Draft telecom bill 2022 promises a new licence-permit raj

Treating applications running over the communications network as licensed services, as the bill proposes, would establish a regime of command and control over India’s burgeoning digital economy that would be the envy of even the bureaucrats who ran India’s one-time Licensing Raj .

The bill makes Gmail and WhatsApp and other such applications — basically any app on the phone that works by communicating with the server(s) running the base program — communication services that require a license from the government.

This is achieved through a broad definition of telecommunications service and by reserving the exclusive privilege of providing all telecommunications services to the central government. This broad definition makes Gmail and WhatsApp services subject to licensing. Before readers see chilling images of the government providing us with our mail service and replacing all digital entertainment with wholesome doordarshan dishes, consider the saving grace: The bill also states that the government can license third parties to provide such services provide or even completely exclude some services from the need for a license.

Can governments do things this way today? Let’s see what the bill says. It begins with the definitions section.

“(T)Electronics services” means services of any kind (including broadcast services, e-mail, voicemail, voice, video and data communications services, audiotex services, videotex services, fixed and mobile communications services, internet and broadband services, satellite communication services, internet-based communication services, shipboard and sea connection services, interpersonal communication services, machine-to-machine communication services, over-the-top (OTT) communication services) made available to users via telecommunications and includes any other service provided by the central government can register as a telecommunications service.

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Furthermore, Chapter 3 of the draft bill reads as follows:

(1) The central government in India has the exclusive privilege: (a) to provide telecommunications services; (b) construct, operate, maintain and expand telecommunications networks and telecommunications infrastructure; and (c) use, allocate and allocate spectrum.

(2) The central government may exercise its privilege under subsection (1) by granting to each entity in the prescribed manner: (a) license to provide telecommunications services or to establish, operate, maintain and develop telecommunications networks; (b) registration for the provision of telecommunications infrastructure; (c) license to own wireless equipment; or (d) allocation of spectrum.

(3) The central government may, if it determines that the public interest so requires, exempt it from the requirement for licensing, registration, authorization or assignment under subsection (2) in the manner prescribed.

Should we be concerned if the government has a liberal licensing system, including a putative exemption from licensing for instructional services? Let’s see this in perspective.

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The Constitution offers us, the citizens, liberty and due process of law for any restriction of liberty. Suppose it were the other way around. Suppose the constitution does not confer liberties and rights on citizens, but empowers the state to grant exceptions to citizens from such a denial of liberties and rights. Would the two situations be symmetrical? A citizen’s freedom would be left to the will of the state and thus vulnerable.

When a new communications service takes shape in an entrepreneur’s mind and receives funding from an angel investor to grow from idea to business, the entrepreneur’s first priority would be to obtain a license for that service or a licensing exemption.

A youth in Ukraine has developed a drone with a synthetic aperture radar that can detect mines not buried too deep. If that were to happen in India under the new telecoms regime, before he can even save a life the boy would have to get a license for this newfangled communications service and pray the officer in charge isn’t on vacation when the application lands at their desk and that the application would not be buried among a thousand others.

For a country that realistically hopes to create a vibrant digital economy, introducing a law that licenses every new application on the internet is madness that stifles innovation. If the goal is simply to take down messaging apps like WhatsApp and force them to bring traceability and even transparency to the message in the interests of national security, this can be achieved by creating separate rules for messaging apps .

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On 4G and 5G networks, calls are all data packets. When a call goes through on WhatsApp, it would consume data just like a regular call on the network. The network operators would get revenue for the data consumed, and the state would get its share of the revenue. WhatsApp is actually stealing revenue from calls from 2G service providers. But hey, so are candle bulbs.

What the government should be licensing is the telecommunications network itself. Businesses and applications running on the network should be regulated and taxed like other businesses running offline, in the interests of consumer protection and security. The general definition of the communication services to be licensed includes all online transactions. This is illiberal and unnecessary. Offline businesses are not free to undermine national security as they are not licensed, nor are online businesses. The income they generate should be taxed, they should obey existing labor laws and behave like ordinary corporate citizens, no more, no less.

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