TECHNOLOGICAL CONVERGENCE AND LAW

SUBMITTED BY

KUMAR NARUN

ROLL NO. 1335, 9TH SEMESTER, B.A.LL. B (Hons.)

SUBMITTED TO

Dr. Kumar Gaurav

FINAL DRAFT SUBMITTED IN PARTIAL FULFILLMENT OF THE COURSE OF

INFORMATION TECHNOLOGY LAW FOR THE COMPLETION OF THE B.A.LL.
B (Hons.) COURSE.

SEPTEMBER, 2019

CHANAKYA NATIONAL LAW UNIVERSITY

PATNA (BIHAR)
Contents
ACKNOWLEDGMENT ........................................................................................................................................ 3
RESEARCH METHODOLOGY ........................................................................................................................... 4
INTRODUCTION .................................................................................................................................................. 5
1.SERVICES PROVIDED THROUGH CONVERGENCE TECHNOLOGY ...................................................... 6
2. NEED FOR SEPARATE CONVERGENCE LEGISTATION .......................................................................... 7
3. THE COMMUNICATION CONVERGENCE BILL 2001 ............................................................................... 9
3.1. Licensing Provisions ................................................................................................................................. 10
3.2. Powers and functions of the communication commission of india ........................................................... 11
3.2.1.Main Functions- ................................................................................................................................. 11
3.2.2.Adjudication of Disputes .................................................................................................................... 12
3.2.3.Regulation of Content of Communications ........................................................................................ 12
3.2.4.Conditions for Obtaining a License.................................................................................................... 13
3.2.5.Conditions for the Grant of a License to use Wireless Equipment..................................................... 13
3.2.6.Duties Imposed upon Service Providers ............................................................................................ 14
3.2.7. Conditions for the Live Broadcast of Certain Live Events ............................................................... 14
3.2.8 Governmental Intervention ................................................................................................................ 15
3.3. Penalties and adjudication ......................................................................................................................... 15
3.3.1. Consequences of Breach of the Terms of the License....................................................................... 15
3.3.2. Failure to Register Agreements ......................................................................................................... 16
3.3.3.Failure to Comply with Orders of the Commission ........................................................................... 16
3.3.4.The Complaint Mechanism ................................................................................................................ 16
3.3.5.Calculation of Penalties ...................................................................................................................... 16
3.3.6. The Appellate Structure .................................................................................................................... 17
3.3.7. Bar on Jurisdiction of Civil Courts.................................................................................................... 17
4.CRITICAL ANALYSIS OF BILL .................................................................................................................... 18
CONCLUSION .................................................................................................................................................... 21
BIBLIOGRAPHY ................................................................................................................................................ 22

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ACKNOWLEDGMENT

I take this opportunity to express our humble gratitude and personal regards to
faculty of Information Technology law for inspiring us and guiding us during the
course of this project work and also for his cooperation and guidance from time to
time during the course of this project work on the topic

The Present Project Report is attempted to explain for the benefit of the general
readers. Dealing with this topic in a material form has naturally involved a great deal
of compression and omission of many matters of interest. I hope that my selection of
material will give a fair outline of the general picture.

“CONVERGENCE TECHNOLOGY AND LAW”

“I EXPRESS OUR GRATITUDE TO THE FACULTY OF , INFORMATION TECHNOLOGY LAW

FOR THE CONCEPTS GIVEN BY HIM IN THE SUBJECT WHICH HAS BEEN THE BASE FOR

THIS SMALL PIECE OF WORK.”

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RESEARCH METHODOLOGY
AIMS AND OBJECTIVES: the researcher intends to find out the following during the
course of research:

i) The meaning of convergence.

ii) The services provided through convergence technology.
iii) The salient feature of communication convergence bill 2001.
iv) Critical analysis of 2001 bill.

LIMITATIONS: The researcher has undergone time limitation.

RESEARCH QUESTIONS: The researcher has formulated the following research

questions, the answer for which has been found during the course of research:

i) What is the meaning of convergence?

ii) What are the kinds of services rendered through technological convergence?
iii) What are the salient features of communication convergence bill 2001?
iv) What is the function and power of CCI under the 2001 bill?
v) What are the licensing provisions in the bill?
vi) What are the lagging in the bill and its critical analysis?

RESEARCH METHODOLOGY: The researcher will use only doctrinal method of

research.

