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TELECOMMUNICATIONS & BROADCASTING LAW COURSE

1. MODULE: INTRODUCTION L-4

A. INTRODUCTION TO DIGITAL COMMUNICATION

B. WHY HAVE TELECOMMUNICATION LAW?
C. TYPES OF TELECOMMUNICATION & BROADCASTING
D. BROADCASTING ORGANIZATION EMERGENCE, SUBSEQUENT RIGHTS
E. KEY INDIAN REGULATIONS AND POLICY MAKING AGENCIES

2. MODULE: SPECTRUM L-3

A. WHAT IS A SPECTRUM
B. TYPES OF SPECTRUM
C. ROLE OF SPECTRUM IN TELECOMMUNICATION
D. REGULATING THE SPECTRUM SPECTRUM SCARCITY AND
INTERFERENCE

3. MODULE: TERRESTRIAL & SATELLITE BROADCASTING L-8

A. CONSTITUTIONAL ASPECTS
B. REGULATORY FRAMEWORK FOR BROADCASTING
C. PUBLIC & PRIVATE BROADCASTING
D. CONTENT RESTRICTIONS
E. INNTERCONNECTION ARRANGEMENTS

4. MODULE: REGULATORY FRAMEWORK FOR THE INTERNET L-8

A. INTRODUCTION
B. INTERNET GOVERNANCE NAMING AND ADDRESSING
C. NET NUTRALITY & LICENSING
D. PROTECTION OF PRIVACY AND SECURITY
E. REGULATION OF SOCIAL MEDIA
2

5. MODULE: IP RIGHTS L-8

A. IP RIGHTS AND THE INTERNET

B. DATA PROTECTION LAW

C. COPYRIGHTS & PIRACY

D. REGULATING SPEECH IN BROADCAST AND INTERNET

6. MODULE: GOVERNANCE & DISPUTES L-6

A. JURISDICTIONAL ISSUES

B. INFRASTRUCTURE OF INTERNET

C. ROLE OF TRAI

D. POWERS AND FUNCTION OF TRAI

E. KEY INDIAN CASE STUDIES

F. INTERNATIONAL TELECOMMUNICATION LAW

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TELECOMMUNICATIONS & BROADCASTING LAW COURSE

LIST CASES

A. AT&T v. City of Portland, 216 F.3d 871 (9th Cir. 2000)

B. Computer and Communications Industry Assoc. v. FCC 693 F.2d 198 (D.C. Cir. 1982)

C. United States v. Western Elec. Co., 673 F.Supp 525 (D.D.C. 1987)

D. Natl Cable & Telecomms. Assn v. Brand X Internet Servs., 545 U.S. 967 (2005)

E. United Church of Christ v. FCC, 327 F.3d 1222 (D.C. Cir. 2003)

F. United States v. Western Elec. Co., 673 F.Supp 525 (D.D.C. 1987)

G. Red Lion v. Red Lion Broadcasting Co., Inc. v. FCC 395 U.S. 367 (1969)
H. Centre for Public Interest Litigation V Union of India (UOI) and Ors.
MANU/SC/0372/2016
I. G. Sundarrajan vs. Union of India (UOI) and Ors.
J. Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal
AIR 1995 SSC 1236 2SCC 161
K. United States v. Warshak
L. MTNL Vs TRAI AIR 2000 Del 208 (2000) 1 Comp Lj 335 (Del)
M. Centre for Public Interest Litigation and Ors. Vs. Union of India (UOI) and Ors
1996 SCC (2) 405
4

Chapter 1

INTRODUCTION TO DIGITAL COMMUNICATION

Communication has been one of the deepest needs of the human race throughout recorded
history. It is essential to forming social unions, to educating the young, and to expressing a
myriad of emotions and needs. Good communication is central to a civilized society.

Thevariouscommunicationdisciplinesinengineeringhavethepurposeofprovidingtechnological
aids to human communication. One could view the smoke signals and drum rolls of primitive
societies as being technological aids to communication, but communication technology as we
view it today became important with telegraphy, then telephony, then video, then computer
communication, and today the amazing mixture of all of these in inexpensive, small portable
devices.

Initially these technologies were developed as separate networks and were viewed as having
little in common. As these networks grew, however, the fact that all parts of a given network
had to work together, coupled with the fact that different components were developed at
different times using different design methodologies, caused an increased focus on the
underlying principles and architectural understanding required for continued system evolution.

This need for basic principles was probably best understood at American Telephone and
Telegraph (AT&T) where Bell Laboratories was created as the research and development arm
of AT&T. The Math center at Bell Labs became the predominant center for communication
research in the world, and held that position until quite recently. The central core of the
principles of communication technology were developed at that center.
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TELECOMMUNICATIONS & BROADCASTING LAW COURSE
Perhaps the greatest contribution from the math center was the creation of Information Theory
[27] by Claude Shannon in 1948. For perhaps the first 25 years of its existence, Information
Theory was regarded as a beautiful theory but not as a central guide to the architecture and
design of communication systems. After that time, however, both the device technology and
the engineering understanding of the theory were sufficient to enable system development to
follow information theoretic principles.

A number of information theoretic ideas and how they affect communication system design
will be explained carefully in subsequent chapters. One pair of ideas, however, is central to
almost every topic. The first is to view all communication sources, e.g., speech waveforms,
image waveforms, and text files, as being representable by binary sequences. The second is to
design

1.4 Digital interface

The interface between the source coding layer and the channel coding layer is a sequence of bits.
However, this simple characterization does not tell the whole story. The major complicating factors are
as follows:

Unequal rates: The rate at which bits leave the source encoder is often not perfectly matched to the
rate at which bits enter the channel encoder.
Errors: Source decoders are usually designed to decode an exact replica of the encoded sequence,
but the channel decoder makes occasional errors.
Networks: Encoded source outputs are often sent over networks, traveling serially over several
channels; each channel in the network typically also carries the output from a number of different
source encoders.

