China; The Rough Guide

April 1, ‘02 was a milestone in the history of Indian telecommunications, as the government permitted Internet Service Providers (ISPs) to offer Internet telephony services. Consequently, the Department of Telecommunications (DoT) has granted licences to several ISPs to offer these services. However, the revised ISP licence spawns a host of legal issues that need to be addressed effectively.

Restrictive scope of Internet telephony: According to the the revised ISP Licence, ISPs can provide only three types of Internet telephony services: From a PC in India to a PC inside and outside India; From a PC in India to a telephone outside India; and From an IP-based H.323/SIP Terminal in India to similar terminals in India and abroad, provided they employ the IP addressing scheme of the Internet Assigned Numbers Authority.

ISPs are prohibited from providing any services outside the purview of the above three modes. As the scope of internet telephony in the second mode is restricted to calls made to telephones outside India, if an ISP allows a PC user in India to call a telephone in India, it would violate the ISP Licence and the ISP could be penalized for the same.

Prohibited services: The revised ISP Licence prohibits ISPs from offering the following services: Voice communication from anywhere to anywhere by means of dialing a telephone number (PSTN/ISDN/PLMN) as defined in National Numbering Plan; Originating and terminating a voice communication service from and to a telephone in India; Establishing connection to any public switched network in India; Dial up lines with outward dialing facility from nodes; and interconnectivity between ISPs who are permitted to offer internet telephony services and the ISPs who are not permitted to offer them.

All the above conditions should be met whilst providing internet telephony services.

Ambiguity in the meaning of PC and telephone: While, the revised ISP licence states that `PC to PC’ internet telephony is permitted in India, it does not clearly define a `PC’. Under the Information Technology Act, 2000 (the Act), a “computer means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic or memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network.”

Thus, the definition of a computer is wide and not restricted to a normal personal computer. Should this definition be adopted or should one stick to a narrower definition of what we understand as a `PC’ which we use at home or office?

The revised ISP licence also states that the telephone call cannot be originated from or terminated on a telephone in India, but it does not define `telephone’. Even the Indian telecommunications laws do not clearly define `telephone’. With the emergence of new technologies, there are mobile phones with computing power (like the Nokia 9110).

There is also convergence between personal digital assistances and telephones (like TREO). Would they be classified as PCs or telephones? There is some ambiguity as to whether IP phones can be freely used to provide internet telephony services. While it is technically possible to originate calls from IP-based networks, it is uncommon to terminate calls from other networks onto an IP-based network (except in the case of IP PABX system). Since a call from/to a number on the national numbering plan is prohibited, a call from an E.164 universal numbering plan may not be allowed.

However, the International Telecommunications Union is studying an option of assigning an E.164 numbering resource to an IP phone using the ENUM protocol. The ENUM protocol converts the E.164 number to an IP address, and a telephone user can call an IP phone by dialing the E.164 number. Would this be permitted under Indian law?

Validity of messenger service facilities: Of late, there has been some debate regarding voice chat facility offered by instant messenger services. Do such services amount to internet telephony? If these instant messengers use the internet to transmit voice messages between the two users, the service may amount to internet telephony (PC to PC).

Are these services permitted in India? To offer internet voice chat facility, the messenger would need an ISP licence or the messenger may have to enter into an appropriate arrangement with the ISP to offer the voice chat facility. However, the legality of this is unclear, especially as ISPs are not allowed to assign or sub-licence their services. Blocking of internet telephony websites: The ISP licence does not require that an ISP must provide internet telephony services only to its internet subscribers, nor does it mandate that internet telephony and internet services have to be provided together.

However, news reports indicate that after April 1, ‘02, some ISPs have started blocking access to websites of other rival ITSPs (including foreign ITSPs). If so, do they have the authority to block the sites?

Many ITSPs have tied up with international ITSPs to leverage their customer base. The viability of this option remains to be seen, as foreign ITSPs can set up 100% subsidiaries in India without the help of Indian ISPs. In fact, it may be economically advantageous as they have their servers and networks in foreign countries.

With increased competition, relatively high tariffs and low tele-density, India is an attractive market for internet telephony. However, regulations that artificially restrict the usage and growth of internet telephony will only make the viability of this service more complex and ambiguous. The DoT needs to try to resolve ambiguities in the ISP licence to avoid misunderstandings and enable ISPs to utilize their licence to the best possible extent. Meanwhile, ISPs must ensure that their internet telephony services fall within the extant regulatory parameters to minimize liability, if any.