SOURCES OF DATA:

PRIMARY SOURCES: Communication convergence bill, 2001, Information technology act,

2000

SECONDARY SOURCES: Books, Articles, Weblogs

METHODS OF DATA COLLECTION: The researcher will make use of doctrinal

methods that includes library work.

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INTRODUCTION
The birth of the 21st century had a magical effect on India. The country entered into a new
digital era in which three vital ingredients – communication, information and entertainment –
would be the prime drivers of the economy.

In 2000, the government of India introduced a proposed Communication Convergence Bill

(known as the Convergence Bill), with the objective of establishing a converged regulatory
framework to promote and develop the communications sector (including broadcasting,
telecommunications and multimedia) in an environment of increasing convergence of
technologies, services and service providers.

The regulatory framework aims to keep pace with the convergence of telecom, internet and
broadcasting services, which is taking place all over the world. The Communication Bill is
expected to repeal legislation such as the Indian Telegraph Act, 1885; the Indian Wireless
Telegraphy Act, 1933; the Cable Television Networks (Regulation) Act, 1995; and the
Telecom Regulatory Authority of India Act, 1997.

Convergence commonly refers to the provision of different kinds of services over the existing
infrastructure and the enhancement of existing technologies so as to provide a wide variety of
services. This results from the blurring of borders between telecommunications, computing
and media. Quite obviously, it is a term that eludes precise definition and it is very difficult to
formulate an exhaustive definition. Put simply, it is the ability of different network platforms
to carry essentially similar kinds of services. To simplify further, it is the coming together of
consumer devices like the telephone, television and personal computer as progress is made
towards the transmission of information, whether data, sound or images over the same
infrastructure.

For consumers, the convergence of technologies means the provision of various services like
the cable television, basic telephone services and Internet access, through a single
infrastructure resulting in the possibilities to make cheap phone calls over the Internet, using
televisions to access the Internet, downloading movies from the Internet, and to have e-mail,
data and Internet access over mobile phone networks, etc. The possibilities are endless!

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 1. SERVICES PROVIDED THROUGH CONVERGENCE
TECHNOLOGY
Convergence of telecommunications, computer network technologies and broadcasting has
brought about some major value-added services

Email & the WWW (World Wide Web): E-mail is the most widely used application of
Internet for communication between individuals.

Cable TV and Internet Access: is likely to be an important issue considering large penetration
into semi urban and rural areas. They will require high bandwidth connectivity and a Fibre
Optic Back Bone

Education via Internet: For developing countries like India, distance education is a high
priority application. The Networking of Universities and R&D led to establishments of
primary & high school education to remote locations is now soon becoming possible.

E-business: describes a market place where businesses are using internet technologies and
network computing to transform their internal business processes ( intranets) and the buying
and selling of goods, services and information. Internet access, E-mail and Web browsing are
all the initial small steps which lead the way to e-business.

Tele-banking – Banking sectors have already computerized their internal operations,

Automatic Teller Machines, Net-banking services are now being made available at a lot of
banks.

Radio and Television Broadcast on the Internet – With multimedia computer terminals being
available, and program editing possible on digitized studios, the only constraint on Internet
broadcasting is transmission media. With the introduction of video compression standards
like MPEG II and high bandwidth cable media being used the distinction between television
and personal computer will slowly disappear.1

1
“DoT begins work on convergence policy for communications sector”, Livemint, August 21, 2013 available at
http://www.livemint.com/Industry/JTOvPYfE0Ixk1y4jT3qAdO/DoT-begins-work-on-convergence-policy-for-
communications-sec.html?utm_source=copy (Last accessed on August 28, 2019)

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2. NEED FOR SEPARATE CONVERGENCE LEGISTATION
Technological developments are posing a huge challenge to the lawmakers. The
unprecedented growth in Internet as a medium for Commerce has already necessitated the
passage of the ITA 2000, which has given Legal recognition for Electronic Documents and
Digital Signatures ; definition of various kinds of Cyber Crimes and a justice dispensation
mechanism for handling these Crimes.