The first two factors above appear both in point-to-point communication systems and in networks. They
are often treated in an ad hoc way in point-to-point systems, whereas they must be treated in a
standardized way in networks. The third factor, of course, must also be treated in a standardized way in
networks.

The usual approach to these problems in networks is to convert the superficially simple binary interface
above into multiple layers as illustrated in the below
6

How the layers in Figure operate and work together is a central topic in the study of networks and is
treated in detail in network texts such as [1]. These topics are not considered in detail here, except for
the very brief introduction to follow.

source source TCP IP DLC channel

input encoder input input input encoder

channel

source source TCP IP DLC channel

output decoder output output output decoder

Figure 1.6: The replacement of the binary interface in Figure 1.6 with 3 layers in an
oversimplified view of the internet: There is a TCP (transport control protocol) module
associated with each source/destination pair; this is responsible for end-to-end error recovery
and for slowing down the source when the network becomes congested. There is an IP (internet
protocol) module associated with each node in the network; these modules work together to
route data through the network and to reduce congestion. Finally, there is a DLC (data link
control) module associated with each channel; this accomplishes rate matching and error
recovery on the channel. In network terminology, the channel, with its encoder and decoder, is
called the physical layer.

1.4.1 Network aspects of the digital interface

The output of the source encoder is usually segmented into packets (and in many cases, such as email
and data files, is already segmented in this way). Each of the network layers then adds some overhead to
these packets, adding a header in the case of TCP (transmission control protocol) and IP (internet
protocol) and adding both a header and trailer in the case of DLC (data link control). Thus, what enters
the channel encoder is a sequence of frames, where each frame has the structure illustrated in Figure 1.7.

DLC IP TCP Source encoded DLC

header header header packet trailer
Figure 1.7: The structure of a data frame using the layers of Figure 1.6
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TELECOMMUNICATIONS & BROADCASTING LAW COURSE
.

These data frames, interspersed as needed by idle-fill, are strung together and the resulting bit stream
enters the channel encoder at its synchronous bit rate. The header and trailer supplied by the DLC must
contain the information needed for the receiving DLC to parse the received bit stream into frames and
eliminate the idle-fill.
When the packet finally reaches its destination, the IP layer strips off the IP header and passes
the resulting packet with its TCP header to the TCP layer.

The TCP and IP layers are also jointly responsible for congestion control, which ultimately
requires the ability to either reduce the rate from sources as required or to simply drop sources
that cannot be handled (witness dropped cell-phone calls).

In terms of sources and channels, these extra layers simply provide a sharper understanding of
the digital interface between source and channel. That is, source encoding still maps the
source output into a sequence of bits, and from the source viewpoint, all these layers can
simply be viewed as a channel to send that bit sequence reliably to the destination.

In a similar way, the input to a channel is a sequence of bits at the channels synchronous input
rate. The output is the same sequence, somewhat delayed and with occasional errors.

Thus, both source and channel have digital interfaces, and the fact that these are slightly
different because of the layering is in fact an advantage.

The source encoding can focus solely on minimizing the output bit rate (perhaps with
distortion and delay constraints) but can ignore the physical channel or channels to be used in
transmission. Similarly, the channel encoding can ignore the source and focus solely on
maximizing the transmission bit rate (perhaps with delay and error rate constraints).

Network neutralitythe idea that Internet service providers (ISPs) should treat all data that
travels over their networks fairly, without improper discrimination in favor of particular apps,
sites or servicesis a principle that must be upheld to protect to future of our open Internet.
It's a principle that's faced many threats over the years, such as ISPs forging packets to tamper
with certain kinds of traffic or slowing down or even outright blocking protocols or
applications. In 2010, the Federal Communications Commission (FCC) attempted to combat
these threats with a set of Open Internet rules. But its efforts were full of legal and practical
holes. In 2014, after a legal challenge from Verizon, those rules were overturned, and the FCC
set about drafting a new set of rules better suited to the challenge.
 9

Theres no silver bullet for net neutrality. The FCC order plays a role by forbidding ISPs
from meddling with traffic in certain ways. But transparency is also key: ISPs must be open
about how traffic is managed over their networks in order for both users and the FCC to know
when theres a problem. Local governments can also play a crucial role by supporting
competitive municipal and community networks. When users can vote with their feet,
service providers have a strong incentive not to act in non-neutral ways. Its our Internet, and
were going to fight to protect it We want the Internet to live up to its promise, fostering
innovation, creativity, and freedom.

We dont want regulations that will turn ISPs into gatekeepers, making special deals with a
few companies and inhibiting new competition, innovation and expression.

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 NET NUTRALITY

The future growth of telecom sector and of other access

networks is contingent upon innovation in web content and the
Internet itself. However, increasingly, concerns have been raised
globally relating to discriminatory treatment of Internet traffic by
access providers. These concerns relating to nondiscriminatory
access have become the centre of a global policy debate, often
referred to as the Net Neutrality (NN) debate. 1.1.2 In the Indian
context as well, there have been multiple consultations on the
issue of NN and its related aspects.

The DoT had sought TRAIs recommendations on issues relating

to NN during previous year. The ongoing consultation process
was initiated pursuant to this reference from the DoT. The
present consultation paper is accordingly being issued in
continuation to the Pre-Consultation Paper on Net Neutrality. In
view of the complexity of the subject of NN, the Authority
decided to undertake a two-stage consultation process. The first
stage, of pre-consultation, was an attempt to identify the
relevant issues in all the areas on which the DoT had sought
TRAIs recommendations. In this next stage, the Authority has
considered all the relevant issues identified during the pre-
consultation process and the preliminary inputs gathered from
stakeholders on those issues. The purpose of this second stage
of consultation is to proceed towards the formulation of final
views on policy or regulatory interventions, where required, on
the subject of NN. 2 1.2 Issues raised
 11

1.2.1 TRAI had, in its pre-consultation paper dated 30th of May

2016 discussed issues such as the definition of NN, scope of
traffic management practices, importance of unrestricted access
and transparency, need for preserving customer privacy and
national security.

