THE FINAL DRAFT REPORT OF THE SUB-GROUP

ON CONVERGENCE

(Dated 11-8-2000)

Members of this subgroup are:
Shri. Fali S Nariman, M.P.- convernor
Shri Shyamal Ghosh, Secretary, Department of Telecom - Member
Shri Y. N. Chaturvedi, Secretary, Ministry of Information & Broadcasting - Member
Shri R. L. Meena, Secretary, Department of Legal Affairs - Member
Dr. S. C. Jain, Secretary, Legislative Department - Member
Shri K. V. Kamath, MD & CEO, ICICI - Member


INDEX
S. No. Particulars Page No.

Part I

BACKGROUND

Brief narration of past events.

1. In December last year the Prime Minister desired that a Group be constituted under the Chairmanship of the Finance Minister to expeditiously implement the Telecom Policy 1999 whilst taking into account the increasing convergence between telecom and IT.

Accordingly, a GROUP on Telecom and IT Convergence was duly constituted under the Chairmanship of the Finance Minister by Government of India notification dated December 13, 1999 issued from the Prime Minister's Office.

2. At the first meeting of the GROUP held on December 23, 1999 (under Chairmanship of the Finance Minister) it was decided that three Sub-Groups be constituted viz. Sub-Group I - to consider and make recommendations to strengthen the TRAI through suitable legislative amendments.

Sub-Group II - to identify and recommend measures for resolution of subsisting problems in the telecom sector with a view to ensuring expeditious implementation of NTP-99; as well as for identification and resolution of subsisting problems in the implementation of the ISP Policy and to recommend measures for the rapid spread of E-Commerce.

Sub-Group III - for preparation of the draft of a new comprehensive statute to replace the Indian Telegraph Act, 1885, keeping in view the rapid convergence of telecom, computers, television and electronics.

3. At this time (it will be recalled)-

(a) provision for "Broadcasting services" had been already made in the Broadcasting Bill no. 71 of 1997 introduced in the Lok Sabha which Bill could not be passed and had lapsed with the premature dissolution of the Lok Sabha in December 1997; but the 1997 Bill remained in the contemplation of the Ministry of Information and Broadcasting and even in December 1999, tentative proposals for its amendment were under their active consideration.

(b) Telecommunication services (other than broadcasting services) were already regulated under a separately enacted law viz. the Telecom Regulatory Authority of India Act 24 of 1997 - ("The TRAI Act").

4. Sub-Group I in its Report (circulated to members of the GROUP on January 12, 2000) made certain recommendations for strengthening the TRAI Act. A portion of this Report of Sub-Group I (relevant to the narration of events leading upto this present final draft report of Sub-Group III) is reproduced below:

"The Subgroup(I) discussed the issue of a common authority for broadcasting and telecom. While appreciating the need of a single regulatory authority to regulate both telecom and broadcasting rather than create separate authorities for regulating broadcasting, IT, etc. the Subgroup felt that the nature of disputes in the broadcasting industry were quite different and the number of players too large. It would, therefore, not be prudent to burden the TRAI with this additional responsibility. However, keeping in view the fact that integration of the two sectors was taking place very rapidly in the wake of technological convergence, the Subgroup felt that there was a need to have an enabling provision in the TRAI Act by amending the definition of Telecommunication Service under Section 2 (1) (k) so as to include broadcasting services." (Emphasis added).

Thus, the possibility of "telecommunication services" being widened to include "broadcasting" in all its aspects (though within the framework of the TRAI Act) was clearly envisaged in the Report of Subgroup I.

The amendments recommended by Subgroup I in the TRAI Act were promulgated by Ordinance 2 of 2000 (Telecom Regulatory Authority of India Ordinance 2000) - on January 24, 2000: The Telecom Regulatory Authority Bill (in terms of the Ordinance) was introduced and passed by both Houses of Parliament in mid-March 2000, Presidential assent being received on March 25, 2000.

5. Meanwhile the Interim Report of Sub Group III on Convergence (briefly "Our Interim Report") was circulated to members of the GROUP on January 13th, 2000.

The tentative conclusions set out in our Interim Report read as follows:

"(i) "It is necessary to differentiate between the carriage of information through a variety of technological drivers and the content of that information. In the former, micro electronics, digitalisation and software has been consistently pushing hitherto separate streams of Infrastructure Services and Appliances (ISA) into a convergence or integration, especially as infrastructure and appliance levels - a phenomenon referred to in technological terms as "Multi-media Information Highway" (MIH)."

(ii) So far as the content of information was concerned : the tentative conclusions in our Interim Report were as follows:

" (a) It (this) is to be comprehensively dealt with in a new Broadcasting Bill, along the lines of the Broadcasting Bill, 1997 which had lapsed on account of the premature dissolution of the Lok Sabha - this Bill is proposed to be introduced very soon in Parliament with substantial amendments.

(b) All aspects of E-commerce are already dealt with in the Information & Technology Bill introduced in the last session of the Lok Sabha on 16th December 1999 (and referred to a Committee).

(iii) Consequently, since only the carriage of information through various channels/media was (at the time) left to be provided, for, which the policy underlined by NTP 1999 envisaged a regime with little or no controls, it was considered more appropriate to retain (in a new enactment) the structural framework of the Indian Telegraph Act 1885, whilst, substantially altering or amending its relevant provisions, so as to adequately reflect the thrust of the New Telecom Policy (NTP - 1999).

The reasons for these tentative conclusions were mentioned in our Interim Report. They were:

"(i) Structurally, the 1885 Act is along the pattern of many such Acts of that period - viz. to describe in briefest outline the thrust of the legislation and its main features, leaving details to be provided for by rules, (delegated legislation).

(ii) Within the field of regulatory enactment for "telecommunication" (a modern updated version of the expression "telegraph"), it is recommended that the overall legislative scheme be an enabling one. Delegated legislation could then afford easy means of adjustment without further recourse to Parliament; in other words, by use of delegated legislation the legislative scheme could be expanded so as to encompass new technological changes and developments".

6. But our Interim Report, did include the following caveat:

(in a footnote at page 8 of our Interim Report)

"If however, it is ultimately decided by the Group that both content and carriage of information should be dealt with in one statute then it would be more appropriate to incorporate the comprehensive Broadcasting Bill and the existing Information Technology Bill, 1999 (already referred to a Committee) under one comprehensive enactment (as for instance along the lines of the US Telecommunications Act of 1996): or along the lines of the Malaysian Communication and Multimedia Act 1998 (w.e.f. 1.4.1999); the first law in the world to integrate and regulate in one statute all three media - telecom, broadcasting and on-line services. At the moment however these alternative suggestions remain confined in this Final Draft Report to a foot note."

7. Our initial detailed proposals for a new statute (in replacement of the Indian Telegraph Act 1885) are to be found at pages 14 to 24 of our Interim Report. For convenience and for ready reference an extract from our Interim Report (pages 14 to 24) is annexed as Annexure I at pages 83 - 94 of this Final Draft Report.

8. At a further meeting of the GROUP (on Telecom and IT Convergence) held on February 14, 2000, our Interim Report was considered, and it was then decided that both content and carriage of transmitted information should be assimilated into one comprehensive statute.

The Chairman of the Group, the Hon'ble Finance Minister, summed up the decisions arrived at during this meeting held on 14.2.2000 as follows:

"(a) The Legislative Department (in the Ministry of Law) may in the first instance study the Interim Report of the Subgroup under the convenorship of Shri Nariman, the draft Broadcasting Bill prepared by the Ministry of I&B and the Information Technology Bill already introduced in the Lok Sabha, and, prepare the draft of a comprehensive statute covering both carriage and content of transmitted information. The Ministries of Communications, I&B and IT will provide all necessary assistance to the Legislative Department in this exercise. (Emphasis supplied).

(b) The Subgroup under the convenorship of Shri Fali S. Nariman, will, thereafter, study the draft as prepared by the Legislative Department and finalise its recommendations regarding a comprehensive statute as above. The Subgroup may co-opt such officers of the Ministers of Communications, I&B and IT in its deliberations as considered appropriate. The DoT will provide to the Subgroup the text of the Malaysian Act - laws passed by other countries as well as guidelines/recommendations of the ITU on the subject, to facilitate the Subgroup in finalising its recommendations.

(c) The Subgroup will submit its report for further consideration by the Group on Telecom and IT Convergence by mid-March."

Part II -

Preliminary Work on a Comprehensive Statute covering both carriage and content of transmitted Information

9. Pursuant to the decisions taken at the meeting of the GROUP (GoT-IT) held on 14.2.2000:

(a) an up-dated version of the Broadcasting Regulatory Authority Bill 2000 prepared by the Ministry of Information and Broadcasting was circulated to members of this Subgroup (III).

(b) the Secretary to the Prime Minister held a meeting of Secretaries and representatives of concerned Ministries to expedite the formulation of a draft comprehensive statute as envisaged in the meeting of the GROUP held on 14.2.2000;

(c) as a consequence, the Member Secretary, Law Commission nominated by the Secretary, LD (for this purpose) held discussions with officers of the Departments of Telecom and Information and Broadcasting on April 19th, 21st and 24th, 2000 about the possible draft format required for a comprehensive new law. As appears from a background note furnished by Dr. D.P.S. Seth - (Department of Telecommunications) to the Chairman, Subgroup III the conclusions arrived at these meetings were (briefly) as follows:

(i) It was agreed that the Information Technology Bill, which exclusively dealt with the details of e-commerce activity, having been already introduced in the House, need not be incorporated in the draft.

(ii) However, it was felt that certain provisions of the Information Technology Bill relating to inclusion of sound in the definition of "Information", those relating to "Interception" and "Encryption" would have to be reviewed in the context of the provisions of the Indian Telegraph Act.

