Since the establishment of the first telegraph line in India in the 1850’s, to the era of high speed 5G internet connectivity, telecommunication sector has undergone significant changes with innovations like VoIP, internet of things (IoT), software defined networks, cloud-based connectivity, and satellite broadband among others. With these new technologies in place, there was a need to revisit applicable legislations to ensure a regulatory check on the evolving technology. This required an analogous and consistent upgrade in the legal landscape for this sector. To meet the above requirement, India has recently enacted the Telecommunications Act, 2023 (“Act”) which is set to replace the existing telecom regime in India that was governed by the erstwhile Telegraph Act, 1885 (“Telegraph Act”) and the Wireless Telegraphy Act, 1933 (“Wireless Telegraphy Act”). This Act aims to change the colonial-era laws and adapt to the requirements of modern-day telecommunications sector. Consideration should be given to the fact that the United Kingdom, which had introduced the Telegraph Act and the Wireless Telegraphy Act in India, updated their own telecommunication laws way back in 1984 and 2003.

Amongst several changes, the government has also modified the adjudicatory mechanism that existed in the previous regime. In this article, we will discuss the erstwhile adjudicatory mechanism and will also highlight the changes which will be implemented once the Act comes into force.

Erstwhile adjudicatory mechanism in the telecommunications sector

Considering the capital-intensive nature of the telecom industry and its contribution towards digital economy, it is crucial to have an efficient dispute resolution mechanism. Under the Telegraph Act, different authorities have jurisdiction on matters relating to telecommunication, depending on the type of dispute in question.

Under the Telegraph Act,[1] where there is a dispute between the telegraph authority and a beneficiary of any telegraph line, appliance or apparatus, the disputes are to be settled through arbitration by an arbitrator appointed by the Central Government. The award of the arbitrator is deemed conclusive and is not questionable in any court, except by way of a judicial review through a writ petition.[2]

Disputes between the telegraph authority and local authorities may pertain to obtaining requisite permissions relating to the properties of local authorities or otherwise with respect to the powers conferred to the parties under the Telegraph Act. Such disputes shall be decided by an officer designated by the Central Government.[3] Appeals from the orders to such designated officer lie with the Central Government and the orders of the Central Government shall be final.

When there is a dispute pertaining to the use of private property in exercise of the powers of telegraph authority to place and maintain telegraph lines and posts, the District Magistrate shall have the discretion to order the telegraph authority to exercise its powers of placing and maintaining telegraph lines and posts. If there is a dispute on the adequacy or distribution of compensation for such private properties, an aggrieved party can approach the District Judge for resolution and his decision shall be final.[4]

The Wireless Telegraphy Act does not have any separate provision relating to dispute resolution when it comes to establishing, maintaining, or operating wireless telegraphs. This is mostly because wireless telegraphs also fall within the purview of the term “telegraph” under the Telegraph Act. Therefore, the adjudication mechanism under the Telegraph Act and statutes in pari materia also applies to wireless telegraphs.

The Telecom Regulatory Authority of India (“TRAI”) Act, 1997 ("TRAI Act”) established the Telecom Disputes Settlement Appellate Tribunal (“TDSAT”) which is an authority having both original and appellate jurisdiction to adjudicate disputes (i) between a licensor and a licensee; (ii) between two or more service providers; (iii) between a service provider and a group of consumers; and (iv) hear appeals from any direction, decision or order of TRAI.

For disputes between a service provider and a consumer, the dispute resolution mechanism provided under the Telegraph Act and the TRAI Act, is in addition to and not in substitution of the dispute resolution mechanism provided under the Consumer Protection Act, 2019.[5] Therefore, a consumer aggrieved from the services provided by a telecommunications service provider, can approach a consumer forum for redressal.

Separately, in cases where there is a violation of any fundamental or constitutional rights, the parties also have a choice to approach the High Courts or the Supreme Court for defending claims on such rights. This, however, is a constitutional remedy and subsists with or without the introduction of the new Act.

Till the year 2000, the TRAI, under the TRAI Act, was empowered to adjudicate telecommunication matters until the delegated adjudicatory powers of TRAI were set aside due to several litigations, disputing the powers of TRAI[6] and the powers were then passed on to TDSAT. To harmonize the above, the Government also vide amendment dated 24-01-2000 to the TRAI Act, separated the adjudicatory powers of TRAI and the adjudicatory powers were given to the TDSAT.[7] Since then, TDSAT has both original and appellate jurisdiction on disputes between one or more service providers and a group of consumers, disputes between two service providers, appellate powers on direction, decision or orders of TRAI under the TRAI Act.

Adjudication mechanism under the new regime

The Government has made changes to the adjudication mechanism under the current regime. The dispute resolution mechanism under the Act has been provided hereunder -

The arbitration proceedings that existed under the previous regime has been done away with. An Adjudicating Officer[8] shall now be appointed by the Central Government who will have jurisdiction over matters concerning breach of terms and conditions of authorization or assignment and for contraventions under the Act. An appeal from the orders of the Adjudicating Officer lies with the Designated Appeals Committee (“DAC”)[9] constituted under the Act. Appeals from the DAC, relating to breach of terms and conditions[10] of the assignment or authorization will go to TDSAT. Appeals from DAC pertaining to contraventions under the Act, will go to civil courts having jurisdiction over the matter.[11]

Where a dispute pertains to a public or private property which is being used for right of way for a telecommunication network, then the District Magistrate or any other authority notified by the Central Government within whose jurisdiction the property is located shall have the jurisdiction over such matters.[12] However, if the dispute pertains to compensation for such properties, an application will have to be made to the District Judge within whose jurisdiction the property is situated.[13] This position is similar to the position under the previous regime.