In addition to this, the paper listed various regulatory

approaches seen world wide in the treatment of NN issues, with
a detailed account of the approach followed in jurisdictions like
the United States, the European Union, Australia, Japan and
Brazil. 1.2.2 In the paper, TRAI had recognised that while there
are several definitions of NN, the term is generally understood to
mean the principle that Telecom Service Providers(TSPs)1 must
treat all Internet traffic on an equal basis, without regard to the
type, origin, or destination of the content or the means of its
transmission.

In recognition of the complex set of issues surrounding this

concept and the diverse viewpoints on the subject, the Authority
initiated a deeper enquiry into the various issues relevant to the
subject. 1.2.3 The following is a summary of the key issues on
which inputs or comments were invited from various
stakeholders: i. Core principles of NN in the Indian context and
key issues required to be considered so that the NN principles
are ensured. ii. The scope of reasonable traffic management
practices and current practices in India which might raise NN
concerns. iii. Policy/ regulatory approach to deal with issues
relating to NN. iv. Precautions required to preserve national
security.

DRAFT
1 Most jurisdictions, including those that are said to have
adopted a NN framework, however, do not explicitly define this
term in their policy/regulatory framework. This idea of equal or
nondiscriminatory treatment of content while providing access to
the Internet, however, resonates in the principles adopted by
them. This is also the context in which this term is being used in
this consultation paper. 2.2 Setting out the Indian context

2.2.1 The Authority recognizes that the topic of NN has garnered

a lot of attention in global policy debates over the last few years.
A number of jurisdictions, developed and developing, have seen
extensive discussions on various aspects of this subject while
considering their approach towards potential discrimination in
access to content on the Internet.

As a result, we are now in a position where a wealth of

information on NN is already available, both in terms of
academic literature and stakeholder perspectives. In addition,
the Authority has also gathered a lot of pertinent information
from stakeholders in India in the course of its consultations. This
may prompt some to question whether any additional value will
be gained by undertaking further consultations on this subject in
India.

It is therefore pertinent to highlight the following points that

have been considered by the Authority while adopting its current
approach: i. First and foremost, the two-stage consultation
process is designed to give sufficient opportunity to all
stakeholders in India, who may not have been part of
consultation process held in other parts of the world, to voice
their requirements and concerns before the Authority takes a
final position. ii. Second, there are variations in the requirements
of one country to another, including in terms of their level of
 13

development, adoption of the Internet, state of content business

and the regulatory, licensing and legal framework within which
they operate.

The level of 1Tim Wu, Network Neutrality FAQ, available at

http://www.timwu.org/network_neutrality.html. 6 market
competition among TSPs providing Internet access services is
also a key aspect. All of these factors could have influenced the
manner in which a country may have dealt with similar issues. In
summary, there is no universal approach or global consensus on
the best approach to be followed. 2.2.2 Accordingly, authorities
in India must, while being informed by the options that have
already been exercised elsewhere, develop an approach that is
best suited to the Indian context.

The attempt in this consultation process is to rethink the first

principles of traffic management by TSPs and the contours of
reasonableness so as to arrive at an understanding of the
principles that we may want to adopt. The following are some
relevant factors to be kept in mind in this regard.

(i) Regulatory structure: In India, issues of licensing and

allocation of spectrum are dealt with by DoT while regulatory
aspects are dealt with by TRAI.

Moreover, the Telecom Regulatory Authority of India Act, 1997

(TRAI Act) confers direct responsibilities on the Authority on
some aspects such as determination of tariffs and quality of
services, while on others it has only recommendatory powers.

DRAFT
(ii) Licensing regime: India is divided geographically into many
license service areas and the boundaries of these areas may
vary for different types of license.

As a result, within the boundaries of India an end user may use

data services while roaming on a network which is different from
their home network. In the context of a NN framework, this
requires determination of the appropriate duty-bearer and the
allocation of responsibilities between networks.

The Authority has identified the following as some key issues

that need to be deliberated further and finalized before taking a
position in this regard: i. Understanding various traffic
management practices: Service providers generally use a range
of techniques to manage the safety, security and efficiency of
their networks. It is important to ensure that such techniques are
not used by service providers in a discriminatory manner.
However, any such NN policy/regulatory framework should not
interfere with the ability of service providers to manage their
networks in a reasonable and fair manner.

There can be two policy/regulatory approaches to achieve this end.

First, a broad approach which involves defining what would constitute
reasonable traf- fic management practices. The reasonable traffic
management principles would therefore set out the contours of what
can be regarded as acceptable or unacceptable forms of interference
by a service provider with Internet traffic that flows on its network. In 8
contrast, a narrow approach would limit itself to a negative list of non-
reasonable traffic management practices.

Further, this reference to reasonable management of Internet traffic

also brings into the question the treatment of specialized/ managed
 15

services that are delivered using IP but do not serve the same
functionality as the public Internet; or those that may require a level of
quality that cannot be guaranteed on the Internet. ii. Defining the core
principles of NN: Authorities in India are yet to take a final view on
whether and how the term NN should be defined for the purposes of
our legal/ regulatory framework.

Based on review of various reasonable and non-reasonable traffic

management practices in the Indian context, it is important to identify
core principles of net neutrality for India and the types of practices
that might be regarded as being in violation of these core principles.
iii. Transparency requirements: While laying down the permissible
scope of reasonable traf- fic management practices, it is important to
ensure that the end users who are affected by these practices have
access to relevant information about the types of traffic shaping
practices being followed by service providers and the reason for which
they are being deployed.