Close on the heels of this landmark legislation, the continued developments in the technology
that drives the Internet has now brought us to the threshold of another significant piece of
legislation in the form of the CCB. The need for this legislation has been forced on the
society because the present laws that govern the areas of Telecom, Broadcasting and
information technology have been found insufficient to meet the needs of the present day
requirements. They had been framed when each of the communication mediums such as the
Telephones, Radio, and Television had evolved independently over a long period and were
governed by different sets of laws. Gradually, the wired network of the Telephony and the
Wireless network of the Audio broadcasting started exploiting the satellite communication
facility along with the Television broadcasting. Thus resources such as "Satellite
Communication Bandwidth" became common to the different media.2

Thus the concept of "Convergence of the Media" emerged. Today, Technology has brought
Internet, Broadcasting and Telephony on a single platform of distribution. In the consumer's
perspective the Personal Computer today is a Communication device, which can also be used
for Telephony as well as receiving audio and video, broadcasts. Similarly, the Web TV can
be used for surfing the Internet and for sending E-Mails. The WAP has converted the mobile
phone into an E-Commerce tool. In the business perspective, the infrastructure available for
meeting the needs of one of the media can be more effectively utilized if applied to other
media as well.

Thus an ISP thinks of "Internet telephony" and the "TV broadcaster" thinks of "Internet
delivery of TV Content", as a natural business strategy. The historic legal framework which
had not envisioned this convergence, naturally failed to fulfill the aspirations of the society
since they placed artificial barriers of "licensing" on various service providers as well as the

2
Government plans a super regulator for communications sector, The Economic Times, September 7, 2014
available at http://articles.economictimes.indiatimes.com/2014-09-07/news/53653044_1_super-regulator-
communications-convergence-bill-telecom-ministry (Last accessed on September 1, 2019)

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consumers. This led to flouting of law by many individuals as well as service providers.
Recognizing the changing needs of the society, Indian Government has now decided to revise
the legal framework applicable to the Broadcast and Telecom sectors so that the benefits of
technology can be harnessed. 3

This appreciation of the need for 'Convergence Laws" has been brought out in the objects of
the Bill which states as follows: "One of the basic objectives of this Act is to provide for a
regulatory mechanism, which facilitates convergence and therefore, remains valid over a
period of time. Convergence in this context means convergence of mediums or technologies
facilitating provision of all services by using a given facility or network and vice versa. It
also means convergence of services at the provider's end as well as the consumer's end,
meaning, thereby, a service provider should be able to provide a whole range of
technologically feasible services and a consumer should be able to receive all services
through a given terminal at any time and place of his choice."

In order to remove the hurdles arising out of past legislations, the Bill will repeal many of the
earlier legislations such as The Indian Telegraph Act, 1885; The Indian Wirelcss Telegraphy
Act, 1933; Telegraph Wire Unlawful Possession Act, 1950; Cable Television Networks
(Regulation) Act, 1995 and The Telecom Regulatory Authority of India Act, 1997.4

The licensees who are operating under the provisions of these laws will now be required to
make a fresh application for license within 6 months of the Bill coming into force with the
appropriate authority under the new Bill.

India is said to be only the second country in the Asian region to bring a separate Bill for the
Convergence Industry and we need to appreciate the futuristic thinking, which is behind this
bold initiative.

3
Pavan Duggal, “Indian Convergence Law” Cyberlaw.net available at
http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN002089.pdf (Last accessed on August
29, 2019)
4
Communications Convergence Bill, CUTS available at http://www.parfore.in/pdf/Bill-Blowup-1-2002.pdf

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3. THE COMMUNICATION CONVERGENCE BILL 2001
The Communication Convergence Bill is going to change the Indian communication
machinery in an unprecedented fashion. The Bill primarily intends to promote and develop
the entire communications sector, in the scenario of increasing convergence of technologies.
Thus India hopes to become the second country in the globe to have a legislation regarding
convergence.

The Bill will replace five existing laws namely -The Indian Telegraph Act-1885, Cable TV
Networks Act 1995, Indian Wireless Telegraphy Act-1933, The Telegraph Wires (Unlawful
Possession) Act 1950 and the Telecom Regulatory Authority of India Act 1997.

The Communication Convergence Bill, 2001 (the “Convergence Bill”) was introduced to
promote facilitate and develop in an orderly manner the carriage and content of
communications, including broadcasting, telecommunication and multimedia. The objects of
the proposed legislation are to facilitate the development of national infrastructure for an
information based society and to enable access thereto; to provide a choice of services to the
citizen; to promote plurality of views and information; establish a regulatory framework for
carriage and content of communications in the wake of converged technologies and services
and establish a single regulatory and licensing authority and an appellate authority. This bill
has been designed on the model of the Office of Communication of UK established under the
Communications Act 2003.