(iii) It was also felt that the draft needed to cover Indian Telegraph Act 1885, Indian Wireless Act, 1933 and the proposed Broadcasting Bill and perhaps some of the provisions of the Information Technology Bill in so far as convergence was concerned

10. On April 24th, 2000 a draft text of the comprehensive Bill titled "The Telecommunication and Broadcasting Bill 2000", was forwarded by the Legislative Department, Ministry of Law to the members of this Subgroup (III). The draft was an amalgamated version of: the improved Telegraph Act as suggested in our draft Interim Report, and the Broadcasting Regulatory Authority Bill 2000' (which was an up dated version of the 1997 Broadcasting Bill prepared by the Ministry of Information and Broadcasting).

This commendable effort of the Legislative Department was discussed at a further meeting of this Subgroup(III) held on May 5, 2000 - along with:

(a) Written comments of the Departments of Telecom and Telecom services on the draft 'Telecommunications and Broadcasting Bill' 2000 as well as the written comments of the Wireless Advisor, Government of India.

(b) Clause by clause remarks on the draft Bill by the Department of Telecommunications.

(c) Preliminary comments of the Ministry of Information and Broadcasting on the draft 'Telecommunications and Broadcasting Bill 2000'.

11. In the light of the foregoing the Ministry of Information & Broadcasting got prepared a new draft Bill titled 'The Communications Bill, 2000'. The draft Bill was forwarded to the Convenor of the Subgroup by the Minister of State for I & B which in turn was circulated amongst the Members of this Subgroup (III) on May 17th 2000.

The Minister of State for Information & Broadcasting also forwarded to this Subgroup 'some suggestions offered by some friends in the broadcasting industry including Prasar Bharati' incorporated in the form of a draft bill titled 'The Information Communication and Entertainment Bill, 2000': this was also circulated amongst members of this Subgroup (III).

PART III

CERTAIN CONCLUSIONS AND THEIR IMPACT:

12(1) Conclusions: At further meetings of this Subgroup (III) held on May 19th and May 24th, 2000 some vital aspects of the proposed new legislation were discussed, and the following CONCLUSIONS were reached viz:

(A) Maximum convergence is occurring in the area of access network (telecommunication including data communication) or local delivery services (broadcasting). This is because technological developments now permit the network used for carrying broadcasting signals to the customer premises, namely cable TV network, to be used for purposes of carrying telecommunication and data (including Internet) signals also. Likewise, the telephony access network i.e., the network connecting subscriber to the telephone exchange can be used for carrying broadcasting signals. In a similar manner, the web - casting function utilised for Internet data transfer though a telecommunication service uses the broadcast mode. All this convergence could not be achieved without inevitable conflict if the licensing authority for telecommunications and for broadcasting services were different and separate.

(B) The regulatory function in the case of telecommunication service is being performed by the Telecom Regulatory Authority of India. (Under the 1997 Act). This Authority, which has been formed under the TRAI Act, has been given the function only of regulation of telecom services. On the other hand the Broadcasting Regulatory Authority of India proposed in the draft broadcasting bill is to cover regulation of broadcasting services as well as licensing of the broadcasting service. It is felt by this Subgroup (and we do so recommend) that there should be a single regulatory authority for both broadcasting services as well as telecom services(1).

(1)footnote:It is pertinent to recall that during the earlier deliberation of this Subgroup it had been concluded that separation could be done on the basis of carriage and content. If this approach is to be ultimately adopted then possibly one could have two separate regulatory bodies, one dealing with the carriage aspect and the other with the content aspect. On the other hand, if convergence is aimed at in the regulatory aspects also (besides the technical aspects) then one would have to consider the option of only one regulatory authority for both telecom and broadcast, with licensing powers including spectrum management for civilian use both for telecom and broadcast.

(C) It is necessary to spell out what we mean by "regulation" in the context of a communications - environment. In this area of unprecedented and rapid technological change, law as a regulatory technique is coming under increasing scrutiny, and more and more limits on its capacity to police change have been suggested. Traditional techniques of 'command-and-control' regulation (for instance) are seen as less effective than mechanisms for self regulation. There is need for a greater encouragement of what is called, "enforced self regulation" or "Co-regulation", by which an industry is persuaded to set its own standards - if it is to avoid harsher and (what are felt to be) less appropriate standards imposed on it.

In our opinion, there is need to develop a new form of reflexive law, which rather than seeking direct intervention, establishes more indirect means of involvement creating procedural opportunities for influencing greater development.

With this object in view we have recommended the setting up of an independent autonomous Commission, which would continuously interact with various sectors of industry to help set standards and formulate regulatory norms - both as to content and as to carriage of information. The crucial topic of "regulation" is, basically the problem of the use and abuse of power: we envisage that this problem be addressed, in the present context, by using power to advance, facilitate and encourage the growth of technological and social development, thus reducing (if not eliminating) the chances of abuse of power by providing mechanisms ensuring the appointment of highly qualified and independent persons of integrity as members of the autonomous Commission.

(D) The thrust of the new comprehensive enactment should therefore be:

(i) to promote the national objective of a powerful infrastructure for an information based society, in other words the effort has to be on the convergence of telecommunications including data communication, and broadcasting activities, since due to technological changes these areas are tending increasingly to overlap and converge. At the same time, convergence in the administrative and regulatory aspects is also desirable.

(Ii) To establish a licensing frame work for carriage and content of information in the scenario of convergence of telecommunication, broadcasting, multi media and other related technologies; and to set up a single regulatory framework for carriage and information content.

(Iii) To setout the authority to administer and powers and procedures for the administration of this new enactment: with a stress on continuous consultation with individuals and groups affected by this new enactment.

(E) "Frequency spectrum" is a critical natural resource. The European Commission's Green Paper(2) on Convergence makes the point that "frequency (still) remains the key, but finite, resource even in the digital age". It is crucial that frequency allocation be provided for in the comprehensive draft statute keeping in view the over all thrust of a fair, regulatory and facilitative regime(3).

(F) Important Terms which will be used in the comprehensive statute, and in regulations framed thereunder, would have to be set out and defined in the new law with some degree of precision.

2.Green Paper on Convergence of Telecommunication, Media and Information Technologies, COM (97) 623 (1997).
3. On date, the arrangement for licensing of broadcasting is on the basis of the Indian Telegraph Act and once the Ministry of Information & Broadcasting issues the no objection for a particular user and for a particular broadcasting service, the broadcasting license is ultimately issued by the Wireless Advisor.

(G) On the various types of "services", the model used in the Malaysian Act is the one which could be usefully adapted; it does not restrict licensing to certain specific services only. For example the licensing authority would be required to grant license to any person for establishing, maintaining and/operating any or all of the following viz.:

(a) Network facilities or infrastructure,
(b) Network services,
(c) Application on any network service, and
(d) Content application service.

The above classification of services for purposes of licensing is being recommended so as to facilitate maximum possible convergence of technology in utilisation of infrastructure as well as provisions of various services. The classification is technology - neutral and service-sector neutral. Setting up an infrastructure facility and its use is not linked to the provision of a particular service by using a particular technology. Similarly, services can be provided by using any facility and any technology. Thus, the classification aims to achieve the basic objective of the Act which is convergence. Notwithstanding these more or less, self contained classifications, there would still be need and demand for licenses for more than one category by the same person/entity. However, such demand would be driven more by the need of business synergy and its vertical integration and not so much due to the need of technology - convergence. Therefore, wherever requests are made for licenses in more than one category, we recommend that the Commission may grant a composite licence for all or a combination of categories provided it does not come into conflict with any of the basic objectives of the Commission, particularly, in relation to ensuring fair access and promotion of competition.

12(2) Impact of the above CONCLUSIONS

We must pause here and consider the consequences of the above CONCLUSIONS - (setout in paragraph 12 (1) and their impact on the continuance of the TRAI Act. From what has been stated in para 12 (1) above it is clear that the existing provisions of the TRAI Act 1997, (as amended in January 2000) would be more appropriately subsumed into the proposed new comprehensive enactment -recommended by this Sub-Group (III). Some explanation is needed for the seeming incongruity of the GOM recommending to the Government, based on the suggestions of one of its Sub-Groups (viz. Sub-Group I) a few months earlier, the strengthening of the TRAI Act 1997 (which were thereafter implemented by enabling legislation), and the same GOM later entertaining the suggestion of another of its Sub-Groups (Sub-Group III) for a comprehensive new legislation which may render superfluous the continued existence of TRAI! It is submitted that in fact there is no conflict between the two sets of successive decisions of the GOM.

As mentioned above, in Sub-Group I's report of (January 2000) - accepted by the GOM - the Sub-Group (I) itself had acknowledged the fact that integration of telecommunication and broadcasting was "taking place very rapidly in the wake of technological (changes in) convergence"; and had therefore felt the need for an enabling provision in the TRAI Act empowering the Central Government to alter the definition of "Telecommunication services" (as defined in the TRAI Act) to specifically include Broadcasting and other services; but this was not in fact carried out. Even if this delegated power had to be now invoked, separate detailed additional provisions would still have had to be made in the TRAI Act, for licensing and regulating all aspects of content and carriage of communication, which, in the opinion of this Sub-Group (III), is well beyond the framework and structure of the 1997 TRAI Act.

The mandate of the GOM (to Sub-Group III) in its decision taken on 14/2/2000 was to provide in one comprehensive enactment all aspects of carriage and content of all communication services: as to how this was to be done was left to this Sub-Group (III) to recommend: i.e. whether it was more practicable to place all the new provisions in the already existing TRAI Act or to propose a new separate enactment.

After due consideration, this Sub-Group (III) is of the view that the mandate given by GOM would be better fulfilled by assimilating the existing regulatory functions of TRAI (set out in the TRAI Act) into the more wide ranging regulatory and licensing provisions of a separate new enactment (as now proposed by us). The Commission to be set up {as recommended by this Sub-Group (III)} would, in addition to the functions already being exercised by the Regulatory Authority under the TRAI Act, also be empowered to exercise much wider functions of regulating and licensing the carriage and content of all transmitted information. On February 14, 2000, the question left for our consideration by GOM, was whether the enlarged statutory framework should be fitted into the existing narrowly structured enactment (TRAI), or whether the latter should be incorporated into the provisions of a new and more comprehensive law. We have now chosen to adopt the latter course.