This information may be required by them in their capacity as

consumers or potential consumers of a TSP; as producers of content
who might want to reach out to a TSPs consumers; as other TSPs
competing in the same line of business; or as members of the general
public. It is therefore important to identify the specific transparency
related obligations that need to be followed in each of these
circumstances and the point at which such requirements will be
triggered. iv. Monitoring framework: Establishing an appropriate
framework to monitor and enforce the principles of NN is vital to
achieving its objectives. Given the rapid changes in technology,
evolving regulatory/ policy environment and fast-developing business
models, we need a monitoring mechanism that can remain relevant
and appropriate through these changing circumstances.

DRAFT
Therefore, depending on the instrument that we use for adopting NN
principles in India, the monitoring responsibilities can vary from a
situation where the primary responsibility remains with the Authority
and other government agencies, to one where we consider other
participative /collaborative models for monitoring and sharing of
compliance information.

Traffic Management

Service providers generally use a range of techniques to manage the safety,

security and efficiency of their networks. On one hand, it is important to ensure
that such techniques should not be used in a discriminatory manner. On the other,
any restrictions imposed on TSPs should not interfere with their ability to manage
their networks in a reasonable and fair manner.

There could be two policy/regulatory approaches to achieve this end. First, a

broader approach may involve defining what would constitute reasonable
traffic management practices (TMP). As such, the principles on reasonable TMP
would set out the contours of what can be regarded as acceptable and
unacceptable forms of interference by a service provider with the Internet traffic
that flows on its network. In contrast, a narrow approach would limit itself to a
negative list of non-reasonable traffic management practices.

Certain exceptions might need to be carved out, such as for prioritizing

emergency services or complying with directions regarding unlawful content.

The reference to reasonable management of Internet traffic also brings into

question the treatment of specialized/ managed services that might not serve the
same functionality as the public Internet; or may require a level of quality that
cannot be guaranteed on the Internet in the normal course.
 17

11 3.1 Need for traffic management 3.1.1 As discussed, the proliferation of a vast
variety of applications, websites, and other forms of content on the Internet, has
enhanced user choice and paved the way for greater innovation and competition.
However, a fundamental feature of the Internet is that it operates on a best efforts
basis.

This means that the TSPs do not guarantee either the time of delivery of each and
every data packet transmitted over the Internet or even the fact of such delivery.

3.1.2 At the same time, we know that the diverse range of content available on the
Internet has varying characteristics, uses and bandwidth requirements. For
instance, some content (like video) requires high bandwidth whereas some
applications (like real-time gaming) have very stringent requirements.

The exponential increase in Internet traffic and the evolving nature of the content
that constitutes part of this traffic, can therefore lead to the overburdening of
networks. As a result, TSPs may not always be able to deliver an adequate level
of QoS to their users, which is problematic both from a regulatory compliance
perspective as well as for competitive reasons. Firstly, the regulations put in place
by the Authority require the TSP to adhere to certain QoS benchmarks that are
regarded as basic indicators of the satisfactory performance of the network.1

1 For instance, TRAIs Standards of Quality of Service for Wireless Data Services Regulations,
2012 put in place requirements relating to average latency, which refers to the time taken by a
packet to reach the receiving endpoint once it has been transmitted. Secondly, competitive forces
also drive TSPs to manage their networks in a manner that is conducive to attracting new
customers and retaining existing ones by offering them a satisfactory user experience.

DRAFT
As a result, TSPs tend to deploy various types of traffic management techniques
on their networks in order to meet the demands for delivering a satisfactory QoS.
This is often done by taking into account the specific nature and needs of the data
packets being transmitted.

As highlighted by some responses to the pre-consultation paper, managing

wireless networks poses a bigger challenge on account of spectrum constraints,
sensitivity to interference, physical obstructions, lower indoor coverage and
varying number of active users. Specialized traffic management and optimization
techniques are therefore required in such networks, which may be different from
those used for fixed wireline services. Any review of such TMPs should therefore
take into account differences in network architecture and technology.

3.1.4 Some of the common reasons for which TMPs may be deployed are
discussed below:

Traffic congestion: In case of network overloads, it may sometimes become

important to prioritise/throttle one content stream over the other until the
congestion is resolved. While enhancing network capacity would reduce
instances of traffic congestion, there may still be situations of network overloads
that are unpredictable, irregular and temporary, where TMPs could need to be
employed to ensure consistent connectivity and QoS for users.

Prioritization of latency-sensitive traffic: Some Internet traffic like VoIP is

latency sensitive and requires continuous connectivity. In addition, such traffic
may also require certain minimum QoS. In case of limited network capacity, a
TSP might feel compelled to priorities the latency sensitive traffic over the less
sensitive one.
 19

Network security and integrity: TSPs may need to deploy TMPs in order to
protect their networks from viruses, spam, denial of service attacks, hacking
attacks against network/terminal equipment, malicious software etc. These
activities have the potential to harm both the network and end-users.

Legal requirements: TMPs may be required to be used to comply with court

orders and restrictions imposed by the government or law enforcement agencies.
Emergency: During a time of emergency situations, TSPs may have to resort to
TMPs in order to manage Internet traffic and priorities urgent communications or
content.

3.2 Why reasonable?

TSPs have the incentives to ensure that their networks are managed in a manner
that offers the best possible experience to a large number of users using different
categories of content. However, the same commercial considerations that prompt
TSPs to use TMPs to improve network performance can also become the cause of
certain exclusionary or discriminatory practices. For instance, vertical integration
or partnerships with content providers are increasingly being seen as one such
source of additional financing or strategic engagement for TSPs.

3.2.2 Globally, there are several examples of TSPs interfering with their networks
by using TMPs to carry out service blocking, prioritizing affiliated content
provider services or throttling competing ones. Several stakeholders have also
pointed to the emergence of similar practices in the Indian context.

It is argued that his trend of differentiation of traffic by TSPs based on content is

a function of their ability and incentive to interfere with the network in ways that
might impede user choice.

DRAFT
These practices can also distort competition in the content provider business,
thereby discouraging present and future innovation. If permitted, they could tilt
the playing field in favour of companies with the ability to form partnerships with
TSPs, often on account of their deep pockets, and TSP-owned content 15
companies.