The bill proposes to repeal 5 existing laws-

 The Indian Telegraph Act-1885,

 Cable TV Networks Act 1995,
 Indian Wireless Telegraphy Act-1933,
 The Telegraph Wires (Unlawful Possession) Act 1950
 The Telecom Regulatory Authority of India Act 1997.

The bill has 4 main objectives and they are-

 to facilitate development of national infrastructure for- an information based society,

and to enable access thereto;
 to provide a choice of services to the people with a view to promoting plurality of
news, views and information;

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  to establish a regulatory framework for carriage and content of communication in the
scenario of convergence of telecommunication, broadcasting, data-communication,
multimedia and other related technologies and services; and
 to establish the powers, procedures and functions of a single regulatory and licensing
authority and of the Appellate Tribunal5

The companies providing basic telecom, cellular telecom, Internet and satellite television
need not be having different licenses to provide these services and will not be regulated by
multiple agencies. The present situation is not conducive for this, for e.g. a cable operator
cannot provide telecommunication services; an ISP is not allowed to carry voice etc. Now a
service operator has to apply for licenses separately and since there is no single window to
clear the application, this becomes a very cumbersome process. This is expected to change
with the adoption of the Communication Convergence Bill, 2001.

3.1. Licensing Provisions

The Bill states that no person would be allowed to use any part of the spectrum without
assignment from the Central Government or the Commission.6 Furthermore, no person would
be allowed to own or provide any network infrastructure facility, or provide any network
service, application service or content application service without a license granted under the
proposed Act.7 In addition, no person is permitted to possess any wireless equipment without
obtaining a license.8

The Commission may grant license to any person for providing the following services
technologies/ services:

1. Network infrastructure facilities;

2. Network services;
3. Application services; and
4. Content application services.9

It is expected that the classification mentioned above will be technology-neutral and service
sector-neutral since setting up an infrastructural facility and its use is not linked to the

5
Preamble of the Communication Convergence Bill, 2001
6
Section 3, Communication Convergence Bill, 2001
7
Section 4, Communication Convergence Bill, 2001
8
Section 30, Communication Convergence Bill, 2001
9
Section 26, Communication Convergence Bill, 2001

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provision of a particular service by using a particular technology. Therefore, services can be
provided by using any facility and any technology.

The Bill envisages that in an era of convergence, an application service provider or content
application service provider could utilize the services of any network service provider for
carrying their application/content. In turn, the network service provider would have the
flexibility to utilize the infrastructure provided by any network facility provider and to carry
application/content from any application service provider or content application service
provider. Similarly the network facility provider can provide the infrastructure to any
network service provider.

3.2. Powers and functions of the communication commission of india

3.2.1.Main Functions-
The primary function of the Commission will be to facilitate and regulate all matters relating
to the carriage and content of communications. Specifically, it shall be responsible for:

 Carrying out management, planning and monitoring of the spectrum for commercial
usages.
 Granting licenses, determining and enforcing license conditions and fees.
 Determining appropriate tariffs and rates for licensed services.
 Ensuring competition in the market, and that service providers do not become
dominant players to the detriment of other service providers or consumers.
 Promoting competition and efficiency in the operation of communication services and
network infrastructure facilities.
 Formulating and determining conditions for fair, equitable and non-discriminatory
access to a network infrastructure facility or network service such other related
matters in respect thereof.
 Taking measures to protect consumer interests and to enforce universal service
obligations.
 Formulating and laying down programme and advertising codes in respect of content
application services.

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  Formulating and laying down commercial codes in respect of communication services
and network infrastructure facilities.
 Taking steps to regulate or curtail the harmful and illegal content on the internet and
other communication services.
 Formulating and lay down codes and technical standards and norms to ensure quality
and interoperability of services and network infrastructure facilities.
 Carrying out studies on matters of importance to the consumers, service providers and
the communications industry.
 Institutionalizing appropriate mechanisms to interact on a continual basis with all
sectors of industry and consumers.
 Making recommendations on matters that the Central Government refers to it.10

3.2.2.Adjudication of Disputes
The Commission shall hear and decide complaints from any person regarding contravention
of the provisions the proposed Act, rules, regulations or orders made there under. In
particular, the Commission shall hear and decide:11

 Disputes between two or more service providers on issues relating to spectrum

interference, interconnectivity, denial of fair access and practices restrictive of fair
competition.
 Disputes between a service provider and a group of consumers arising out of
enforcement of any provision of the proposed Act.12

In trying suits, the Commission shall have the same powers as are vested in a civil court
under the Code of Civil Procedure. It would not be bound by the procedure laid down by the
Code of Civil Procedure, but shall be guided by the principles of natural justice and shall
have powers to regulate its own procedure.

