India needs to augment telecom services through regulations

During the Budget Session of the Parliament in Februrary this year, Finance Minister, Nirmala Sitharaman, said that the commercial rollout of 5G services is set to happen between 2022 and 2023, with fully compatible 5G services/devices available for sale by March 2023. This will allow for seamless coverage, high data rate, low latency, and improved spectrum efficiency amongst other factors.

Deregulation of telecommunication dawned with the notification of the 1994 National Telecom Policy (NTP), and subsequently revised vide the 1999, 2012 iterations, respectively. Historically, vide a judgment of the Hon’ble Supreme Court of India in 1995, spectrum has been classified as public property, and is made to be available for auction and allocation by the Department of Telecommunication (DoT) in India.

For the uninitiated, there is little guidance that is directly concerning the services, and one has to look at consultation papers, white papers, policies, and spectrum guidelines for reference. The reliance upon these ancillary sources to facilitate the discussion on 5G services has been instrumental, to garner stakeholder opinions, and initiate discussions to ensure the rollout of services is business-friendly and capable of upscaling in the near future. To that end, the National Digital Communication Policy 2018, provided a skeletal roadmap to the introduction and delivery of 5G services in the country.

Following suit, the Steering Committees Report (2018) and TRAI’s White Paper (2019) on the 5G rollout further highlights the potential benefits of 5G and tries to identify regulatory challenges that need to be addressed prior to the actual deployment of 5G in the country. In the absence of any specific regulation, we must place reliance on the extant framework, for smooth functioning and deployment of these services.

References may be made to the Guideline for sharing of Access Spectrum by Access Providers, 2021 (2021 Guideline), the Notice Inviting Application, 2021 (NIA) which discuss the eligibility conditions and other terms for the auction, Unified License (UL) which pertains to the license that the applicants/ licensees enter into with the DoT for provisioning of telecommunication services, and the Consultation Paper issued by TRAI on ‘Auction of Spectrum on Frequency Bands for 5G’, 2021 (Consultation Paper) which puts forth the discussion points, issues in relation to spectrum frequencies proposed to be auctioned for the first time.

The present framework mandates the licensee to hold licences under the Unified Access Service License (UASL), Cellular Mobile Telephone Service (CMTS)/ UL with authorization to provide telecommunication services in the specific circle, subject to adherence to their obligations under the UL. Additionally, any new entrant to the telecommunications sector is permitted to bid for spectrum bands in the 700MHz, 800 MHz, 900 MHz, 1800 MHz, 2100 MHz, 2300 MHz, and 2500 MHz. Further, the 2021 Guidelines on spectrum sharing, permit spectrum sharing between two Telecom Service Providers (TSPs) within the same spectrum band, subject to adherence to the applicable regulations, and specifically restricts leasing of the spectrum between the licensees. The focus on the quality of service that is expected of a service provider has not been deviated from and continues to be a core requirement under the Guidelines. Further, the recent amendments and recommendations have increased the period of assignment of the spectrum to 30 years, as opposed to the existing validity of 20 years, with regular auctions to be organized on an annual basis.

The recent Consultation Paper has called for inputs with respect to the quantum of the spectrum, band plans, block size of the band, change in eligibility conditions, and issues pertaining to roll-out obligations, amongst other such factors. While procedures to commence 5G services are underway, the Ministry is seemingly taking an approach towards the regulation of 5G services and sets out a comprehensive plan towards the development of this framework.

Given the ever-increasing availability of internet-enabled devices, the proliferation of telecommunications, internet, broadband services, it is the need of the hour to augment telecommunication services and provide a faster, seamless internet experience to users. With the government’s reliance on the integration of digital solutions into the consumer-intrinsic domains of agriculture, healthcare, finance, retail and related, it is only a matter of time before conventional methods will lag behind, and there would be an imminent need to stay connected!

Bagmisikha Puhan

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Bagmisikha Puhan is an Associate Partner at law firm TMT Law Practice.