Similarly, there is also a concern that TMPs may be used as a tool to preserve
legacy systems at the cost of new technologies that may be able to deliver more
useful or affordable solutions for users.

3.2.3 It is in this context, that a discussion on NN emerges. It can be summarized

to mean the debate surrounding the need for a policy/regulatory framework for
ensuring nondiscriminatory treatment of content by TSPs. The aim is to restrict
TSPs ability to interfere with the network in ways that hamper innovation and
restrict user choice, while allowing them to retain the flexibility to manage their
networks in an efficient manner.

3.2.4 The resolution of these issues is closely related to TRAIs policy objectives
of protecting the interests of consumers and ensuring orderly growth of the sector.

The growth of the Internet has had a cascading effect on multiple other sectors of
the economy, both commercial businesses and different components of the social
sector. Innovation on the Internet and ensuring its openness is, therefore, critical
not just for the direct users of Internet access services but also all the providers
and users of numerous services that are built around the Internet ecosystem.

3.2.5 At the same time, TRAI is also concerned about taking into account the
interests of service providers, once again with the objective of protecting the
interests of the sector as a whole. This gives rise to the need to consider the
balance between allowing TSPs to manage their network in a reasonable manner
versus their obligation to do so in nondiscriminatory manner. In the absence of
 21

such a balance, any policy/regulatory framework could create disincentives to

network investment and capacity generation.

3.2.6 Thus, a discussion on NN must begin by identifying what constitutes

reasonableness in the context of TMPs, and identifying those practices that
deviate from such standard. 16 3.3 Identifying the relevant traffic

3.3.1 In order to clarify the ambit and duty-bearers under any reasonableness
standard, it is essential to first understand the contours of the traffic that is
sought to be covered within the scope of the present discussion. For this purpose,
it is important to identify the meaning of Internet services and the persons who
are regarded as being providers of such services. For instance, should the
application of any TMP standards be limited to providers of last-mile Internet
access services or should any other categories of persons also be included within
its scope.

3.3.2 The Unified Access Service License (UASL) in India defines the Internet
to mean a global information system that is linked together by a globally unique
IP address and is able to support communications using the TCP/IP suite or other
IP compatible protocols.
The terms of the license identify the scope of services that can be offered by a
licensee that is authorized to provide Access Services or Internet Services.
These include, Internet Telephony, Internet Services including IPTV, Broadband
Services and triple play i.e. voice, video and data. The term Internet Services
itself has however not been explicitly defined.

3.3.4 The policy/regulatory framework in India may similarly need to consider

the scope of Internet access services for the purposes of determining what
constitutes reasonable TMP in respect of such traffic. This would involve
assessing whether characteristics like publicly available communications service;

DRAFT
and providing connectivity to virtually all or all or substantially all end points
on the Internet or any other criteria should also be used in India.

3.3.5 As a logical corollary to this discussion, any services that do not qualify as
Internet access services would fall outside the purview this makes it important
to discuss whether there is a need to define this residual category and what are the
types of services or arrangements that may be covered in its scope.

In its Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016,

the Authority has clarified that the regulation does not apply to tariffs for data
services over closed electronic communications networks, unless these are being
used for the purpose of evading the prohibition in the regulation.

The accompanying explanatory memorandum to the Regulation clarified that this

was meant to include examples such as intranets, which are not used for
accessing the Internet.

3.3.6 Some other jurisdictions have used terms like specialized services or
managed service to identify the services that are excluded from the scope of
NN regulations. One criteria for defining such services may be that such services
may require a guaranteed level of QoS that cannot be offered on the public
Internet.

This is the approach followed by the EU regulations, which exclude services that
are optimized for specific content, applications or services, where such
optimization is necessary in order to meet requirements of a specific level of
quality. Examples include health-care services like tele-surgery, Voice over
Internet Protocol (VoIP) and IPTV services.
 23

3.3.7 The FCC on the other hand has observed that the use of the term
specialized services can be confusing as the critical point is not whether the
services are specialized but that they are not broadband Internet access
services.

They give the following as examples of such services Connectivity bundled

with e-readers, heart monitors, energy consumption sensors, limited-purpose
devices such as automobile telematics, and services that provide schools with
curriculum-approved applications.

While choosing not to define the scope of these non-broadband services on the
ground that this may limit future innovation and investment, the FCC did
however refer to the following general characteristics that were identified by the
Open Internet Advisory Committee in the United States:

1. These services are not used to reach large parts of the Internet;

2. They are specific application-level services, and not generic platforms; and

3. They use some form of network management to isolate the capacity being used
from that used by broadband Internet access services.

3.3.8 It would be useful to consider if we need to adopt any similar guidelines in

the Indian context. In addition, it would also be pertinent to examine how we
should treat certain specific types of services, such as the ones highlighted below,
while arriving at a formulation of what is included or excluded from the scope of
Internet traffic.

1. Enterprise solutions

2. Internet of Things (IoT)

DRAFT
3. Content Delivery Networks (CDN) and interconnection arrangements

4. Virtual Private Network (VPN)

3.3.9 As per the FCC, broadband Internet access service does not include VPN
services, CDN, hosting or data storage services, or Internet backbone services, as
they do not provide the capability to exchange data with all Internet endpoints.
Similarly, the Body of European Regulators for Electronic Communications
(BEREC) Guidelines, 2016 suggest that a specific 19 VPN that offers a private
network, with access to limited endpoints and is secured for internal
communications, could qualify as a specialized service.

2 Large content providers may also directly host their content inside the TSPs
network through direct interconnection arrangements. As noted above, the NN
frameworks adopted by some other jurisdictions have clarified that they do not
regard such services and arrangements as falling within the scope of Internet
traffic. This issue has however not yet yet been fully debated in the Indian NN
consultation processes and therefore merits further deliberations.