3.2.3.Regulation of Content of Communications

The Commission is expected to specify programme codes and standards that may
include inter alia practices:

10
Section 20, Communication Convergence Bill, 2001
11
Section 22, Communication Convergence Bill, 2001
12
Communications Convergence Bill, CUTS available at http://www.parfore.in/pdf/Bill-Blowup-1-2002.pdf

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  To Ensure That Nothing Prejudicial To The Interests Of The Sovereignty And
Integrity Of India, The Security Of State, Friendly Relations With Foreign States,
Public Order Or Which May Constitute Contempt Of Court, Defamation Or
Incitement To An Offence Is Contained In Any Programme.
 To Ensure Fairness And Impartiality In Presentation Of News And Other
Programmes.
 To Ensure Emphasis On Promotion Of Indian Culture, Values Of National
Integration, Religious And Communal Harmony, And A Scientific Temper.
 To Ensure In All Programmes Decency In Portrayal Of Women, And Restraint In
Portrayal Of Violence And Sexual Conduct.
 To Enhance General Standards Of Good Taste, Decency And Morality.13

3.2.4.Conditions for Obtaining a License

The license can be for any one of the categories specified above, or may be in the nature of a
composite license - jointly for one or more categories. While granting a license, the
Commission may confine or limit the scope of the service to be provided. It may also specify
by way of regulations14:

 Eligibility conditions for issue of licenses;

 Cross-media restrictions having regard to accumulation of interest; and
 Restrictions or otherwise on the number of licenses or extent of accumulation of
interest in such licenses by a person.

3.2.5.Conditions for the Grant of a License to use Wireless Equipment

Any person who intends to posses any wireless equipment must make an application with the
15
requisite fees to the Commission for the grant of a license. The Commission is not to reject
any application except on grounds of security of State, public order or other public interest.

13
Section 21, Communication Convergence Bill, 2001
14
Section 26, Communication Convergence Bill, 2001
15
Section 30, Communication Convergence Bill, 2001

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Every license issued by the Commission shall be subject to such conditions and restrictions as
the Commission may determine by regulations.16

3.2.6.Duties Imposed upon Service Providers

The Commission may, from time to time, determine obligations, conditions, restrictions,
tariffs and rates subject to which the service provider shall provide services 17. As the range of
obligations and their character and content would be different in different places and
situations, it has been left to be prescribed by rules and is not provided for in the Bill.

The Bill specifies that every service provider shall:

 Provide such services to give effect to universal service obligations that may be
prescribed;
 Provide such life saving services that may be prescribed;
 Provide service to any person on demand (within a reasonable period of time) and on
a non-discriminatory basis;
 Follow the codes and standards laid down and specified by the Commission; and
 Register with the Commission any shareholder agreements, promoters agreements or
inter-connectivity agreements.

In addition, every content application service provider shall:

 Endeavor to provide a suitable proportion of programmes of indigenous origin; and

 Ensure that none of its programmes infringes any copyrights.

3.2.7. Conditions for the Live Broadcast of Certain Live Events

In order to ensure the widest availability of viewing of national or international events held in
India, the Bill provides under Section 32 that no person shall carry a broadcast of any event in
India that has been previously notified by the Central Government, unless the public service

16
Shauvik Ghosh, “Communications Bill proposes to overhaul telecom sector” Livemint, September 08, 2014
available at http://www.livemint.com/Politics/jqJCPIZrOk6t6GbXBwkVAJ/New-Bill-proposes-repeal-of-all-4-
laws-that-govern-telecom-s.html?utm_source=copy (Last accessed on September 1, 2019)
17
Section 28, Communication Convergence Bill, 2001

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broadcaster has also been offered the broadcasting rights, on such terms as may be
determined by the Commission in advance of the bidding for the event.18

3.2.8 Governmental Intervention

In the event of war or any other natural calamity, the Central Government may take over the
control and management of any communication service or any network infrastructure facility
connected therewith, suspend its operation or entrust any agency of that Government to
manage it.19

Similarly, in expediencies, the Central Government may request the Commission to direct a
licensee to transmit announcements on its broadcasting service. It may also stop any
broadcasting service that is prejudicial to the sovereignty or security of India, friendly
relations with foreign States, or to public order, decency or morality, or communal harmony.