If the new enactment as recommended by this Sub-Group (III) is accepted by GOM, not only will the provisions of the TRAI Act be replaced, but also all provisions contained in the 1885 Indian Telegraph Act, the 1933 Wireless Telegraphy Act and the 1995 Cable Television Networks Regulation Act, would also be rendered superfluous, and would stand repealed.

However, neither the functions of TRAI nor the Appellate Tribunal constituted thereunder, stand abolished: they only stand transferred to and get incorporated into the new enactment(4).

4.We have recommended that with effect from the date of the Notification establishing the Communications Commission under the new law, the Chairperson and full time members of the Telecom Regulatory Authority of India established under the TRAI Act 1997 shall be deemed to be appointed as Chairperson and Members of the Communications Commission on the same terms and conditions subject to which they were so appointed under that Act. Likewise with effect from the date of the Notification establishing the Communications Appellate Tribunal under the new law the Chairperson and Members of the Telecom Dispute settlement and Appellate Tribunal established under Sec 14 of TRAI Act 1997 holding office before the commencement of the new law would be deemed to be appointed as Chairperson and Members of the Communications Appellate Tribunal, on the same terms and conditions on which they were appointed under TRAI Act 1997. These transient provisions have been made in order not to disturb the continuity of the regulatory and dispute settlement activities already in place, as also to help assist a smooth take over under the provisions of the new law. Of course, vacancies in the two bodies set up under the new law will be filled up only in accordance with its provisions.

PART IV

SPECIFIC RECOMMENDATIONS OF SUB GROUP - III

I. THE APPROACH

Variegated technological changes in information services have posed a formidable challenge to definitive legal regulation. With the development of new forms of convergence of information there are apprehensions that technological developments increasingly make regulation difficult (at times even impossible) - as new forms of delivery of information are able to escape, effective regulatory control.

The dream of convergence is now fixed on the image of an all media machine that will roll into one the functions of Telephone, TV and the Computer. "Compuphonavision" (as full technological convergence is sometimes known(5) ) has not yet arrived, but it is hovering near.

5.See K Maney; "Mega Media Shakeout" (New York J. Wiley 1995), P 33

With all this in mind we had drawn attention in our Interim Report to the somewhat pessimistic prediction that the impact of convergence upon regulation may be greater than the impact of regulation upon convergence; and the great question for the future would be not as to how convergence should be regulated, but how regulation would have to change in the light of convergence(6) .

6.Based on the Sixth Regulatory Colloquium of ITU held in Geneva on 11-13 Dec. 1996.

This Sub-Group is of the view that the regulatory structure and mechanism of our law must be sufficiently flexible to adapt to new developments in the current fast-changing environment. In the circumstances we would recommend a short statute (though not necessarily a skeletal one). Subordinate legislation could then be conveniently resorted to, and rules and regulations promulgated, from time to time, to meet with changed situations that arise in the future on account of rapid and unpredictable changes in Information Technology, as well as on account of (and to address) problems faced by the industry, both in respect of the carriage and the content of all transmitted information. Difficulties raised about possible pleas of excessive delegation of legislative powers would be obviated by providing in the clause dealing with rules and in the clause dealing with regulations that they would be laid before Parliament, thus enabling Parliament if so minded to alter or modify them.

II TITLE AND LONG TITLE

To bring out the clear thrust of the new legislation this Sub-Group III recommends the following title:

"THE COMMUNICATIONS (CARRIAGE AND CONTENT) BILL, 2000(7) ".

7.Parallel statutes abroad have different titles - for example: "Communications Act of 1934 (US) amended by Telecommunications Act (US) Act of 1996", "Communications and Multi Media (Malaysian) Act of 1998".

and the following long title :

"An Act to facilitate the rapid growth and development of broadcasting, telecommunications and information technologies in an environment of convergence and for that purpose to establish an independent Commission to be known as the Communications Commission of India, and to provide for matters connected therewith or incidental thereto".

III OBJECTIVES OF THE NEW LAW

It is felt that the thrust of the New Legislation should be clearly spelt out preferably in the Act itself instead of being left (as is usual) to the Statements of Objects and Reasons accompanying the Bill. The objectives of this new legislation should be clearly stated viz.:

(i) to facilitate development of national infrastructure for an information based society;

(ii) to provide choice of services to the people with a view to promoting plurality of news, views and information.

(iii) to establish a licensing framework for carriage and content of information in the scenario of convergence of telecommunication, broadcasting, data communication, multimedia and other related technologies;

(iv) to establish a regulatory framework for information content and carriage;

(v) to establish the powers and functions of a single regulatory and licensing authority;

(vi) To establish powers and procedures to facilitate the administration of the Act.

IV BROAD CONSPECTUS OF THE NEW ENACTMENT: SALIENT PROVISIONS

1. Single independent Statutory Commission - its approach

1(A) This Sub group recommends the constitution and establishment of a (single) autonomous and independent statutory body(8) to be called the "Communications Commission of India". It is to be a body pre-eminent in the field of "communications" - in the position of a super-regulator and super-facilitator.

8.To ensure independence and to distinguish it from other statutory bodies, we have approved of the inclusion in the new law of a provision that the Chairperson or any other members of the Commission could be removed from office before expiry of his/her term of office only by order of the President on grounds of misconduct or non-performance, and only after a retired Judge of the Supreme Court or any judge of the High Court on a reference having been made to him by the President has, (on enquiry held in accordance with such procedure as may be prescribed by the Government) reported that the Chairperson or such other member as the case may be should, on such grounds, be removed. For the same reason we have expressly disapproved of draft clause 6 of the draft Communication Bill, 2000 (forwarded by the Ministry of Information & Broadcasting): this clause purports to empower the Central Government to propose to the President of India to supersede the Commission by Notification: In our opinion this wholly detracts from the high independent status that we have recommended for the Communications Commission of India.

It is expected that the Commission will be able to take a broad view of the converging sectors, and to respond flexibly to the emergence of new services, as also ensure a consistent approach to regulation of related activities. As different organisations diversify their activities across the convergent sectors, a regulator with the breadth scope and expertise expected of this Commission would (it is hoped) make the law move to new heights of achievement.

However, there are concerns about the transparency and accountability of a single regulatory body: and we have suggested provisions to help overcome these misgivings in the new statute.

We continue to support the principle that regulation must be conducted on an arms-length basis by Independent Regulators. Without this, the risk of ad-hoc political involvement in economic regulation will increase regulatory risk, and influence adversely the ability of companies to invest and operate in a settled climate. This principle is even more significant and sensitive in connection with the regulation of content. It is now accepted in most countries that Governments must be seen to stand back from controls, and confine themselves to setting up a general institutional framework.

2. Composition of Commission:

We would recommend the Composition of the Commission to be as provided for in Chapter II of the I & B Draft of the Communications Bill 2000 in particular the following and with the following alterations:

(1) Clause 3(3) will read as follows:

The Commission shall consist of the following Members, namely;

(a) a Chairperson

(b) five whole time Members (from the fields of Telecommunications, Broadcasting and Information Technology) and Law.

(c) Spectrum Manager (exofficio member) - to be defined. Clause 3(7) will be altered as follows:

"The Chairperson and whole-time Members shall be appointed from amongst persons of eminence with more than fifteen years of experience in the fields of broadcasting, telecommunications, satellite technology, Information Technology, administration and management including financial management, and/or law".

(2) "The Committee for appointment should also include the Leader of the House in the Rajya Sabha and Leader of the Opposition in the Rajya Sabha, and Clause 3(4) will have to be altered accordingly:-

"The Chairperson and Members except the ex-officio Members shall be appointed by the President of India on the recommendation of a Committee consisting of:-

(a) the Prime Minister;

(b) the Leader of Opposition in Lok Sabha;

(c) Leader of the House in the Rajya Sabha

(d) Leader of the Opposition in the Rajya Sabha

(e) the Minister in charge of Information and Broadcasting and Minister in charge of Communication in the Central Government."

(3) Clause 6 - provision for supercession - must be deleted(9).

9.See earlier foot note

(4) Clause 3(6) is repeated twice.

(5) Clause 3 (12) will be re-framed as under:-

"(12) A person having commercial interest, direct or indirect, in any service-providing company shall not be eligible for appointment as Chairperson or Member ".

(6) Clause 7(4) is to be deleted.

Since the Commission will wield decisive authority in large and sensitive sectors its independence should not only be ensured, but its decision - making processes must be seen to be transparent. Hence we recommend the selection process as set out in Chapter II Section 3 of the Information and Broadcasting draft Communications Bill 2000. The entire Chapter II of the I & B Draft Communications Bill, 2000 as altered by us is annexed to this Final Draft Report as Annexure II (pages 95-100 of this Final Draft Report).

3. Functions of the Commission and of the Appellate Tribunal:

3.1 Functions of the Commission:

(A) It is proposed that one of the primary functions of this Commission should be to facilitate and regulate, (by means of regulations, orders and directions), all aspects of telecommunication and broadcasting, and other communications including all aspects of convergence in these services.

NOTE: A specific statutory provision broadly so describing the functions of the Commission in the statute would also facilitate the smooth administration of the Act especially through rules and regulations framed under the Act.

One important justification for regulation (of content) is to preserve a plurality of different media, forms and structures providing access to a range of competing view points and information sources; best accomplished through regulatory action. The Green Paper on the convergence of Telecom, Media and Information Technology 1997 issued by the Commission of European Communities states that the success of convergence as one of the Key `enablers' of the Information Society will depend, "largely on the kind of regulatory framework devised to encourage it".

(B) One of the statutory functions of the Commission should be to issue all licenses including "Composite licenses".

