International Long Distance (Terms and Conditions)
1. Ownership of the Licensee Company
1.1 Foreign direct investment up to 100% with 49% under automatic route and beyond 49% through Foreign Investment Promotion Board (FIPB) route, subject to observance of licensing and security conditions by the licensee, as well as investors, as notified by the Department of Telecommunications (DoT) from time to time.
(i) Both, direct and indirect foreign investment in the licensee company shall be counter for the purpose of calculating FDI.
1.2 The licensee shall declare compliance with license and security conditions, and the Indian and foreign equity as on 1st January and 1st July, by 7th January and 7th July respectively to the licensor. This is to be certified by the licensee company’s company secretary or statutory auditor.
1.3 The licensee shall also ensure that any change in share holding shall be subject to all necessary statutory requirements.
1.4 Change in the name of the licensee company shall be permitted in accordance with the provisions under the Indian Companies Act, 1956.
1.5 The licensee company shall have a net worth as well as paid up capital of INR 2,50,00,000 (Rupees Two Crores Fifty Lakhs). The net worth shall mean as the sum total, in Indian rupees, of paid up equity capital and free reserves. The net worth of promoters shall not be counted. The networth as well as paid up capital is to be maintained during currency of the license.
2. Scope of the License
2.1 This license is granted to provide services, as defined in paragraph 2.2 of this license agreement, on a non-exclusive basis, and others can also be granted a license for the service.
PROVIDED FURTHER that the licensor, of its own or through a designated authority, shall always have a right to operate the service.
(a) The international long distance (ILD) service is basically a network carriage service (also called ‘bearer’) providing international connectivity to networks operated by foreign carriers. The ILD service provider is permitted full flexibility to offer all types of bearer services from an integrated platform. The ILD service provider will provide bearer services so that end-to-end televideo and multimedia etc. can be provided by access providers to customers. Except global mobile personal communication service (GMPCS), including through INMARSAT for which a separate license is required, other services listed in the appendix are permitted to the licensee. ILD service providers are permitted to offer international bandwidth, on lease, to other operators. ILD service providers shall not access subscribers directly (except for leased circuits/closed user groups) which should be through national long distance (NLD) service providers or access providers. However, an ILD service provider may access subscribers directly, only for the provision of ILD voice services through calling cards. The ILD service provider is permitted to provide international bandwidth, on lease, to resellers who are issued a license for resale of international private leased circuits (IPLC) under Section 4 of the Indian Telegraph Act, 1885.
(b) The ILD service provider can enter into an arrangement for leased lines with access providers/NLD service providers.
FURTHER, ILD service providers can access subscribers directly only for the provision of international leased circuits/closed user groups (CUG’s) and also for ILD voice services, through calling cards only. ‘Leased circuit’ is defined as a virtual private network (VPN) using circuit or packet switched (internet protocol) technology, apart from point-to-point non-switched physical connections/transmission bandwidth. Public network is not to be connected with leased circuits/CUG’s.
(c) Equal access to bottleneck facilities at cable landing stations (CLS), including landing facilities for submarine cables for licensed operators on a non-discriminatory basis, shall be mandatory. The terms and conditions for such access provision shall be published with the prior approval of TRAI by the licensee owning the cable landing station. The charges for such access provision shall be governed by the regulations/orders as may be made by the DoT/TRAI from time to time.
(d) For ILD licensees who wish to provide only layer-2 and layer-3 virtual private network (VPN) services, the following security monitoring conditions shall be applicable in place of the security monitoring conditions applicable to ILD licensees, provided the licensee obtains connectivity/bandwidth from other access service licensees/NLD licensees/ILD licensees/international gateway of ISP’s:
Necessary arrangements for enabling security monitoring shall be made available by the licensee, including its maintenance as and when required by designated security agencies. The cost of monitoring equipment shall be borne by the licensee. Sharing of monitoring capabilities with existing licensees from whom bandwidth/connectivity has been taken shall be permitted on mutually agreed arrangements. Surveillance and monitoring of traffic relating to existing layer-2 and layer-3 VPN licensees who obtain an NLD/ILD license shall continue as per the current procedure at the international gateway of ILD operators from whom layer-1 services or international private line circuits have been leased. Existing and future licensees of layer-2 and layer-3 VPN services shall be treated at par with regard to all the terms and conditions of the licence.
(e) The provision of other intelligent network based services (except intelligent network services for the operation of calling cards) such as televoting and toll-free services is not allowed to ILD service providers. The provision of value added services such as SMS/MMS, ringtones etc. through calling cards is also not allowed to ILD service providers.
