Technological advances in recent times have resulted in two key developments: the modification of existing networks to provide integrated services; and secondly, the transition in information transmission from the analogue to digital mode.

The technological leap resulting from these advances has resulted in convergence, which may be best understood as the ability of the same network platform or infrastructure facility to carry different kinds of services. A key feature of network convergence is the move towards the transmission of information, whether voice, data, sound or pictures, in digital form. Digital transmission may be carried over broadcast networks or over terrestrial wired or wireless infrastructure.

In popular parlance, convergence is symbolised as the coming together of telecommunication infrastructure to provide services such as cable television, basic telephone services and Internet access services through a single infrastructure.In reality, the term convergence carries with it implications of a wider magnitude, impacting lifestyles, the conduct of business, revenue models, and even regulatory frameworks around the world.

The fundamental problem in the existing legal framework governing telecommunications in India is two-fold. Firstly, regulation of convergence should aim to promote the growth of telecom infrastructure that supports convergence as well as enable telecom services to be provided through a common infrastructure.This would require an effort to remove the multiplicity of licensing requirements and merge regulations governing various services.

Presently, telecommunication services are regulated by the Union Government through the Ministry of Communications. A licence under the Telegraph Act, 1885, issued by the President of India acting through the Telegraph Authority is required for providing a telecommunication service. A separate and distinct licence is required for each service such as Internet access services, basic telephony and cellular telephony.

On the other hand, broadcasting services such as radio or television, though governed by the same statute, the Telegraph Act, 1885, fall under the purview of a distinct ministry in the Union Government, the Ministry of Information and Broadcasting.

Secondly, there are regulatory bottlenecks that prevent efficient use of the existing infrastructure to carry information and provide services. Legal and regulatory reform would have to address these basic issues.

Conceptual de-linking

A legal framework that seeks to promote and regulate convergence should move towards conceptually de-linking the infrastructure provider, telecom service provider(s) and the content provider, recognising that these may be distinct and separate entities, requiring different types of regulation.

There have been steady changes in policy, in recent times, as a response to the debate on convergence. At the regulatory level, there has already been a recognition of two categories of infrastructure service providers (IP-I and IP-II).

IP-I guidelines would be applicable in the context of infrastructure providers who seek to provide dark fibres, right of way, duct space, towers on lease/rent out/sale basis to the licensees of telecom services, on mutually agreed terms and conditions.

IP-II guidelines would be applicable for infrastructure providers who lease/rent out/sell end to end bandwidth, i.e., digital transmission capacity capable of carrying messages, to other licensees of telecom services on mutually agreed terms and conditions.

Further, in December 1999, a group on Telecom and IT Convergence was constituted. This group later split into three sub-groups, including one whose terms of reference were to prepare the draft of a new, comprehensive, statute to replace the Indian Telegraph Act, 1885.

In its draft report submitted in August 2000, the group recommended the constitution of a single regulatory authority for both broadcasting and telecom services, to be known as the Communications Commission of India.

At a conceptual level, the group has recommended the regulation of carriage and content, through the enactment of a distinct statute titled the Communications (Carriage and Content) Bill, 2000. The sub-group has proposed that this statute incorporate various aspects of the Broadcasting Bill, 1997, as well as supersede and merge various other statutes, such as the Telecom Regulatory Authority of India Act, 1997, the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act, 1933 and the Cable Television Networks Regulation Act, 1995.

A sub-group on Convergence was constituted in late 1999, whose mandate was to prepare a draft statute to replace the Indian Telegraph Act, 1885. Legislative attempts in the form of the Communications Bill, 2000, and the Information, Communication and Entertainment Bill, 2000, have also been circulated for public comment, which address, to some extent, the need for a common licensing framework for telecommunications services.

The sub-group on Convergence came out with its report in August 2000. It attempts to consolidate the on-going legislative attempts. It seeks to put in place the Communications Commission of India that would take within its purview the licensing framework for telecommunication, broadcasting, data communication, multimedia and other related technologies. The draft report envisages separate categories of licences for network facilities, network services, application services and content application services.

Composite licences

The draft report also contemplates a specific category of licences termed as ``composite licences'' that could be granted for multiple telecommunication services or facilities. The draft report also indicates that the Government would consider amendment of existing licences.

However, certain aspects of the legislation proposed in the draft report require closer scrutiny in view of the practical implications. The concept of ``composite licences'' would have to be clarified and facilitated without having to resort to multiple licensing requirements/applications.

Secondly, a legal framework that seeks to promote and regulate convergence should recognise that the person establishing the telecommunications infrastructure that enables provision of multiple services through the same network, would not have control over the content of each of the services. The network service provider and the telecommunications service provider/s could be different entities.

For instance, the person establishing a cable television network would, ordinarily, have no control over the content being distributed over the network, since that would be the domain of the broadcaster.

Such distinctions require to be taken into account, especially with regard to control and regulation of content.

Another aspect to be noted is that the law should not seek to over-regulate. The draft bills envisage licensing for all kinds of network facilities, including fixed links and cables, towers, poles, ducts, and pits. Such a broad provision could lead to a situation of unreasonable control, and would therefore require reconsideration.

The manner in which legal and regulatory reform is carried out will determine the manner in which convergence impacts our daily lives.