3.3.11 Lastly, it is also important to consider the safeguards that need to be

adopted to ensure that the exclusions offered for any specialized/ non-Internet
services are not misused. In some cases, this has been done through the adoption
of principles to ensure that such services should not be used to circumvent the
regulations; and should not negatively impact the availability or performance of
general Internet access services. Providers are required to present specific
disclosures in this regard, as discussed further in the chapter on Transparency.
 25

Some stakeholders take the view that the former case should be viewed more
strictly as it is clearly discriminatory and a strong indicator of commercial
motivations. On the latter case, while some others believe that video content,
which is bandwidth intensive, may pose greater congestion challenges than other
content and therefore would require differential treatment, others pointed out that
this should be addressed in a proportional and temporary manner, rather than 21
permanently discriminating against video content.

This points back to the principle that TSPs must deliver all traffic on a best-
efforts basis irrespective of the category of traffic. v. Proportionality:

Regulations adopted by the EU equire that any TMPs must be deployed in a

manner that is transparent, nondiscriminatory and proportionate. Their
proportionality standard frames reasonable TMP as practices that occur in order
to respond to exceptional circumstances (except as necessary); and should
therefore be temporary and the least restrictive means possible (only for as long
as necessary).

For example, encrypted traffic should not be discriminated against as it is not a

barrier to traffic management, and would create perverse incentives to avoid
such a privacy and security enhancing technology. In the EU context, the BEREC
guidelines clarify that the fact that traffic is encrypted is not a legitimate reason
for ISPs to throttle such content

Similarly, prioritizing locally cached content claiming it to be reasonable network

management while not allowing other content providers to cache traffic locally
could pose a concern. vi. Deep packet inspection (DPI): On the issue of
identification of the different data packages for the purposes of traffic
management, some operators have pointed out that this is required so that
packages that are more critical or require a greater transmission capacity can be
prioritized during congestion.

DRAFT
(i) This might be useful for identifying those TMP that are discriminatory in effect but
not evidenced by an explicit commercial agreement or partnership.
(ii) Adequate disclosure to users about traffic management policies and tools to allow
them to make informed choices.
(iii) Application-agnostic controls may be used but application-specific control within
the Internet traffic class may not be permitted
(iv) Practices like deep packet inspection should not be used for unlawful access to the
type and contents of an application in an IP packet.
Improper (paid or otherwise) prioritization may not be permitted. Thus,
the DoT Committee recommended a framework that goes beyond testing
for commercial motivation (paid or otherwise) to broader principles of
transparency and nondiscrimination. They also took a strict view of
prohibiting application-specific controls, while suggesting that
application-agnostic controls could be utilized.
 27

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 29

DRAFT
 31

Spectrum Management

Spectrum refers to the use of radio waves or frequencies in telecommunications.

Since spectrum is the cornerstone of telecom services worldwide and is by its
very nature a scare resource, spectrum management has become very important in
recent times. In this chapter we discuss some of the important aspects of spectrum
management in India as well as internationally.

Ownership of Spectrum

It was once believed that spectrum is the property of the government, and hence
the government could use it in a manner that suited it and that the government
had exclusive rights to regulate and allocate spectrum. But post 1995 this belief
has changed. This has been possible due to a historic judgment given by the
Honble Supreme Court of India in 1995 in the case of Secretary, Ministry of
Information and Broadcasting, Govt. of India v. Cricket Association of Bengal
which decided that spectrum is actually public property. This judgment has
changed the perception of ownership of spectrum in India and the way the
government handles and manages spectrum in todays scenario

Specifically, the Supreme Court in the aforementioned case held as follows:

There is no doubt that since the airwaves/ frequencies are a public property and
are also limited, they have to be used in the best interest of the society and this
can be done either by a central authority by establishing its own broadcasting
network or regulating the grant of licences to other agencies, including the private
agencies. This view of the Supreme Court was further propounded by the
Supreme Court in the case of Reliance Natural Resources Limited v. Reliance
Industries Ltd whereby it was observed that natural resources are vested with the
Government as a matter of trust in the name of the people of India, thus it is the
solemn duty of the State to protect the national interest and natural resources
must always be used in the interests of the country and not private interests.

DRAFT
Spectrum management is the combination of administrative and technical procedures with legal
connotations necessary to ensure efficient operation of radio communication services without causing
harmful interference. There are two levels at which spectrum is managed:

1. National
2. International

I International Management of Spectrum

Humans have divided territory into countries and continents, but spectrum knows no such bounds. Thus
there has to be international co-operation in the management of spectrum. There are various
international organizations for the purpose of harmonizing the use of spectrum between countries. The
organizations that are addressed are ITU and APT. The role played by these organizations have already
been discussed earlier.

II National Management of Spectrum

The NFAP is the basis on which spectrum frequencies are allocated in India. The ITU issues the
international frequency table for the purpose of giving the member countries a basis on which they can
formulate their own frequency allocation plan. The NFAP is the frequency allocation plan of India. This
plan clearly allocates different frequency bands for different radiocommunication services. Although it
allocates frequency bands for certain services, it does not give ownership rights to those services. NFAP-
81 was in force till December 31, 1999 for commercial and other uses. NFAP-81 was formulated for a
time, when usage of frequency bands was primarily done by the government agencies with some
exploitation by private parties for their dedicated networks.
 33

Standing Advisory Committee on Frequency Application

SACFA is a wing of the DoT which gives approval for radio frequency (spectrum) used by
telecom service providers. Obtaining a telecom license is not enough for the operator to begin
rolling out the services; a no objection from SACFA is required. This involves a detailed
technical evaluation including field studies in order to determine inter alia possible aviation
hazards and interference (Electro Magnetic Interference (EMI)/Electro Magnetic
Compatibility (EMC)) to existing and proposed networks.

To recommend on major frequency allocation, issues requiring co-ordination amongst the

various wireless users in the country.