The terms and conditions of interconnection for such access, including the points of interconnection and technical aspects, shall be as mutually agreed to between the service providers within the framework of, and in accordance with the regulations, directions, orders or instructions as may be issued from time to time by TRAI under the TRAI Act, 1997 and directions, orders or instructions as may be issued from time to time by the licensor.
The charges and sharing of revenue for the service features, network architecture and resources used for providing ILD voice services through calling cards shall be as mutually agreed to between the service providers within the framework of, and in accordance with, the regulations, directions, orders or instructions that may be issued from time to time by TRAI under the TRAI Act of 1997 and directions, orders or instructions as may be issued from time to time by the licensor.
The provisions of Clause 2.2(e) of the license are in addition to, and not in derogation of, other terms and conditions of the license.
(f) The licensee shall clearly indicate to the subscriber the specifications of the service to be offered through calling cards at the time of entering into a contract with such subscriber.
3. Duration of the License
This license comes into force on [__] (hereinafter called the ‘effective date’ of the license) and is on a non-exclusive basis, and shall be valid for a period of 20 (twenty) years, unless revoked earlier, for reasons as stated in the license agreement.
4. Extension of the License
The license is extendable by a period of 5 (five) years, subject to satisfactory performance in accordance with the terms and conditions of the license, particularly in regard to the quality of service (QoS) parameters.
5. Fees Payable
5.1 The licensee shall pay one time entry fee of Rs 2,50,00,000 (Rupees Two Crores and Fifty Lakhs) which shall be non-refundable and payable before signing of the license.
5.2 A uniform annual licence fee rate of 8% (eight percent) of the adjusted gross revenue (AGR) shall be adopted for the ILD service licence in two steps, starting from 1 July 2012 as follows:
|Annual Licence Fee Rate as a percentage of AGR|
|For the Period from 1 July 2012 to 31 March 2013||For the year 2013-14 and onwards|
|7%||8% [Inserted vide Ministry of Communication & IT dated 28 June 2012]|
5.3 Payments for point-to-point radio links: The fee/royalty for the use of spectrum, and also for the possession of wireless telegraphy equipment for point-to-point radio links shall be separately payable as per the details and prescription of the Wireless Planning & Coordination (WPC) wing. The fee/royalty payable for the use of spectrum/possession of wireless telegraphy equipment for point-to-point radio links, depends upon various factors such as the frequency, link-length, area of operation and other related aspects.
6. Schedule of Payment of Annual License Fee and other Dues
6.1 For the purposes of the license fee at Clause 5.2 above, the first year shall end on 31st March following the date of commencement of the license agreement and the license fee for the first year shall be determined on a pro rata basis for the actual duration of the ‘year’. From the second year onwards, the year shall be of 12 (twelve) English calender months, from the 1st of April to the 31st of March, for the payment of license fee.
Explanation: The license fee for the last quarter of the first year, and last quarter of the last year of the license, will be computed with reference to the actual number of days after excluding the earlier quarters, each being of three months.
6.2 The license fee shall be payable in four quarterly instalments during each financial year. The quarterly instalments of licence fee for the first three quarters of a financial year shall be payable by the licensee within 15 days of the completion of the relevant quarter of the year. This fee shall be paid by the licensee on the basis of actual revenues (on an accrual basis) for the quarter, duly certified with an affidavit by a representative of the licensee, authorised by a board resolution coupled with a general power of attorney. However, for the last quarter of the financial year, the licensee shall pay the license fee by 25th March, on the basis of expected revenues for the quarter, subject to a minimum payment equal to the actual revenue share paid for the previous quarter. For delayed payments beyond the due date, a penalty as stipulated in the license, for delayed payments will apply. The licensee shall adjust and pay the difference between the payment made and actual amount duly payable (on an accrual basis) for the last quarter of the financial year within 15 days of the end of the said quarter.
6.3. The quarterly payment shall be made together with a statement, in the prescribed form given in Annexure A, showing the computation of adjusted gross revenue (AGR) and license fee payable for the previous quarter. The aforesaid statements of each year shall be required to be audited by the auditor (hereinafter called the ‘licensee’s auditor’) of the licensee appointed under Section 224 of the Companies Act, 1956. The report of the auditor should be in the prescribed form given in Annexure B.
The licensor shall have the right to inspect the books of accounts of the licensee, and, in addition, have an independent audit conducted to ascertain the correctness of the license fee paid. Full details of the settlement regime, through accounting rate mechanisms, shall be required to be filed by the ILD service licensee with the licensor on a regular basis. All bilateral settlements between the ILD service licensee and other foreign partners (carriers) shall be through normal banking channels, in a transparent manner.