3.3. Penalties and adjudication

3.3.1. Consequences of Breach of the Terms of the License
The Bill proposes to levy a stiff penalty of Rupees 50 crores if a licensee commits fails to
observe any of the terms and conditions subject to which a license was issued. The same
would apply to a failure to observe a rule, regulation or order made under the Act.

In addition, under the chapter the Commission may direct the licensee to do or abstain from
doing any act, suspend the license, curtail the period of the license, or revoke the license. It
may also authorize the seizure of the equipment being used for provision of such service. The
equipment cannot be retained for over ninety days without the approval of the Appellate
Tribunal.20

As regards the consequence of providing communication services using unlicensed

equipment, if a person transmits any communication by the use of unlicensed equipment, or
equipment which is operated in contravention of the provisions of the proposed Act or any
rules, or regulations made there under, he shall be liable to a penalty which may extend to
Rupees 10 crores.

18
Section 32, Communication Convergence Bill, 2001
19
Section 72, Communication Convergence Bill, 2001
20
Section 33, Communication Convergence Bill, 2001

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As for the consequences of delivering content through unlicensed equipment, if a person
delivers content for transmission or accepts delivery of any content sent by the use of
equipment which he knows or has reason to believe is operated without a license or in
contravention of the provisions of this Act or any rules or regulations made thereunder, he
shall be liable to a penalty which may extend to 10 crores.

3.3.2. Failure to Register Agreements

If a service provider fails to register an agreement which is required to be so registered, for

example, shareholder agreements, promoters agreements or inter-connectivity agreements, he
shall be liable to a penalty which may extend to Rupees 10 lakhs.21

3.3.3.Failure to Comply with Orders of the Commission

If a person willfully fails to comply with an order of the Commission, he shall be liable to a
penalty which may extend to Rupees 5 crores. In the event of a second failure, he shall be
liable to pay a further penalty of up to Rupees 10 crores. In the event of continuing failure,
his penalty may extend to Rupees 2 lakhs for every day during which such failure
continues.22

3.3.4.The Complaint Mechanism

Complaints to the Commission must be filed within 60 days of the occurrence of the event. If
the Commission believes that a prima facie case exists, it will refer the matter to the
Adjudicating Officer who would be an officer of the Commission. The Commission may suo
moto refer contraventions of the proposed Act to the Adjudicating Officer. In hearing the
complaint and deciding it, the Adjudicating Officer shall have the powers of a civil court in a
number of matters.

3.3.5.Calculation of Penalties

While adjudging the quantum of penalty under this Chapter, the Adjudicating Officer is to
have due regard to the provisions of this Act as well as the revenue loss to the Government,

21
Section 37, Communication Convergence Bill, 2001
22
Section 38, Communication Convergence Bill, 2001

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the amount of disproportionate gain, the loss caused to any person, the repetitive nature of the
default and that fact that the penalty must act as a deterrent.23

3.3.6. The Appellate Structure

Under chapter XII, The Bill envisages the establishment of the Communications Appellate
Tribunal to hear appeals from orders of the Commission or Adjudicating Officer. The
Tribunal is expected to deal with matters expeditiously and dispose of matters within 90 days.
In order to discharge its functions, it is vested with many of the powers of a civil court.
However, it shall not be bound by the provisions of the Code of Civil Procedure, but shall
have the power to regulate its procedure guided by principles of natural justice. Appeals from
the Tribunal shall lie to the Supreme Court within 90 days. Decisions of the Tribunal shall be
executable as decisions of a civil court. Failure to comply with orders of the tribunal may
lead to a penalty of Rupees 50 millions.

3.3.7. Bar on Jurisdiction of Civil Courts

The Bill excludes the jurisdiction of civil courts over matters which an Adjudicating Officer
or the Appellate Tribunal or the Commission is empowered by this Act to determine. They
are also prohibited from issuing injunctions against actions taken or to be taken under the
Act.24

23
Section 41, Communication Convergence Bill, 2001
24
Section 79, Communication Convergence Bill, 2001

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4.CRITICAL ANALYSIS OF BILL
The proposed law is meant for regulating convergence. Surprisingly, the proposed law does
not define the word "convergence" in its definitional clause .As a result, there is no legal
definition of the subject matter that the proposed law seeks to regulate. The new proposed
Bill does not seek to make a marked departure from the previous drafts. On the contrary, it
reinforces the concept of giving the Government maximum regulatory powers in the context
of convergence. The new Bill is nothing but a reiteration of regulatory tendencies of the
Government to regulate the convergence industry, which has yet to effectively take off in
India. The proposed Bill provides for immense control of the Government.