To formulate/review the National Frequency Allocation Plans.

To formulate national proposals for international conferences/ meetings and to coordinate

nationally all activities pertaining to the ITU, etc.

To deal with frequency co-ordination problems referred to the committee by the administrative
Ministries/Departments.

To clear sites of all wireless installations in the country.

DRAFT
 REGULATORY PROTECTION ON DATA
FRAMEWORK

On data protection to the electronic communications sector, the impact of the new provisions on internet
service providers will be dealt with under Chang, If

is to ensure an equivalent level of protection, in particular as regards the rights to prime, resmct to the
processing of personal data in the electronic communications sector and to WW free movement of such
data and of electronic communications equipment and serum; m m Community. Accordingly, the E-
Privacy Directive applies to the processing of data mum}, hrix ate individuals or legal entities wholly or
partly by automatic means and, if by mam, means. \\ here the data will be maintained as part of a filing
system, in connection with the pronslob of publicly available communications services and networks in
the EU. This would apply 10% on. for instance, employees of a communications operator, its
customers, suppliers and Slim holders. Certain provisions apply only to digital networks and not to
analogue networks.lg [mm the Framework Data Protection Directive, the E-Privacy Directive also
covers the prowling the legitimate interests of legal persons.29 The E-Privacy Directive particularises
and complemmk the provisions of the Framework Data Protection Directive.30 It does not apply to
activities cm of the scope of the EC Treaty (e.g. provisions of the Treaty of the European Union
concerning a common foreign and security policy and police and judicial co-operation in criminal
matterst' 3Q to public security, defence, state security and activities in areas of criminal law.32

I 234 Scope of application of the E-Privacy Directive -The purpose of the E-Privm pm " ti

1-235 Rules for collecting, processing and transferring data As a general rule, Member State; must
ensure that personal data is: (i) processed fairly and lawfully; (ii) collected and processedonh for
specified, legitimate and explicit purposes; (iii) collected only if it is adequate, relevant and not
excessive in relation to the purposes for which it is collected; (iv) accurate and kept unto-date where
necessary; and (v) kept in a form which permits the identification of individuals for no longer than
necessary in view of the purposes of the processing. This means that traffic data relating to subscribers
and users34 that is processed and stored by a provider of a public communicanons

plan to reduce those differences, based on cooperation among Member States and between Member
States and the Commission: see First Report on the Implementation of the Data Protection Directive 95
46. COM (2003 265 tinal: and Commission Press Release IP/03/697, of May 16, 2003.

15 See para.3-038 et seq.

1" E-Privacy Directive, para.l-01 1, n.31, Art.l(1).

3 ibid., Art.3. In contrast to the Framework Data Protection Directive, para.l-233, n.24, the E-anacy
Directive. para.l-01 l, n.3l, specifically applies to legal persons.
 35

1 ibid., Art.3(2) and (3). Their provisions relate to calling line and connected line identification (Art.8l~
location data (Art.9) and automatic call forwarding (Art.ll).

3" ibid.. Art.l(l).

so ibid.

3 Treaty on European Union, Titles V and VI.

33 E-Privacy Directive, para.1-01 1, n.31, Art.l(3).

3 Framework Data Protection Directive, para.l-233, n.24, Arts 6 and 7.

3 The term subscriber is defined as any natural or legal person who or which is party to a contract
with the provider of publicly available electronic communications services for the supply of such
services: E-Privacy Directive, para.l-Oll, n.31, Art.2 and Framework Directive, pawl-009, 11.25, Ami
The term user" is defined as any natural or legal person using a publicly available telecommunications
service. for private or business purposes, without necessarily having subscribed to this semee": E-
Privacy Immense.

paraJ-Ol l, n.3l, Art.2.

arguably claim database protection" Nor does it apply to prootected under the Computer Software
Directive. '

The Database Directive establishes a dual regime of prom h % brotection for the strucmre of certain
databases and a newly called at gm. 1% he content of all databases. N

0) Copyright Protection for Databases

1-250 Conditions of eligibility Databases shall be preteen! byWt h. Selection or arrangement of their
content, they constitute the authors on w No other criteria shall be applied to determine the eligibility ii:
that M ASfN qualify for protection, a database must not have been copied or plagiarised and drug}
arrangement of data must Show a minimum of originalin This my man in km of a telephone directory
would not qualify for copyright plum although hymn: yellow pages may meet these requirements and
thus be entitled to Std m0

The protection under the Database Directive applicable to not extend to the contents of the database and
is without prudence to lights Including copyright protection, which will continue to be determined by
the [than N national law and any Community measures.

1-251 Beneficiaries of copyright protection for dambass -Copyright rests in kmWork. Authorship of a
database belongs to the naturized person or group of manual mucreated the database, or, when

DRAFT
permitted by national law, to the legal pawn Wank holder by that legislation. In contrast to the
Computer Programs Diraiive. II: [N Directive does not provide for the transfer as a matter of law to an
employer of thank relating to a database protected by copyright that is mated by an employee in the
mix} duties or following the instructions given by his employer. However, Mamba" Stan-35m for such a
statutory transfer in their national liitgisizuion.3

benefits from all the rights generally granted by copyright reproduction by any means and in any form,
in whole or in pan; (ii) translation. dram

7 Lehmann (see pant-249, n.7l), p.780.

75 Database Directive, pml~249, n71, A1203).

16 ibid, Art.2(a). Likewise, Directive 91/250 concerning the prom of computer mm?

programs Directive), OJ. i991 JAZZ/42.

:53;me Directive, para, 1-249, n.7l, A113.

7 Lehmann (sec para.l~249, 11.71), p781.

" Database Directive, pawl-249, n71, A100,).

" ibid, Art.4{l). 2 Computer Programs Direchve, para-249, n76, A1012).

