Under Section 4 of the Telegraph Act, the central government has the exclusive privilege:

• to establish, maintain and use telegraphs; and
• to grant licences for establishing, maintaining or working a telegraph.

 

These powers are extensive in scope, given the broad definition of ‘telegraph’ under the Telegraph Act as:

 

any appliance, instrument, material or apparatus used or capable of use for transmission 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.

 

(b) Internet

In addition to the TRAI Act, the Internet is primarily governed by the Information and Technology Act, 2000 and the rules made thereunder. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (‘IT Rules’) were recently introduced to govern players such as:

• internet service providers (ISPs);
• online marketplaces;
• search engines; and
• telecoms and social media intermediaries.

 

ISPs are specifically regulated in the IT Act, 2000, where an ISP is referred to as a ‘network service provider’ and is defined as an intermediary under Section 79 of the act.

 

An ‘intermediary’ is defined in Section 2(w) as:

with respect to any particular electronic records, any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

 

Further, Section 79 of the Information Technology Act, 2000 absolves intermediaries from liability in certain instances. Intermediaries are not liable for any third-party information, data or communication link made available by them in terms of the ‘safe harbour protection’. However, the extension applies only to those instances where the intermediary acts merely as a facilitator and plays no part in the creation or modification of the data or information. This is contingent upon the intermediary removing any unlawful content on its computer resource on being notified by the appropriate government or its agency, or upon receiving actual knowledge.

 

(c) Media

The media industry is governed by statutes such as:

• the Press and Registration Books Act 1867, which regulates printing presses and periodicals;
• the Telegraph Act 1885, which makes the government the sole licensing authority;
• the Copyrights Act 1957;
• the Trademarks Act 1999;
• the Cable Television Networks (Regulation) Act 1995; and
• the Cinematograph Act, 1952 and the rules framed thereunder.

 

(d) Social media

The recently notified IT Rules primarily govern social media. They define a ‘social media intermediary’ as “an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services”. Under the previous regime, there was little regulatory oversight of social media platforms, which were merely required to notify users of the rules of use. However, under the recently notified IT Rules, social media platforms must now conduct due diligence to prevent unlawful content being posted on their platforms.

 

1.2 Which bodies are responsible for enforcing the applicable laws and regulations in the relevant sectors? What powers do they have?

 

(a) Telecommunications

The Telegraph Act is the predominant statute that sets out the telecommunications industry framework and prescribes the various powers and duties of the governmental bodies that operate and regulate telecoms services in India. The DOT, under the Ministry of Communications:

• grants licences and approvals to telecoms operators to provide telecommunications services in India; and
• formulates and implements the licensing regime.

 

The TRAI Act established the TRAI as the regulatory authority for the telecoms sector; this body is empowered to make policy recommendations on related issues. The TRAI Act also established the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) for the adjudication of inter se disputes between service providers and between the licensor (ie, DOT) and service provider(s).

 

(b) Internet

As for telecommunications services, the TRAI and the DOT are the primary bodies that govern the Internet and broadband services in India. Disputes between service providers are adjudicated by the TDSAT.

 

(c) Media

There is no uniform regulatory body for the media sector:

• The press are monitored by the Press Council of India;
• Cinema is monitored by the Central Board of Film Certification (CBFC);
• Advertising is monitored by the Advertising Standards Council of India; and
• The News Broadcasters Association and the Indian Broadcasting Foundation regulate audio-visual media distribution.

 

(d) Social media

Social media service providers, which are regulated under the IT Rules 2021, must establish certain bodies to govern and monitor their conduct. The primary regulatory body under the IT Rules is the Ministry of Electronics and Information Technology (MEIT). According to the IT Rules 2021, a publisher of news and current affairs content or of online curated content must:

• establish a grievance redressal mechanism; and
• appoint a grievance officer, who is responsible for grievance redressal.

 

The oversight mechanism within the scope of the IT Rules 2021 provides that the MEIT will coordinate and facilitate the adherence of the ethical obligations under the rules. Further, the MEIT must:

• set up an inter-departmental committee consisting of representatives from the MEIT and other relevant ministries, including domain experts, to periodically meet and hear complaints about violations or contraventions of the Code of Ethics laid down in the IT Rules; and
• appoint an officer from the MEIT, not below the rank of a joint secretary, to the government as an ‘authorised officer’ for the purposes of chairing the committee and issuing relevant directions under the IT Rules.

 

1.3 What is the general approach of those bodies in regulating the relevant sectors?

 

In the 1990s, the Indian economy underwent liberalisation and moved away from a monopolised market system. Industries are regulated based on current needs, with the aim of ensuring a balance between the growth of the industry, the protection of consumers and the safeguarding of the national interest.

 

(a) Telecommunications

Telecommunications is a highly regulated market. The TRAI, which governs the telecoms and broadcasting sectors, released an annual report in 2021 in which it stated that its mission is to create and nurture conditions for the growth of telecoms and broadcasting, in a manner and pace that will allow India to play a leading role in the global information society. During the COVID-19 pandemic, the TRAI sought to enable a seamless shift to a world that consumes more data and requires high-speed connectivity for essential services such as education and the creative arts. It released a mandate to advance the development of the sector through the provision of timely recommendations. The TRAI’s recommendations on public Wi-Fi and the Prime Minister Wi-Fi Access Network Interface scheme aimed to promote the wider availability of the Internet to the public.

 

Apart from the availability of high-speed internet and broadband services, the TRAI also sought to make recommendations that would improve these sectors in general. Making recommendations to the government on a range of issues – such as market structure, the market entry of new operators, the licensing framework, the management of scarce resources such as spectrum, consumer safety and security – is an important part of the TRAI’s duties, as mandated by the TRAI Act. Throughout the year, several key policy recommendations were made while carrying out this mandate, including those on:

• cloud services;
• traffic management practices; and
• the regulatory framework for over-the-top communication services.

 

(b) Internet

As the TRAI and the DOT are the primary bodies that govern internet service providers, the information in question 1.3 (a) relating to telecommunications is also relevant here.

 

(c) Media

The duties of the Press Council of India under the Press Council Act include the following:

• to facilitate the independent operation of newspapers;
• to establish a code of ethics for journalists and the news industry;
• to assist in upholding “strong public-taste standards” and encouraging civic duty;
• to examine any new developments that might restrict the flow of information; and
• to research foreign newspapers and their readership, influence and so on.

 

The Press Council Act also sets out principles and ethics, such as an obligation for all media service providers to ensure the accuracy and fairness of publications and advertising.

 

Other authorities governing media service providers have their own statutory obligations that they must uphold in regulating. For instance, the CBFC – a statutory body under the Ministry of Information and Broadcasting – must control the public screening of films, as per the Cinematograph Act. Only once CBFC certification has been received may movies be shown to the general audience. It appears that CBFC censorship of the contents of films has recently been increasing.

 

(d) Social media

As the IT Rules 2021 are relatively new, it is not easy to gauge the approach of the self-regulatory bodies or committees under the rules at this juncture.

 

1.4 What other industry codes of conduct or best practices are applicable in the relevant sectors?

 

India’s TMT industries are regulated through acts, rules and regulations; there are no formal codes of conduct or best practices that are codified separately. However, there are self-regulatory industry bodies and associations that not only highlight industry concerns, but also impose self-regulatory practices on members aimed at promoting the sustainable growth of the industry. They include:

• the Cellular Operators Association of India in the telecoms sector;
• the Internet Service Providers Association of India in the internet sector; and
• the Editor’s Guild of India, the All India Communication and Media Association and the News Broadcasters & Digital Association in the media sector.

 

2 Ownership

 

2.1 Who is eligible to provide services in the following sectors in your jurisdiction? Are there any restrictions on foreign ownership? Do any domicile requirements apply? What other requirements or restrictions apply in this regard: (a) Telecommunications; (b) Internet; (c) Media and (d) Social media?

 

(a) Telecommunications

In India, both government and private bodies are eligible to provide telecoms services. Telecoms service providers include players such as local exchange carriers and mobile wireless communications companies. These service providers must enter into a licence agreement with the central government, as provided by the Telecoms Regulatory Authority of India (TRAI) Act.

 

In 2021, the Indian government notified its decision to permit 100% foreign direct investment (FDI) under the automatic route in the Indian telecoms sector. However, the Department of Promotion of Industry and Internal Trade (DPIIT) subsequently issued a press note stating that foreign investment in the telecoms sectors will still be subject to the conditions of Press Note 3/2020, and thus that the instances of companies requiring prior approval of the government under Press Note 3/2020 will remain in place. Press Note 3/2020 states that where an entity is based in a country that shares a land border with India or where the beneficial owner of the investment into India is situated in any such country, it can only invest under the government route.

 

(b) Internet

Since the liberalisation of the economy, both public and private players can provide internet services in India. In recent times, the regulations on FDI were revised in a bid to increase internet penetration. The FDI limit is 74% for internet service providers (ISPs) with gateways and 100% for ISPs without gateways. If an ISP without gateways is listed anywhere else in the world within five years of becoming an ISP with gateways, it must divest 26% of its shares in favour of the Indian public.

 

(c) Media

The eligibility conditions in the media sector differ from segment to segment. For direct-to-home (DTH) services, the entire foreign equity holding – which includes FDI/NRI/ OCB/ FII – in the applicant must not exceed 49%; while the FDI component should not exceed the 20% limit. The applicant must also have Indian management control, with a majority of Indian representatives on the board. The chief executive must further be an Indian resident.

