Telecommunications and Robocalls

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY,

BANGALORE

TELECOMMUNICATIONS AND ROBOCALLS: AN

OVERVIEW OF TELEMARKETING PRACTICES

TORTS -1 PROJECT

Submitted by: Hannan Khalil

Student ID: BA LLB/3015/22
Submission date: 15 August 2022
 Telecommunications and Robocalls

CONTENTS
Torts-1 PROJECT 1
Contents 2
Table Of Authorities 3
Cases 3
Legislations 3
Rules 3
Government Publications 4
Foreign Legislations (United States) 4
Introduction 5
Established Regulatory Mechanisms: An Analysis 6-7
A Brief Comparative Analysis 8
CPA as an Alternative Redressal Mechanism 9-10
Conclusion 11

TABLE OF AUTHORITIES

CASES
1. General Manager, Telecom, versus M Krishnan and Anr, 2009
2. Neena Aneja and Anr v. Jai Prakash Associated Ltd
3. Union of India cs Association of Unified Telecom
4. DP Sharma vs Bharat Sanchar Nigam Limited
5. Cake Tree vs. Anu Sharma (2015) SCDRC, Chandigarh, Revision Petition No.: 11 of
2015

LEGISLATIONS
1. Consumer Protection Act, 1986

2. Consumer Protection Act, 2019

3. Indian Telegraph Act 1885 (the Telegraph Act);

4. Indian Wireless Telegraphy Act 1933 (the Wireless Act);

5, Telecom Regulatory Authority of India (TRAI) Act 1997 (the TRAI Act);
 Telecommunications and Robocalls

6. Personal Data Protection Bill, 2019

REGULATIONS

1. Telecom Commercial Communication Customer Preference Regulation, 2018

2. Telecom Commercial Communication Customer Preference Regulation, 2010

FOREIGN LEGISLATIONS

1, Telephone Robocall Abuse Criminal Enforcement and Deterrence) Act (TRACED), 2019

GOVERNMENT PUBLICATIONS
1, Consultation Paper on Unsolicited Commercial Communication, TRAI, dated
14/-09-22
 Telecommunications and Robocalls

INTRODUCTION

Telephone spammers today are leveraging recent technical advances in the telephony
telecommunications ecosystem to massively distribute automated spam calls known as
robocalls. A 2018 study estimated that upto 85 billion robocalls were made annually- more
than 7 billion each month. 1That represents a 325 percent year – on -year increase, and a stark
illustration of the huge volume of these troublesome robocalls. Once viewed as mere
nuisance, they have reached epidemic proportions, there has been a definite rise in the
automated calls since 2009. A Federal Trade commission report received over 3,75,000
complaints about automated calls as compared to 2009. India too has witnessed a sharp rise
in spam calls over the past few years. A report released by the company True caller revealed
that India ranked fourth on the list of most spammed countries, it surveyed in 2021. 2 Indian
telecommunications regulatory bodies like the Telecom Regulatory Authority of India
(hereafter “TRAI”) have long grappled with the complexity of the regulation of Unsolicited
Commercial Communication (hereafter UCC) owing to technical roadblocks and lack of clear
legislations or regulations. However, in the recent years, major breakthroughs effected
through the interaction of law and technology have influenced the development of regulatory
mechanisms. Telecom Commercial Communication Customer Preference Regulations,
2018(hereafter, “TCCCPR”, “2018) is a testimony to this recent shift.

This paper seeks to critically analyse the role of consumer protection in Telecommunications
and Telephony with a special emphasis on robocalls and other Unsolicited Commercial
Communication (UCC). It does so by first, examining the merits and shortcomings current
regulatory mechanism as constituted under TCCCPR 2018 and Indian Telegraph Act, 1885.
Secondly, it presents a brief comparative analysis of Indian and foreign laws with regards to
UCC and telecommunications regulation. Lastly, the paper tries to answer if Consumer
Protection Authority (hereafter CPA), under the Consumer Protection Act, 2019(COPRA)
provides an alternative redressal mechanism for dealing with complaints concerning
telecommunications and UCC,

1
'Robocalls Infographic' (Consumer Advice, 2022) <https://consumer.ftc.gov/articles/robocalls-
infographic> accessed 16 August 2022.
2
'Robocalls Infographic' (Consumer Advice, 2022) <https://consumer.ftc.gov/articles/robocalls-
infographic> accessed 16 August 2022.
 Telecommunications and Robocalls

ESTABLISHED REGULATORY MECHANISM:

AN OVERVIEW

The regulatory and policy framework encompassing the communications sector in India
comprises a number of statutes, rules, regulations, guidelines, etc, laid down by the
government of India. The primary statutes regulating the sector include:

 the Indian Telegraph Act 1885 (the Telegraph Act);

 the Indian Wireless Telegraphy Act 1933 (the Wireless Act);
 the Telecom Regulatory Authority of India (TRAI) Act 1997 (the TRAI Act)3