Online dispute resolution mechanisms will be approved by the Central Government for the resolution of disputes between users and the authorized entities providing telecommunication services. Authorized entities providing these telecommunication services shall participate in such authorized dispute resolution mechanisms.[14]

The supplementary dispute resolution mechanism that existed under the previous regime has been retained under the new regime. Consumers have the right to approach the consumer forums for quick redressal of their consumer disputes and this remedy will be supplementary to the dispute resolution mechanism provided under the Act.[15]

There have been some changes in the adjudication mechanism that existed in the current regime under the TRAI Act. Disputes between a licensor and a licensee have been omitted from the TRAI Act, directing such disputes to the Adjudicating Officer under the Act. Further, TDSAT will now only have appellate powers to adjudicate disputes pertaining to breach of terms and conditions of authorization or assignment wherein there is a dispute between the licensor and the licensee. Further, the TDSAT will not have powers to adjudicate upon disputes that fall within the domain of the Adjudicating Officer, DAC, Consumer Disputes Redressal Forum or the Monopolies and Restrictive Trade Practices Commission. The TDSAT will however, continue to exercise jurisdiction, powers and authority conferred by different statutes like the Digital Personal Data Protection Act, 2023, Information Technology Act, 2000 and Airports Economic Regulatory Authority of India Act, 2008.[16]

Voluntary undertaking

A new concept of voluntary undertaking has been introduced under the Act where, in case of breach of terms and conditions of authorizations or assignment, or for contraventions under the Act for which no penalty or punishment is otherwise prescribed, the authorized entity or the assignee may voluntarily undertake and disclose contraventions and undertake mitigation measures prior to notice or intimation of process of determination of such contravention.[17] Such voluntary undertaking shall act as a bar on further proceedings relating to such contraventions. This is a welcome move which will give industry players an opportunity to self-regulate, figure any non-compliances, and take measures to mitigate potential proceedings and penalties. However, to avail the benefit of voluntary undertaking, authorized entities under the Act will have to take proactive and vigilant measures such as robust compliance checks and independent audits to detect any non-compliances before the authorities.

Changes in the dispute resolution mechanism: step in the right direction

Considering the above changes in the adjudication mechanism under the Act, it appears that the government intends to reduce the litigation by adding another layer of appellate authority called the DAC. Appeal from DAC pertaining to the breach of terms and conditions of authorizations or assignment under the Act will lie before the TDSAT. This supports the rationale that such disputes will require the technical acumen of TDSAT and therefore it will be an appropriate body to adjudicate such disputes. Similarly, appeals from the DAC for contraventions of the Act will lie before the civil court. This supports the rationale that determination of whether an act contravenes the provisions of the Act requires the legal acumen of the courts and it is the courts that are empowered to impose penalties in case of violations.

Further, introducing mandatory use of online dispute resolution mechanism and the option of voluntary undertaking as discussed above will provide an efficient and expeditious resolution of disputes resulting in a reduction of burden of litigations on courts. Furthermore, the Act envisages functioning of the Adjudicating Officer and the DAC[18] as well as implementation of the Act[19] to be digital by design. These initiatives show that the government is encouraging the use of technology for more efficient resolution of disputes.

The Act has not yet been implemented, and therefore, the previous adjudication mechanism continues to remain in force as long as the new Act is enforced by way of a notification by the Government. With this, it remains to be seen how changes in the adjudication mechanism under the new Act evolves over a period of time.

Authors: Vikash Kukreti and Gaurav Tiwari

Footnotes

[1] Section 7B, Telegraph Act, 1885

[2] Saji Geevarghese v. Deptt. of Telecommunications, (2009) 1 SCC 644

[3] Section 15, Telegraph Act, 1885

[4] Section 16, Telegraph Act, 1885

[5] Vodafone Idea Cellular Ltd v. Ajay Kumar Agarwal 2022 (6) SCC

[6] BSNL v. Telecom Regulatory Authority of India, (2014) 3 SCC 222; Union of India v. Telecom Regulatory Authority of India, 1998VAD(DELHI)209

[7] Section 14, TRAI Act, 1997

[8] Section 35, Telecommunications Act, 2023

[9] Section 36, Telecommunications Act, 2023

[10] Section 32, Telecommunications Act, 2023

[11] Section 33, Telecommunications Act, 2023

[12] Section 18(1), Telecommunications Act, 2023

[13] Section 18(2), Telecommunication Act, 2023

[14] Section 30, Telecommunications Act, 2023

[15] Section 30(3), Telecommunications Act, 2023

[16] Section 59, Telecommunications Act, 2023 read with Section 14, TRAI Act, 1997

[17] Section 34, Telecommunications Act, 2023

[18] Section 37(1), Telecommunications Act, 2023

[19] Section 53, Telecommunications Act, 2023