 

Entities engaged in the uploading/streaming of news and current affairs through digital media platforms can receive FDI of up to 26% under the government approval route. The FDI restrictions apply to the following categories of companies in the digital media space, which are registered or located in India:

• digital media entities that stream/upload news and current affairs on websites, apps or other platforms;
• news agencies which gather, write and distribute/transmit news, directly or indirectly, to digital media entities and/or news aggregators; and
• news aggregators – that is, entities which use software and web applications to aggregate news content from various sources (eg, news websites, blogs, podcasts, video blogs, user-submitted links) in one location.

 

(d) Social media

According to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, a social media intermediary is an entity that primarily enables interaction between two or more users, allowing them to create, upload and disseminate information using its services. However, it is not clear whether the FDI cap of 26% for digital media organisations also applies to social media companies. A DPIIT note issued in this regard issued on 18 September 2019 did not include a definition of ‘digital media’. Accordingly, it is unclear which entities fall within the ambit of ‘digital media’. The DPIIT subsequently issued a clarification in October 2019, identifying three entities (including news aggregators) to which the new restrictions apply.

 

In addition, in November 2019 the Information and Broadcasting Ministry issued a public notice urging “entities involved in uploading/streaming of news and current affairs through digital media, to comply with the decision of Union Government on September 18, 2019, which had permitted 26% FDI under Government approval route”. Under a broad interpretation of the term ‘news aggregation service’, this restriction could also apply to social media platforms. In this regard, ‘news aggregators’ have been defined broadly as entities that use software or web applications to aggregate news from sources (eg, other news websites, blogs, podcasts, video blogs and user-submitted links) in one location. There is no clarity on whether this term is restricted to entities that disseminate news as a primary function only. Therefore, social media companies could technically fall under this category; although whether this is in fact the case is not yet known with certainty.

 

3 Authorisations / licences

 

3.1 What authorisations and/or licences are required to operate in the following sectors? Do any exemptions apply? Do these vary depending on the service to be provided: (a) Telecommunications; (b) Internet; (c) Media and Social media?

 

(a) Telecommunications

The Telegraph Act provides that the central government has the exclusive right to establish, maintain and operate telecommunications networks and services in India. India currently has a provision to issue a licence called the ‘Unified Licence’ (UL) for the provision of telecoms services.

 

Spectrum allocation is a different process from licensing and must take place in accordance with the rules. Spectrum in the 800/900/1800/2100/2300/2500 megahertz bands is allocated through a bidding process. In the case of all other services and usages (eg, public mobile radio trunking services), the allocation of spectrum and the applicable charges are those prescribed by the Wireless Planning and Coordination Wing from time to time.

 

The services for which authorisation under a UL is possible are as follows:

• Unified Licence (All Services);
• Access Service (Service Area-wise);
• Internet Service (Category A with All India jurisdiction);
• Internet Service (Category B with jurisdiction in a Service Area);
• Internet Service (Category B with jurisdiction in a Service Area);
• National Long-Distance Service;
• International Long-Distance Service;
• Global Mobile Personal Communication by Satellite Service;
• Public Mobile Radio Trunking Service;
• Very Small Aperture Terminal Closed User Group Service;
• INSAT Mobile Satellite System Reporting Service; and
• Resale of International Private Leased Circuit Service.

 

If a service provider wishes to provide all such services, an ‘All Service’ authorisation can also be obtained. However, audio-conferencing services are not covered under the UL and require separate licensing by the Department of Telecommunications (DOT).

 

(b) Internet

Please see question 3.1(a). A company holding a UL is eligible to apply for an internet service provider (ISP) licence for different areas. The ISP licence is categorised into:

• Class A (National Area);
• Class B (Telecom Circle/Metro Area); and
• Class C (Secondary Switching Area).

The company must be registered under the Companies Act, 2013 or the Companies Act, 1956.

 

(c) Media

To obtain media gateway approval and authorisation to set up a media gateway (which converts multimedia data streams and transmit them through different telecommunications networks), an entity requires the approval of the DOT. Media gateways assist service provider applications by:

• facilitating interconnection and joint operation for CDMA, GSM UMTS and satellite networks in 2G, 3G, 4G and future 5G architecture;
• enabling IP media processing for IP MSA networks;
• providing facilities to interconnect and jointly operate Class 4/IP tandem/IP trunking and Class 5/subscriber; and
• conducting IP to IP media conversions for interconnected networks

 

The following categories of entities are eligible to obtain media gateway approval:

• ISP licence holders;
• virtual network operator licence holders;
• broadcasters; and
• other providers of services such as:
  • business process outsourcing;
  • knowledge process outsourcing;
  • legal process outsourcing; or
  • recruitment process outsourcing.

 

At present, according to the Ministry of Information and Broadcasting, there is a cap of 26% on foreign direct investment (FDI) in entities that involve the uploading or streaming of news and current affairs through digital media.

 

(d) Social media

No licences or permits are required to set up a social media platform in India. However, under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules (‘IT Rules’), a company providing a social media platform must, among other things:

• appoint a compliance officer, nodal contact person and resident grievance officer; and
• have a physical contact address in India.

 

3.2 What are the key features of such authorisations/licences?

 

The basic features of the UL are as follows:

• The UL aims to create a ‘one nation – one licence’ regime across all service areas and services.
• It seeks to orient and harmonise the legal framework to enable the seamless delivery of converged services.
• The motive behind the UL was:
  • to exploit the benefits of convergence and spectrum liberalisation; and
  • to delink the licensing of networks from the delivery of services to end users to enable operators to use their networks more efficiently by sharing active and passive infrastructure.
• The UL regime also aims to create a simplified merger and acquisition regime in the telecoms sector while ensuring sufficient competition.
• The UL allows for the delinking of all future licences and the licensing of spectrum at the price determined by the market.

 

The basic features of an ISP licence are as follows:

• The ISP industry was opened up to private operators in 1998, with the goal of promoting internet growth and increasing internet penetration.
• A supportive policy framework with a light-touch regulatory approach has been developed. It was thought that this would boost competition, promote private participation and accelerate internet expansion.
• Flexibility and efficient utilisation of resources are ensured, keeping in mind the latest technological developments.
• It also provides for conditions that ensure easy market entry and a level playing field.

 

3.3 What are the procedural and documentary requirements to obtain such authorisations/licences?

 

Only entities incorporated under the laws of India can apply for a UL. The applicant must:

• submit the prescribed form with the requisite number of copies (duplicate in case of a UL) to the relevant department;
• adhere to the FDI restrictions that apply to the relevant industry;
• pay the necessary fees;
• maintain the requisite levels of equity and net worth, as set from time to time; and
• provide bank guarantees in accordance with the requirements established by the appropriate authorities.

 

Additional restrictions may also apply in the relevant sector.

 

Usually, licences/authorisations are granted based on the claims and representations made by the applicant. Thus, applicants for licences/authorisations must prepare their applications with the utmost care and diligence.

 

An applicant can only hold one UL. However, it can apply for authorisation in more than one service area (India is divided into 22 service areas), subject to the fulfilment of all conditions for entry simultaneously or separately at different times.

 

3.4 What does the authorisation/licensing process involve? How long does it typically take? What costs are incurred?

 

Obtaining a telecoms licence in India is a long and tedious process. It can take approximately six months from the date of submission of the application to obtain a licence, subject to the satisfaction of all conditions. An applicant must apply to the DOT and submit all required documents. The application will be scrutinised and evaluated by the DOT for eligibility before a licence is granted.

 

The documents required to obtain a telecoms operator licence in India will vary from case to case, and depending on the category and type of licence sought. However, certain documents are required for all types of licences, such as:

• a valid company registration certificate;
• a memorandum of association;
• a letter of intent/application letter;
• the audited financial statements of the applicant; and
• a list of directors and their background information.

 

With regard to the official fees, under the UL, the charging heads are divided into several categories, including:

• varied entry fees;
• net worth;
• paid-up capital;
• bank guarantees; and
• processing fees.

 

However, where a licensee is applying for more than one service authorisation, the UL sets the upper threshold with regard to the financial implications. If a licensee applies for all services covered by the UL, the stipulated upper restrictions will still apply. The minimum equity and net worth requirements for the licensee have been set at INR 250 million each; the entry fees at INR 150 million; and the application processing fees at INR 100,000.

 

3.5 What are the ongoing rights and obligations of the authorisation/licence holder? How is compliance monitored? What penalties may be imposed for breach?

 

Telecoms and internet services: With regard to the telecoms and internet sectors, the Telecoms Regulatory Authority of India has released an Industry Charter for Protecting Consumer Interests, which sets out the obligations of licence holders. According to the charter, consumers of telecoms service providers have:

• a right to disclosure;
• a right to choose;
• a right to privacy;
• a right to accurate bills and charges;
• a right to complaint redressal;
• a right to quality and reliable services;
• a right to be informed; and
• a right against unfair trade practices.

 

Further, the DOT provides for the redressal of public grievances and states that telecoms service providers are primarily responsible for resolving service-related, billing and quality-of-service complaints based on licensing requirements.

 

Media and social media: With respect to media and social media service providers, the Information and Technology Act classifies them as ‘intermediaries’. They have several obligations, as follows.

 

Under the Information Technology (Intermediaries Guidelines) Rules, 2011, the following conditions must be met:

• Service agreements must list the categories of content that users are not permitted to upload or share;
• Content must be removed within 36 hours of receiving a court or government order;
• Assistance must be given to law enforcement;
• Blocked content and related records must be kept for 90 days; and
• A grievance procedure must be made available to users and other affected parties, along with the designation.