(C) The functions of the Commission will be as provided in the draft I & B - "The Communications Bill 2000" as altered by us, and which as now altered will read as follows:

"The functions of the Commission shall be:
(1) to facilitate and regulate (by means of regulations, orders and directions) all aspects of telecommunications, broadcasting and other communications including all aspects of convergence in these services.
(2) To provide after consultation with the industry guidelines, codes and practices: in particular in respect of the content transmitted in an electronic form in the public domain; and to issue whenever necessary such directions as it may deem appropriate in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign States, Public Order, Public Morality or preventing incitement to the Commission of any cognisable offence".
It is expected that such a provision will help the Commission to take steps towards initiating and establishing a regime of "enforced self-regulation"; a trend already apparent in other parts of the world: for example service providers being "persuaded" to set up legal regimes of their own merely on the possible threat of more formal legal intervention(10).

10.See for instance the suggestions made in the book titled "Responsive Regulation - Transcending the Deregulation Debate" by Ayres and Braithwaite Oxford University Press, 1992.

It will also help the Commission in its decision-making functions. The guidelines codes and practices would serve as guideposts for application and enforcement of Sec 65 ("Publishing Information which is obscene in electronic form") of the Information Technology Act 2000, recently passed into law.

(3) In particular and without prejudice to the foregoing the Commission will also have the following functions:
(i) To carry out spectrum (frequency) management and planning as provided in Chapter 6 of Part IV below (frequency spectrum).
(ii) To grant licenses including Composite Licences for communication facilities and services, and to modify licenses existing at the date of commencement of this Act.(11)
(iii) To determine and enforce by regulations the conditions of licences.
(iv) To determine by regulations codes and technical standards.
(v) To determine and levy license fee wherever required.
(vi) To facilitate competition and promote efficiency in the operation of services.
(vii) To determine tariffs and rates for licensed services, wherever considered necessary.
(viii) To formulate and determine conditions for fair, equitable and non discriminatory access to a network facility or network service and provide for revenue sharing arrangements and other related matters in respect thereof.
(ix) To take measures to protect consumer interests and promote universal service obligations wherever required.
(x) To formulate and lay down programme and advertising code in respect of content application services;
(xi) To formulate and lay down technical standards and norms to ensure quality and interoperability of services and network facilities.
(xii) To report and make recommendations on such matters as may be referred by the Government.
(xiii) To carry out study and publish its findings on matters of importance to the consumers, service providers and the communications industry.
(xiv) To ensure that services are provided to subscriber or consumers on a non-discriminatory basis.
(xv) To ensure that the grant of licenses will not result in eliminating competition or in one or more service providers becoming dominant (to the detriment of other service providers) in providing news, views and opinions.
(xvi) to institutionalise appropriate mechanisms, and to interact on a continual basis with all sectors of the industry and consumers so as to facilitate and promote the basic objectives of the Act.
(xvii) To perform such other functions to further the objects of this Act, or as may be prescribed by the Central Government".

(D) It should be provided in the new law as follows:
"The following guiding principles will govern the administration of the Act viz.:"
(i) to develop the national information infrastructure, and promote quality, plurality, diversity and choice in services;
(ii) to encourage introduction of new technologies and investment in services and infrastructure, maximisation of telephone density and of communications facilities.
(iii) to support universal access to communication services at affordable cost;
(iv) to promote equitable, non-discriminatory interconnection across various networks
(v) to provide a level playing field serving the consumer interest and provide for licensing criteria to be made known to the public;
(vi) to regulate market dominance in a converged environment
(vii) to promote an open licensing policy allowing any number of new entrants (except in specific cases constrained by resources such as the spectrum) keeping in mind, the principle of a level-playing field for all operators including existing operators on the date of commencement of the Act.
(viii) generally to secure an environment which promotes competition and provides choices of services.

(E) It should also be provided in the new law that in exercising its functions, and whilst granting licenses under the Act, the Commission shall keep in mind the above guiding principles, and take into account the following factors:

(i) that the communication sector is developed in a competitive environment;
(ii) that the communication sector is made available to all uncovered areas including the rural, remote, hilly and tribal areas;
(iii) that there is increasing access to, and empowerment of citizens, to information leading to greater economic development of India.
(iv) to provide choice of services to the people with a view to promoting plurality of news, views and information.
(v) that a modern and effective communication infrastructure is established taking into account the convergence of information technology, media, telecom and consumer electronics;
(vi) that defence and security interests of the country are fully protected.

(F) Directives and guidelines by the Central Government.
(1) The new law should provide that in exercising its licensing and regulatory functions the Commission shall follow such policy directives/policy guidelines as may be communicated to it in writing by the Central Government from time to time. Such directives may include the route and the mode in which any services are to be licensed, whether by way of auction of in any other form, or to exempt a particular service provider in exceptional circumstances from payment of license fee.
(2) The Commission will also be empowered to request the Central Government by means of a written communication for a review of any policy directive/policy guideline, and if any such request is made the Central Government will respond to the request, also in writing and with all expeditious despatch.
(3) In framing the policy directives/guidelines the Central Government shall be required (by statutory provision) to take into account the objectives of the Act and the guiding principles governing the administration of this Act (see below).

(G) After further discussions at meetings of this Sub - Group in June and July 2000 it has also been agreed that the new law should provide for certain additional functions of the commission viz. :

a) to receive, consider and decide all complaints against licensee and or license services; and
b) to decide and determine disputes relating to spectrum interference, (in respect of the spectrum assigned by the Commission), disputes between two service providers, disputes regarding interconnectivity between two or more service providers, denial of fair access to any service provider, and practices by any service provider which are restrictive of fair competition.
It should be clarified that disputes between service providers occasioned by or arising out of an order, direction or decision of the Commission will not be a matter for the Commission to decide but by the Appellate Tribunal in an appeal carried to it against such order, direction or decision.
It is the considered view of this Sub-Group that the Commission would have better expertise to deal with all these items: at least in the initial stages of the working of the new law. It is therefore suggested that the provisions in Section 14 (a) (ii) and (iii) as added to TRAI by the Amending Act 2 of 2000 should no longer be applicable under the new Act.

Similarly Proviso A, B and C in the Amended Section 14 of the TRAI Act need not be reproduced in the provisions made for an Appellate Tribunal under the present Act.

The provisions in Section 14 (a) (i) (disputes between licensor and licensee) would and should be covered by the omnibus provision that any order, direction or decision of the Commission should be appealable by any person aggrieved to the Appellate Tribunal under the Act.

In order to avoid a detailed adjudication in each of two tiers matters which the Communications Commission is empowered to deal with, it would be useful to provide (in the Act or the rules) that all appeals to the Appellate Tribunal should first, come up for admission before it: this would enable the Tribunal to expeditiously dispose off frivolous or unsustainable appeals as well as matters in which the Appellate Tribunal are of the view that Communications Commission has taken a right decision.

3.2 Appellate Tribunal and its functions:

1. Subject to what is stated above and hereinbelow the provisions regarding the Appellate Tribunal should be along the lines set out in the draft of Chapter VIII of the Communications Bill 2000 (Information and Broadcasting) and the Legislative Department may co-relate this with the provisions of the TRAI Act 1997, as amended in 2000 (Chapter IV)

2. Composition of Appellate Tribunal: some special features
In view of the fact that it is proposed to have a common Appellate Tribunal dealing with Telecom as well as Broadcasting and other matters to be regulated by the Communications Act, 2000 and also the fact that the Appellate Tribunal will be required to adjudicate the disputes between the licensor and the licensee, the scope and functions of the work of the Appellate Tribunal will be considerable. It is therefore recommended that the Appellate Tribunal shall consists of a Chairperson and not more than six Members to be appointed by notification by the Central Govt. with an enabling provision enabling the Appellate Tribunal to perform its function through Benches of one or two members with a view to decide the disputes expeditiously. To assist the Chairperson in proper discharge of its functions, one of the Members can be appointed by the Central Govt. as Vice Chairperson and in the absence of Chairperson, the Vice Chairperson can discharge functions of the Chairperson also under the Act. By the amended TRAI Act, the term of office of the Chairperson and every other Member of the Appellate Tribunal was reduced from 5 years to 3 years. It is felt that 3 years is too short a term for this office especially when the Govt. proposes to debar the Members from re-employment on their ceasing to hold office. It is, therefore, recommended that for the future in all appointments to be made under the new law the term of office for the Chairperson and every other Member of the Appellate Tribunal should be 5 years.

3. Procedure and Powers of Appellate Tribunal The procedure and powers of the Appellate Tribunal under this enactment should be modelled along the lines of the TRAI Appellate Tribunal and the Cyber Appellate Tribunal (under the new Information Technology Act, 2000).

4. Licensing

4.1 Grant of Licenses
(A) Generally:
(1) Generally, it is recommended that conditions and prescriptions for granting licenses by the Commission should be left to be provided for by regulations to be framed (by the Commission) under the Act.
(2) However with regard to Licenses for content obligation services (i.e. principally in the realm of Broadcasting) it may be preferable to enumerate them in the statute, leaving a residual item of content principles/conditions to be provided for by regulations.

(3) The content - obligations to be stated in the statute will be as enumerated in Clause 17(1)(2) and (3)(12) (as altered as shown below) of the draft Information and Broadcasting Communications Bill, 2000.

Clause 17, (1), (2) and (3) read:
17(1). The Commission, may from time to time determine by regulations such obligations, conditions and restrictions subject to which the licensee will provide his services.
(2) The service provider of a Content Application Services shall, amongst other, (i)(xi) follow the programme standard and codes set and published by the Commission. (xi) ensure that a minimum percentage of programmes (to be determined by the Commission) shall be of Indian origin. (iii)(xi) include only such programmes in his service for which he has obtained the necessary copyrights;
(3) The licensee for Direct-Home-Delivery service and Local Delivery service shall, amongst other, (i)(xi) provide a specified number and type of broadcasting services of the public service broadcaster and in such manner as may be prescribed (ii)(xi) include only licensed services or registered services in his delivery package for the purposes of distribution; (iii)(xi) use not more than such number of channels as determined by the regulations out of the total channels capacity of the system for providing its own programming.