The Telegraph Act is the principal legislation underlying the telecommunications regulatory
framework for India and prescribing various powers of the government to operate and
regulate telecoms services in the country. Under the current regime, the task of granting
licences and approvals to telecoms players for providing telecoms services in India has been
assigned to the Department of Telecommunications, the Ministry of Communications and
Information Technology (DoT). Dot and TRAI have at times in the past regulated certain
aspects of telecoms services, such as limiting the number of daily messages that can be sent
using the short-messaging service (SMS). The telecommunications regulatory ecosystem
achieved a breakthrough with the introduction of TCCCPR 2018, issued by TRAI. It provides
a revised regulatory framework aimed at regulating UCC in India. The new regulatory
framework has devolved control and regulatory powers to access providers, who are now
required to establish their own codes of practice (CoPs) to deal with UCC and robocalls. The
2018 regulations provide for a wide range of customer preferences which are to be
implemented in the near future using Distributed Ledger Technology (DLT) to make
communications traceable and capable of being controlled effectively. The incorporation of
granular customer preferences and consent as pre requisites for sending commercial
communication is progressive in its own right. 4
The regulation also calls for the
disconnection of telecom resources of recognised organisations such as banks, insurance

3
(2022) <https://trai.gov.in/tcccpr>
4
(2022) <https://trai.gov.in/tcccpr>
 Telecommunications and Robocalls

companies if they are found engaging in telemarketing through unregistered telemarketers.

TRAI has proposed to impose a penalty of upto Rs 2 Lakh on telemarketing firms against
whom complaints have been received several times. Others may face a fine of upto 10 Lakhs.

However, the regulatory provisions under TCCCPR 2018 fall short on several counts. At
present, there is no robust mechanism to keep the record of consumer consent for commercial
communication which is non repudiable and accessible to resolve the complaint quickly. The
presence of a number of intermediaries between registered telemarketers and content
providers is also a concern since at present, there exists no standard agreement between
registered telemarketers and content providers. Traceability remains a major concern since
UCC nodes transcend international borders. To achieve reduction in time lines for
registration and its enforcement, first and foremost requirement is that all nodes involved in
the registration and enforcement process are available 24X7. Nodes at Access Provider side
and TRAI side e.g., CPRF, PCPR, NCPR etc. are available 24X7 and have redundancy but
nodes involved at RTM side may not be having same level of availability. In fact, there may
be lot of variations in the capabilities of the systems used at RTM end. Constraints even at
one node, may make difficult to achieve reduction in time lines. 5

The regulations mention curbing robocalls, but technical challenges associated with the same
have not been discussed. Spam which is non- commercial in nature also remains out of the
scope of the current regulations. 6TRAI despite offering a technological solution to the
menace of UCC through TCCCPR, the policy documents have no accompanying technical
details. Robocall regulation involves several technical challenges. This involves spoofing of
other numbers, which makes blocking the real identity of the spammer tedious. Furthermore,
non -commercial communication has not been discussed.7

5
(Gsma.com, 2022)
<https://www.gsma.com/northamerica/wp-content/uploads/2020/02/GSMA_Robocall-White-
Paper.pdf>

6
(2022) <https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts> accessed 1
7
(Gsma.com, 2022)
<https://www.gsma.com/northamerica/wp-content/uploads/2020/02/GSMA_Robocall-White-
Paper.pdf>
 Telecommunications and Robocalls

FOREIGN LEGISLATIONS: A COMPARATIVE ANALYSIS’

The United States has instituted one of the most stringent telecommunications regulations
in the world. The Telephone Robocall Abuse Criminal Enforcement and Deterrence Act
(TRACED) which became effective in 2019 gives the Federal Communications
Commission a wide variety of tools to prosecute spam callers. Among other rules, the law
increases fines for robocalls, blocks erring calling nodes and prevents spam calls from
reaching consumers. 8The provision demanding carriers to start automatically blocking
calls from their customers’ phones, sending the calls straight to voicemail.