 

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (‘IT Rules’) maintain these specifications, while:

• changing the types of content that users are not permitted to publish or distribute; and
• establishing more stringent deadlines for these specifications.

 

‘Social media intermediaries’ are entities that are used primarily or exclusively to facilitate online communication between two or more users, according to the IT Rules. Significant social media intermediaries (SSMIs) are those which have more than a specified number of registered users and are subject to additional due diligence requirements, as follows:

• Personnel: An SSMI must nominate the following individuals, all of whom must reside in India:
  • a chief compliance officer for monitoring compliance with the IT Rules and the Information and Technology Act;
  • a nodal person for coordinating with law enforcement agencies; and
  • a grievance officer.

• Identifying the first originator of information: The first originator of information within India must be able to be identified on the platform of an SSMI which primarily offers messaging services. A court order or the appropriate authority, as defined by the Information and Technology Act, may stipulate that this be done. Such orders may be issued for several reasons, such as for the prevention, detection and investigation of certain offences (eg, involving national security, public order or sexual assault). If the originator of the order can be determined using less invasive methods, such orders will not be issued.
• Technology-based measures: SSMIs must apply technology-based techniques to detect content showing child sexual abuse and rape or information that has been prohibited by a court or government order. Such safeguards must:
  • be reasonable to ensure user privacy and the free expression of interests;
  • have human oversight; and
  • be assessed on a regular basis.

• User-centric requirements: The following user-facing features are required by SSMIs:
  • a voluntary identity verification mechanism;
  • a mechanism to check the status of complaints;
  • an explanation if no action is taken on a complaint; and
  • a notice if the SSMI arbitrarily decides to block a user’s content with a dispute resolution mechanism.

 

Online publishers: The IT Rules also set forth specific requirements for online publishers of two types of content:

• news and current affairs, including online newspapers, news portals, aggregators and agencies; and
• curated audio-visual content, which is defined as a curated catalogue of audio-visual content (excluding news and current affairs) that is owned by, licensed by, or contracted for transmission by publishers and available on demand.

 

The IT Rules establish a three-tier structure for policing these publications:

• self-regulation by publishers;
• self-regulation by associations of publishers; and
• central government control.

 

The following codes apply to news and current affairs publishers:

• the Press Council of India’s Journalistic Standards; and
• the Cable Television Networks Regulation Act, 1995’s Programme Code.

 

The IT Rules specify the ethics that online content publishers must follow. They require publishers to:

• categorise content in age-appropriate categories, restrict access to age-inappropriate content by children and and implement an age verification mechanism;
• exercise due discretion when featuring content that could affect India’s sovereignty and integrity or national security, or which is likely to disturb public order;
• take into account India’s many races and religions before featuring their beliefs and practices; and
• make contingencies clear before featuring content that could offend minors.

 

3.6 For how long is the authorisation/licence valid? Are variations to the terms possible? How is the authorisation/licence renewed?

 

The UL is granted for a period of 20 years from the effective date of authorisation. The DOT has the option to extend this; the new period will run concurrently with the licence. A virtual network operator is granted a licence of 10 years.

 

3.7 Can an authorisation/licence be transferred? If so, what is the process for doing so?

 

A licence cannot be assigned or transferred without the DOT’s prior approval. Lenders have previously been allowed to obtain licences through tripartite agreements. In general, however, a change in control of a licence holder is not expressly prohibited.

 

The government has published guidelines on the sharing and trading of access spectrum in order to regulate spectrum sharing and trading. However, spectrum leasing is not permitted. All access spectrum has been approved for sharing under the Spectrum Sharing Guidelines, as long as the telecoms operators seeking to share have spectrum in the same band. Further, the Spectrum Trading Guidelines only allow the trading of spectrum between two access service providers which both:

• have valid access service authorisations in a service region;
• hold the requisite licences; and
• have paid all outstanding dues.

 

4 Telecommunications

 

4.1 What provisions apply to the construction of telecommunications infrastructure and the installation of facilities on public and private property?

 

The Telegraph Act, 1885, read with the Telegraph Right of Way Rules, 2016 (as amended by General Statutory Rule 407 (E), dated 21 April 2017; General Statutory Rule 749 (E), dated 21 October 2021; and General Statutory Rule 635 (E), dated 17 August 2022), governs the establishment and maintenance of underground and overground telegraph infrastructure. Any licensee conferred with the requisite power under Section 19B of the act is entitled to file an application for the construction of either underground telegraph infrastructure (U/s 5 of Telegraph Right of Way Rules) or overground telegraph infrastructure (U/s 9 of the Telegraph Right of Way Rules) as immovable property either vested with, or under the control and management of, the appropriate authority.

 

For the construction of overground telegraph infrastructure on private property, the licensee is not required to obtain permission from the appropriate authority. However, a recent amendment issued on 17 August 2022 clarified that for the construction of mobile towers or poles on a private building or structure, the licensee must submit a written intimation to the appropriate authority prior to the commencement of such construction.

 

The appropriate authority under the Telegraph Act must either grant permission or reject the application for reasons recorded in writing within 60 days of receipt of the application. If the application is rejected, the applicant must be given an opportunity to be heard on the reasons for such rejection. Any dispute between a licensee and the appropriate authority will be referred to the officer designated by the central government.

 

4.2 Do any universal service obligations apply in your jurisdiction? If so, what are they and how are they funded?

 

Yes. The New Telecoms Policy 1999 introduced a Universal Access Levy (UAL), which is a percentage of the revenue earned by operators under various licences that is ring-fenced to meet the requirements of the universal service obligations (USOs). The USOs aim to provide residents of rural and other distant parts of India with cheap access to telegraph services (eg, internet, voice-over-internet protocol (VoIP) and other modern technology services). The single licence covers new technology services such as VoIP and next-generation networks for which the DOT has not yet specified any separate licence or authorisation.

 

USOs cover, among other things, information and communications technology services offered in rural and remote locations within India. These include:

• public access services, which are provided through operating and maintaining village public telephones and rural community phones; and
• general infrastructure development for the expansion of telecommunications facilities and the introduction of new technological advancements.

 

The USOs are funded through the Universal Service Obligation Fund (USOF), which was statutorily recognised by the Telegraph (Amendment) Act, 2003. The rules for its administration – the Telegraph (Amendment) Rules, 2004 – were notified on 26 March 2004. As per the Telegraph Act 1885 (as amended in 2003 and 2006), the USOF is to be utilised exclusively to meet the USOs. The USOF is headed by an administrator who is appointed by the central government for the administration of the fund. It is an attached office of the Department of Telecommunications (DOT), within the Ministry of Communications.

 

The USOF is a pool of funds generated by a 5% Universal Service Levy (USL) that is charged on all telecoms fund operators – with the exception of pure value-added service providers such as internet, voicemail or email service providers – on their adjusted gross revenue (AGR). The fund is deposited in the Consolidated Fund of India and distributed with the approval of the Indian Parliament.

 

When it was initially established, the main goal of the USOF was to provide people with access to basic telegraph services. However, the Telegraph (Amendment) Act 2006 expanded the scope of the USOF to include all kinds of telegraphic services. The Telegraph Rules of 1951 were amended to:

• facilitate the management of the USOF;
• support mobile services and broadband connectivity in rural and remote regions of India; and
• offer subsidy support to eligible operators for the operational sustainability of rural wireline household direct exchange lines.

 

The USOF levy or the UAL, equating to 5% of the AGR, is a part of the annual licence costs amounting to 8% AGR payable by all telecoms licensees.

 

Today, the USOF and state-owned telecoms service providers have concluded contracts to provide broadband services to various locations. In addition, the Rural Wire-line Broadband Scheme aims to provide wire-line broadband connectivity to rural and remote locations nationwide by utilising the existing copper wire-line network and rural exchange infrastructure. Under the Bharat Net Initiative, the USOF will pay the operating and capital costs incurred to extend broadband connection – including last-mile connectivity – to all villages.

 

The USOF also launched the Telecom Technology Development Fund Scheme on 10 October 2022, which aims to:

• fund research and development in rural-specific communication technology applications and promote synergies between academia, start-ups, research institutes and industry in order to further the development of the telecoms ecosystem;
• promote technology ownership and indigenous manufacturing;
• create a culture of technology co-innovation;
• reduce imports;
• boost export opportunities; and
• promote the creation of intellectual property.

 

Under the scheme, the USOF is also promoting the development of standards to meet countrywide requirements and create an ecosystem for research, design, prototyping, use cases, pilots and proof of concept testing, among other things. Under the scheme, Indian entities can obtain grants to encourage the development of indigenous technologies tailored to domestic needs.

 

4.3 How is interconnection regulated in your jurisdiction? What rules and requirements apply in this regard? Are interconnection and network access charges subject to price regulation?

 

The Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017 regulate interconnection in India.

 

In order to establish a framework for the technical compliance of Conditional Access System (CAS) and Subscriber Management System (SMS), the Telecoms Regulatory Authority of India (TRAI) has updated the Interconnection Regulations 2017. The legislation was changed in response to complaints that the TRAI had received about distribution platforms under-declaring subscribers and disseminating signals without authorisation. The new framework, according to the TRAI, will have several significant advantages for both consumers and the television broadcasting industry. A Testing and Certification Agency will be responsible for the operationalisation and oversight of the framework. The framework, according to the TRAI, is the first step in defining a native set of requirements modelled on international standards. The framework will encourage full compliance and reduce disputes between service providers.