6.5 Any delay in the payment of license fee, or any other dues payable under the license beyond the stipulated period will attract interest at a rate which will be 2% above the prime lending rate (PLR) of the State Bank of India existing as on the beginning of the financial year (1st April) in respect of the licence fees pertaining to the said financial year. The interest shall be compounded monthly, and a part of the month shall be reckoned as a full month for the purpose of calculation of interest.
6.6 Final adjustment of the license fee for the year shall be made on or before 30th June of the following year based on the gross revenue figures duly certified by the auditors of the licensee in accordance with the provision of Companies Act, 1956.
6.7 A reconciliation between the figures appearing in the quarterly statements, with those appearing in annual accounts, shall be submitted along with a copy of the published annual accounts and audit report, within 7 (seven) days of the date of signing the audit report. The annual financial accounts and the statement as prescribed in Clause 6.3 shall be prepared after following the norms prescribed in Annexure C.
6.8 In case the total amount paid on the self-assessment of the licensee as quarterly license fee for the 4 (four) quarters of the financial year falls short by more than 10% (ten percent) of the payable license fee, it shall attract a penalty of 50% (fifty percent) of the entire amount of short payment. This amount of short payment, along with the penalty, shall be payable within 15 (fifteen) days of the date of signing the audit report on the annual accounts, failing which, the interest shall be further charged as per the terms of Clause 6.5. However, if such short payment is made good within 60 (sixty) days from the last day of the financial year, no penalty shall be imposed.
6.9 The fee/royalty described at Clause 5.3 above shall be payable at such time(s) and in such manner as the wireless planning and coordination (WPC) wing of the Department of Telecommunications, Ministry of Communications may prescribe from time to time.
6.10 All sums becoming due and payable as mentioned in this license agreement shall be paid by the licensee through a demand draft or pay order payable at New Delhi, drawn on any scheduled bank, in favour of the ‘Pay & Accounts Officer (HQ), DOT’ or any other authority so designated by the licensor.
6.11 The licensor, in order to ensure proper and correct verification of the revenue share paid, can, if deemed necessary, modify, alter, substitute and amend whatever is stated in Clause 6.3, 6.7, 8.5 and 8.6 of this schedule hereinbefore and hereinafter written.
7. Bank Guarantees
7.1 Performance Bank Guarantee for Roll-out obligations: A bank guarantee for Rs. 2,50,00,000 (Rupees Two Crores and Fifty Lakhs) favouring the licensor, guaranteeing due fulfilment of the stipulated roll-out conditions in this licence is to be submitted in the prescribed proforma (Annexure D) before signing the license agreement. The guarantee will be released as soon as the roll-out obligations are met. Non-fulfilment of the roll-out conditions, within prescribed period, will result in encashment of the bank guarantee by the licensor. This will be without prejudice to any other action which the licensor may consider appropriate upon failure of the licensee to fulfil its licence conditions.
7.2 Financial Bank Guarantee: The licensee company shall submit a financial bank guarantee (FBG) of Rs. 20,00,000 (Rupees Twenty Crores) within 1 (one) year from the effective date of the license agreement, or before the commencement of services, whichever is earlier, in the prescribed proforma (Annexure E) given in the licence agreement. The FBG shall be valid for a period of 1 (one) year and shall be renewed from time to time for such amount as may be directed by the licensor. The amount of FBG shall be equivalent to the estimated sum payable for 2 (two) quarters towards the license fee.
7.3 The fees, charges and royalties payable for the use of spectrum, and also for the possession of wireless telegraphy equipment, shall be separately securitised by furnishing FBG of an amount equivalent to the estimated sum payable annually, in the proforma annexed, to the wireless planning and coordination (WPC) wing, valid for a period of 1 (one) year, renewable from time to time till the final clearance of all such dues.
7.4 The licensee, on its own, shall extend the validity period of the FBG for similar terms, at least 1 (one) month prior to the date of its expiry, without any demand or notice from the licensor on a year-to-year basis. Any failure to do so, shall amount to a violation of the terms of the license and entitle the licensor to encash the financial bank guarantee and to convert it into cash security, without any reference to the licensee, at his risk and cost. No interest or compensation whatsoever shall be payable by the licensor on such encashment.
7.5 Without prejudice to its rights under any other remedy, the licensor may encash the FBG in case of any breach under the terms and conditions of the license, by the licensee.
8. Preparation of Accounts
8.1 The licensee will draw, keep and furnish independent accounts for the service, and shall fully comply with the orders, directions or regulations, as may be issued from time to time by the licensor or TRAI, as the case may be.
