The recent news of the Telecom Regulatory Authority of India (TRAI) being renamed the Digital Communications Regulatory Authority of India (DCRAI) and the government’s telecom policymaking body, the Telecom Commission, being rechristened Digital Communications Commission did not make much of an impression.
The possibility that policymaking on key digital issues such as data privacy and cybercrime could be formally moved from the Ministry of Electronics & IT (MeitY) to TRAI did not grab many eyeballs. Yet these could be the first moves in a long-pending effort to reorganise and modernise the structure of communications regulation in India, with potentially major ramifications.
Communications regulation in India is divided between three very different government ministries:
1. MeitY, which is meant to deal with all things related to the internet, and applications and services which use the internet (sometimes referred to as ‘over-the-top’ (OTT) applications).
2. Ministry of Communications (MoC), which includes the Department of Telecommunications (DoT) and TRAI. DoT deals broadly with all regulation pertaining to the telecom sector and the Telecom Commission, nee Digital Communications Commission, is the apex decision-making body within DoT. TRAI is an independent regulator with the power to issue binding regulations on telecom tariffs, interconnection, and quality of service.
3. Ministry of Information & Broadcasting (MIB), which deals with the regulation of broadcast (terrestrial, satellite, and cable) television and cinema.
While ministries and departments in this space have been merged and broken up over the years, including as recently as 2016, at a bureaucratic level this regulatory structure has broadly stayed the same for nearly two decades.
Even a cursory glance at this regulatory schema reveals how unwieldy it is in the face of present technological and commercial realities. Since the turn of the millennium, the quick evolution of communications from analog to digital, and of networks from circuit-switched to packet-switched, have made the idea of purely carriage-based regulation more and more untenable. The idea of a single ‘converged’ regulator to handle all types of communications, regardless of the medium, is increasingly the global standard. While the Federal Communications Commission (FCC) in the United States is an example (though it has arguably always been a converged regulator), the Office of Communications (Ofcom) in the UK is probably more pertinent, given that it was conceived in 2001 to absorb the functions of five separate regulators.
India is no stranger to this idea: way back in 2001, the Communications Convergence Bill introduced under a previous NDA government and shepherded by the late Pramod Mahajan came close to fulfilling this vision. It envisaged setting up a single regulator called the Communications Commission of India, the repeal of at least five major laws including the ancient Telegraph Act, 1885 which regulates telecom, and a new era of technology-agnostic regulation. The Bill however eventually fell victim to turf wars and was quietly buried in 2003. Rumours of a similar bill surfaced in 2013 and again in 2014 once the present NDA government took office, but no such draft has surfaced in the four years since.
Since 2015, TRAI has used its statutory power to conduct consultations on issues beyond its binding regulatory remit to push the envelope and test boundaries. As ‘OTT services’ started to nibble away at the margins of the major telcos by providing text messaging and even VoIP calls at a fraction of the cost of competing telco SMS and voice services, its 2015 consultation on a ‘Regulatory Framework for OTT Services’ touched off a storm within industry and policy circles. While no recommendations were issued, the discussions surrounding the consultation foreshadowed many of the important digital policy issues confronting India today, including net neutrality, data privacy, and encrypted communications.
Subsequent consultations on issues such as cloud computing continued to push into policy territory traditionally held by MeitY, culminating in the recent TRAI recommendations on privacy and data protection which were issued mere weeks before the MeitY-appointed Justice Srikrishna Committee delivered its final report and draft bill on data protection.
In parallel, India is in the midst of an unprecedented explosion in digital services, which is seeing the emergence of new types of consumer behaviour, technology platforms, and commercial models. The proliferation of fast 4G networks and cheap mobile data has facilitated convergence, as people have started to replace televisions, movie theatres, and ATMs with their smartphone. TRAI has been able to emphasise the centrality of telecom infrastructure to all of these services to stake its regulatory claim, with little pushback.
TRAI in its two-decade existence has built a substantial track record when it comes to policy development and drafting. It has a proven ability to carry out detailed economic analysis thanks to its key role in tariff regulation. It has dedicated research staff working on new issues such as net neutrality, and in more recent years has developed deep relationships with sophisticated think-tanks who can work with them to strengthen research and analysis. Its consultation process, while still presenting room for improvement, is in many ways the gold standard for consultative policymaking in India, with established and transparent methods of public comment and counter-comment. In contrast, both MeitY and MIB arguably do not have permanent bodies with comparable expertise and institutional knowledge to help with formulating policy.
So, could it then be the plan for TRAI and DoT to gradually expand its formal scope, and eventually play a role similar to a converged communications regulator?
This is certainly possible, but would still be a complicated move. While reports speak of ‘amendments to existing laws’ to bring data protection and cybersecurity within TRAI and DoT’s remit, it is entirely unclear if this would mean amendments to the rules of business which apportion policy portfolios between ministries, or a broader reconfiguration. For example, MeitY has all powers and responsibilities under the Information Technology Act, 2000 (IT Act), the source of all internet regulation. It is then difficult to reconcile TRAI/DoT dealing with cybersecurity or data privacy, which are indivisible from other internet regulation, without being handed over charge of the complete IT Act.
Given these realities, it is difficult to understand what kind of long-term roadmap is possible without a major regulatory overhaul along the lines of the 2001 Convergence Bill. Given the enormity of this exercise, and the expense of political capital required to push such an initiative through, it is possible that the government has opted for a simpler exercise in the interim by expanding TRAI and DoT’s powers to fill the regulatory vacuum left in the wake of rapidly evolving digital platforms in a world of outdated regulatory structures.