 

Further, a new provision was added to the Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations to ensure that television channel distributors can comply with addressable system requirements. If a distributor fails to obtain certification for a CAS and/or SMS deployed on its network within the stipulated timeframes, it may incur a fine.

 

With regard to interconnection between telecoms service providers, the TRAI has issued the Telecommunication Interconnection Regulations, 2018. Among other things, these deal with:

• non-discriminatory practices when entering into an interconnection agreement;
• the provision of a bank guarantee, valid for six months, by the requesting service provider to reduce litigation;
• the provision of additional ports at points of interconnection upon request to handle incoming and outgoing traffic; and
• a procedure for disconnection, including the issue of a reasoned for-cause notice.

 

Interconnection charges such as set-up charges and infrastructure charges are mutually negotiated and agreed between the parties; and are also subject to TRAI regulations and directions issued from time to time. The Telecommunication Interconnection Usage Charges (Fifteenth Amendment) Regulations, 2019 – Re. 0.06 (paise six only) per minute with effect from the 1st October, 2017 to the 31st December, 2020; and (b) 0 (Zero) with effect from the 1st January, 2021″ has been framed in exercise of powers conferred under Section 36 of the TRAI Act, 1997 for price regulation.

 

The interconnection usage charge comprises termination, carriage, transit and origination charges (unregulated), which cumulatively determine the retail tariff for customers. The ratio of the interconnection usage charge for mobile termination relative to the retail price in India is approximately 46% – as compared to 13% in Germany and Japan, 11% in France, under 10% in the United Kingdom and 1% in China.

 

Under the original regulation, a uniform termination charge of between INR 0.35 per minute and INR 0.65 per minute was prescribed, irrespective of distance, for all types of calls (fixed line, wireless in local loop and full mobility). The carriage charges are still based on distance.

 

4.4 What rules and requirements govern the allocation and use of telephone numbers in your jurisdiction?

 

India’s numbering resources are governed by the National Numbering Plan (NNP), as updated from time to time. According to this strategy, the DOT distributes numbering resources to licensees. The NNP has established a numbering scheme for many services. While ordinary mobile phone numbers in India must be 10 digits long, special access service numbers used by government organisations including law enforcement, medical assistance and fire safety can range from three to four digits long.

 

With respect to the fixed-line market, subscriber numbers continue to decrease, having fallen from 36.76 million in 2010 to 20.58 million in 2020. As the density of fixed-line subscriptions is abysmally low, the National Digital Communications Policy 2018 places special emphasis on promoting fixed-line communication networks.

 

At present, telecoms service providers with either a Basic Service Licence, a Unified Access Service Licence or a Unified Licence may provide fixed-line services. As per the licensing conditions, licensees must adhere to the National Fundamental Plans, such as:

• the NNP;
• the Signalling Plan;
• the Routing Plan; and
• the National Frequency Allocation Plan.

 

The NNP itself provides for the use of prefixes in various call scenarios.

 

4.5 What rules and requirements govern number portability in your jurisdiction?

 

The Telecommunication Mobile Number Portability Regulations, 2009 require licensees to provide customers with the option to port their mobile numbers. Under the latest modification to the regulations, which came into effect on 11 November 2019, the cost of producing unique porting codes must be borne by the MNP service providers in the review of per-port transaction charges.

 

The TRAI is the regulatory authority that governs and facilitates porting. In India, a telecoms service user can switch operators by porting regardless of location (eg, Delhi to Mumbai). A user is entitled to port his or her mobile number to any other service provider if dissatisfied with the offering of his or her existing operator.

 

The eligibility criteria to receive a Unique Porting Code (UPC) are as follows:

• For a post-paid mobile connection, the subscriber must have paid all outstanding dues to his or her current provider for all issued bill(s) in accordance with the regular billing cycle;
• Activation on the network of new current operator must be effected within 90 days;
• No request must be made to change the owner of the mobile phone;
• In accordance with the subscription agreement’s exit clause, the subscriber must have no outstanding contractual obligation(s) that are pending;
• A court must not have ruled against the porting; and
• The requested porting of the mobile number must not be subject to pending litigation.

 

A request for a UPC will be rejected if one or more of the conditions above are not met. The reason for such denial must be communicated to the subscriber by SMS.

 

The grounds for rejecting a porting request are as follows:

• For individual subscribers, if the subscriber submits a porting request to the recipient operator with a valid UPC whose validity term has expired, the request may be rejected.
• For corporate subscribers, if a legitimate authorisation letter from the organisation is not included with the porting request, the existing operator may reject it.

 

4.6 Are retail customer charges subject to price regulation in your jurisdiction?

 

Yes. Under Section 11(2) of the Act, the TRAI issues various tariff orders from time to time to protect consumers and cap the rates charged for services. The original Telecommunications Tariff Order, 1999 has been amended several times, subject to changes in technology and competition; the latest revision was the Telecommunication Tariff (Sixty Ninth Amendment) Order, 2022.

 

Equally, the TRAI has issued tariff orders for broadcast and cable services. The TRAI has further imposed controls on tariffs in respect of charges for:

• television channels;
• national roaming;
• leased lines; and
• rural telephony.

 

In the same vein, the laws prohibit discriminatory, predatory or hidden tariffs, in the interests of fair competition.

 

4.7 Are retail customer terms and conditions subject to regulation in your jurisdiction?

 

The Standards of Quality of Service and Consumer Protection (Digital Addressable Systems) Regulations, 2016, issued by the TRAI, govern retail customer terms and conditions (T&Cs) in India. They set out:

• all information that must be incorporated within retail customer T&Cs; and
• the circumstances under which the T&Cs must be published.

 

For instance, every television channel distributor must:

• specify the retail price of customer premises equipment and the T&Cs for its guarantee/warranty;
• publish on its website the details of all schemes for customer premises equipment, along with the T&Cs; and
• ensure that its manual of practice contains all T&Cs for its services.

 

5 Spectrum use

 

5.1 How is spectrum use authorised in your jurisdiction? Do any exemptions apply?

 

The Wireless Planning and Coordination Wing (WPC), which was created in 1952 under the Ministry of Communication and IT, is the national radio regulatory authority responsible for frequency spectrum management, including licensing. It caters to the needs of all wireless users in the country, both government and private. It exercises the statutory functions of the central government and issues licences to establish, maintain and operate wireless stations. The WPC is divided into three sections:

• Licensing and Regulation;
• the New Technology Group; and
• the Standing Advisory Committee on Radio Frequency Allocation (SACFA), which, among other things:
  • issues recommendations on:
    • major frequency allocation issues;
    • the formulation of the frequency allocation plan; and
    • the various issues relating to the International Telecommunication Union (ITU);

• • resolves problems referred to it by various wireless users; and
  • issues siting clearance for all wireless installations in the country.

 

Entities seeking spectrum allocation must obtain a SACFA clearance certificate for broadcasting (eg, over-the top, television, radio). Even a successful bidder willing to deploy additional technologies must obtain permission from the Department of Telecommunications (DOT); while service providers must present SACFA clearance to seek permission to deploy spectrum.

 

The Saral Sanchal portal provides for the grant of licences and registrations in the form of a Unified Licence (UL). UL services are available to entities incorporated in India and 100% FDI is permitted in the telecoms sector through the automatic route. Through a UL, a service provider obtains the following authorisations:

• National Long Distancing Services;
• International Long Distancing Services;
• Access Services (Area-Wise Service);
• Unified Licence (All Services);
• Public Mobile Radio Trunking Services;
• Global Mobile Personal Communication by Satellite Service;
• Resale of International Private Leased Circuit Service;
• INSANT Mobile Satellite System – Reporting Service.

 

In 1995, the Supreme Court of India declared that the airwaves constitute public property. The dispute concerned the rights to broadcast sporting events within India. The decision held that the use of airwaves “has to be controlled and regulated by a public authority in the interests of the public and to prevent the invasion of their rights”. The court further held that it would be in the greater interest of the public to exempt additional spectrum from licensing. Thus, historically, a large part of the radiofrequency spectrum has been controlled by the government, with only a minimal amount of frequencies being allocated for unlicensed use.

 

Clause 4.6 of the National Telecoms Policy, 2012 aims to “identify additional frequency bands periodically, for exempting them from licensing requirements for operation of low power devices for public use”. The policy also highlights the de-licensing of additional frequency bands for public use as a key objective of the central government. Even in terms of the new National Digital Communications Policy, 2018, which replaced the 2012 policy to better reflect the needs of the modern digital communications sector, the principle aim is to de-license spectrum for broadband proliferation.

 

5.2 What is the procedure for allocating spectrum in your jurisdiction?

 

SACFA is the decision-making authority for the allocation of spectrum frequency. While the Telecoms Regulatory Authority of India (TRAI) makes recommendations to the DOT, the DOT has the actual authority to issue licences. The TRAI also makes recommendations on spectrum allocation and pricing.

 

Spectrum is allocated through a simultaneous multi-round auction, whereby the proposed service providers bid on multiple lots; all lots are offered simultaneously and are also closed together corresponding to the right to use a specific frequency band. Following the 2G scam, the spectrum allocation process and the licensing process were separated.

 

The legal regime relating to spectrum policy is set out in the Telegraph Act and the Wireless Act, and the rules and regulations framed thereunder. The National Frequency Allocation Plan (NFAP), published by the WPC, serves as the legal and administrative framework for India’s usage and distribution of radio spectrum. The Radio Regulations Treaty, which was signed by India and other ITU members, guided the development of the NFAP. The NFAP was created to ensure that:

• the frequency spectrum was divided into frequency bands; and
• each band was assigned to one or more radio communication services (currently, India offers 41 radio communication services).