8.2 The licensee shall be obliged to:
a) Compile and maintain accounting records sufficient to show and explain its transactions in respect of each completed quarter of the license period, or of such lesser periods as the licensor may specify, fairly presenting the costs (including capital costs), revenue and financial position of the licensee’s business under the license, including a reasonable assessment of the assets employed in, and the liabilities attributable to the licensee’s business, as well as for the quantification of revenue or any other purpose.
b) Procure in respect of each of those accounting statements prepared in respect of a completed financial year, a report by the licensee’s auditor in the format prescribed by the licensor, stating inter alia, whether in his opinion that statement is adequate for the purpose of this condition, and thereafter deliver to the licensor a copy of each of the accounting statements, along with the report, not later than 3 (three) months after the end of the period to which they relate.
c) Send to the licensor, a certified statement sworn on an affidavit by an authorised representative of the company, containing a full account of the revenue earned from the service for each quarter separately, along with payment for the following quarter.
(a) The licensor or TRAI, as the case may be, shall have a right to call for, and the licensee shall be obliged to supply and provide for, the examination of any books of accounts that the licensee may maintain in respect of the business carried on to provide the service(s) under this license, at any time.
(b) The licensee shall invariably preserve all billing and other accounting records (electronic as well as hard copy) for a period of 1 (one) year from the date of publication of the duly audited and approved accounts of the company, and any dereliction thereof shall be treated as a material breach, independent of any other breach, sufficient to give a cause for cancellation of the license.
8.4 The records of the licensee will be subject to such scrutiny, as may be prescribed by the licensor, so as to facilitate independent verification of the amount due to the licensor as its share of the revenue.
8.5 The licensor may, on forming an opinion that the statements or accounts submitted are inaccurate or misleading, order an audit of the accounts of the licensee by appointing an auditor at the cost of the licensee and such auditor(s) shall have the same powers that the statutory auditors of the company enjoy under Section 227 of the Companies Act, 1956. The remuneration of such auditor, as fixed by the licensor, shall be borne by the licensee.
8.6 The licensor may also get conducted a ‘special audit’ of the licensee company’s accounts/records by ‘special auditors’, the payment for which, at rates fixed by the licensor, shall be borne by the licensee company. The special auditors shall also be provided the same facility and have the same powers as that of the companies’ auditors as envisaged in the Companies Act, 1956.
8.7 The licensee shall be liable to prepare and furnish the company’s annual financial accounts, according to the accounting norms prescribed and the directions given by the licensor or the TRAI, as the case may be, from time to time.
9. Delivery of Service
9.1 The licensee shall be solely responsible for the installation, networking and operation of necessary equipment and systems for the provision of services, treatment of subscriber complaints, issuance of bills to its subscribers, collection of its component of the revenue, attending to claims and damages arising out of its operations.
9.2 The licensee shall intimate the licensor 1 (one) month prior to its intention of commencing services by establishing a point-of-presence (POP). However, the exact date of commencement of the service shall be required to be intimated to the licensor within 1 (one) week from the date of such commencement, along with proof of completion of the interconnection tests, as stipulated in Clause 25 of this agreement.
9.3 The licensee undertakes to fulfil the following minimum network roll-out obligations:
|Time period (from the effective date)||Establishment of International Gateway Facility (POP)|
|3 years||At least one gateway switch is to be installed, having appropriate interconnections with at least one national long distance (NLD) service licensee.There is no bar in setting up of a point-of-presence or gateway switches in the remaining locations of Level I TAX’s. Preferably, these POP’s should conform to open network architecture (ONA) i.e. it should be based on internationally accepted standards to ensure seamless working with other carriers’ network.|
10. Information to the Licensor and TRAI
10.1 The licensee shall be obliged to furnish any information to the licensor, as called upon from time to time. The licensee shall also submit information to TRAI as per any order, direction or regulation issued from time to time under the provisions of the TRAI Act, 1997 or any amended or modified statute.
10.2 The licensee shall, in no case, permit connectivity or a similar type of service to any other telecom service provider (including those other service providers (OSP’s) who do not require a license under Section 4 of the Indian Telegraph Act, 1885) whose license/permission is either terminated, suspended or not in operation at a given point of time. Where connectivity already exists, the licensee shall be obliged to disconnect or sever the connectivity immediately, without loss of time. Upon receipt of any reference from the licensor in this regard, the disconnection shall be made effective within 1 (one) hour of receipt of such reference. On the question of disconnectivity, the decision of the licensor shall be final and binding.
