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THE Convergence Bill

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THE Convergence Bill
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Sunanda K. Chavan
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THE Convergence Bill - October 29th, 2010

THE Convergence Bill 2000 placed before the Parliament is based on the hype that information technology (IT), telecommunications and entertainment industry are merging together. This completely obscure (unclear) what is converging in the above areas and what is not. The convergence in communications, IT and entertainment is in technology – the infrastructure, the type of equipment used and in methods i.e., digitisation of voice, data sound and pictures. The services over such networks remain distinct and there is little likelihood of their convergence. This becomes clearer if we look at telecommunications and entertainment. The existing cable television network can deliver telephone, Internet and cable television; however only a fool will argue that talking on telephone is converging with watching television. The Convergence Bill however believes that as the infrastructure and technology for telecommunications, IT and entertainment are becoming similar, entertainment and communications services are also converging. The entire philosophy underlying the Convergence Bill is based on this faulty and foolish premise.

PROVISIONS OF THE BILL

The Bill seeks to replace the Telegraph Act of 1985, the Indian Wireless Act of 1933, the Telegraph Wire Unlawful Possession Act of 1950 and the Telecom Regulatory Authority of India (TRAI) Act of 1997. The Prashar Bharati Act is not covered under the Bill. It seeks to provide powers to a Communications Commission of India that will license all communications and entertainment companies which use wireless, wired or network infrastructure. The print media is excluded from the ambit of the Commissions. The Commission will not only license and regulate these entities, it will also "formulate and lay down programme and advertising codes" and "take steps to regulate or curtail the harmful and illegal content on the internet and other communications services". In other words, it will regulate not only the physical infrastructure but also the content in the electronic media.

Under the provision 23 of the Bill, the government can give the Commission directives from time to time on policy matters, which will be binding on the commission. The Act also enables the government to tap any communications – email, telephone, cellular, etc., without any judicial procedure. There is also an Appellate body under the proposed Bill -- the Communications Appellate Tribunal -- that will hear appeals against the decisions of the Commission. The decisions of the Tribunal can only be challenged before the Supreme Court and not before a High Court.

UNDERLYING PHILOSOPHY

The interesting part of the proposed Bill is not only what it contains, but also what it does not. The Bill hardly addresses issues of public interest such as universal access, public address broadcasting, protecting against cross-media monopolies, etc; there is little or no attempt identify the needs of the people and their interests. Instead, the Bill’s focuses almost entirely on how to allow private players in various markets, protect them against "the dominant player" and see that they make profits. The only other area the Bill addresses is to set up a censoring agency that will carry out government directives.

Such directives could include no criticism of defence services or of the police as it will weaken "the territorial integrity of the country", one of the objectives of the Bill. In a discussion in All India Radio on the Bill, the anchor strongly argued on the need to control the media on issues such as Tehalka and Kashmir, as they weaken the nation. As long as corporate interests are protected and the government kept immune from criticism, the BJP led NDA government does not care what happens to rural telephony, taking telecommunications to all parts of the country and any other matter of public concern. A muzzled media making huge profits fits in with the ideology of the BJP; a police state for the capitalist class, this is the underlying philosophy of the Bill.


The misplaced focus of the Convergence Bill can be seen from its primary focus on competition. Presumably, the private operators in basic services, who have provided only three lakh telephones after three years of receiving their licenses, need to be protected against BSNL and MTNL that have provided in the same period, connections to two crore consumers. Obviously, the private operators are only interested in a minuscule section that can pay large amounts. In this context, the protection of private operators from BSNL or MTNL, which the Bill believes is its primary function, is ridiculous.


Any regulatory regime draws its need from public interest or larger social objectives. Unless there are such public interest issues, there is no need for regulation. The social objectives in telecom and broadcasting are providing universal access at low costs to the people. The broadcasters, apart from low cost viewing, have also to promote healthy, democratic culture, plurality of views and protect against harmful content. As telecommunications are largely private, the public interest lies in protecting the privacy of such communications. The regulatory needs of broadcasting and telecommunications are common in so far as there is a need to extend such services at low costs to the people. The purposes of regulation in terms of content are completely different for broadcasting and telecommunications. In one case, it is public and therefore subject to regulation not to cause harm, for example to minors, prevents monopolies; in the case of telecommunications, regulation is to maintain privacy of the communication. Therefore, the question that arises is should there be a common regulatory approach at all?