(B) The Commission should be specifically empowered to grant licenses in respect of all or any service/services except such specific service/services as are not permitted to be licensed, (which must be specified by the Central Government by notification published in the Official Gazette).
(C) It has been suggested that consultation with the Central Government should be mandated when the Commission exercises its licensing functions. But in the considered opinion of this Sub-Group, this suggestion is neither feasible, nor will it be practicable or workable; "In consultation with" does not mean "with the concurrence of"; to provide for the former would only involve needless duplication, whereas the latter would make the setting up of an independent Commission a meaning-less exercise. This Sub group considers that the Sovereign interests of the State will be sufficiently safe guarded: (a) by our proposal that service or services not permitted to be licensed would remain within the discretion of the Central Government, provided such services are duly notified in the Official Gazette and (b) by the further stipulation that in exercising its licensing and regulatory functions the Commission shall follow such policy - directives and policy guidelines as may be communicated to it in writing by the Central Government from time to time.

4.2. Other Licensing Provisions Our recommendations are as follows:
1. The Commission may grant licenses for the following categories, viz:
(i) Network facilities(13)
(ii) Network services(14)
(iii) Application services(15)
(iv) Content Application services(16)

(a) including earth stations, (b) fixed links and cables; (c) public payphone facilities; (d) radio communications transmitters and links; (e) satellite hubs; (f) towers, poles, ducts and pits used in conjunction with other network facilities, and (g) such other network facilities as may be notified by Central Government from time to time.
(a) including Bandwidth services, (b) Direct to Home Delivery services; (c) Local Delivery services; (d) Cellular mobile services; (e) Customer access services; (f) Mobile satellite services; and (g) Such other network services as may be notified by Central Government from time to time.
(a) including PSTN telephony; (b) Public cellular telephony services; (c) IP telephony; (d) Public payphone service; (e) Public switched data service; and (f) Such other application services as may be notified by Central Government from time to time.
(a) including Terrestrial Broadcasting; (b) Terrestrial Television Broadcasting; (c) Satellite Radio Broadcasting; (d) Satellite Television Broadcasting (e) Such other Content Application Services as may be notified by the Central Government from time to time.

2. The Commission may grant licenses in such manner, subject to such terms and conditions and fees and after following such procedures as may be determined by regulations.
Provided the Commission, before granting licenses for any of the services, shall prepare and publish a plan for licensing containing such details as to eligibility conditions, the number and scope of licenses, fee and charges procedure to be followed and other details, based on such study, assessment or public hearing as the Commission may consider appropriate.
In preparing and publishing such plan, the principle of a level-playing field for operators including existing operators at the date of commencement of the Act should be observed.

3. The period of the license shall be for such period as may be determined by the regulations. A license shall not be transferable without prior approval of the Commission.

4. After the commencement of this Act no person shall
(a) Own or provide any network facilities, or
(b) Provide any network services, or
(c) Provide any application services, or
(d) Provide any content application services, without obtaining a license in accordance with the provisions of this Act.

We recommend two provisos to the above provision to read as follows: "
(1). Provided that licenses issued under the Indian Telegraph Act, 1885, prior to the commencement of this Act shall be deemed to have been issued under the provisions of this Act and the provisions of this Act will apply accordingly.
(2) Provided the Central Government may by notification in the official gazette exempt such non-commercial establishments under common ownership from obtaining a license without using wireless cable, for the purpose of providing such service for the exclusive use of their members subject to such conditions and restrictions as may specified".

5. Enforcement of Licenses and Dispute Settlement:
(1) It is recommended that the provisions for Conciliation (provided in the new Arbitration and Conciliation Act, 1996) which have not been made use of so far, should be institutionalised and utilised for settlement of disputes between service providers and consumers. Provisions of Section 89 as incorporated by the Civil Procedure Code (CPC) Amendment, Act 1999 (not yet brought into force) may be suitably adapted for purposes of this Act.

(2) This Sub-Group recommends (subject to the above) the incorporation of Chapter VII of the Information and Broadcasting's draft Communications Bill, 2000. (as duly altered by us - copy annexed as Annexure III to this Final Draft Report (pages 101 to 104).

6. FREQUENCY SPECTRUM

I. ISSUES INVOLVED:
(i) For ensuring rapid growth of IT or IT based industries, there is a need for quick and transparent allocation of spectrum.
(ii) Spectrum constitutes scarce natural resource and can rarely be allocated on an exclusive basis. For optimum utilisation, it has to be shared between different users depending on spatial separation and equipment characteristics.
(iii) By their very nature, radio waves interfere with other equipment either through main or spurious emissions. Coordination with the likely-to-be-affected-users is imperative.
(iv) Control and monitoring of efficiency of use of spectrum. Besides, frequencies may have to be re-assigned to meet with national priorities such as for instance for increased safety in railway travel through deployment of modern accident prevention devices.
(v) Equipment characteristics also have to be controlled and monitored. In case of security agencies, characteristics and location cannot often be in the public information domain.

II. IMPLICATIONS:
(i) Coordination within the national boundaries as well as internationally especially in the context of satellite communication is a basic requirement of spectrum management. In pursuance of the New Telecom Policy, 1999, the National Frequency Allocation Plan- 2000 (NFAP - 2000) has been evolved through a consensus amongst various interests so that it could form the basis for development, manufacturing and spectrum utilisation activities in the country among all users.
(ii) To the extent certain portions of the spectrum (and in certain locations) are in use by "Armed Forces" or "Security Agencies" who do not wish to have the information divulged, the spectrum management has to be carried out through and closely associated with a Government agency (parallels of this do exist in the US, Malaysia and other countries).
(iii) But with all this - the stark fact remains that spectrum availability is woefully inadequate. There is urgent need to increase this spectrum availability so as to cope with the rapidly expanding Band-width demand.

III. POSSIBLE FORMULATION:
For ensuring transparency, this Sub-Group would recommend (relying on the US model(17)) a close inter-action between two agencies, viz. between the Central Government (represented by the current WPC) and the autonomous commission set up under this new law. There would be need for constant and on-going mutual consultation: which would ensure that no single agency has overriding powers nor creates conditions which are inimical to the growth of IT and the IT based industry: without in any way compromising the country's basic security requirements.

17.In the USA the entire thrust of Title III of the Communications Act 1934 deals with spectrum management and proceeds from an assumption that the radio spectrum is a scarce resource that must be shared by all users and closely managed by the FCC in order to maximise its availability and use. In the USA the Federal Communications Commission exercises the authority given to it by the Congress to decide what radio frequencies or what portions of the spectrum will be used for what purposes and by what users. The decision-making occurs at various levels. The first, and most abstract, level is the supra-national process in which countries - acting under the auspices of the International Telecommunications Union - make decisions on how to share the spectrum resource without causing interference across their borders. The FCC shares responsibility for participating in this international process with the Departments of State and Commerce. The decisions reached in the international process are reflected in international agreements, which have the force of law in the United States once the Senate has ratified the agreement. Pursuant to these understandings, the FCC and Federal government spectrum managers determine, at the second general level of spectrum allocations decisions, what frequencies will be used for Federal government purposes and what frequencies will be used for other purposes. Once it has the particular block of spectrum under its jurisdiction, the FCC employs two kinds of procedures to determine uses and users of the spectrum. In the first, and broader, procedure, the FCC uses its quasi-legislative, or rulemaking, authority in the so-called "block" allocation system to determine the amount of spectrum needed for a specific communications service and then allocates a block of frequencies for use by that service nationwide. At the last, and most specific, decisional, level the FCC decides which user will get which piece of allocated frequency. At this point, the FCC leaves rulemaking behind in favour of the applications process, which draws upon the FCC's adjudicatory powers. In the case of multiple applications, conflicting proposal now are resolved by competitive bidding. To the extent that deregulation has had much effect on spectrum management, it has been with respect to the last level of decision-making down on the spectrum management chain: the assignment or use of a particular piece of spectrum to a particular user or for a particular purpose. It is here that the FCC has been successful in using marketplace or other non-traditional regulatory mechanisms for determining which of the number of potential users actually will get a particular piece of spectrum.

IV. RECOMMENDATIONS
(1) We have therefore proposed as a first step that the Spectrum Manager (to be defined) be an ex-officio member of the Commission.
(2) With regard to assignment/allocation of frequency spectrum our recommendation is as set out below: -
FREQUENCY SPECTRUM "
(a) No person shall use any part of the spectrum without assignment from the Central Government or the Commission.

(b) The Central Government shall notify any officer or organ or agency of that Government as the Spectrum Manager under this Act for the purposes of: -
(i) co-ordinating with the international agencies matters relating to overall spectrum planning use and its management;
(ii) carrying out spectrum planning and coordinating its use by the Central Government for its vital needs including defence and national security.
(iii) allocation of frequencies or band of frequencies including frequencies to be assigned by the Commission; and re-assignment of frequencies from time to time.
(iv) Constantly reviewing and making available by all means as much spectrum as possible for assignment by the Commission, in particular by optimising usages.
(v) monitoring, in consultation with the Commission, the efficiency of the utilisation of the spectrum by all users.

(c) After meeting the requirements of the Central Government for fulfilling vital needs of the nation including defence and national security, the Spectrum Manager will make the spectrum available (to the maximum extent possible) for assignment by the Commission.

(d) Whenever the Commission seeks allocation of additional spectrum a process for mutual consultation between the Commission and the Spectrum Manager shall be initiated (in such manner and within a time frame) as determined by rules framed under this Act.

(3) With regard to problems of (spectrum) interference not allocated to the Commission, the Central Government will frame appropriate rules dealing with such matters or disputes.

