Jyotsna JayaramPartner
Akshaya Parthasarathy Senior Associate
Sanah JavedAssociate
Key Developments
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Telecommunications Act, 2023 enacted to overhaul the archaic telegraph-centric regime presently governing telecommunications in India
The Telecommunications Act, 2023 (Telecom Act) introduces an authorisation-based framework for the provision of telecommunication services in India. Existing license holders will need to subsequently migrate to this new regime.
Telecommunication services may be interpreted to encompass a variety of services wherein text, image, video, data stream, intelligence, etc. are sent via telecommunication. Although broadcasting and internet-based communication are not included within the ambit of the Telecom Act, with broadcasting now forming part of a dedicated draft law (discussed in point 5 below), the Telecom Act could be interpreted to include the delivery of messages through any means of telecommunication, including voice over internet protocol (VoIP).
The Telecom Act is yet to come into force and may be notified in a staggered manner. (To read our detailed update on the Telecom Act, click here.)
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Telecom Regulatory Authority of India mandates telecom companies to deploy the Digital Consent Acquisition facility to register subscriber consent for telemarketing
In its ongoing efforts to curb unsolicited commercial communications and move away from the fragmented manner in which consent for telemarketing is currently collected from subscribers, the Telecom Regulatory Authority of India (TRAI) directed telecom service providers (TSP) in June 2023 to deploy a Digital Consent Acquisition (DCA) facility that would create a unified platform and process to register subscribers’ consent at the TSP level. In November, TRAI reiterated this requirement and directed TSPs to take urgent steps necessary to onboard the DCA facility.
To this end, TSPs should ensure that entities looking to send marketing communications (Marketers) use a common short code 127xxx to send text messages to obtain their customers’ consent (Consent SMS). The Consent SMS should also mention the purpose and scope of consent, the Marketer’s name, and information relating to the revocation of consent. Only whitelisted URLs, APKs, over-the-top links, or call-back numbers should be used in Consent SMS. Parallely, TSPs should develop a facility to register any unwillingness of subscribers to receive such Consent SMS. Each TSP is expected to share the consent data with other TSPs using the digital ledger technology platform established under the Telecom Commercial Communications Customer Preference Regulations, 2018.
Once the DCA facility is implemented, Marketers will need to obtain fresh consent through digital means, and consent obtained through any alternative means will be deemed null and void.
To comply with the TRAI’s directions, TSPs should take prompt measures to incorporate the DCA facility and publish the latest telemarketing requirements on their website. Marketers should also consult with their TSPs on the restrictions around telemarketing to ensure that subscriber consent is obtained in the appropriate manner and avoid violating their preferences.
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Department of Telecommunications discontinues paper-based Know Your Customer processes for onboarding subscribers
TSPs are required to undertake Know Your Customer (KYC) process to onboard customers for issuing mobile connections. The Department of Telecommunications (DoT) had previously permitted KYC to be done using various modes including through a paper-based process, which involves filling up a paper customer acquisition form, pasting a photograph, attaching the photocopy of identity and address proof documents, etc.
Given the revisions to the KYC framework in the last decade, the DoT has now required that TSPs discontinue using the paper-based KYC process starting 1 January 2024.
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Decriminalisation of contraventions under the Cable Television Networks (Regulation) Act, 1995
The Cable Television Networks (Regulation) Act, 1995 (CTNR Act) prescribed imprisonment for the contravention of its provisions. This was re-examined by the Jan Vishwas (Amendment of Provisions) Act, 2023 (Jan Vishwas Act), which decriminalised the CTNR Act and replaced imprisonment with a monetary penalty and non-monetary measures such as advisory, censure, and warning to be enforced through a designated officer. In case of more than three contraventions over a span of three years, the designated officer may, subject to the procedural requirements, suspend or revoke the contravening entity’s registration under the CTNR Act. Aggrieved parties may also raise an appeal against the decision of the designated officer.
In October 2023, the Ministry of Information and Broadcasting (MIB) notified amendments to the Cable Television Networks Rules, 1994, to implement these revisions introduced by the Jan Vishwas Act.
This is likely to encourage compliance and improve the ease of doing business as well as provide the government flexibility to address contraventions in an appropriate and proportionate manner. The appeal mechanism is also likely to ensure that determinations regarding contraventions are transparent and fair while providing regulated entities an opportunity to raise a challenge in the event they are not.
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Broadcasting Services (Regulation) Bill, 2023 proposes to create a unified legislation for all broadcasting services in India
The MIB published the draft Broadcasting Services (Regulation) Bill, 2023 (Broadcasting Bill) for public consultation in November 2023. If enacted in its current form, the Broadcasting Bill will replace the CTNR Act and act as a single umbrella legislation regulating all broadcasting services in India, including OTT platforms and persons broadcasting news and current affairs.
Briefly, the Broadcasting Bill requires broadcasting service providers to intimate or register with the relevant authorities to provide broadcasting services or operate a broadcasting network, ensure compliance with any code on programming or advertising that may be prescribed, implement access control measures, and self-certify content by constituting a content evaluation committee.
Developments in the last quarter of 2023 ranged from procedural modifications to attempts to significantly overhaul major regulatory regimes. In the coming months, stakeholders should watch out for rules being issued under the Telecom Act and further developments in the broadcasting space based on the outcome of public consultations on the Broadcasting Bill.
