5G regulation and law in India

This chapter was kindly submitted by J. Sagar Associates.

1. What is the state of 5G deployment in your country?    

On 15 June 2022, the union cabinet chaired by the prime minister approved a proposal by the Department of Telecommunications (“DoT”) to conduct a spectrum auction through which spectrum would be assigned for 5G services to public and enterprises. The first 5G auction ended on 1 August 2022, allowing mobile services to roll out in several areas. As of 17 January 2023, Reliance Jio had launched 5G services in 16 new cities across seven states.

2. Are telecoms companies monetising 5G investments - or are the services provided to consumers at similar prices to 4G?

While telecom operators are investing billions in building a 5G network, as operators are yet to monetise the technology because they are working on local use cases.  

3. Has 5G been launched for industrial purposes? For which sectors?    

5G services have launched for the public as well as enterprises, and some telecom operators such as Bharti Airtel, Reliance Jio, BSNL, and Vodafone Idea have begun roll-out. Experts believe that enterprises are likely to use 5G for gaming, cloud computing, logistics, automobile and healthcare. 

Additionally, private enterprises are allowed to establish dedicated Captive Non-Public Networks (“CNPNs”) either by obtaining a licence from a Telecom Licence Provider (“TSP”) or from the Government. Private enterprises may also use CNPN as a service from licensed TSPs. 

4. What is being done to ensure that a wide range of operators and industrial companies, from small to large, have access to frequencies? Are such frequencies accessible to stadiums, airports and other special premises?    

The government decided to offer indigenous 5G testbeds free of cost to recognised start-ups and micro, small & medium enterprises until January 2023. The DoT has strongly urged all stakeholders to use the facilities to test development of their products on the network. Applications and use cases being tested include rural broadband, smart city applications and intelligent transport systems.

While frequencies are accessible to stadiums and other premises, TSPs have been advised to refrain from installing 5G base stations in the 3,300-3,670 MHZ band within 2.1km of runways at all airports. The DoT also told the TSPs to ensure downward tilting of 5G base stations so that the 5G emissions do not interfere with radio altimeters, which allow pilots to understand height. These measures will remain in place until the directorate general of civil aviation ensures replacement of all aircraft altimeters filters.

5. What public tenders have awarded spectrum licences?

Pursuant to the Notice Inviting Applications (“NIA”) issued by the DoT on 15 June 2022, spectrum in the following frequency bands were auctioned - 600 MHz, 700 MHz, 800 MHz, 900 MHz, 1800 MHz, 2100 MHz, 2300 MHz 2500 MHz, 3300 MHz, and 26 GHz bands. 

5.1 What were the criteria for awarding each of the tenders?

The participants were required to fulfil the following criteria: 

  • any telecom licensee holding a Unified Access Service License (“UASL”) or Unified Licence (“UL”) with Access Services (“AS”) authorisation for the service area
  • any licensee that fulfilled the eligibility criteria for obtaining a UL with authorisation for AS, and gave an undertaking to obtain a UL with authorisation for AS; and
  • any entity that gave an undertaking to obtain a UL with authorisation for AS.
    It may also be noted that the NIA also specifies certain associated eligibility conditions. 

5.2 What are the conditions of the spectrum licence?

Similar to the term in certain European countries, the spectrum bands granted through domestic auction, and will be valid for 20 years. However,we note that the validity period will commence from the ‘effective date’, which appears in the frequency assignment letter issued to successful bidders, or from the 31st day of receipt of payment, whichever is earlier. 
The NIA specifies certain roll-out obligations for licensees to whom spectrum is assigned, such as the following: 

  • The licensee must make its own arrangements for all infrastructure involved in rolling out the network and will be solely responsible for commissioning, installation, and operation of all equipment and systems.
  • For verification of the network roll-out and coverage testing, licensees must register with the respective DoT service area units. 
  • The network must be rolled out within a specified time period.

Enterprises can use public 5G, private 5G networks, and 5G network slicing, and telecom service providers that have purchased spectrum will have the right to lease it for captive networks

Bidders were given the right to use spectrum at spectrum frequencies in the 600 MHz, 700 MHz, 800 MHz, 900 MHz, 1800 MHz, 2100 MHz, 2300 MHz 2500 MHz, 3300 MHz and 26 GHz bands.