7. Universal Service Obligations

In order to meet with some of the concerns voiced by sections of operators, consumer groups and others, it will also be necessary to provide in the new law(19) :

A suitably flexible provision incorporating wherever possible Universal Service Obligations: the range of Universal Service Obligations, their character and content, being different in different places, and under different situations, it is felt that this should be left to be prescribed by rules(20)

Recommended in our Interim report (pages 11-13) - reproduced here with some alteration.
This may be along the lines of the US Telecommunication Act 1996 e.g. Universal Service Principles: policies for the preservation and advancement of universal service where it is provided that service should be based on the following principles :
(i) Quality and rates : Quality services should be available at just, reasonable and affordable rates
(ii) Access to advanced services : Access to advanced telecommunications and information services should be provided in all regions of the Nation.
(iii) Access in rural and high cost areas: Consumers in all regions of the Nation, including low - income consumers and those in rural, insular, and high cost areas, should have access to telecommunications and information services, including interexchange services and advanced telecommunications and information services, that are reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas.
(iv) Equitable and nondiscriminatory contributions: All providers of telecommunications services should make an equitable and nondiscriminatory contribution to the preservation and advancement of universal service.
(v) Specific and predictable support mechanisms: There should be specific, predictable and sufficient Federal and State mechanisms to preserve and advance universal service.
(xi) Access to advanced telecommunications services for schools, health care, and libraries: Elementary and secondary schools and classrooms, health care providers, and libraries should have access to advanced telecommunications services.
(xi) Additional principles: Such other principles as are necessary and appropriate for the protection of the public interest, convenience and necessity and are consistent with this Act.
Alternatively: this could be along the lines of Section 137 of the Australian Telecommunications Act 1997 which sets out the basic requirements of the USO viz:
The main object of the universal service regime is to ensure that all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:
(a)(k) standard telephone services; and
(b)(k) payphones; and
(c)(k) prescribed carriage services. The more functional features of the USO are defined in section 149(2) which says that it is part of the USO:
(a)(k) to supply standard telephone services to people in Australia on request:
(b)(k) to supply, install and maintain payphones in Australia;
(k) to supply prescribed carriage to people in Australia on request.

framed by the Central Government in consultation with the Commission : for example in an unlicensed area of operation a service provider may be obliged by the relevant rules/ notifications to provide essential services like life line and life-saving service, distress/emergency service, even extending into areas which may be unremunerative; likewise, too for telecommunication service for certain providers like health care providers, educational providers and the like(21) . An additional reason why this Universal Service Obligation should be left to be provided by rules is that there are other conceivable ways in which such obligations can be provided for (e.g. that a particular percentage of the revenue earned by a service provider could be directed to be set aside for creating a fund for providing services to remote areas which would otherwise be unremunerative, (or cost effective) for the service provider to provide).

21.For instance in the US Telecommunications Act 1996 there is specific provision for Telecommunications Services being available for Certain Providers viz. (i).In Health care providers for rural areas : "A telecommunications carrier shall, upon receiving a bona fide request, provide telecommunications services which are necessary for the provision of health care services in a State, including instruction relating to such services, to any public or nonprofit health care provider that serves persons who reside in rural areas in that State at rates that are reasonably comparable to rates charged for similar services in urban areas in that State. A telecommunications carrier providing service under this paragraph shall be entitled to have an amount equal to the difference, if any, between the rates for services provided to health care providers for rural areas in a State and the rates for similar services provided to other customers in comparable rural areas in that State treated as a service obligation as a part of its obligation to participate in the mechanisms to preserve and advance universal service". (2) Educational providers and libraries: All telecommunications carriers serving a geographic area shall,, upon a bona fide request for any of its services that are within the definition of universal service under subsection (c) (3), provide such services to elementary schools, secondary schools, and libraries for educational purposes at rates less than the amounts charged for similar services to other parties.

8. Powers with regard to the right of way etc. to the service providers:

(i) This is already mentioned in our Interim Report (page 21). All operators, whether Government or private, should be treated at par in regard to delegated powers of the Central Government for the purpose of providing telecommunication services, except in case of right of way where the delegation may be done from time to time for specific or limited purposes only.

(ii) Our recommendation is to incorporate draft sections 38 to 48 in the draft Telecommunications and Broadcasting Bill 2000 (drafted by Legislative Department, Ministry of Law) - and to include a further provision of the nature mentioned in (i) above.

(iii) Of course in the light of minutes of meeting of the Group of Telecom and IT Convergence (GOT-IT) on 13.5.2000 (which is reproduced in the footnote(22)) the above recommendations may have to be amplified or suitably adapted at a later date.

22."Streamlining the provision of 'Right of Way' Decision taken: A committee to be set up under Secretary DoT including as members, Secretary MoIT, representatives of MoST. MoEF, Ministry of Railways and four states having achieved progress in the IT sector. This Committee will recommend within 45 days, measures for a fast Right of Way clearance mechanism and a model arrangement which could be followed by all states. The recommendations of the Committee could thereafter be communicated by the PM to all CMs."

9. Provision for interception of messages
(1) Existing section 5 of the Indian Telegraph Act, 1885, deals with the powers of the Government to take possession of "licencee, telegraphs" and to order "interception of messages" - these provisions have been narrowly interpreted by the Apex Court(23) and in accordance with that interpretation and new rules have been framed under the existing law (Indian Telegraph Amendment Rules 1998)
23.Peoples' Union for Civil Liberties vs. Union of India AIR 1997 S.C. 568.

(2) In Secretary Ministry of Information and Broadcasting vs. Cricket Association Bengal, AIR 1995 S.C. 1236 :
(a) Justice Sawant (for himself and J.Mohan) held:
(i) The restrictions and conditions that the Central Government is authorised to place under Sec.4(1) of Telegraph Act 1885 while permitting non-wireless telegraph can only be those which are warranted by the purposes mentioned in Art. 19(2) and none else(24).
24.A.I.R. 1995 S.C. 1236 at 1261

(ii) There is no doubt that since the airwaves/frequencies are 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. What is further, the electronic media is the most powerful media both because of its audio-visual impact, and its widest reach covering the section of the society where the print media does not reach. The right to use the airwaves and the content of the programmes, therefore needs regulation for balancing it and as well as to prevent monopoly of information and views relayed, which is a potential danger flowing from the concentration of the right to broadcasting/telecast in the hands either of a central agency or of few private affluent broadcasters(25).
25.A.I.R. 1995 S.C. 1236 at 1267

(b) Justice Jeevan Reddy concurring with the majority pointed out that:
(i) The Indian Telegraph Act, 1885, is totally inadequate to govern an important medium like the radio and television, i.e., broadcasting media. The Act was intended for an altogether different purpose when it was enacted. This is the result of the law in this country not keeping pace with the technological advances in the field of information and communications. While all the leading democratic countries have enacted laws specifically governing the broadcasting media, the law in this country has stood still, rooted in the Telegraph Act of 1885. Except Section 4(1) and the definition of telegraph, no other provision of the Act is shown to have any relevance to broadcasting media. It is, therefore, imperative that the Parliament makes a law placing the broadcasting media in the hands of a public/statutory corporate or the corporations, as the case may be. This is necessary to safeguard the interests of public and the interests of law as also to avoid uncertainly, confusion and consequent litigation(26).

26.A.I.R. 1995 S.C. 1236 at 1309 (para 96)

(b) The provision contained in Section 5(2) of Telegraph Act - as regards 'tapping', have been frowned upon, till the time the Central Govt. lays down just fair and reasonable procedure under Sec. 7 of the 1885 Act: the Supreme Court has said that as a matter of law the procedural safeguards for the proper exercise of powers under Sec. 5(2) of the Act are necessary so that the right of privacy of the person is protected. See para 35; People Union for Civil liberties vs. Union of India AIR 1997 S.C. 568 at 578 and 579 (a Bench of 2 Judges).

Since then, Rules have been framed under the Telegraph Act 1885 incorporating the Guidelines and Safeguards mentioned in the decision in PUCL Vs. Union of India AIR (1997) S.C. 568(27).

27.Notification No. GSR 260 (E) dt. 28th January 1998 - Indian Telegraph First Amendment Rules, 1998; and further amendment by Notification GSR 123 (E) dt. 16-2-1999

(3) We suggest adopting and adapting the provisions of the Indian Telegraph Amendment Rules 1998 into our new law.

(4) A further provision should be made that every service provider should act in aid of orders or directions passed under these provisions and shall extend all facilities and technical assistance to intercept the content of any communication(28)

28.Failure to do so should be made a penalty (to be added in the Chapter on Penalty).

(5) A separate provision should be inserted stating that nothing in this Chapter would alter or affect the provisions of the Information Technology Act 2000(29) .

10. PROTECTION OF ACTION TAKEN IN GOOD FAITH

"No suit, prosecution or other legal proceedings shall lie against any person, body or authority functioning under this Act or the rules and regulations made thereunder for anything which is in good faith done or purported or intended or to be done under the Act or the rules or regulations made thereunder".

11. EXEMPTIONS:

It is recommended that nothing contained in the Act would apply to facilities or services owned and operated by the Central Government for its own use.

12. SPECIAL PROVISIONS IN RESPECT OF CERTAIN SERVICES

We recommend incorporation of Chapter XI Section 44 and 45 as mentioned in Information and Broadcasting draft Communications Bill, 2000 reproduced below:

CHAPTER XI SPECIAL PROVISIONS IN RESPECT OF CERTAIN SERVICES "

44. "Notwithstanding anything contained in this Act, the Commission, after receiving a request in this regard, may register an unlicensed foreign satellite broadcasting service for the purposes of permitting its reception in India provided such a service is free to air and fulfils such other conditions as may be prescribed.

Provided that the Commission may de-register such a service if it is of the opinion that the service has contravened the conditions on the basis of which it was granted registration.

Provided further that a foreign satellite broadcasting service which was being received in India prior to the commencement of this Act shall continue to be received and distributed as such for a period of six months from the appointed date".

45. "No license shall carry a live broadcast of any sporting or other event of national or international interest, held in India, as may be notified by the Government unless simultaneously, the public service broadcasters have also been offered the broadcasting right for carrying the same on reasonable terms.

Provided a dispute, if any, whether the Public Service Broadcaster was offered the broadcasting rights on reasonable terms and conditions may be decided by the Commission".

13. FINANCE, ACCOUNTS AND AUDIT.

These provisions may be suitably adapted from the TRAI Act as suggested in Chapter XIII of the I & B draft Communications Bill, 2000 reproduced below:

CHAPTER XIII FINANCE, ACCOUNTS AND AUDIT

48. (1). The proceeds of the licence fee shall be credited to the Consolidated Fund of India.