 

The main purpose of the NFAP is to establish a system for the distribution of radio frequency spectrum across various radio communication services in India. Notably, the NFAP covers up to 3,000 gigahertz in frequency.

 

Previously, spectrum allocation was linked to approval by the DOT in the form of a licence; however, as contemplated by the National Telecoms Policy, 2012, the UL has delinked spectrum allocation from licensing. All natural resources, including spectrum, must henceforth be distributed through auction, according to a ruling of the Indian Supreme Court (ie, market-related processes only). Spectrum can only be used for the reasons for which it is authorised.

 

5.3 How long does it typically take? What costs are involved?

 

For a UL, an application fee of INR 100,000 is payable, which is a one-time non-refundable sum paid prior to grant of the licensing agreement. The total cost may increase to INR 150 million for virtual network operators (under Category B licensing), for which the fee is stipulated at a rate of 8% of adjusted gross revenues, along with a bank guarantee of INR 350,000; the licence is valid for one year. Bidders must also pay a refundable earnest money deposit to the DOT during registration, which extends to about 2% to 5% of the actual estimated value of the project.

 

According to the Auction Notice issued by the DOT in 2022, the entire auction process takes approximately two months before the successful bidder must pay the bid amount. However, on various occasions the DOT has delayed the assignment of specific frequency bands after the allocation of spectrum, which in turn has delayed the roll-out of services by the relevant operators. There have been substantive delays in the allocation of spectrum for various other reasons, which are listed in the Report on Examination of Appropriateness of Procedures followed by Department of Telecommunications in Issuance of Licences and Allocation of Spectrum during the Period 2001-2009. According to this report, the main reasons for such delays are:

• deviations from the specified procedures;
• the inappropriate application of the specified procedures; and
• violations of the principles underlying the specified procedures.

 

In particular, the issues that have commonly delayed spectrum allocation are as follows:

• Ongoing litigation over spectrum allocation: The first process for the allocation of spectrum for metro cellular licences was marred by litigation, which resulted in the delayed allocation of spectrum. There was subsequently a delay in the roll-out of services, which caused huge losses for the operators, most of which went bankrupt.
• Lack of availability/coordination with the defence for vacation of spectrum. Initial as well as additional spectrum was allocated as per availability. These delays – which sometimes lasted for more than a year – resulted not only in lost profits for the licence holder, but also in huge revenue losses for the DOT.
• Delays in processing the application: For example, the allocation of additional spectrum to Idea Cellular Limited in the Maharashtra service area was delayed by four months given that coordination with the Defence was done by 10 December 2004, but spectrum allocation did not take place until 1 April 2005.

 

5.4 What are the penalties for unauthorised spectrum use or breach of authorisation?

 

Service providers are subject to penalties for violations of the telecoms laws. Under Section 20 of the Telegraph Act, if an individual establishes, operates a business, maintains or works for a telecommunications network without proper permission from the relevant government department, he or she may be punished by imprisonment for up to three years, a fine or both.

 

If a licensee breaches any provisions of the telecoms laws, it may be punished by a fine of up to INR 1000, and INR 500 for each day that the breach continues. Under the new provisions, any violation of a licensing agreement or of the terms and conditions under which the DOT has granted a UL is punishable by a fine which varies according to the category of violation, and which may extend to INR 5 million. The licensor can also terminate the licensing agreement in certain circumstances.

 

5.5 Can a spectrum authorisation be transferred? If so, what is the process for doing so?

 

The Guidelines for Trading of Access Spectrum by Access Service Providers, 2015, read with the Guidelines for Sharing of Access Spectrum by Access Service Providers, 2021, govern the trading and sharing of access spectrum – subject to compliance conditions imposed by the government, as well as payment of all licensing fees and dues.

 

The 2015 guidelines regulate the exchange of spectrum between two licensees. However, the regulations do not consider frequency shifting or reconfiguration within the licensee assignments to constitute trading in spectrum. According to the 2015 guidelines, the following prerequisites must be satisfied before access spectrum trade is allowed:

• The two access service providers must use specific licences and specific delineated spectrums to conduct their business. Currently, trading in specific bands and block sizes is allowed.
• The outright transfer of the right to use the spectrum from the seller to the buyer is permitted. Spectrum leasing is not permitted.
• Before any agreement for the trading of spectrum is signed, all debts must be paid in full.
• The sale of the spectrum through trading is permitted only two years after:
  • the date of its acquisition through auction or spectrum trading; or
  • the administrative assignment of spectrum converted to tradeable spectrum.

• To cover the administrative costs incurred by the central government in servicing the trade, a non-refundable transfer fee of 1% of the transaction value of the trade or 1% of the specified market price, whichever is larger, will be charged on all spectrum trade transactions.

 

The requisite authorisation for spectrum use is dealt with by the UL. Therefore, any transfer of authorisation for spectrum use is inevitably linked to the transfer of a UL from one entity to another. Any change in control of the licensee is governed by the conditions which apply to the service provider, as per the service type licence. At the same time, the DOT has issued detailed guidelines on transfers and mergers of various categories of telecommunications licences and authorisations under the UL, which must be observed.

 

A UL may be transferred where:

• the transfer:
  • accords with the terms and conditions of the tripartite agreement between the DOT, the licensee and the lender;
  • is due to an amalgamation or restructuring sanctioned by the authorities; and
  • has received the prior written consent of, or no objection from, the DOT; and

• all outstanding dues have been paid by the transferor.

 

While there are no criteria that would bar a transfer, each such instance must be evaluated by the DOT prior to the transfer.

 

Essential conditions for the transfer/trading/assignment of spectrum authorisation include the following:

• Spectrum trading is not permitted where the licensees have spectrum in different bands.
• Only the transfer of the right to use spectrum is permitted; leases are not allowed.
• A non-refundable transfer fee of 1% of the transaction amount of the trade/market price is payable on all spectrum trade transactions.
• Frequency swapping/reconfigurations within the assignments made to the licensee will be treated as trading.

 

On 20 February 2014, the DOT issued detailed guidelines on transfers and mergers of various categories of telecommunications licences and authorisations under the UL, which address compromises, arrangements and amalgamations of companies. In principle, these guidelines recognise the trading of spectrum.

 

The guidelines provide that:

• any compromise/arrangement/amalgamation of companies as governed under the Companies Act, 2013 must be approved by the National Company Law Tribunal;
• following the transfer of a licence/authorisation by the transferor to the transferee, the licence/authorisation of the transferor will be subsumed in the resultant entity, as long as it is eligible to acquire such licence/authorisation; and
• the validity period of the spectrum will remain unchanged after the transfer.

 

6 Internet

 

6.1 What provisions apply to high-speed broadband in your jurisdiction? Are there any government incentives to promote broadband penetration?

 

The Telecoms Regulatory Authority of India (TRAI) is responsible for the regulation of high-speed broadband networks, through several regulations and notifications issued over time. In particular, the Quality of Service for Broadband Services Regulations, 2006 (as amended) apply to both public and private service providers. These regulations mandate certain standards with respect to issues such as:

• service provisioning;
• restoration time;
• billing performance; and
• service availability.

 

Notably, infrastructure providers (Category I) and telecoms operators can build and share passive infrastructure (eg, ducts, equipment chambers, poles and towers); whereas only licensed telecoms operators can build and share active infrastructure (eg, antennae, radio access networks and feeder cables).

 

On 31 August 2021 the TRAI issued its Roadmap to Promote Broadband Connectivity and Enhanced Broadband Speed. Among other things, this sets out various incentives for the proliferation of fixed-line broadband, such as:

• a reduction in the Universal Service Levy from 5% to 2% of adjusted gross revenues (AGR);
• a reduction in the licence fee from 3% to 1% of AGR;
• a spectrum usage charge of less than 1% for all future auctions;
• an exemption of wireline revenue from the licence fee;
• an exemption from goods and services tax (GST) on government payments such as spectrum auction payments, LF, SUC payment;
• a refund of accumulated input GST credit;
• a waiver of customs duty for all CPEs and network elements involved in providing the broadband; and
• a further 0.5% reduction in the SUC rate for the following two years to operators having 4G/5G BTSs at more than 90% of their total BTS.

 

Further, on 31 October 2016, the TRAI issued a direction under Section 31(1)(b) of the TRAI Act, 1997 in order to:

• ensure transparency in the delivery of internet and broadband services;
• protect the interests of consumers in the telecoms sector; and
• facilitate the penetration of internet and broadband services in India.

 

Essentially, all internet service providers (ISPs), basic service providers, unified access service providers and cellular mobile telecoms service providers – including public sector service providers such as Mahanagar Telephone Nigam Limited and Bharat Sanchar Nigam Limited – that offer broadband services in India are subject to the Regulation on Quality of Service for Broadband Services, 2006, as amended from time to time. This regulation outlines the benchmarks for quality-of-service metrics, such as:

• service provisioning/activation time;
• fault repair/restoration time;
• billing performance;
• the response time for customer assistance;
• bandwidth utilisation;
• uptime/service availability;
• latency and packet loss; and
• customer perceptions of service.

 

The TRAI has also introduced regulations governing:

• dial-up and leased line internet access services; and
• Voice-over Internet Protocol.

 

6.2 What net neutrality regulations apply in your jurisdiction? Are any exemptions and/or exceptions available?

 

On 8 February 2016, the TRAI issued its Prohibition of Discriminatory Tariffs for Data Services, Regulations, 2016, which – among other things – forbid any service provider from directly or indirectly imposing discriminatory tariffs on consumers for data services based on content, applications, services or any other data that they use. Thereafter, on 28 November 2017, the TRAI issued its Recommendations on Net Neutrality to the DOT. India’s net neutrality regulations, which are codified in the licensing agreements that ISPs enter into with the government of India, explicitly prohibit such behaviour.

