The Communication Convergence Bill, India - A Lawyer's Perspective

The bill, which has been hogging the limelight, The Communication Convergence Bill, was introduced in the lower house of the Indian parliament on August 31st 2001. The bill primarily intends to promote and develop the entire communications sector^[1], in the scenario of increasing convergence of technologies. Thus India hopes to become the second country in the globe to have a legislation regarding convergence^[2]. The bill that was drafted by the eminent jurist F.S Nariman was finalized after numerous deliberations with the interested parties.

The bill will repeal 5 existing laws-The Indian Telegraph Act-1885, Cable TV Networks Act 1995, Indian Wireless Telegraphy Act-1933, The Telegraph Wires (Unlawful Possession) Act 1950 and the Telecom Regulatory Authority of India Act 1997.



The bill has 4 main objectives^[3] and they are:

• to facilitate development of national infrastructure for- an information based society, and to enable access thereto;
• to provide a choice of services to the people with a view to promoting plurality of news, views and information;
• to establish a regulatory framework for carriage and content of communication in the scenario of convergence of telecommunication, broadcasting, data-communication, multimedia and other related technologies and services; and
• to establish the powers, procedures and functions of a single regulatory and licensing authority and of the Appellate Tribunal

To be simple from here onwards the companies providing basic telecom, cellular telecom, Internet and satellite television need not be having different licenses to provide these services and will not be regulated by multiple agencies. The present situation is not conducive for this, for e.g. a cable operator cannot provide telecommunication services; an ISP is not allowed to carry voice etc. Now a service operator has to apply for licenses separately and since there is no single window to clear the application, this becomes a very cumbersome process. This is expected to change with the adoption of the Communication Convergence Bill, 2001. This paper will briefly mention the salient features of the bill and then analyse the shortcomings that are reflected in it.

Salient Features



The bill provides for the creation of an autonomous body to be called the Communication Commission of India (CCI). The bill envisages wide-ranging functions, duties and powers for the CCI, which is to have its headquarters in New Delhi and regional offices in Mumbai, Kolkata and Chennai^[4].

The 9 member Commission shall consist of a Chairperson; seven members and the Spectrum Manager, as ex-officio member^[5]. The Chairperson and Members (except the ex-officio Member) shall be appointed by the Central Government by notification, from amongst persons of eminence in the various specialised fields such as broadcasting, telecommunications, information technology, finance, management and law^[6]. A person who is in the service of Government will have to retire or resign from service before joining as Chairperson or whole time member^[7].

The Chairperson and whole-time Members shall hold office for a term of five years from the date on which they enter upon their office or until they attain the age of 65 years, whichever is earlier. The Chairperson and whole-time members shall not be eligible for re-appointment^[8]. The Chairperson shall have powers of general superintendence and direction in the conduct of affairs of the Commission and shall; in addition to presiding over the meetings of the Commission, exercise and discharge such powers and functions of the Commission as may be assigned to the Chairperson by the Commission^[9].

The Secretary-General shall be appointed by the Commission and shall be its Chief Executive Officer and shall exercise and discharge such powers and functions as determined by regulation^[10]. The Commission may seek from the Central Government a panel of not less than three officers who are eligible to be or are of the rank of the Secretary to the Government of India, for being appointed as Secretary-General.

Hearing of complaints and resolution of disputes by the Commission

The Commission shall decide any dispute between two or more service providers on issues relating to spectrum interference, interconnectivity, denial of fair access and practices restrictive of fair competition^[11] and between a service provider and a group of consumers^[12]. It will also look into any dispute arising out of enforcement of any provision of the Act.

Spectrum Management Committee

The Central Government shall be responsible for coordination with international agencies in respect of matters relating to Spectrum Management and also for allocation of available spectrum for strategic and non-strategic/commercial purposes^[13]. For this purpose a spectrum management committee will be created by the central government, with the cabinet secretary as its Chairman and consisting of other members which will be notified later^[14]. A spectrum manager will also be appointed to act as the member-secretary of the committee, and he will perform the following functions^[15].

