Getting the Deal Through – Cybersecurity 2015

Author: Salman Waris

Publisher: Getting The Deal Through, Law Business Research, London

Published in: April 2015

Download: Getting the Deal Through – Cybersecurity 2015 – India

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Getting the Deal Through has published the 2015 edition of Cybersecutiy, a volume in the series of annual reports that provide international analysis in key areas of law and policy for corporate counsel, cross-border legal practitioners and business people.

With recent data breaches and cybercrime causing widespread concern amongst businesses and individuals, Getting the Deal Through – Cybersecurity is a timely addition to the series, providing a comprehensive international overview of relevant cybersecurity legislation and regulations. This 2015 edition covers a number of key topics concerning cybersecurity and the legal framework for 15 jurisdictions world-wide.

The subjects covered by Getting The Deal Through – Cybersecurity 2015 includes relevant national legislation, international standards and industry best practices; economic sectors affected by cybersecurity regulations; required data protection measures; obligations and liabilities of personnel and directors; relevant legislation concerning threats to intellectual property, critical infrastructure, privacy and civil liberties; challenges introduced by cloud computing; cybersecurity insurance; enforcement, compliance and regulatory oversight; threat detection and reporting; and recommended procedures for responding to data breaches.

The chapter on India jurisdiction for Getting the Deal Through – Cybersecurity 2015 has been authored by Salman Waris and has been made available for download.

Update and trends

The principal challenge of developing cybersecurity regulations in India is the lack of proper political or government will to deal with issues relating to cybersecurity and to enact proper laws and regulations dealing with the same. In the past the notifications or regulations relating to cyberlaw and cybersecurity have generally been passed as a knee-jerk reaction to specific instances or controversies rather than based on concerted efforts and legislative process. The proposed cybersecurity policy of India has been pending government approval and implementation for quite some time. Industry bodies such as the National Association of Software and Services Companies and the DSCI have been making regular efforts and lobbying the government to implement more stringent law and regulations with regard to cybersecurity. The amendments to the existing Information Technology Act were enacted primarily due to the efforts of such bodies. However, with the recent political changes and the coming to power of a strong nationalistic government at the federal level it is now hoped that in the near future there will be some progress with the pending legislation and similarly the enactment of separate legislation with regard to cybersecurity.

Getting the Deal Through – Telecoms and Media 2015

Co-Author: Salman Waris and Arjun Uppal

Publisher: Getting the Deal Through, Law Business Research, London

Published in: March 2015

Download: Getting the Deal Through – Telecoms and Media 2015 – India

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Getting the Deal Through has published the revised and updated sixteenth edition of Telecoms and Media, a volume in the series of annual reports that provide international analysis in key areas of law and policy for corporate counsel, cross-border legal practitioners and business people.

This 2015 edition covers a number of key topics concerning the telecoms and media industry and the legal framework of 38 jurisdictions. Various sub-sectors and the concerned regulatory framework has been discussed under the heads of telecoms and media.

The chapter on India jurisdiction for Getting the Deal Through – Telecoms and Media 2015 has been co-authored by Salman Waris and Arjun Uppal and is available for download.

Key trends and expected changes in the Indian communications sector

A number of policy initiatives by the government and DoT have led to a complete transformation with phenomenal growth in the sector over the last decade and it is poised to grow further. The regulatory framework concerning communications and telecoms in India witnessed an evolution in recent years with the implementation of certain key initiatives, including MNP, USO and introduction of the unified licence, among other things. The country is projected to witness a high penetration of internet, broadband, and mobile subscribers in the near future. These steps were taken in line with the objectives set by the NTP 2012.

The unified licence regime has simplified the telecoms licence regime and allows all telecoms services to be offered under one licence. The unified licence allows the sharing of spectrum among the various licences, which was not permitted earlier. The existing licences would also have to necessarily migrate to the unified licence regime upon the expiry of their subsisting licences. Although there have not been many telecoms services providers who have migrated to the unified licence regime to date, however, with a number of licences nearing expiry, the number migrating into the newly implemented regime is set to increase.

