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Does India’s telecom regulator have the jurisdiction to be a unified regulator? #NAMA

Whether the Telecom Regulatory Authority of India (TRAI) has the jurisdiction to be a unified regulator was one of the key points of debate at our discussion on TRAI’s recent consultation paper on ‘convergence’.

“As of now, TRAI [Telecom Regulatory Authority of India] is governed by the TRAI Act… and no, content is not governed by it. TRAI always wants to overreach or try to exercise its jurisdiction. The larger point is, this is a consultation where they want to change the policy. The origin of the consultation is through a DoT [Department of Telecommunications] letter, which asks TRAI to give recommendations on convergence. Ultimately, the DoT will decide the course,” says a discussant at MediaNama’s discussion on Internet Regulation, Convergence and TRAI on February 24, 2023.

The speaker was commenting on whether the Telecom Regulatory Authority of India (TRAI) has the jurisdiction to be a unified regulator, one of the key points of discussion arising out of TRAI’s recently released consultation paper recommending a single regulator and converged regulation for telecom, broadcast and communication services.

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What did TRAI say in the consultation paper?

a. In its consultation paper, TRAI highlights that the absence of convergence at the statutory, licensing, regulatory and administrative levels is causing challenges.

b. It suggests key considerations for developing a single code, which may involve “consolidating laws governing the provision of communication services, development, establishment, operation and expansion of communication services, infrastructure and networks”. This should cover “traditional communication services, broadcasting and TV services, IP-based communication services and OTT communication/broadcasting services among others”. We have covered TRAI’s recommendations in detail, here.

c. It also highlights that it “is already a unified regulator for regulating carriage of telecom as well as broadcasting sectors, its regulatory powers, however, are limited in comparison to the other regulators in many major countries”.

Power tussle between TRAI and MIB: On the idea of a single converged regulator for online services, moderator and MediaNama Editor Nikhil Pahwa points out that in a scenario where everything moves to the internet or when the Digital India Bill is out, the Ministry of Information & Broadcasting (MIB) and TRAI are essentially trying to figure out their roles in the broadcast and OTT domain. Speakers at the event emphasise the balance of power between the line ministries–which are essentially participating ministries that look at specific sectoral issues–in terms of licensing, permissions and regulation of content.

Vibodh Parthasarathi, Associate Professor, Centre for Culture, Media and Governance at Jamia Millia Islamia, notes that if TRAI is designated as the converged regulator but the powers it has listed out in the paper are not with the TRAI and remain with the line ministry, it will again create confusion over “who calls the shots here” again.

He explains, “It’s not a question of whether the MIB remains or not, it is whether your line ministries are going to be replaced completely by a regulator. This is what has happened in other countries. In most of the countries, which had this kind of regulator; you don’t have the line ministries. So, you have got this kind of hybrid system of having multiple ministries, and therefore your regulatory framework is fragmented. And then you also have a fragmentation of powers.”

Content regulation: Though TRAI says that content regulation is out of its purview, it suggests in the paper that content regulation will need to be completely overhauled in the converged era and that the current fragmented approach is “patchy and inadequate”. While discussing the scope of the TRAI as a unified regulator, one of the discussants points out that the TRAI does not have the capacity for content regulation. However, it can only make recommendations in that direction. The telecom regulator has also pointed out in the paper that it has merely “recommendatory powers in critical areas like licensing administration, spectrum management etc., and areas like content regulation remain out of its purview”.

Parthasarathi is of the view that when it comes to state capacity, the Ministry of Information and Broadcasting (MIB) has the capacity for content regulation as it has information services officers to deal with it.

To this, MediaNama Editor Nikhil Pahwa points out that the MIB has reiterated the same in its response to the consultation paper, where it essentially states that the ministry required “separate skill sets of creative and artistic persons than that of technocrats or economists who can factor the impact of content on sensibilities, morals and (the) value system of the society” for content regulation. Hence, it states in its letter that content policy and regulation should continue to be with the MIB.

India’s plan is not an outlier: While discussing the scope of convergence, speakers emphasised the fact that a number of countries have worked out frameworks for a unified system, which includes aspects of content moderation as well. Public policy consultant Deepak Maheshwari pointed out:

a. Malaysia’s Malaysian Communications and Multimedia Commission, which oversees the convergence of telecom, broadcasting and online activities.
b. UK’s Ofcom, which is the regulator for communication services including broadband, mobile phone services, TV and Radio, and wireless devices.
c. Singapore’s Infocomm Media Development Authority, which regulates the infocomm and digital media sector.
d. United States’ Federal Communications Commission, which, Maheshwari says, is primarily about access but there have been cases where it looked at content too.

“It’s not really an outlier in terms of the way things have been thought about. But the institutional structure is very different from the way it’s being proposed in India, especially considering we have different ministries and they themselves are not even coming on the same page,” Maheshwari adds.

Adding to this matter, Parthasarathi states that countries are responding to specific regulatory anxieties, but TRAI’s convergence paper lacks that kind of policy objective. Also, it also doesn’t have a “laundry list of issues” to be addressed through convergence. He notes that it’s more about the political objective of not letting its powers taken away.

“It’s also about managerial issues…the administrative law becomes important there. What’s the division of powers between various sort of institutions in the government, and how in a sense, is this going to either threaten that or perhaps smoothen out the edges. That in a sense is the way TRAI is seeing it,” he concludes.

Watch the full discussion here:

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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Curious about privacy, surveillance developments and the intersection of technology with education, caste and welfare rights.

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