5.3 What is the price and how is it calculated?

The NIA provides the reserve price, which is the minimum bid price per spectrum block in each service area based on market forces such as demand for the spectrum block depending on availability in the service area. It will be notified of each band auctioned for the different service areas. 

The last 5G auction took place in July 2022. The highest price paid at the 5G spectrum auction was INR 88,078 crores, followed by INR 43,084 crores, and INR 18,799 crores. This is the highest revenue from any domestic auction so far with the total bidding amount at about INR 1.5 trn

6. Is there a long-term spectrum plan or announcements for future tenders?    

Auctions are periodically held for the allocation of spectrum. The DoT will reportedly seek recommendations from the Telecom Regulatory Authority of India (“TRAI”) to conduct the next 5G spectrum auction. TRAI provides recommendations on issues such as spectrum pricing, quantum of spectrum to be auctioned, and the introduction of new spectrum bands. 

The DoT released a Draft Telecommunication Bill (“Bill”) earlier this year. The Bill states that the Central Government (“Government”) may assign spectrum through auction or an administrative process according to the terms and conditions for frequency range, price methodology, price, fees and charges, payment mechanism, duration and procedure. The Bill is in the consultation stage before it is passed as a law.

7. If 5G specific rules are drafted, what do they say?    

There are no 5G specific rules in place. 

8. Are there any issues in the implementation of the 5G projects? Have there been any decisions regarding non-compliance with 5G concessions’ obligations? \

The primary concern in implementing 5G projects is that of spectrum availability, cost of spectrum and scarce fibre roll-out.  However, a recent amendment to the Telegraph Right of Way Rules (“RoW Rules”) that facilitate faster fiberisation and a simpler small cell application process is considered to be a step in the right direction

5G technology is likely to attract an increasing number of cyber security challenges that must be tackled efficiently. 

9. What focused 5G network or spectrum sharing regulation exists? What are the latest developments in the thinking of the regulators about 5G shared infrastructure ownership or use?   

While there are no 5G network-focused regulations, the DoT issued the ‘Guidelines for Sharing of Access Spectrum by Access Service Providers’ in 2021 (“Guidelines) sharing which include the spectrum used for 5G services. The Guidelines permit the sharing of access spectrum subject to certain conditions.

TRAI, in its recommendations on ‘Use of Street Furniture for Small Cell and Aerial Fiber Development’ covered the need to incorporate a provision in the RoW Rules whereby, if more than one TSP makes requests to use the same street furniture and there is insufficient space available to meet the demands of all the requesting TSPs, they must co-ordinate among themselves to find a feasible solution.

Though not specific to 5G infrastructure, TRAI, in its consultation paper issued on 13 January 2023, recognised the possibility of insufficient infrastructure leading to a high level of dependency on shared network elements. Accordingly, TRAI has invited stakeholders to comment on potential amendments to telecom services licences/authorisations with respect to both active and passive infrastructure sharing.

10. Are 5G network sharing or spectrum sharing agreements in place?    

There are no agreements specific to 5G, although TSPs execute agreements to share spectrum in view of the Guidelines.

11. What are or will be the rules for granting competitors access to new 5G networks once they are deployed?   

There are no specific rules on granting competitors access to new 5G networks. 5G is accessible to the public and enterprises.

12. What comments have been made regarding 5G cyber-security and possible use of Chinese technology, including regulation?  

While there is a recognised need to regulate the 5G cyber-security space, there is no specific 5G legislation. The Indian Computer Emergency Response Team (“CERT-In”), under the aegis of the MeitY, issued new directions (“2022 Directions”) on how to respond to and report cyber incidents. The 2022 Directions introduced a host of cyber-security breach reporting and record maintenance requirements that apply to any entity encountering a cyber security incident.
 
Due to security concerns, the government has established the Trusted Telecom Portal (“TTP”), which means it will have to approve any telecom sector investments with countries such as China that share a border with India.
 
The Department for Promotion of Industry and International Trade (DPIIT) issued a notification dated 17 April 2020 stating that any non-resident entity in a country sharing a land border with India or where the beneficial owner of an investment into India is situated in, or is a citizen of any such country, may only invest in India by obtaining prior government approval.

Shruthi Shekar
Radhika Gupta
Tony Verghese