(2) The Central Government may for enabling the Commission to discharge its functions efficiently, after due appropriation made by Parliament by law in this behalf, pay to the Commission in each financial year such sums of money as the Government considers necessary by way of grants-in-aid.

(3) The Commission shall have its own fund and all the receipts of the Commission shall be credited to the fund and all payments by the Commission shall be made therefrom. All money belonging to the fund shall be deposited in one or more Scheduled Banks in such manner as the Commission may decide and Commission may spend such sums as it thinks fit for performing its function under this Act.

(4) The Commission shall prepare, in such form and at such time each year as may be prescribed, a budget in respect of the financial year next ensuing showing -
(a) the expenditure which is proposed to be met from the internal resources of the Commission; and
(b) the sums required from the Central Government to meet other expenses. and copies thereof shall be forwarded to the Central Government.
(5) The Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form and manner as may be prescribed.
(6) The accounts of the Commission shall be audited by the Comptroller and Auditor-General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Commission to the Comptroller and Auditor-General.
Provided the matters relating to the adjudication by the Commission, manner and number of issue of licences and quantum of licence fee levied by the Commission shall lie outside the purview of such Audit.
(7) The Comptroller and Auditor-General of India and any person appointed by him in connection with the audit of accounts of the Commission shall have the same rights and privileges and Commission in connection with such audit as the Comptroller and Auditor-General has in connection with the audit of Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Commission.
(8) The accounts of the Commission as certified by the Comptroller and Auditor-General of India or any other person appointed by him in this behalf together with the audit report thereon shall be forwarded annually to the Central Government and that Government shall cause the same to be laid before each House of Parliament.

49 (1). The Commission shall, after the end of each financial year, shall submit to the Central government a report on their activities during the preceding financial year and containing such information relating to the proceedings and policy of the Commission, as the Government may prescribed from time to time.
(2) The Central Government shall cause such report to be laid before each House of Parliament".

14. OFFENCES AND PENALTIES

(These provisions should be finalised after the Bill is prepared in draft form).

Note: The attention of the Legislative Department is invited to Chapter XIV of the I & B draft Communications Bill, 2000.

15. (Important) DEFINITIONS

Definitions of important terms that need to be precisely defined (in the Act and/or the regulations): these are to be defined and finalised at the time of vetting the Draft Bill.

ANNEXURE -

I EXTRACTS FROM THE INTERIM REPORT OF THE SUB-GROUP-III ON CONVERGENCE (Dt. 13-1-2000)

6. In the light of the foregoing our proposals for the new comprehensive statute would be as follows:

I. GENERAL: (A) The comprehensive statute is to be called the Telecommunications Act and it is proposed that the 1885 Act be repealed.

(B) to emphasise the thrust of the new law, there should be a preamble which should expressly provide:
(i) that this is an Act to abolish the Central Government's exclusive privilege with respect to telegraph and to make new provision that it shall be the function of Central Government to provide Telecommunication services (30).
30. See footnote(10) - the abolition of exclusive privilege is along the lines of the new British Telecommunications Act 1984 (preamble and Sec. 2) - See Halsbury Statutes 4th Ed. Vol. 45 p 209-210

(ii) that it is enacted to promote and encourage the growth of telecommunication based on the development and use of technologies which maximise user control over the carriage of information in an environment of convergence.

(C) Although the existing definition of "telegraph" (as inserted by amendment in 1961 in the Telegraph Act of 1885) could encompass within it expanding areas of modern telecommunication, it is desirable (in order to reflect technological advances the world over) that the word 'Telegraph', wherever it occurs in the Act (including the definition section) be replaced with the generic word 'Telecommunication'.

(D) It is not considered necessary at this stage to define "convergence" in the Act - however, whenever necessary, this could be so done in an appropriate applicable rule.

II. SUGGESTIONS FOR DEFINITONS

The definitions of some of the terms used in the Act, currently not existing, but which now require to be defined are given below:

(a) TELECOMMUNICATION (new)
"Telecommunication" means the process of conveyance through transmission, emission or reception of signs, signals, writing, images, and sounds or intelligence of any nature, by wire, visual, or other electro-magnetic emissions, radio waves or hertzian waves, galvanic, electric or magnetic means.
Explanation: Telecommunication includes the transmission of information of the users' choosing between or among points specified by the user without any change in the form or content of the information sent and received, but does not include the content of any information sent and received(31) .
31.This proposal adapts the current ITU definition of "Telecommunication" which reads: "Any transmission, emission or reception of signs, signals, writings, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic system" (ITU Radio Regulations - Edition of 1998).

To widen the definition even further it is recommended that the Central Government be empowered by notification in the official Gazette to add newly emerging technologies.

(b) "TELECOMMUNICATION SERVICE" (new) "Telecommunication service" means the offering of telecommunication or the bandwidth for telecommunication, for a fee or otherwise, to the public or to such class or classes of users as to be effectively available directly to the public, regardless of the facilities used;
Provided that telecommunication service shall not include broadcasting service as defined in any law made by Parliament with respect to broadcasting.

(c) "TELECOMMUNICATION SYSTEM/EQUIPMENT" (new)
"Telecommunication System/Equipment" means hardware, software and upgrades of the system (integral to the equipment) utilised for the purpose of providing telecommunication service".

(d) "SERVICE PROVIDER:" (new)
"Service provider" is a person who provides telecommunication service.

III. MAIN PROVISIONS IN THE NEW LAW

Power to establish and maintain telecommunication:
1) The Central Government shall have the function(32) of establishing, maintaining and working of telecommunications, and in exercise of that function may grant licenses on such conditions and in consideration of such payments as prescribed, to any person to provide telecommunication services (within the whole or part of India) in a manner which encourages general growth of telecommunication, except services which, from time to time and for reasons to be recorded, the Central Government may by notification in the Official Gazette reserve to itself or to a specified authority.

32.The word "privilege" occurring in Sec 4 of the 1885 Act has been omitted in the new law especially in view of a Constitution Bench decision (unanimous) of seven Justices of the Supreme Court of India in the case of Synthetics and Chemicals Vs State of UP 1990 (1) SCC 109 at 163 para 106: where it has been stated that there is nothing like privilege vested in any one of the functionaries of the State and in the background of basic features of our Constitution the doctrine of privilege is difficult to reconcile with (its provisions). The privilege doctrine is inimical to the responsibility and obligations of the State under our Constitution. Even in the U. K (where the British Parliament is not constrained by any written constitutional restraints) the exclusive privilege conferred on British Telecommunications of running telecommunication systems (by the British Telecommunication Act, 1981) has been expressly abolished by the British Telecommunication Act, 1984 (see Halsbury Statutes, 4th Ed, Vol. 45, p 209-210). However, DoT feels that if the word "privilege" is not added in the main provision it will change the total concept of this section making it obligatory for the Central Government to provide telecommunication services; by adding the word "privilege" the Central Government get only the first right.

Provided always that the Central Government shall, in granting licenses and when imposing conditions for grant of license, observe the following principles:

(a) to convert the telecom sector progressively into a competitive environment.
(b) to make telecommunication services available to all uncovered areas including the rural, remote, hilly, and tribal areas.
(c) to make available telecommunication services capable of meeting the needs of the country's economy.
(d) to create a modern and effective telecommunication infrastructure taking into account the convergence of information technology, media, telecom and consumer electronics.
(e) to protect the defence and security interest of the country.

(2) The Central Government may, from time to time, notify in the official Gazette
(a) such telecommunication services for which license may not be required under the Act, and
(b) the authority or authorities empowered to exercise the functions under Section 4 (1) of the Act(33).
33.As suggested by the Ministry of I & B a suitable clause should be inserted in the new law making it clear that licensing provisions will not apply to broadcasting services as defined in any law made by Parliament with respect to Broadcasting.

(3) Licenses may be separately granted for telecommunication systems, for infrastructure, and also for individual telecommunication services.

IV. FURTHER PROVISIONS

Note: The Telegraph Act was enacted in the year 1885 when the Central Government was controlling all telegraph activity. With the liberalisation and opening up of the economy during the last decade a number of private operators have been granted licenses by the Central Government in exercise of its powers under the Indian Telegraph Act, 1885. The existing Act does not define the powers, obligations and liabilities of these service providers. Although these have been incorporated in the form of conditions of the license agreement, it is felt that some additional conditions be incorporated in the Act as follows:

(1): Powers, obligations and liabilities of service providers It should be ensured by the service provider that the service is provided to subscribers on a non discrimination basis. It should be also ordinarily obligatory for the service provider to provide life saving services (except where otherwise mentioned by rules). The service providers should not deny availability of service to any subscriber on the ground only of race, religion, caste, sex, financial status nor on ground only of remoteness of area.

(2): Regulation of Service Provider: The functions of regulation of service providers shall be discharged by the Telecom Regulatory Authority of India in accordance with the provisions of the TRAI Act, 1997.

(3): Powers with regard to the right of way etc. to the service providers:
All operators, whether Government or private, should be treated at par in regard to delegated powers of the Central Government for the purpose of providing telecommunication services, except in case of right of way where the delegation may be done from time to time for specific or limited purposes only.

(4): New Provision regarding interception of messages

Note: Existing section 5 of the Indian Telegraph Act, 1885, deals with the powers of the Government to take possession of "licencee, telegraphs" and to order "interception of messages" - these provisions have been narrowly interpreted by the Apex(34)
Court and in accordance with that interpretation and guidelines, rules have been framed under the existing law. (A copy of the existing rules are annexed as Annexure-II: pages 31 to 37). The Maharashtra Government, has recently enacted a law, viz., Maharashtra Control of Organized Crime Act, 1999 in which Section 14 (copy of the section is enclosed and marked as an Annexure III : pages 38 to 55) deals with the authorisation of interception of wire, electronic or oral communication. This Act, has received the concurrence of the President, having been duly scrutinized by the Central Government: It is suggested that the provisions of Section 14 of the Maharashtra Control of Organised Crime Act, 1999 be adapted in the proposed new law on telecommunication and dovetailed into the existing Rules (Annexure II).
34.Peoples' Union for Civil Liberties Vs Union of India AIR 1997 S.C. 568

(5) Protection of action taken in good faith "No suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of Central Government for any thing which is in good faith done or intended to be done under the Act or the rules or regulations made thereunder".

