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An analysis by Corp Comm Legal

Bhumesh Verma, Managing partner and Soumya Shekhar, Associate

Introduction

The Department of Telecommunications has released the draft National Digital Communications Policy (“Digital Policy”) on 1 st May 2018, inviting public comments on the same.

This new Digital Policy seeks to regulate not only the telecom sector but also devise new ways of improving digital communication across the country. The policy aims at creating and sustaining a sound digital infrastructure in the country. Such digital infrastructure is expected to propel economic growth and enable India to transition to a digitally empowered economy and society.

The Policy mainly talks about three key missions or pillars which would help buttress India’s digital infrastructure. These are: Connect India, Propel India and Secure India. Connect India is based on the objective of introducing broadband services for all, Propel India seeks to utilize the emerging technologies such as artificial intelligence and internet of things to create future-ready products and Secure India aims to achieve digital sovereignty in the country by focussing on issues such as data privacy. This article analyses the major legal and regulatory changes brought about by the Policy.

Key Changes Proposed By The Digital Policy

a) Amending the Telegraph Act, 1885

As an initiative under the Connect India Mission, the government has proposed the creation of a national broadband mission for universal provision of broadband services. Among other things, this mission proposes that there should be a convergence of telecom, IT and broadcasting sectors. In order to make this convergence legally possible, the policy proposed that provisions of the Telegraph Act, 1885 may need to be amended.

b) Simplification and uniformity in regulatory framework

Under its Propel Mission, the Digital Policy also recommends that a uniform framework for technologies such as the Over the Top (OTT) and cloud computing should be set up. It has been proposed that a unified policy and spectrum management regime should be set up in this regard.

c) Simplifying compliance obligations

The Digital Policy seeks to simplify the onerous compliance obligations. It proposed to reduce the licensing and regulatory obligations, revamp the merger and acquisition regulations for obtaining fast-track approvals, fixing penalties to maintain proportionality etc.

d) The Digital Policy suggests the setting up of International Cable Landing Stations which would lead to a reduction in bandwidth costs.

e) Suggestions with regard to fixed number portability have been made which would lead to full number portability.

f) The Digital Policy also proposes the setting up of policies pertaining to data encryption and retention.

Analysis Of The Changes Proposed

The Digital Policy through its clearly structured missions, objectives and strategies appear to be a committed and long-term policy which would fast-track India on the path of legal development. However, there may be few irritants which can prevent the policy from achieving its objective.

Firstly, the convergence of the IT, telecom and broadcasting sectors may not be as easy as it sounds. A plethora of legislation would have to be amended. Not only the legal and regulatory regime but a revamp of the administrative structure of these sectors would also be required to be carried out.

Moreover, there may be certain areas which are isolated to one sector only and it would be difficult to fit them in a unified regime. The proposal to amend the merger and acquisition regulations and to reduce licensing and regulatory obligations may not always serve the purpose of simplification.

The rationale behind having strict compliances in place is to ensure a fair play. A lenient regime may lead to other concerns. Having said that, the changes suggested and the frameworks proposed are indeed laudable and if implemented efficiently would enhance India’s digital capability.

Conclusion

The proposed Digital Policy is a brilliant initiative on the part of the government to formally focus on not only the telecom sector but also include digitization of the country within its ambit. The three-pronged missions of ensuring broadband connectivity, utilizing the future technologies and focussing on data sovereignty show that the government has thought through and intensively planned to make India digitally strong. However, what remains to be seen is that practical viability of this policy and the extent to which it is actually implemented.