 

In terms of the government policy directives on net neutrality – as reflected in the letter setting out the regulatory framework for net neutrality, which was issued by the NT Cell, and the DOT – the following points are relevant:

• The principle of non-discriminatory treatment and its application, exclusions and exceptions must be incorporated into the various licensing agreements governing internet service provision in India;
• Identified Internet of Things services and other ‘specialised services’ as classified by the DOT are exempt from the principle of non-discriminatory treatment;
• Existing transparency and disclosure requirements should be supplemented by additional regulations; and
• Monitoring and enforcement should be regulated by a framework developed by the TRAI in collaboration with a multi-stakeholder body, which would act in an advisory capacity.

 

The policy directions on net neutrality have been released to ensure that the regulatory framework abides by the fundamental concepts and principles of net neutrality. At the same time, the fundamental tenets of net neutrality – which call for universal access to the Internet, free from bias – are championed by the Indian government. Any sort of discrimination, restriction or intervention in the treatment of material is prohibited, including actions such as:

• banning, downgrading or slowing down content; or
• giving content preferential speeds or treatment.

 

6.3 Are internet service providers (ISPs) obliged to block or restrict access to specific websites or types of content in your jurisdiction?

 

Sections 69A to 79 of the Information and Technology Act allow the central government and the various Indian courts to issue website-blocking orders, which are legally binding on ISPs. However, the regulations do not mandate ISPs to use specific filtering mechanisms. Thus, ISPs are at liberty to employ various technical methods to ensure compliance.

 

However, website-blocking orders – especially those issued by the government – are rarely made public. ISPs are, in fact, mandated by regulations to maintain the confidentiality of certain website-blocking orders issued by the government.

 

6.4 Is the use of virtual private networks permitted in your jurisdiction?

 

Yes. Virtual private network (VPN) services are regulated by the government and can be provided by licensees with the requisite authorisations under the ‘Unified Licence’. The obligations relating to the blocking of content (as highlighted in question 6.3) may also apply to VPN services.

 

On 28 April 2022, the Indian Computer Emergency Response Team (CERT-In) issued a directive under Section 70(B)(6) of the Information and Technology Act, 2000 demanding VPN service providers to store user data for at least five years. These companies must collect and store extensive customer data, even after users have deleted their accounts or cancelled their subscriptions. The companies must:

• store usernames, IP addresses, patterns of usage and other forms of identifiable information; and
• report any unauthorised access to social media accounts.

 

The penalties for non-compliance include up to one year’s imprisonment.

 

The CERT-In directive has caused uproar among major VPN service providers, since it hits at the core of this service: the anonymity of user data. In response, VPN service providers such as Express VPN and Nord VPN reportedly shut down their servers in India in 2022.

 

6.5 In what circumstances will ISPs be held liable for offending content carried on their networks? What defences are available?

 

The provisions governing ISPs are set out in the Information and Technology Act, 2000, in which ISPs are referred to as ‘network service providers’ and defined as ‘intermediaries’ as follows:

 

with respect to any particular electronic records, any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

 

Section 79 of the Information and Technology Act absolves intermediaries from liability in certain instances. Intermediaries are not liable for any third-party information, data or communication link made available by them in terms of the ‘safe harbour protection’. However, the extension applies only to those instances where the intermediary acts merely as a facilitator and plays no part in the creation or modification of the data or information. This is contingent upon the intermediary removing any unlawful content on its computer resource on being notified by the appropriate government or its agency, or upon receiving actual knowledge.

 

An intermediary will be wholly liable if it conspires in, abets, aids or induces by threat, promise or otherwise the commission of the unlawful act. In terms of Sections 79, the concept of ‘notice and take down’ provides that an intermediary will lose its immunity if, upon receiving actual knowledge or being notified that any information, data or communication link residing in or connected to a computer resource that it controls is being used to commit an unlawful act, it fails to expeditiously remove or disable access to that material.

 

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘IT Rules’) also govern the regulation of electronic transactions and cybercrime. The scope of the term ‘intermediary’ has been expanded and now includes online marketplaces, search engines, social media platforms, telecoms providers and ISPs. The 2021 rules replaced the Information Technology (Intermediaries Guidelines) Rules, 2011 and address the following issues:

• due diligence by intermediaries;
• the classification of certain social media intermediaries as significant social media intermediaries;
• a code of ethics for digital media publishers, including news and current affairs content providers and online curated content providers; and
• the establishment of a grievance redressal system.

 

6.6 How are digital platforms regulated in your jurisdiction?

 

At present, the IT Rules aim to bring digital media platforms broadly within a similar regulatory framework to that which applies to print and television, in the interests of equity. Part III of the IT Rules set out a code of ethics, procedures and safeguards in relation to digital media, and applies to publishers of news and current affairs content and publishers of online curated content which operate in the territory of India or conduct systematic business activity of making its content available in India. The IT Rules are administered by the Ministry of Information and Broadcasting.

 

However, the Indian government plans to introduce a new digital regulatory framework, the Digital India Act, which would cover social media, over-the-top platforms and online apps, along with Web3 applications including the metaverse and blockchain. It would also cover laws relating to cybercrime and e-commerce, and is set to replace the Information and Technology Act, 2000 in full.

 

7 Media

 

7.1 What rules and requirements apply to public broadcasters in your jurisdiction?

 

The media and entertainment sector is:

• governed by:
  • the Cable Networks Act, 1995; and
  • the Prasar Bharti (Broadcasting Corporation of India) Act, 1990; and

• regulated by:
  • the Ministry of Information and Broadcasting (MIB); and
  • Prasar Bharti.

The Prasar Bharati Act provides for the establishment of a broadcasting corporation, to be known as Prasar Bharati, and defines its composition, functions and powers. The act grants autonomy to All India Radio and Doordarshan, both of which were previously under government control. Prasar Bharati is a statutory autonomous body set up by an act of Parliament and comprises the Doordarshan Television Network and All India Radio, which were previously media units of the Ministry of Information and Broadcasting. The Sports Broadcasting Signal (Mandatory Sharing with Prasar Bharti) Act, 2007 is also applicable to certain public broadcasters.

 

7.2 What rules and requirements apply to commercial broadcasters in. your jurisdiction?

 

The broadcast ecosystem in India is regulated by, among others:

• the MIB;
• the Telecoms Regulatory Authority of India (TRAI); and
• self-regulatory bodies such as the Broadcasting Content Complaints Council and the News Broadcasting Standards Authority.

 

The Department of Space and the Department of Telecommunications’ Wireless and Programming Coordination Wing regulate the use of satellite and spectrum.

 

The Telegraph Act, 1885 and the Wireless Telegraphy Act, 1933 require broadcasters and distributors to register their services. The Cable TV Network (Regulation) Act, 1995 provides for such registration. Programmes should not violate the Programme Code issued under the Cable Television Network (Regulation) Act, 1995.

 

The TRAI has extensive regulatory powers in terms of:

• tariffs;
• maximum retail price of channels;
• terms of interconnection between broadcasters and distributors; and
• the establishment of standards for quality of service for end consumers.

 

The following laws apply to private broadcasters in India:

• the Cable Television Networks (Regulation) Act, 1995, as amended;
• the Cable Television Networks Rule 1994, as amended;
• the Telecom Regulatory Authority of India Act, 1997, as amended;
• the Policy Guidelines for Uplinking from India, as amended in 2011;
• the Policy Guidelines for Downlinking of Television Channels, as amended in 2011;
• the Guidelines for Obtaining a Direct-to-Home (DTH) Licence;
• the Telegraph Act 1885; and
• the Second Amendment to Cable Television Networks (Regulation) Act 1995, which provided for the full digitalisation of all cable networks by December 2014.

 

7.3 Do any ‘must-carry’ obligations apply in your jurisdiction? If so, what are they and how are they funded?

 

The must-carry obligations under the regulatory regime are set out in the Cable Television Networks (Regulation) Act, which mandates the compulsory retransmission of channels operated by or on behalf of the Parliament, in such manner as the government may specify from time to time. The act also requires the transmission and retransmission of at least two Doordarshan terrestrial channels and one regional language channel of the concerned state in the prime band, in satellite mode on frequencies other than those carrying the terrestrial frequencies. The DTH licence stipulates that the DTH licensee must provide access to various content providers and channels on a non-discriminatory basis. Equally, the MIB is empowered to specify the names and numbers of Prasar Bharti channels or any other channels that must be carried as part of Internet Protocol television services in India. The MIB has further clarified that all multi-system operators must carry the prescribed Doordarshan channels and ensure good-quality reception, using the stipulated signals for this purpose.

 

7.4 Do any local content requirements apply in your jurisdiction? Do any restrictions apply to foreign content? What exemptions and/or exceptions are available?

 

The guidelines laid down by the MIB on the downlinking of television channels regulate the broadcasting of foreign channels in India. These guidelines stipulate the must-carry obligations for broadcasters. Additionally, the service provider that is downlinking the registered channels must comply with the Programme and Advertising Code prescribed under the Cable Television Networks (Regulation) Act 1995, in addition to any other codes, standards, guidelines, rules or restrictions prescribed by the MIB for the regulation of content on television channels. Content restrictions are also imposed through licensing terms and conditions. Content is restricted from broadcast through any service or medium in India if it:

• is considered offensive to morality or decency;
• promotes superstition;
• is defamatory;
• denigrates India’s sovereignty and integrity;
• affects national security; or
• is in contempt of court.