3 Database Directive, .1-249 11.71 limits] 29 11,121.,A1t5. pm _

Data Protection

Arrangement or other alteration of the database:

(iii) any form of distribution to the public of the database or of copies thereof:
(iv) any communication, display or performance to the public:
 37

and (v) any reproduction. distribution. communication. display or performance to the public of any
translation. adaptation. arrangement or other alteration. With very broad restricted rights means that they
would cover the temporary storage or transfer of a database on another medium.
such that given browsing a database on the internet would be subject to the authors consent.

The authors exclusive right to any form of public distribution of a database or copies thereof in t1
physical form (tag. on a CD-ROM) includes distribution in a non-physical form (mg. online access).
EU-wide exhaustion of the distribution right applies only to the first sale of each physical copy ofa
database: the authors rights are only exhausted to that copy of the database and not the database
generally.86 The transfer of a database or part of it through online access alone should be analysed as the
provision ofa service with the result that there is no exhaustion of rights.X7 This also applies with regard
to a copy of all or part of an online database made by the user of online services with the consent of the
right holder. Thus, there is no exhaustion of the distribution right in a database in the case of a permitted
downloading and creation of a new copy and the author can prohibit any resale or further distribution of
such a copy.

1-253 Limitations on copyright protection -A lawful user of a database (Le. a purchaser or a licensee)
does not require the consent of the author for any of the restricted acts reserved to the author if they are
necessary for the purposes of access to the contents of the database and normal use of the contents.89 If
the user is permitted to use only part of the database, this exception applies only to that part.90 Any
contractual provisions to the contrary are null and void as a matter of law.

5 Lehmann (see para.1-249, n.7l), p.784. That said, these provisions are without prejudice to Directive
2001 29 of the European Parliament and of the Council of May 22, 2001 on the harmonisation of certain
aspects of copyright and related rights in the Information Society (also called Information Society
Copyright Directive), O.J. 2001 L167/ 10, aimed at harmonising the rights of reproduction, distribution
and communication to the public in the context of the Information Society. The Directive stipulates that
temporary storage or browsing of any copyrightable content is subject to the authors consent, although
it provides for an exception for temporary copies that enable the user to make use of the work, such as
caching. The provisions of the Copyright Directive are reviewed in paras 2-075 and 3 021 et seq.

1" Database Directive, para.l-249, n.7l, Art.5(c). The exhaustion of rights theory, which results from
the case law of the European Court of Justice, stipulates that an intellectual property right cannot be used
to prohibit the sale in a Member State of goods which have been marketed in another Member State by
the holder of the intellectual property right or with his consent. This theory, which is based on the rules
of the EC Treaty on free movement of goods (Art.28, ex 30), was developed initially in relation to
patents (Case 15/74 Centrafarm BVet Adriaan de Peijper v Sterling Drug Inc. [1974] E.C.R. 1147) and
has gradually been extended to other intellectual property rights, including copyrights (Case-78/70
Deutsche Grammophon Gesellschaft mbH v Metro-SB-Gro/ima'rkte GmbH & Co. KG. [1971] E.C.R.
487). For more details on the exhaustion of rights theory, see Bellamy and Child, Common Market Law
of Competition (Sweet & Maxwell, 5th ed., 2001), paras 8~009 and 8-067.

37 Database Directive, para. 1--249, n.7l, Recital 33. See Case 62/79 SA Compagnie gnrale pour la
diffusion delatlvision, Coditel v Cin Vog Films ( No.1 ) [1980] E.C.R. 881 and Case-262 81 Coditel
SA, Compagm'e

DRAFT
gnrale pour la diffusion de [a tlvision v Cin-Vog Films SA (No.2) [1982] E.C.R. 3381. 3 Lehmann
(see pawl-249, n.72), p.786.

3" Database Directive, para.1-249, n.7l, Art.6(l). 9 ibid. 9' ibid., Art.15.
 39

The FCC has ruled that AT&T must pay traditional local access charges to complete Internet
phone calls.
Coverage at http://news.com.com/2100-7352_3-5197204.html
FCC order at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-97A1.pdf

FCC TO DEVELOP VOIP RULES; RULES PROVIDER FREE FROM REGS

(Feb. 2004)

In a split decision, the FCC has approved a request from VoIP provider
Pulver.com to be immune from the set of government rules, taxes and
requirements that applied to 20th-century telephone networks. The decision does
not address whether traditional phone regulations might apply to VoIP services
that interconnect with the traditional telephone system.
http://news.com.com/2100-7352_3-5158105.html
http://www.nytimes.com/2004/02/12/technology/12CND-NET.html
http://www.siliconvalley.com/mld/siliconvalley/news/editorial/7939332.htm

DOJ MOVES TO WIRETAP VOIP CALLS (Feb. 2004)

In a series of letters made public Tuesday, the US Justice Department said it will request the FCC to
invoke the 1994 Communications Assistance for Law Enforcement Act. That law requires
telecommunications carriers to rewire their networks to government specifications to provide police with
guaranteed access for wiretaps. The DOJ wants VoIP providers to comply with the law, which would
permit police to wiretap conversations carried over the Internet.
http://news.com.com/2100-7352_3-5157282.html

PROPOSED LAW WOULD MAKE VOIP REGULATION FREE (Jan. 2004)

US Sen. John Sununu says he is preparing legislation to keep VoIP service

providers from being "smothered by state and federal regulators." The proposed
law directs state utility regulators to take a hands-off regulatory stance on VoIP.
The legislation also seeks to make the FCC the main authority over VoIP service
providers.
http://news.com.com/2100-7352_3-5138916.html

California: CALIFORNIA ADVANCES TO REGULATE VOIP

California's Public Utilities Commission has decided to move forward with plans to regulate the VoIP
industry. In a unanimous vote, the commission tentatively assumed jurisdiction over any VoIP call that
connects with traditional phone networks. It also decided to begin drafting Net phone regulations.
http://news.com.com/2100-7352_3-5157628.html
<http://www.latimes.com/technology/la-fi-voip12feb12,1,250598.story>

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