The recent months have witnessed a rise in the participation of foreign telecoms entities in India pursuant to the enhancement of the foreign investment limit up to 100 per cent. This has led to an overall rapid development and increased capital infusion of the existing players and the market as a whole. Further, while the recently issued guidelines for mergers and acquisitions have not been practically implemented in true sense, nevertheless they have attracted much criticism leading to the industry demanding a reconsideration of the same.

The telecoms tower providers’ industry has been endowed with the status of infrastructure provider. This will enable the tower providers to make use of the higher limits of external commercial borrowings, lower import duties and the exemptions on excise duty on infrastructure equipment.

The Supreme Court of India has adjudicated certain important cases involving spectrum. Therein previously allotted spectrum was cancelled and a new timeline for the spectrum allocation was laid down, in addition to reiteration of the principle of allotment of natural resources, including spectrum, only through auction process. Foreign entities have also been allowed to participate in the spectrum allotment and allocation process.

The upcoming trends in the sector would further lead to an upscale in the market. Full MNP (across different services areas), higher internet penetration and increased infusion of telecoms services to rural and remote areas, etc, in addition to a number of other objectives defined by the NTP 2012 are the initiatives to watch out for in the future. The government is targeting broadband connectivity from 15 million currently to over 600 million in 2020, with voice-connectivity being carried forward to data and emerging technologies including cloud computing.

Key trends and expected changes in the Indian media sector

The media and broadcasting sector in India witnesses regular growth on account of technological advancement and the implementation of modern day techniques for media content delivery.

India is already in the final stages of digitisation and is preparing to completely do away with the analogue system. IPTV and HITS services are among a number of those services that have been implemented and are gaining mass acceptance of the Indian population. The TRAI gave its recommendations on cross-media ownership and media plurality, in its aim to ensure the independence of media in the country. The Law Commission of India also commenced a consultation process on various aspects concerning the regulation of media, such as self regulation versus statutory regulation, privacy and defamation, paid news, regulation of social media, among a number of issues viewed as a hindrance to the growth and development of the sector. There are reports indicating that the Commission may come out with its recommendations on the issues, which could bring about regulatory changes in the near future.

The National Roaming Tariffs Set to Reduce by Virtue of the TRAI’s Tariff Order

In a step towards implementing the One Nation – Free Roaming objective of the National Telecom Policy, 2012, the Telecom Regulatory Authority of India (“TRAI”) issued the Telecommunication Tariff (Sixtieth Amendment) Order, 2015 (3 of 2015) vide Press Release No. 26/2015 dated April 9, 2015 (“60^th Tariff Order”), reducing ceiling tariffs for national roaming calls and SMSes. The TRAI also made it mandatory for the telecom service providers (“TSPs”) to offer a special roaming tariff plan. The 60^th Tariff Order would be implemented with effect from May 1, 2015.

TRAI has specifically laid down in the 60^th Tariff Order that a special roaming tariff plan would mean a plan to be offered by the TSPs, where the subscriber would not be charged for an incoming voice call on national roaming upon payment of a fixed charge, if any. Such plan, although currently offered by certain TSPs, would mandatorily have to be offered by all the TSPs to both its pre-paid and post-paid subscribers.

Further, with regard to the revision in the ceilings for voice calls and SMSes, the TRAI has fixed the limits on the tariff chargeable by TSPs. The following table sets-out the comparison between the existing and the revised tariff ceilings for various heads:-

Item	Existing Ceiling (in INR)	Revised Ceiling (w.e.f. May 1, 2015) (in INR)
Outgoing local voice call while on national roaming	1.00 per minute	0.80 per minute
Outgoing long distance (inter-circle) voice call while on national roaming	1.50 per minute	1.15 per minute
Incoming voice call while on national roaming	0.75 per minute	0.45 per minute
Outgoing local Short Message Services (SMS) while on national roaming	1.00 per SMS	0.25 per SMS
Outgoing long distance (inter-circle) Short Message Services (SMS) while on national roaming	1.50 per SMS	0.38 per SMS

The TRAI is of the view that all subscribers would be benefited from the reduced tariff ceilings. TRAI expects competitive pricing among the TSPs within the ceiling levels and would be monitoring the implementation of this regime.