 

Further, no news or current affairs channel can be downlinked if it:

• carries no ads aimed at Indian viewers;
• is not designed specifically for Indian audiences;
• is a standard international channel; and
• has been permitted to be telecast in the country of uplinking by the national regulatory authority.

 

These restrictions apply to all programmes and to the delivery of content through all media, including online and through mobile devices, irrespective of whether the content is produced by an Indian or a foreign producer.

 

7.5 What other content requirements and restrictions apply in your jurisdiction? Do these vary depending on the distribution channel (eg, traditional broadcast media versus new media)?

 

The regulatory regime governing the media sector is set out in the Prasar Bharti Act 1990 and the Cable Networks (Regulation) Act 1995, and the rules framed thereunder. The institutional structures and government bodies regulating the sector include the MIB and Prasar Bharti. These government bodies have been entrusted with ensuring governance through:

• the issue of guidelines, policies and rules; and
• the grant of licences for the broadcasting and electronic media sector.

 

In 2004, broadcasting services and cable services were included within the ambit of telecoms services by notification of the government. In addition to the telecoms sector, the TRAI is the regulator for the media and broadcasting industry; while the Telecom Disputes Settlement and Appellate Tribunal has the power to adjudicate on disputes.

 

The applicable rules and regulations currently depend on the distribution channel; but the Indian government ultimately aims to bring them under a common umbrella.

 

7.6 How is advertising regulated in your jurisdiction? Does this vary depending on the distribution channel?

 

Cable and radio ads are respectively governed by the Cable Advertisement Code and the Code for Commercial Advertising over All India Radio. Online advertising is governed by, among other things:

• the Information and Technology Act;
• internet service provider guidelines;
• the terms of the licence; and
• other content regulation laws.

 

The Cable Advertisement Code was framed and implemented under the Cable Network Rules, and provides that advertising must not offend morality, decency or religious sentiments. Additionally, it sets out a detailed list of restrictions that apply to ads to be featured on cable networks. The Code for Commercial Advertising over All India Radio imposes a similar prohibition on advertising and states that no ad will be permitted that:

• derides any race, caste, colour, creed or nationality;
• is against the law of the land;
• tends to incite people to crime or cause disorder, violence or breach of law;
• glorifies violence or obscenity;
• adversely affects friendly relations with foreign states; or
• relates to or promotes cigarettes and tobacco products, liquor, wines or other intoxicants.

 

8 Competition

 

8.1 What competition-related provisions (eg, structural or functional separation requirements; significant market power requirements; media plurality rules) apply in the following sectors: (a) Telecommunications; (b) Internet; (c) Media (broadcasting + print) and (d) Social media?

 

(a) Telecommunications

The Competition Act, 2002 and associated regulations apply to all sectors of economic activity, including telecommunications. The Competition Act prohibits anti-competitive agreements where they have an appreciable adverse effect on competition (AAEC). Cartels are presumed to have an AAEC and participants in cartels may apply for leniency under the so-called ‘lesser penalty’ provisions. Vertical agreements are prohibited if they cause or are likely to cause an AAEC in India, which will generally require a finding of market power. Abuse of a dominant position is also prohibited, with the Competition Act prohibiting a range of exclusionary and exploitative abuses. The Competition Act also provides for the review of mergers and acquisitions above a certain threshold by the Competition Commission of India (CCI). A notifiable merger may not be implemented until the CCI has issued its approval, and failure to notify/gun jumping attracts significant penalties. Several mergers and acquisitions have been notified in the telecommunications sector to date, all of which have been cleared.

 

(b) Internet

As stated in question 8.1(a), all provisions of the Competition Act and associated regulations apply.

 

(c) Media (broadcasting + print)

As stated in question 8.1(a), all provisions of the Competition Act and associated regulations apply.

 

(d) Social media

As stated in question 8.1(a), all provisions of the Competition Act and associated regulations apply.

 

8.2 To what extent can the national competition regulator intervene in the relevant sectors? What is the interplay between the competition regulator and the various sectoral regulators?

 

As an autonomous, statutory body that ensures competition in the market, the CCI has jurisdiction under the Competition Act in all economic sectors, including those with their own sectoral regulators. The courts have held that the presence of a sectoral regulator does not oust the jurisdiction of the CCI in enforcing the provisions of the Competition Act.

 

The Competition Act provides for references to be made to the CCI by a statutory authority, including a sectoral regulator, where there is an issue over whether a decision taken or proposed to be taken by that authority is or would be contrary to the Competition Act. The CCI must then give its opinion, which will be considered by the authority in making a reasoned decision. References may also be made by the CCI to a statutory authority.

 

There are obvious risks that parallel proceedings by the CCI and a sectoral regulator may result in conflicting orders. The Supreme Court has held that where a sectoral regulator (in this case, the Telecoms Regulatory Authority of India) is seized of a matter, any CCI proceedings involving the matter should be held in abeyance. In other cases involving a risk of conflict, the courts have permitted the CCI to investigate the matter, but have required it to desist from taking any decision or coercive action until the sectoral regulator has arrived at a final decision.

 

8.3 How are mergers and acquisitions in the relevant sectors treated from a competition perspective?

 

Notifiable mergers and acquisitions in the TMT sectors are treated in the same way as those in other sectors from a merger control perspective. All transactions which meet the thresholds set out in the Competition Act and are not otherwise exempt from notification to the CCI require prior notification to, and approval from, the CCI.

 

The CCI will approve a notified transaction if it is certain that the transaction will not cause an AAEC in India in any relevant market(s). The CCI considers a number of factors specified in the Competition Act to assess AAEC concerns, such as:

• the actual and potential level of competition through imports in the market;
• the extent of barriers to entry into the market;
• the level of combination in the market;
• the degree of countervailing power in the market;
• the likelihood that the combination will result in the parties being able to significantly and sustainably increase prices or profit margins; and
• the extent of effective competition likely to be sustained in the market.

 

There has been some consolidation in the telecommunications sector in India in recent years and mergers in the sector are expected to be scrutinised very closely by the CCI. Further, with telecoms service providers also increasingly serving as internet service providers (ISPs), mergers between these players will also be closely scrutinised by the CCI (see question 8.4).

 

The acquisition of spectrum from competitors must also be notified to the CCI.

 

8.4 What other specific challenges or concerns do the relevant sectors present from a competition perspective?

 

Consolidation in the telecoms sector: There has been a degree of consolidation in the telecommunications sector in India in recent years. No mergers or acquisitions have been blocked to date; but any further consolidation will likely be critically reviewed by the CCI.

 

Vertical integration facilitated by technological convergence: The evolution of the digital ecosystem and the evolution of players from telecoms service providers to vertically converged data-centric service providers have presented new challenges for the CCI. From a competition standpoint, concerns could arise where such vertical integration results in foreclosure. Further, mergers in multi-sided markets may result in market power, presenting entry barriers for potential entrants, increasing switching costs and harming other market players. These issues could also be addressed in the context of abuse of dominance.

 

Data privacy and competition: While telecoms service providers and ISPs have argued that data privacy issues should be exclusively dealt with by data protection authorities and should not fall under the purview of the CCI, the CCI has held that it can adjudicate on data privacy issues because low standards of privacy protection by dominant players could amount to an abuse of a dominant position. This issue is currently before the courts.

 

Media and broadcasting: There has also been consolidation between major players in this segment, and thus the CCI is expected to conduct a more critical review of proposed transactions where high combined market shares may enable the parties to raise prices above competitive levels. While no mergers have been blocked by the CCI, it has been prepared to request divestments in case of significant horizontal overlaps. Dominant players in the media/broadcasting space are currently being investigated for alleged abuses of dominant position, including discriminatory pricing.

 

Transactions in the digital space: Concerns that high-value strategic deals in the digital space are escaping merger review because the parties do not reach the assets/turnover thresholds under the Competition Act have been addressed in proposals in the Competition (Amendment) Bill 2022 to introduce an alternative deal value threshold test. It is currently proposed that notification be required for any transaction with a deal value in excess of INR 20 billion where either party has “substantial business operations in India”.

 

To understand the competitive structures and challenges in the relevant sectors, the CCI has conducted market studies in the Indian telecommunications and film distribution sectors. In addition to actively enforcing the Competition Act, the CCI encourages self-regulation. For example, it has encouraged the development of a Charter of Self-Regulation in the film distribution sector.

 

9 Data security and cybersecurity

 

9.1 What data security regimes apply in the following sectors: (a) Telecommunications; (b) Internet; (c) Media (broadcasting + print) and (d) Social media?

 

(a) Telecommunications

In India, there are no dedicated regulations governing data protection for the telecoms sector. However, the Unified Licence explicitly sets out requirements that telecoms licensees must follow in order to maintain the security of their networks.

 

As a general requirement, the licensee must ensure that all monitoring operations are conducted in compliance with the rules under the Telegraph Act to protect voice and data privacy. The government, state government or an authorised government officer may order the non-transmission, interception, detention or disclosure of messages concerning a certain subject under the Telegraph Act in the event of a public emergency or in the interests of public safety.

 

In recent years, there has been significant discussion on the need for an efficient data protection system in India. To this end, the Personal Data Protection Bill, 2006 was introduced before the Parliament in 2006; however, it was not made into law. In 2011, under Section 43A of the Information and Technology Act, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 (‘SPDI Rules’) were issued. These rules mandate that bodies corporate handling personal information and sensitive personal data or information (SPDI) of persons establish adequate security methods and procedures. Regardless of the type of commercial activity, these rules apply to all companies that acquire or deal with personal information and SPDI of natural persons.

