Govt likely to tweak spectrum clauses in the draft Telecom Bill 2022

The government is looking at key clauses in the draft Telecom Bill 2022 to see whether they conform with the Supreme Court order of 2012 mandating that telecom spectrum needs to be auctioned.

“We are looking at whether some parts of the bill pass scrutiny, based on the Supreme Court judgement and direction. If not, we have to discuss how to make changes. We are changing a bill which has been there for over 100 years so we need to be sure,” said a senior government official.

Currently, the Bill specifies that where spectrum management is concerned, the government may assign spectrum for telecom either through auction or administrative process for government purposes in view of public interest or necessity in Schedule 1, or any other means.    

Schedule 1 clearly states where spectrum can be assigned for government functions or purposes in view of public interest or necessity. The areas include radio backhaul for telecommunications services, certain satellite-based services such as teleports, direct-to-home, VSAT, mobile satellite service in L and S bands, national security, defence, and any other functions which the government determines should be included.  

Yet the Supreme Court order does not speak of both options but rather states that spectrum for telecommunications needs to be auctioned.

“The question is whether the bill — which gives both options — passes the legal test given that the court order says auction is the best method,” said the official.

In 2012, the Supreme Court rejected the policy of first-come-first-served through which spectrum was given to telcos by the government.

The court said: “When it comes to alienation of scarce natural resources like spectrum etc., it is the burden of the state to ensure that a non-discriminatory method is adopted for distribution and alienation which would necessarily result in the protection of the national and public interest.”

The ruling added: “A duly publicised auction conducted fairly and impartially is perhaps the best method of discharging this burden…….the state is duty bound to adopt the method of auction by giving wide publicity so that all eligible players can participate in the process.”   

The Bill has gone through numerous changes. 

For instance, earlier, it proposed diluting the powers of the Telecom Regulatory Authority of India (Trai). It suggested doing away with the referencing of recommendations between the DoT and Trai which, in effect, would have removed the statutory requirement of consultation with the regulator before policies are finalised.

It also tried to reduce the regulator’s power to set tariffs by adding a clause saying the DoT could change or amend any tariff order. Both these suggestions have been removed from the current draft.   

Another clause that has been removed, owing to opposition from players, is the one which categorised OTT platforms as ‘telecom services’.