The Government has been given the complete control of assignment of the spectrum. The
proposed super regulator CCI is nothing but a glorified mouthpiece of the Government. The
same runs contrary to the objects of the new proposed Bill.

While the new Bill aims to provide for the establishment of an autonomous commission to
regulate all forms of communications namely the CCI but the structure detailed in the
proposed law makes it abundantly clear that the CCI is a commission, which is anything but
autonomous. The Government has retained all powers to appoint the Chairperson and the
members of the CCI on the recommendations of a search committee, which shall be
constituted by the Central Government, thereby assuring that favoured nominees of political
powers that be find representation under the new statutory body. What is the Search
Committee expected to do, what shall be its composition, how it shall proceed ahead to
search appropriate candidates has completely been left at the subjective discretion of the
Central Government.25

The parameters of appointing the members of the CCI have been left very vague. The
proposed law states that the members shall be appointed from amongst persons of eminence
in the field of literature, performing arts, media, culture, education, films, persons prominent
in social and consumer activities, telecommunications, broadcasting technology, IT, finance
and administration or law. Who shall be "persons of eminence" in the said fields has been left
upon the subjective discretion of the Central Government, thereby bringing immense control
of the Government over the CCI.

25
Ashish Pathak, “The communication convergence bill-India’s Tryst with destiny”(July 11, 2002), available at
http://www.mondaq.com/india/x/16955/broadcasting+film+television+radio/The+Communications+Convergen
ce+Bill+Indias+Tryst+with+Destiny, (last accessed on September 3, 2019)

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Further, the Communications Commission has been given no independent existence of its
own since it has to mandatorily follow all policy directives as may be communicated to it by
the Central Government. These directives may include the procedure and mode in which any
services are to be registered and licensed by the way of auction in case of granting licenses or
in any other form. As such, our country can hardly expect an independent and autonomous
commission as has been envisaged by the objects of the new convergence law. The new law
comes up with the concept of a content censor, though not in so many words.

The aim of the Bill is to establish a regulatory framework for carriage and content of
communications in the scenario of convergence and telecommunications broadcasting, data
communication, multi media and other related technologies and services. Content has been
defined in Section 2(9) to mean any sound, text, data, picture (still or moving), other audio
visual representation, signal or intelligence of any nature or any combination thereof which is
capable of being created, processed, stored, retrieved or communicated electronically.
Consequent to the same, the new law has actually given immense powers of censoring
content to the CCI. The CCI has been given the mandatory power to specify, by regulations,
programme codes and standards which may include practices to ensure fairness and
impartiality of news and other programmes. The basic question as to what is the fairness and
impartiality in presentation of news and other programmes has been left at the subjective
discretion of the CCI, which has to work mandatorily under directives of the Government. 26

The proposed bill also is silent on the factors, which the commission (CCI) has to follow as in
order to ensure fairness and impartiality. No standards or parameters of fairness and
impartiality have been defined under the Act and the same have been left upon the subjective
discretion of a Government controlled commission. This can be extremely dangerous for the
freedom of the press and the electronic press and is an attempt to tamper with a vibrant free
press and to force divergent viewpoints to toe the line of the Government. No sense of
impartiality and fairness can be expected from a commission, which has been created by the
Central Government, which works under the general directives of the Central Government,
and which has no independent will or thought process of its own. Thus, this is a measure to
keep control over uncomfortable viewpoints. The Constitution of India is based upon the
concept of separation of powers. Under the proposed law, both policy and regulation making

26
Pavan Duggal. “Indian Convergence Law”, available at
http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN002089.pdf, (last accessed on
September 2, 2019)

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as well as judicial powers to decide disputes have been conferred a single body namely, CCI
which goes against the aforesaid legal principle on which the constitution makers had sought
reliance.

Huge elements of vagueness has crept into the proposed new law in as much as the
definitions of the categories of the services have been provided in such vague manner so as to
admit various conflicting interpretations. The definition of "value added network application
services" is standing on unsure ground more so in the light of the fact that it has specifically
excluded I T enables services such as call centers, electronic commerce, tele-banking, tele-
education, tele-medicine, tele-trading, videotext and video conferencing etc from the ambit of
licensing under the proposed law. Vast range of discretionary powers have been granted in
the hands of the Central Government for the exercise of which, no parameters or standards
have been laid down under the Communication Convergence Bill.