• Co-ordinate with international agencies on matters relating to overall spectrum planning, use and its management.
• Carry out spectrum planning, and assign frequencies to the Central Government and to State Governments to meet their vital needs, including defence and national security.
• Allocate frequencies or band of frequencies including frequencies which are to be assigned by the Commission; and re-assignment of frequencies from time to time.
• Constantly review and make available as much spectrum as possible for assignment by the Commission, in particular by optimizing usages.
• Monitoring, in consultation with the Commission, the efficiency of the utilization of the spectrum by all users including investigation and resolution of spectrum interference.
• After meeting the requirements of the Central Government and of State Governments for fulfilling their vital needs - including defence and national security, the Spectrum Manager shall make the spectrum available (to the maximum extent possible) for assignment by the Commission, both in the shared as well as in the exclusive bands.

LICENSES FOR COMMUNICATION SERVICES AND NETWORK INFRASTRUCTURE FACILITIES



The CCI will try to uphold public interest by ensuring competition and prevention of monopolies while issuing licenses for providing communication services. The commission will also stipulate the eligibility conditions for such licenses. The Commission may grant license to any person:

1. to provide or own network infrastructure facilities, network infrastructure facilities include Earth Stations, Cable infrastructure, Wireless Equipment, Towers, poles, ducts and pits used in conjunction with other communication infrastructure, Broadcasting Distribution Facilities^[16]
2. to provide networking services
3. to provide network applications services
4. to provide content application services

Such licenses will only be issued after the payment of a specified fee to the CCI, but the central government has the power to exempt anyone from making such payment for obtaining the licenses^[17].

Breach of terms and conditions of Licenses, Penalties and Adjudication

When the terms of the license are breached, or when the licensee fails to comply with any decision, direction or order of the Commission, the Commission may, direct the licensee to do or abstain from doing any act. It may suspend the license for a specific period; or curtail the period of the license or as an extreme step revoke the license granted^[18]. In the alternative the CCI can start the adjudication proceedings mentioned under the bill. When a licensee has abused the terms and conditions of a license for providing a service, the Commission may authorise the seizure of the equipment being used for providing such service^[19].

The Adjudication Officer

An Adjudication officer shall be appointed by the CCI to find out whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made there under or is liable to a penalty^[20].

While adjudging the quantum of penalty, the Adjudicating Officer should consider the following factors^[21]

1. the amount of revenue loss to the Government;
2. the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default;
3. the amount of loss caused to any person as a result of the default;
4. the repetitive nature of the default;
5. that the amount of the penalty shall be such as may act as a deterrent even though no financial loss may be caused by such contravention.

COMMUNICATIONS APPELLATE TRIBUNAL



The bill also provides for the setting up of a COMMUNICATIONS APPELLATE TRIBUNAL so that any person aggrieved by the decision of the CCI shall prefer an appeal. An appeal shall be filed against the decision of CCI within a period of sixty days from the date on which the aggrieved person receives a copy of the decision or order^[22]. Any person aggrieved by an order of penalty imposed by the Adjudicating Officer may prefer an appeal to the Appellate Tribunal within sixty days from the date on which such order is received^[23]. The appellate tribunal shall consist of a chairperson and not more than 6 members^[24]. The chairperson should be a sitting or retired supreme court judge, whereas the other members could be selected from retired or sitting high court judges, central or state government secretaries having at least 2 years experience at that level or persons who are proficient in the field of information technology, telecommunication, broadcasting, law, industry or administration^[25].

Procedure and powers of a civil court

The Appellate Tribunal shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit, in respect of the following matters^[26] namely:-

1.  summoning and enforcing the attendance of any person and examining him on oath;
2. requiring the discovery and production of documents;
3. receiving evidence on affidavits;
4. subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or a copy of such record or document from any office;
5. issuing Commissions for the examinations of witnesses or documents;
6. dismissing an application for default or deciding it ex parte;
7. setting aside any order of dismissal of any application for default or any order passed by it, ex parte;
8. reviewing its decisions; and
9. issuing interim directions and granting interim relief.

An appeal shall lie against any order, passed by the Appellate Tribunal to the Supreme Court of India on one or more of the grounds specified in section 100 of the Civil Procedure Code. The time period is 90 days from the date of the decision appealed against^[27].

Shortcomings of the Bill

In attempting to become the second country in the world to have a Communication Convergence Law the Indian government pulled out all the stops to introduce the bill in the Loksabha^[28] on the 31st of August 2001. The bill provides for the setting up of a super-regulator, the CCI, which is supposed to be an autonomous body. The proponents of the said bill are shouting from their rooftops that the CCI would be a truly independent body in every sense. But a mere perusal of the bill would belie this claim. Right from the process of appointing the CCI members, the government would hold its control. If one reads the bill carefully he can discover that at the end of each and every clause the government has retained the right to interfere. The government is even having the power to exempt anybody from licensing and going by the earlier instances in similar situations one can assume that the government will sideline the CCI. Undoubtedly this will make a mockery of CCI's autonomy.