(6) DISPUTE REDRESSAL MECHANISM

At present the Telegraph Act contemplates dispute redressal mechanism only with regard to the disputes of individuals with the Telecom Authority (Section 7B). The disputes amongst the service providers with regard to matters specified in Section 14(2) of the TRAI Act 1997 fall within the jurisdiction of TRAI. Barring the areas where disputes are to be settled by TRAI, it is proposed that the dispute mechanism be provided for in the new law itself. It is suggested that the provisions of the Consumer Protection Act, 1986 as well as the Legal Services Authority Act, 1987 for resolution of disputes of the individual consumers with the non-Government service providers may be utilised. Resolution of disputes through Lok Adalats as contemplated in the Legal Services Act, 1987 may be made obligatory. In addition, it is recommended that the provisions for Conciliation (provided in the new Arbitration and Conciliation Act, 1996) which have not been made use of so far, should be institutionalised and utilised for settlement of disputes between service providers and consumers.

(7). GUIDING PRINCIPLES

In the provision (in the new enactment) enabling rules to be made for carrying out the purposes of the Act a set of guiding principles also need to be added, as follows :
"The following guiding principles will govern the administration of the Act viz. :
(a) to develop the national information infrastructure, and promote quality, plurality, diversity and choice in services;
(b) to encourage introduction of new technologies and investment in services and infrastructure;
(c) to support universal access to telecommunication services at affordable cost;
(d) to promote equitable, non-discriminatory interconnection across various networks.
(e) to provide a level playing field serving the consumer interest and provide for licensing criteria to be made known to the public;
(f) to regulate excessive market power in a converged environment
(g) to promote an open licensing policy allowing any number of new entrants (except in specific cases constrained by resources such as the spectrum).
(h) generally to secure effective competition, and through this and other means, to secure the competitiveness of industry as a whole;

(8): PENALTIES:

Note: Part IV of the existing Telegraph Act deals with penalties. These penalties have become meaningless with the passage of time. Investigating agencies have been insisting for more powers to have access to information relating to documents for investigating crimes. A separate set of proposals with regard to penalties (to be incorporated in the new law) is annexed as Annexure IV (pages 56 to 66).

Annexure-II

THE COMMUNICATIONS BILL 2000
(By Information & Broadcasting Ministry-Extracts)

CHAPTER II

THE COMMUNICATIONS COMMISSION OF INDIA

3. (1) With effect from such date as the Central Government may by notification appointment in this behalf there shall be established for the purposes of this Act a Commission, to be known as the Communications Commission of India.

(2) The Commission shall be a body corporate by the name aforesaid, having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and be sued.

(3) The Commission shall consist of the following Members namely :
(a) a Chairperson
(b) five Whole-time Members (from the fields of Telecommunications, Broadcasting and Information Technology).
(c) Wireless Coordinator/ Adviser in the Government of India (ex- officio Member);
There shall be a Secretary - General who shall assist the Commission in the exercise of its functions.

(4) The Chairperson and Members except the ex-office Members shall be appointed by the President of India on the recommendation of a Committee consisting of :
(a) the Prime Minister.
(b) the Leader of Opposition in Lok Sabha.
(c) Leader of the House in the Rajya Sabha.
(d) Leader of the Opposition in the Rajya Sabha.
(e) The Minister in charge of Information and Broadcasting and the Minister in charge of Communications in the Central Government

(5) No appointment shall be invalidated merely by reason of any vacancy in, or any defect in the constitution of the Committee appointed under sub-section (4).

(6) The Chairperson and whole time Members shall be appointed from amongst persons of eminence with more than fifteen years of experience in the fields of broadcasting, telecommunications, satellite technology, Information Technology, administration and management including financial management, and/or law

(7) The Chairperson and Members shall hold office for a term of five years from the date on which they enter upon their office or till they attain the age of sixty-five years, whichever is earlier.

(8) The Chairperson or a Member shall not be eligible for a second term but a Member will be eligible for appointment as Chairperson of same Commission.

(9) The Chairperson or a Member shall not take up any private employment in the organisations that fall within the operational jurisdiction of the Commission after demitting office within a period of two years without the prior permission of the Central Government.

(10) The salary and allowances payable to and other conditions of service of the Chairperson and Members shall be such as may be prescribed.

(11) A person having commercial interest, direct or indirect, in any service providing shall not be eligible for appointment as Chairperson or Member.

(12) No act or proceeding of the Commission shall be invalidated merely by reason of -
(a) any vacancy in or any defect in the constitution of the Commission; or
(b) any defect in the appointment of a person acting as a Member : or
(c) any irregularity in the procedure of the Commission not affecting the merits of the case.

3. The Commission may with the prior approval of the Central Government set up Regional Offices at such places and to perform such functions as may be determined regulation.

4. (1) Subject to the provisions of Sub-section (3) the Chairperson or any other Member shall be removed from his office only by order of the President of India on the grounds of misconduct or non-performance after a retired judge of the Supreme Court or of any High Court on a reference having been made to him by the President has on enquiry held in accordance with such procedure as may be prescribed by government reported that the Chairperson or such other Member as the case may be should on such grounds be removed.

(2) Notwithstanding anything contained in Sub-section (1) the President may by order remove the Chairperson or any other Member from his office if such Chairperson or such Member.
(a) ceases to be a citizen of India : or
(b) is adjudged an insolvent : or
(c) engages during his term of office in any paid employment outside the duties of his office : or
(d) is convicted of any offence involving moral turpitude : or
(e) is, in the opinion of the President of India, unfit to continue in office by reason of infirmity of body or mind :

(3) The Chairperson or any Member may resign from his office by giving notice thereof in writing to the President of India and on such resignation being accepted, the Chairperson or such other Member shall be deemed to have vacated his office.

7. (1) The Commission shall meet at such times and places and shall observe such procedure in regard to the transaction of business at its meetings as may be provided by regulations.
(2) A Member shall be deemed to have vacated his office if he absents himself for three consecutive meetings of the Commission without the leave of the Chairperson.
(3) The Chairperson shall preside at the meetings of the Commission and if for any reason he is unable to attend any meeting, any other Member elected by the Members present at such meeting, shall preside at the meetings.

8. (1) The Central Government shall make available to the Commission a panel of five of the rank of the Additional Secretary to the Government of India and the Commission may appoint one of them as the Secretary-General of the Commission.
(2) The Secretary-General shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions as may be designated by the Commission.

9. (1) The Commission may appoint such officers and other employees as it considers necessary for the efficient discharge of its functions under this Act in the manner provided by the regulations.
(2)The salary and allowances payable to and other conditions of service of the officers and other employees of the Commission shall be such as may be determined by regulations.

10. The Commission may constitute such Committees or Bureaus as it may consider necessary for assisting it in the discharge of its functions.

11. The Commission may be general or special order delegate to its chairpersons or any other Member or any officer of the Commission, Committees, Bureaus, Regional offices or its officers, as may be specified therein, such of its powers and duties under this Act as it may deem fit. Provided further the Commission may authorise the District Magistrates Sub-Divisional Magistrates or any other officer of the State Government or Union Territory to perform such of its functions subject to such conditions.

Annexure-III

THE COMMUNICATIONS BILL 2000

(By Information & Broadcasting Ministry - Extracts)

CHAPTER - VII

ENFORCEMENT OF LICENCES AND DISPUTE SETTLEMENT

18 (1)The Commission may take the following action in case of breach of any terms of the licence, after providing an opportunity to the licensee of being heard, namely :-
(a) direct licensee to do or not to do certain things; and/or
(b) impose a penalty which may extend up to rupees twenty five crores and/or
(c) suspend the licence for a specified period, or
(d) curtail the period of the licence; or
(e) revoke the licence.
Provided the Commission may also impose a penalty as provided in (b) above on any provider of a service if he contumaciously fails to meet his obligations under Codes and Standards determined and published by the Commission for such services.

(2) If the Commission has reason to believe that terms and conditions of a licence for providing a service have been or are being breached by a licensee, the Commission may after recording its reason in writing authorise seizure of the equipment being used for provision of such service, and for this purpose may authorise an officer appointed by the Commission.

Provided no such equipment shall be retained by the Commission or the authorised officer for a period exceeding 60 days from the date of its seizure without the approval of the Appellate Tribunal.

(3) An aggrieved person may prefer an appeal against an order or action of the Commission before the Appellate Tribunal within thirty days of such action.

Provided that an aggrieved person may prefer an appeal against any action taken by the Regional office of the Commission, before the Commission.

19. The Commission shall adjudicate any dispute
(i) between two or more service providers;
(ii)between a service provider and a group of consumers;
Provided that nothing in this Section shall apply in respect of matters relating to:
(a) monopolistic trade practices restrictive trade practices and unfair trade practices which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under sub-section (1) of Section 5 of the Monopolies and Restrictive Trade Practices Act, 1969;
(b) the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986;

20 (1) The Commission shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Commission shall have powers to regulate its own procedure including the fixing of places and times of enquiry.

(2) The Commission shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely :-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents.
(i) receiving evidence on affidavits;
(ii) issuing commissions for the examination of witnesses or documents;
(iii) any other matter which may be prescribed.

21 (1) Appeals against decisions and/or orders of the SDM, DM or authorised officers of the Commission shall lie to the Regional Office of the Commission as provided for and within the time mentioned in the regulations.
(2) Appeals against the decisions and/or orders of the Regional Office of the Commission shall lie to the Commission as provided for in the regulations.
(3) "Regional office of the Commission" shall mean such offices at such places as mentioned in the regulations.

22. No Civil Court shall have jurisdiction in respect of any matter, which the Commission, its Regional offices or authorised officers, are empowered by or under this Act to do or to determine.

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