Is the Telecom Act 2023 broad enough to regulate OTT services?

One part of the Telecommunication Act 2023 covers broadcasting and to that extent, over-the-top (OTT) services would be covered under the scope of the Act, says Niraj Verma, administrator of the Universal Services Obligation (USOF) Fund and Additional Secretary of the Department of Telecommunications (DoT).

Inclusion of the OTT services under the Telecom Act was a major point of contention from the beginning. The telecom bill was first released in 2022, and the first draft of this bill included OTT communication services (which includes services like WhatsApp and Telegram) under the scope of telecommunication services. However, the 2023 iteration of the bill, which was passed during the winter session of the Parliament last year, did not include the term OTT.

Despite the absence of OTTs, the act continues to have a broad definition of the term message which includes “any sign, signal, writing, text, image, sound, video, data stream, intelligence or information sent through telecommunication.” The broad nature of this definition led to concerns that OTT communication services might still be regulated by the DoT despite not having been explicitly included under the Telecom Act.

Some context:

The term “OTT” is used to describe services that ride on top of a telecom company’s network. This refers to two separate kinds of services—

• Calling and messaging services (called OTT communication services)
• Streaming services (called OTT broadcasting services).

Wait, since when is broadcasting under the Telecom Act?

The word “broadcasting” (or even broadcast) only features in the Telecom Act once, and that is under its first schedule which lists out services for which spectrum will be allocated administratively. In the first schedule, it’s been stated that the spectrum for “public broadcasting services” will be allocated administratively.

This raises the question: What did Verma mean by including broadcasting under the bill’s scope? It must be noted that the definition of “message” could potentially be broad enough to include broadcasting. This is because sound and video carried over telecommunication could cover streaming services.

Interestingly, the 2022 bill clearly included broadcasting services, mentioning ‘broadcasting’ ten times and including it under the scope of telecommunication services.

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