 

Even in the absence of an explicit data privacy law, the Supreme Court of India has held the right to privacy to be a fundamental right. That said, calls have also been growing for a dedicated data protection law. The Personal Data Protection Bill, 2019 (‘PDP Bill’) was introduced in Parliament in 2019 and was subsequently referred to a joint parliamentary committee (JPC) for a detailed review. On 16 December 2021, the JPC tabled its report in Parliament with various recommendations and modifications to the PDP Bill, which included (among other things) the expansion of its scope to cover both personal and non-personal data. As a result, the PDP Bill was renamed the ‘Data Protection Bill, 2021′. However, this draft bill was never officially introduced in Parliament. On 4 August 2022, the PDP Bill was withdrawn from Parliament. On 18 November 2022, the government released the draft Digital Personal Data Protection Bill, 2022 (‘DPDP Bill’) for public consultation. Notably, the bill aims to repeal Section 43A of the Information and Technology Act, which would also result in the replacement of the SPDI Rules that currently govern the collection and handling of personal information and SPDI in India.

 

The DPDP Bill limits its ambit to ‘personal data’ and provides no further categorisations of personal data or corresponding tiered compliance requirements. Further, the scope of the bill extends only to the ‘automated’ processing of digital personal data. Notably, the consent of data subjects remains the cornerstone of the DPDP Bill. The government accepted comments on the DPDP Bill until 2 January 2023.

 

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules (‘IT Rules’) also impose data security obligations on intermediaries, including obligations to take reasonable measures to secure computer resources and the information contained therein.

 

(b) Internet

The same provisions as outlined in question 9.1(a) will apply.

 

(c) Media (broadcasting + print)

The same provisions as outlined in question 9.1(a) will apply.

 

(d) Social media

The same provisions as outlined in question 9.1(a) will apply.

 

9.2 What cybersecurity regimes apply in the following sectors: (a) Telecommunications; (b) Internet; (c) Media (broadcasting + print) and (d) Social media?

(a) Telecommunications

India had no cybersecurity policy until 2013, when the National Cyber Security Policy 2013 was introduced. It aims to:

• protect private and public infrastructure from online threats;
• protect sensitive data such as citizen data;
• offer a clear vision to protect key infrastructure and create a resilient cyberspace for people, businesses and governments; and
• prevent any subsequent economic turmoil brought on by cyberattacks.

 

The Information and Technology Act and the rules thereunder offer some protection. For instance, Sections 43, 66, 66A-66F and 67A-67B of the Information and Technology Act address crimes such as phishing, internet fraud and pornography. Additionally, Section 70B provides for the nodal agency – that is, the Indian Computer Emergency Response Team (‘CERT-In’), which is responsible for carrying out all functions and duties in relation to cybersecurity. To this end, the Information Technology (Indian Computer Emergency Response Team and Manner of Performing Functions and Duties) Rules, 2013 (‘CERT-In Rules’) and the Directions under Section 70B(6) of the Information and Technology Act dated 28 April 2022 set out several obligations, including:

• to report prescribed cyber-security incidents to CERT-In within the prescribed timeline of six hours; and
• to maintain logs of information and communications technology systems for the prescribed period.

 

The IT Rules also contain provisions on cybersecurity, requiring intermediaries to report cybersecurity incidents and share related information with CERT-In in accordance with the CERT-In Rules.

 

To address concerns about information misuse/cyberterrorism in the case of critical information infrastructure, the government is empowered under Section 70 of the Information and Technology Act to declare any computer resource which directly or indirectly affects critical information infrastructure a protected system and issue rules in this regard. The government has thus notified the Information Technology (Information Security Practices and Procedures for Protected System) Rules, 2018, which provide that organisations with ‘protected systems’ must comply with various cybersecurity-related obligations.

 

The DPDP Bill also addresses concerns in relation to personal data breaches and imposes specific obligations on actors, such as the duty of data fiduciaries and data processors to prevent personal data breaches. It also prescribes strict penalties for non-compliance with its obligations.

 

(b) Internet

The same provisions as outlined in question 9.2(a) apply.

 

(c) Media (broadcasting + print)

The same provisions as outlined in question 9.2(a) will apply.

 

(d) Social media

The same provisions as outlined in question 9.2(a) will apply.

 

9.3 What other specific challenges or concerns do the relevant sectors present from a data security/cybersecurity perspective?

 

Given our significantly increased reliance on technology and the amount of data that is generated through the use of such technology in recent times, issues surrounding data security remain high on the agenda. While various laws have proposed frameworks to address concerns such as data privacy, data subject consent, data storage security measures and obligations to report breaches, there is a long road ahead before all issues affecting the collection and storage of data in various sectors are adequately addressed.

Some of the more pressing concerns include the following:

• Anonymity: Of the many features that technology and the Internet offer to users, anonymity is a double-edged sword. While it allows users to retain their privacy, it also makes it difficult to determine who may actually be using the services offered – which could have detrimental consequences. For instance, in case of a cybersecurity violation, this feature of anonymity makes it difficult:
  • to identify the responsible parties and thus take appropriate action against them; and
  • to implement adequate security measures to prevent such misuse of the services.

• Cross-border access: Another key concern relates to the cross-border access that such services provide. Given the jurisdictional limitations of many existing laws, various data security issues experienced due to cross-border access become difficult to address.
• Multiplicity of data security laws: As most entities operating in sectors offering technology or internet-related services have a presence in several countries, they are subject to multiple data security laws and obligations, resulting in onerous and sometimes conflicting obligations which increase operational costs.

 

10 Trends and predictions

 

10.1 How would you describe the current TMT industry landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

 

India’s TMT industry is rapidly evolving. The increasing adoption of digital technologies such as mobile devices and the Internet is driving industry growth. The e-commerce and digital payment sectors are particularly strong. The Indian government has been promoting the digital economy through initiatives such as Digital India and the National Digital Communications Policy 2018.

 

In the media and entertainment sector, the emergence of digital platforms and over-the-top (OTT) content services is changing how people consume media. The Indian OTT market is expected to reach $5 billion by 2026.

 

In the telecommunications sector, the roll-out of 5G networks is expected to drive innovation and growth in areas such as the Internet of Things and smart cities.

 

In terms of legislative reforms, the Indian government is in the process of introducing a new data protection law, which will strengthen the rights of individuals with respect to their personal data. The government has also proposed changes to the foreign direct investment policy in the e-commerce sector, which could have a significant impact on e-commerce companies operating in India.

 

Recently, the Department of Telecommunications released the draft Indian Telecommunications Bill, 2022, which aims to reform and future-proof the telecoms regime, reflecting major technological changes. The bill would consolidate major laws including the Telegraph Act, the Wireless Telegraphy Act and the Telegraph Wires (Unlawful Protection) Act, 1950. The bill would also create clarity around spectrum allocation, specifying that spectrum should be allocated by auction and that once a telecoms company is declared insolvent, the spectrum assigned will revert to the control of the government.

 

11 Tips and traps

11.1 What are your top tips for TMT players seeking to operate in your jurisdiction and what potential sticking points would you highlight?

• Understand the local market and regulations: It is important to have a thorough understanding of the Indian market and the regulations governing the TMT industry. These include laws relating to data protection, intellectual property and foreign direct investment (FDI), among other things. For instance, the Union Cabinet has approved INR 12,195 Crore production-linked incentive scheme for telecoms and networking products under the Department of Telecommunications, including 6G technology, which presents an attractive opportunity for newer players in the market. FDI inflow in the telecoms sector totalled $ 39.02 billion between April 2000 and September 2022, which should also encourage foreign companies to enter the market. Equally, the media and entertainment sector is attracting an increasing number of consumers in developing countries such as India.
• Build strong partnerships: Establishing strong partnerships with local companies and organisations can assist in navigating the complexities of the Indian market and provide access to valuable resources and networks. This can help with firefighting against any emerging circumstances which may be unfamiliar to newer players in the market.
• Be prepared for a complex and dynamic regulatory environment: The regulatory environment in India can be complex and dynamic, and it is important to stay informed and be prepared to adapt to changes.
• Address concerns about data privacy and security: As data privacy and security are becoming increasingly important issues globally, it is important for TMT players to have robust data protection policies in place and be transparent about their data collection and usage practices.
• Be aware of cultural differences: India has a diverse population with different cultures, languages and customs, which has a direct effect on consumer trends. It is important to be aware of these differences and tailor your business strategies accordingly.
• Consumer approach: There is a tremendous appetite for digital consumption in India. While the global average monthly mobile data consumption is 11 gigabytes (GB), in India it is 15 GB. At the same time, while mobile phone use continues to soar, there has been a corresponding steep decline in fixed-line use. Media is another sector which is significantly affected by changes in consumer consumption. This effect has been compounded by increased censorship by the Central Board of Film Certification in the content of films.

 

Potential sticking points include the following:

• The Indian market is highly competitive and crowded, which can make it difficult to stand out and gain market share.
• Navigating the complex and dynamic regulatory environment can be tricky.
• Infrastructure and connectivity can be a challenge in certain regions of the country.
• Language and cultural barriers can make it difficult to communicate and connect with potential customers and partners.

 

This article was originally published in Mondaq on 17 June 2023 Co-written by: Shally Bhasin, Partner; Prateek Gupta, Principal Associate. Click here for original article

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