies around the world like the USA, UK, Australia, European Union, etc. have established the converged regulators who are empowered and made responsible for overseeing the complete electronic communication space which includes telecommunication, broadcasting, media, and cyberspace,” TRAI explained in the paper. It added that they have a common body that authorises or provides licences for both telecommunications and broadcast services.
- Editor’s Note: The post was edited on February 7, 2023, at 13:20 to include hyperlinks to various legal acts included in the post.
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