Diwan Advocates

Law of Telecommunications | Ministry of Communications

India's telecom sector underwent a legal transformation in 2023 that most people have not fully absorbed. The Telecom Act, 2023 replaced the Indian Telegraph Act, 1885, a statute that had governed communications in India for nearly 140 years. The new Act modernises the licensing framework, consolidates spectrum management, codifies subscriber rights, and updates the government's powers of interception and network takeover. It arrived alongside a sector already dealing with the aftermath of the Adjusted Gross Revenue crisis, the ongoing question of how to regulate OTT communication services, and a TRAI that has become increasingly active in issuing regulations that directly affect telecom business models.

For telecom companies, ISPs, infrastructure providers, and technology companies whose services run over telecom networks, the legal environment is more demanding and more consequential than it has been in two decades. Licences must be maintained. Spectrum must be used within authorised parameters. Interconnection arrangements must comply with TRAI regulations. Subscriber data must be handled in accordance with the DPDPA. And any surveillance compliance request from the government must be handled correctly to avoid both regulatory liability and constitutional exposure.

At Diwan Advocates, we advise telecom operators, internet service providers, OTT communication platforms, telecom infrastructure companies, and technology businesses whose products and services interact with the telecom regulatory framework. We handle licensing, regulatory proceedings before TRAI and the Ministry, interconnection disputes, spectrum matters, competition law issues, and the constitutional questions that arise at the intersection of surveillance law and privacy rights.

The Telecom Act, 2023: What Has Changed

The Telecom Act, 2023 replaces the Indian Telegraph Act and the Wireless Telegraphy Act with a single modern statute. Key changes include a unified authorisation regime replacing the previous licence-based framework, new subscriber rights provisions including the right to information about outages and service quality, updated spectrum management provisions with clearer assignment and auction frameworks, codified government powers to intercept communications and take control of telecom networks in specified emergencies, and provisions addressing cybersecurity obligations of authorised entities.

The transition from the old licensing regime to the new authorisation framework is being managed through a migration process. Existing UAS licences, ISP licences, and other legacy licences remain valid during the transition period. Entities operating under legacy licences need to understand how their rights and obligations are being carried over and what the new authorisation requirements mean for their operations.

TRAI: Regulatory Framework and Proceedings

The Telecom Regulatory Authority of India Act, 1997 gives TRAI the power to issue regulations, tariff orders, and directions on all matters relating to telecom services. TRAI's regulatory output covers tariffs and their transparency, interconnection between operators including the IUC regime, quality of service standards, mobile number portability, broadband standards, and the process for licensing new services. TRAI also makes recommendations to the Ministry on spectrum allocation and licensing conditions.

Interconnection Disputes

Where two telecom operators cannot agree on the terms of interconnection, either party can approach TRAI for adjudication. Interconnection disputes frequently involve questions about the applicable IUC rate, the quality and capacity of the interconnection point, and the obligations of the dominant operator to provide non-discriminatory access. We represent operators in TRAI interconnection proceedings and in appeals before the Telecom Disputes Settlement and Appellate Tribunal.

Tariff Regulation

TRAI has the power to prescribe tariff norms and to cap or regulate the prices that telecom operators charge for their services. The history of telecom tariff regulation in India includes periods of price floors intended to prevent predatory pricing and periods of active market monitoring following the Jio disruption of the market. We advise operators on the regulatory constraints on their pricing strategies and on the process for seeking tariff deregulation in competitive market segments.

Spectrum: Allocation, Auction, and Compliance

Spectrum is India's most valuable communications resource and is managed by the Ministry of Communications under the Telecom Act. Commercial spectrum is allocated primarily through auction. The winning bidder receives a right to use the spectrum for the authorised period subject to the roll-out and usage obligations specified in the auction conditions. Failure to meet roll-out obligations or to pay auction instalments on time can result in cancellation of the spectrum right.

The AGR crisis, in which the Supreme Court upheld the government's broader definition of Adjusted Gross Revenue as the base for spectrum usage charges, resulted in enormous retrospective liabilities for multiple operators. The fallout from that decision, including the insolvency of some operators and restructuring of others, is still working through the system. We advise on spectrum compliance, spectrum trading between operators, and the regulatory treatment of spectrum in corporate restructurings and insolvency proceedings.

Right of Way and Infrastructure

Telecom infrastructure deployment requires access to public and private land for cables, towers, and equipment. The Right of Way Rules, 2016 give telecom providers the right to install infrastructure on public property and prescribe a process for obtaining permission from local authorities. Disputes about right of way, compensation, and the obligations of private landowners to permit infrastructure installation are handled through the designated dispute resolution mechanism and, where necessary, before courts.

OTT Communication Services: The Unresolved Question

Services that provide voice, video, and messaging functionality over the internet, such as WhatsApp, Zoom, and Google Meet, compete directly with licensed telecom services. TRAI has issued several consultation papers on whether these services should be regulated under the telecom framework and required to obtain authorisation. No final determination has been made. The Telecom Act, 2023 includes a definition broad enough to potentially cover OTT communication services, but whether and how this will be applied remains to be seen through the subordinate legislation.

OTT communication platform operators face potential regulatory exposure if the Ministry decides to enforce the Telecom Act's authorisation requirements against them. We advise these platforms on monitoring the regulatory development, on the legal arguments for and against their inclusion in the authorisation framework, and on how to engage with TRAI's consultation process.

Interception, Surveillance, and Privacy

The Telecom Act preserves and updates the government's power to intercept communications on grounds of national security, public safety, and emergency. Telecom operators receiving interception directions must comply. The Act does not provide for prior judicial authorisation of interception orders, which is a constitutional concern that continues to be litigated. The Supreme Court's Puttaswamy decision recognising privacy as a fundamental right is the constitutional backdrop against which all surveillance obligations imposed on telecom companies must be assessed.

Why Diwan Advocates for Telecom Law?

Legislative Reference Index

Telecom regulation in India has changed more in the last two years than in the previous two decades.

Companies operating in this space need lawyers who have kept pace with every development.

Diwan Advocates has.

Diwan Advocates  |  Delhi, India