BROAD CONSENSUS

A number of countries have addressed the convergence issue. The broad consensus that is emerging is that while there is technological convergence, the type of services being offered is quite different. Thus, the two broad areas: audio-visual (or broadcasting) and telecommunications areas need different regulatory forms: broadcasting and telecommunications should be retained as separate regulatory regimes. The common infrastructure that may be used may need the two sets of regulators to work together but do not need a common regulator. The European Union (EU) produced a Green Paper on this in 1997 discussing various aspects of convergence; it had wide ranging public discussions on this and has finally agreed that there is no need for a common regulator. In the US, the Federal Communications Commission (FCC) only deals with the physical infrastructure and not with content of broadcasting. The only country in the world that has passed a Convergence Act is Malaysia and their experience has not been happy.

REGULATORY PROBLEMS

The Indian scenario is further compounded by the problem of repeated regulatory instability. The Telecom Regulator – TRAI – came into existence only in 1997. The Act had to be amended in 1999 as TRAI and Department of Telecom entered into serious turf wars. No sooner has the regulatory scene assumed any degree of stability, we now have a new Convergence Bill. If it passes and becomes an Act, it is likely to see a number of legal challenges, throwing the regulatory regime into a further state of flux. What passes all understanding is why is there a need for an Act that no one has asked for. The cellular telecom operators are unhappy with the TRAI; this cannot be a reason to throw out the TRAI Act, unless the motive is to throw out the current set of regulators while constituting the new Communications Commission. It is possible that the operators have such narrow interests. But why should the government contemplate a change when the current telecom policy regime – the NTP 99 – has been introduced only in 1999? Or are we to conclude that the Group on Telecom that produced the NTP 99 botched up the job so completely that it did not even address such basic questions as convergence?


The Internet related services are even more problematic. Currently, only Internet service providers are licensed and that also very lightly. The rates, quality standards, content have all been left outside the purview of any regulation. Of course, the laws of the land apply to such material in any case: use of Internet for criminal purposes, obscenity law and law of libel applies on any Internet site. The policing of such sites are not easy. For instance, child pornographers are using the Internet and as these sites move from country to country, it needs cross-border co-operation to stop such activities.

Similarly, hate literature of racist or communal variety can be circulated over the Internet and hosted on sites in countries that have no restriction against them. For instance, a number of neo-nazi groups use the US for hosting their sites as it does not ban such material unlike European countries and Canada, all of whom have stringent punishment for "hate literature". In spite of this, the Internet is relatively free of policing, primarily as it is not a broadcast medium.


The Convergence Bill seeks to bring Internet services under its ambit in two ways. One way is to regulate it through content. It explicitly lays down policing the Internet as one of the objectives of the Bill. The second is to bring all services offered through the Internet or the telecommunications network under licensing, unless exempted specifically. The Bill claims that a list of exemptions will be made available along with the Bill. There are two aspects to these so-called exemptions.


Every time a new service appears -- and Internet is introducing a variety of new services every day -- they will require special exemptions, delaying their introduction. The second is which agency will issue such exemptions. From the reading of the Bill, it is nowhere made clear which is the agency that will issue such exemptions. It is not clear why the alternate method of identifying the services that require licenses have not been considered. Presumably, in one case the Parliament will decide which services will require licenses, while in the current form, probably the government will notify such exemptions.

OTHER ISSUES

There are a variety of other issues that are there in the Convergence Bill. We will only take up three of them. The first is that the government has a complete right to monitor any communications, either any telephone call or any email. There is no requirement of establishing the need for such tapping of private communications that can be reviewed. The desire of the government to tap is enough. This is a continuation of the Telegraph Act and has been considered outmoded in most countries, which earlier had such provisions. The second is that there are no restrictions on cross-media monopolies.


Though protection against monopolies in each area is one objective of the Bill, protection against cross-media monopolies has not been identified by the Bill as an objective, This is doubly important as unlike the TRAI Act, which left the monopoly aspects of telecommunications to the MRTP Act, there is no such provision here. Presumably, even anti-monopoly aspects of telecommunications are being brought under the purview of this Bill. The third is that any public authority is obligated to provide the right-of-way for laying cables once the Communications Commission has given a license to a party. Already, two basic service operators and one broadband Internet service provider – Reliance – have dug up various cities. Such a blanket provision does not take into account that granting right-of-way impinges on the citizens’ convenience. But then, the citizen is hardly the focus of the reforms.


All in all, the Convergence Bill 2000, is a shoddy piece of work that addresses neither the need of the people nor the needs of growth of the sector. The attempt appears to is a narrow one of getting rid of the current telecom regulators while exercising some kind of control over the broadcast medium. The bill betrays the mindset of a police state while promoting the market and competition as the drivers of convergence. Its immediate effect will be to muzzle the media and build cross-media empires under the guise of convergence
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