Regular Consultations between the Telecom Department and Operators

In what is being seen as an attempt by the Department of Telecommunications (“DoT”) to mend its relationship with the telecom. operators, which has gone sour over spectrum pricing, quantity and call rates and the airwave auctions the DoT has decided to hold consultations between the Telecom Secretary and executives of the telecom operators on a regular basis.

As readers may be aware from our previous posts the Government garnered approximately INR 1.09 lakh crore from the spectrum auctions that were conducted last month, by selling approximately 89% of the total spectrum put for auction at a premium of about 68%. Infact certain press reports indicate that an amount of around INR 28,872 crore, has been paid by the telecom operators to the Government upfront.

The telecom players apparently have been unhappy with the hefty amounts they had to pay  for buying back airwaves and are of the opinion that this high price for the airwaves would result in lower amount available for network upgradation.

The DoT expressed its willingness to hear all the grievances of the industry and take steps to address them. For the initial meetings with the industry, the DoT’s agenda covers a road map on spectrum trading and sharing, spectrum availability and the plan about the quantum of spectrum to be auctioned for different bands.

Further, as per latest media reports, it appears that the Telecom Minister Ravi Shankar Prasad may also hold separate discussions with industry leaders, addressing the issues faced by the industry.

The Government has been of the view that the spectrum auctions would not result in a rise in the telecom tariffs and that the auction allows for consolidation, since it would lead to the survival of the fittest.

Spectrum Auctions 2015

As readers may be aware from our previous post, the Department of Telecommunications, Ministry of Communications and Information Technology, Government of India (“DoT”) had put up spectrum in 4 bands of 800 MHz, 900 MHz, 1800 MHz and 2100 MHz, spread across the 22 telecom circle of the country. The auction process concluded last week after fierce bidding by eight telecom players over 19 days and 115 rounds.  Our previous posts on the timeline and schedule for the spectrum auctions can be accessed here.

The telecom players which were in the fray to bag spectrum from the auction included Airtel, Vodafone, Idea Cellular, Reliance Communications, Reliance Jio Infocomm, Tata Teleservices, Aircel and Uninor. These operators participated in the auction process comprising of a total of 465 MHz of spectrum across the four bands (103.75 MHz in 800 MHz band, 177.8 MHz in 900 MHz band, 99.2 MHz in 1,800 MHz band and 85 MHz in the 2,100 MHz band ).

In what could be a further boost to the Government, the Supreme Court has lifted a restraint order and allowed finalisation of the auction result. According to reports, these auctions fetched the Government approximately INR 1.09 lakh crore, which translates into INR 10,900,000,000 billion. The Supreme Court direction implies that the Government could have at least INR 28,000 crore from the total auction money before the end of the current financial year.

Earlier, a bench headed by Justice Dipak Misra had on February 26, 2015 allowed the scheduled commencement of spectrum auctions, but directed that the results should not be finalised without its approval. This approval came on March 26, 2015, when the bench observed that it may not be proper to block so much of money, when the Government has agreed that the final allocation will be subject to orders passed by the Supreme Court.

Some of the key highlights of the auction were:-

• Bharti Airtel, Vodafone and Idea Cellular retained their 900 MHz spectrum holdings;
• Reliance Jio Infocom managed to win CDMA band spectrum;
• Although Reliance Communications lost in three telecom circles, but it became India’s first and only operator with a nationwide footprint of the contiguous 800 MHz spectrum;
• Uninor did not win spectrum in any telecom circle;
• Aircel only participated in the bidding process for 1800 MHZ spectrum band, since it was disqualified from bidding for any new spectrum; and
• The Maharashtra circle generated the most revenue, accounting for INR 10,822 crore for 14 MHz of spectrum.

The results of the bidding process, as issued by the DoT can be accessed here and the DoT’s notice regarding the amount due from the telecom players is here.