The proposed law belies the expectation of the common consumer as also the hopes in the
convergence industry of an independent impartial and autonomous body to be an enabler in
the healthy growth of the convergence industry. While India has to be commended for its
vision to think of a Convergence Law yet the timing for the same is not very appropriate,
especially because it is planned to be passed at a time when convergence is yet to effectively
take off and become a ground reality in India. We as a nation refuse to learn from the
mistakes of other nations. History has taught us that the enactment of the Information
Technology Act, 2000 in a hurry was a mistake, the realization of which is drawing today.
Let us not be in a hurry to pass a law on convergence without taking all the appropriate inputs
in mind. This is absolutely essential given the futuristic nature of the proposed legislation It is
also hoped that the proposed law should be the subject of immense discussion in the
Parliament and should undergo some radical changes before being passed. If this is not done,
the days of the government acting as an omnipotent factor in the convergence industry are not
far off. This is the time to analyse the various legal issues raised by the proposed
Convergence Bill 2001 before the said bill becomes the law of our country. All eyes are now
on the Parliament for what the country needs in the present context is minimum regulation
and more enablement. All said and done, this is indeed an exciting time in the formative years
of the Indian Convergence Law.27

27
Parikshit Dasgupta,”Need for conversion of convergence law, available at
http://www.legalserviceindia.com/articles/convergence.htm, (last accessed on September 2, 2019)

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CONCLUSION

It is believed that the Bill represents a significant step forward in developing a future oriented
vision for India’s Information Technology, Communications and Broadcast industries. For a
country with a tele-density level well below both the Asian and global average, the proposed
Bill is significant in that it marks a major step towards revolutionizing telecommunications in
India. In initiating this Bill, India has made a great stride in developing a flexible regulatory
environment overseeing the converged interests of its Information Technology,
Communications and Broadcast industries.

Furthermore, by continuing to develop innovative and forward thinking regulatory strategies

that promote industry led, market oriented developments in this essential sector, India is
positioning itself to become one of the leading destinations of the global information
economy, and a leading exporter of multi-media products and services.

Thus after going through the proposed Bill on convergence it can be concluded that the
autonomy of the CCI, which is fundamental to the plan and which the Bill's proponents are
relying on, is a mere publicity stunt. The Bill requires a scrutiny by experts in a detailed
manner. If the Bill is passed in its present form then there will be a flurry of lawsuits and as a
lawyer dealing with convergence issues I would be definitely happy. But considering the
larger interests the Bill should be studied in detail and steps should be taken to empower the
CCI with real autonomy. As of now the Bill looks like an ugly duckling, but if we are
realistic, we can always turn this ugly duckling into a swan.

It is also hoped that the proposed law should be the subject of immense discussion in the
Parliament and should undergo some radical changes before being passed. If this is not done,
the days of the government acting as an omnipotent factor in the convergence industry are not
far off. This is the time to analyse the various legal issues raised by the proposed
Convergence Bill 2001 before the said bill becomes the law of our country. All eyes are now
on the Parliament for what the country needs in the present context is minimum regulation
and more enablement. All said and done, this is indeed an exciting time in the formative years
of the Indian Convergence Law.

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BIBLIOGRAPHY
WEBSITES

 https://searchconvergedinfrastructure.techtarget.com/definition/convergence
 https://anillale.wordpress.com/2009/04/20/67/
 http://ijlt.in/wp-content/uploads/2015/09/Communication-Convergence-Bill-2001.pdf
 http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN002089.pdf
 http://www.legalserviceindia.com/articles/convergence.htm
 http://www.mondaq.com/india/x/16955/broadcasting+film+television+radio/The+Co
mmunications+Convergence+Bill+Indias+Tryst+with+Destiny

BOOKS

 Noll, A. M. (1999), The Evolution of Television Technology. In Gerbarg, D.W.L.

(eds.), The Economics, Technology and Content of Digital TV, Kluwer academic
Publishers, London.
 Owen B. (1999), The Internet Challenge to Television, Harvard university Press.
Cambridge

JOURNAL

 Besen, S. and Farrell J. (1994), Choosing How to Compete: Strategies and Tactics in
Standardization, Journal of Economic Perspectives, 8, No.2.
 Blackman, C. R. (1998), Convergence Between Telecommunications and Other
Media: How Would Regulation Adapt?, Telecommunications Policy, 22, No 3.

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