Unlike TCCCPR in India, TRACED regulates both commercial and non -commercial
unwanted communications by clubbing them under the category of institutional
communications. US telemarketers submit a list of the prospective persons to be solicited,
and the operator sends back the list with the numbers registered in the system deleted.[3]
However, there may be requirement to prescribe fixed charges or maximum charges for
availing such services. The charges may be dependent upon various factors like size of
the list, frequency at which services are accessed, performance requirements etc.
Telemarketers in the US must also comply with FTC, TSR (Telemarketing Sales Rule),
FCC (Federal Communications Commission), TCFPA (Telemarketing and Consumer
Fraud and Abuse Prevention Act) as well as the Consumer Interests regulations. This
intersection of consumer affairs laws and telecommunications regulations holds out a lot
for the regulatory mechanism in India, as the paper further argues. 9

Inspiration may be taken from US telecom regulation laws in this avenue

8
(2022) <https://www.consumerreports.org/robocalls/how-traced-act-robocall-law-will-protect-
consumers/>
9
'Neural Technologies - The Curse of Robocalls Around The World' (Neural Technologies, 2022)
<https://www.neuralt.com/the-curse-of-robocalls-around-the-world/>
 Telecommunications and Robocalls

CPA AS AN ALTERNATIVE REDRESSAL

MECHANISM

For a long time, telecommunication related complaints were thought to fall outside the
purview of COPRA, a belief solidified by the Supreme Court judgement in General Manager
Telcom versus M Krishnan and Amr where it had been held that a dispute between a telegram
authority and consumer does not fall within the purview of the CPA and instead had to be
necessarily resolves through statutory arbitration as provided under the Indian Telegraph Act
(ITA).10 However, recent developments including the passing of COPRA 2019 and the
Supreme Court judgement in Vodafone Idea Cellular vs Ajay Kumar Aggarwal question this
erroneous reasoning. While amendments in COPRA 2019 had already restored the rights of
telecom consumers, the Ajay Kumar Aggarwal judgement interprets the term ‘services’ in
light of the additions to COPRA. 11Services as per sec 2(1)(o) of Consumer Protection Act
and MRTP Act means and includes Telecommunications and Telephony.12 Hence, all telecom
related complaints are maintainable under COPRA and CPA could emerge as an alternative
redressal mechanism.

However, the issue of regulation of robocalls and UCC may prove tougher under CPA. For
one, the CPA is not adept at assessing the technical framework within which UCC and
robocalls exist. The CPA also lacks the provision for a robust verification mechanism at
periodic intervals to ensure the traceability of UCC. Under the present telecom regime, TRAI
alone can issue a unified license to commercial telecom operators. This makes traceability
even more problematic.13

10
Civil no. 7687 OF 2004 General Manager, Telecom .... Appellant Versus M. Krishnan & Anr. .... Respondent
11
Ajay Kumar vs. Lata and Ors. (AIR 2019 SC 2600) 
12
'The Consumer Protection | Department Of Consumer Affairs | Ministry Of Consumer Affairs
Food And Public Distribution | Government Of India' (Consumeraffairs.nic.in, 2022)
<https://consumeraffairs.nic.in/acts-and-rules/consumer-protection>
13
(2022) <https://www.trai.gov.in/consultation-paper-unsolicited-commercial-communication-0>
 Telecommunications and Robocalls

CONCLUSION

From the above discussion, it stands out clear that despite exhaustive and progressive
amendments in the TCCCPR, lacunae continue to exist in telecommunications regulation
especially robocalls and Unsolicited Commercial Communication (UCC). The second part of
the submission puts forth specific comments related to various provisions of the regulation
and suggests improvements therein. A brief comparative analysis of TRACID and TCCCPR
draws out the fact that lacunae in the regulatory framework can eventually be addressed by
diversifying the regulations and strengthening the technical mechanisms. The paper also
argues that while CPA may act as an alternative redressal mechanism, it is highly unlikely to
become a major node of redressal for telecom complaints.

While the regulations are ever expanding and dynamic, the discussion has opened up the
floor for additional questions like- How safe is it to share KYC commercial preferences data
with the government in the absence of a comprehensive data protection law in India? 14 What
will be the impact of additional choices of preferences on various entities like CPRF, PCPR,
NCPR, CPDB etc? Should the scope of UCC regulation be enhanced to include unwanted
calls like silent, obnoxious, threatening calls etc? 15
How important is international co-
operation and collaboration in dealing with the issue of robo -calls? Should TRAI ensure the
availability of mobile apps to register preferences and complaints? 16Can telecom operators
take recourse to TCCCPR in case of breach by a third-party content provider? 17
How
imminent is a conflict between CPA and TRAI?
14
'Neural Technologies - The Curse of Robocalls Around The World' (Neural Technologies, 2022)
<https://www.neuralt.com/the-curse-of-robocalls-around-the-world/>

15
(2022) <https://www.fcc.gov/document/webinar-dealing-robocalls>
16
'Robocalls' (Michigan.gov, 2022) <https://www.michigan.gov/ag/initiatives/robocalls>
17
<https://www.consumerreports.org/robocalls/how-traced-act-robocall-law-will-protect-
consumers/>
 Telecommunications and Robocalls

These questions go much beyond the scope of the paper but are nevertheless worthy of
reflection.