Another valid criticism is that the bill will lead to a situation where there is over licensing^[29] There is some truth here because, unless exempted one should have a license for almost everything. It seems that the government is attempting to make the CCI a mega-licensing authority. Clearly this over-licensing is totally unwarranted because it has the potential to kill the spirit of entrepreneurs who are planning to join the convergence bandwagon.

The bill states that the CCI has to follow all the policy directives of the government^[30]. Interestingly the government will also decide whether a directive is one of policy or not^[31]. This will amply prove that the government is not at all sincere to grant any real autonomy to the CCI. Under the pretext of giving policy directives the government can run its writ and thereby effectively bulldoze the CCI.

Problems Regarding Spectrum Management

Regarding spectrum management the government is virtually holding all the powers. In any case nobody will question the government for determining the spectrum it needs for defence/security and there is total agreement that the government should have the full authority to determine this. But once this is determined the rest should be allocated to the industry in a fair manner. The cabinet secretary will head the spectrum management committee envisaged under the bill, and the CCI will only have a secondary role to play here. This dual authority on spectrum can be problematic and more than that the CCI will become submissive to the spectrum management committee headed by the cabinet secretary. Experts in this arena feel that the CCI is on a better footing to balance the spectrum requirements of the industry and government. The allocation of spectrum should be efficiently managed because this is a real goldmine and if it is effectively leveraged, the returns can be abysmally high.

Regarding appointments to the CCI, the Secretary General should be appointed from an open pool of competent persons as against from a panel of government secretaries proposed by the bill. This will certainly bring a sense of professionalism and competitiveness. The bill is also vague when it comes to the jurisdictional aspects of the CCI and the adjudicating officer and some fine-tuning is needed to clear this ambiguity.

Conclusion

Thus after going through the proposed bill on convergence it can be concluded that the autonomy of the CCI, which the bill's proponents are shouting about, is a mere publicity stunt. More than that the bill requires a closer study by various expert committees and this study should not be done in a hasty manner. If the bill is passed in its present form then there will be a flurry of lawsuits and as a lawyer dealing with convergence issues I would be definitely happy. But considering the larger interests of the society the bill should be studied in detail and steps should be taken to empower the CCI with real autonomy. As of now the bill looks like an ugly duckling, but if we are realistic, we can always turn this ugly duckling into a swan.

References

1. [1] Communication sector comprises of broadcasting, telecom and information technology.
2. [2] Malaysia is the first country to have a convergence specific legislation.
3. [3] Draft of The Communication Convergence Bill 2001, see the beginning.
4. [4] Ibid. Sec. 6(1)
5. [5] Ibid. Sec. 6(3), Sec 6(4) states that the Chairperson and not less than five Members, (other than the ex-officio Member), shall be whole-time Members
6. [6] Ibid. Sec. 7(1)
7. [7] Ibid. Sec. 7(3)
8. [8] Ibid. Sec. 8(1)
9. [9] Ibid. Sec. 8(3)
10. [10] Ibid. Sec. 15(1)
11. [11] Ibid. Sec. 22(1)
12. [12] Ibid. Sec. 12(2)
13. [13] Ibid. Sec. 24(1).
14. [14] Ibid. Sec. 24(2)
15. [15] Ibid. Sec. 24(4)(i-v)
16. [16] Ibid. Generally Sec. 26(6)
17. [17] Ibid. Sec. 27(2)
18. [18] Ibid. Sec. 33(1)
19. [19] Ibid. Sec 33(2)
20. [20] Ibid. Sec. 40.
21. [21] Ibid. Sec. 41(2)
22. [22] Ibid. Sec. 43(3)
23. [23] Ibid. Sec. 43(4)
24. [24] Ibid. Sec. 44(1)
25. [25] Ibid. Sec. 45(1)(b)
26. [26] Ibid. Sec. 49(1)
27. [27] Ibid. Sec. 51(3)
28. [28] The Indian parliament's lower house.
29. [29] Sec. 30(1) of the draft states that any person who intends to posses any wireless equipment shall make an application to the Commission for the grant of a license.
30. [30] Draft of The Communication Convergence Bill 2001 Sec 23(1)
31. [31] Ibid. Sec 23(3)