10.3 Wherever considered appropriate, the licensor may conduct an inquiry, either suo moto, or on a complaint to determine whether there has been any breach in complying with the terms and conditions of the license, by the licensee, and for facilitating such inquiry, the licensee shall extend all reasonable facilities, without any hindrance.
11. Restrictions on Transfer of License
11.1 The licensee shall not, without the prior written consent of the licensor as described below, either directly or indirectly assign or transfer this license in any manner whatsoever to a third party, or enter into any agreement to sub-license and/or a partnership relating to any subject matter of the license to any third party, either in whole or in part, i.e. no sub-leasing/partnership/third party interest shall be created.
PROVIDED that the licensee can always employ or appoint agents and employees for the provision of the service.
11.2 The licensee may transfer or assign the license agreement with the prior written approval of the licensor, to be granted upon fulfilment of the following conditions:
(i) When the transfer or assignment is requested, in accordance with the terms and conditions, on fulfilment of the procedures for the tripartite agreement if already executed, amongst the licensor, licensee and lenders; or
(ii) Whenever amalgamation or restructuring (i.e. merger or demerger) is sanctioned and approved by the high court or a tribunal, as per the law in force; in accordance with the provisions; more particularly Sections 391 to 394 of Companies Act, 1956; and
(iii) The transferee/assignee is fully eligible in accordance with the eligibility criteria contained in the tender conditions, or in any other document for grant of a fresh license in that area and shows its willingness, in writing, to comply with the terms and conditions of the license agreement, including past and future roll-out obligations; and
(iv) All the past dues are fully paid up till the date of transfer/assignment by the transferor company, and thereafter the transferee company undertakes to pay all future dues, inclusive of anything remaining unpaid of the past period by the outgoing company.
12. Modifications in the Terms and Conditions of the License
12.1 The licensor reserves the right to modify, at any time, the terms and conditions of the license if, in the opinion of the licensor, it is necessary or expedient to do so in public interest or in the interest of the security of the state, or for the proper conduct of telegraphs. The decision of the licensor in this regard shall be final and binding.
13. Suspension, Revocation or Termination of the License
13.1. The licensor reserves the right to suspend the operation of this license, in whole or in part, at any time, if, in the opinion of the licensor, it is necessary or expedient to do so in public interest, or in the interest of the security of the state, or for the proper conduct of telegraphs. The revenue share payable to the licensor as license fee will not be required to be paid for the period for which the operation of the license is suspended in totality, but a claim for refund of any charge or fee shall not be maintainable.
PROVIDED that the licensor shall not be responsible for any damage or loss caused or arising out of the aforesaid action.
PROVIDED FURTHER that the suspension of the license will not be a cause or ground for extension of the period of the license, and the suspension period will be taken as the period already spent.
13.2 Without prejudice to any other remedy available for the breach of any conditions of the license, the licensor may, by a written notice of 60 (sixty) days issued to licensee at its registered office, terminate this license in whole or part, under any of the following circumstances:
If the licensee:
(a) fails to commission or deliver any, or all, of the services within the time period(s) specified in the license.
(b) fails to perform any obligation(s) under the license, including timely fee payments and other charges due to the licensor;
(c) does not rectify the failure within the notice period, as may be pointed out to the licensee by the licensor;
(d) becomes bankrupt/goes into liquidation, or is declared insolvent, or is ordered to be wound up.
(e) is recommended by TRAI for termination of its license for non-compliance with the terms and conditions of the license.
(f) fails to comply with the FDI norms as indicated in Clause 1.1 to 1.8 above.
13.2 (ii) The licensor may also impose a financial penalty not exceeding Rs. 50,00,00,000 (Rupees 50 Crores) for violation of the terms and conditions of the license agreement.
13.3 The licensee may surrender the license by giving an advance notice of at least 60 (sixty) days to the licensor to this effect. The licensee shall also notify all of its subscribers of the consequential withdrawal of services, by sending a 30 (thirty) days’ notice to them. The licensee shall pay all dues pending till the date on which the surrender of the licensee becomes effective. The effective date of the surrender of the license will be effective on the 60th calender day, counted from the date of receipt of such notice by the licensor.
13.4 During the period when a notice for termination or surrender of license is pending, the quality of service to the subscribers, as per prescribed standards, shall have to be maintained by the licensee, failing which, it shall be treated as a material breach without prejudice to any other remedy available to the licensor.
13.5 The licensor reserves the right to revoke the license at any time in public interest, by giving a notice of 60 (sixty) days, counted from the date of issue of such notice.
13.6 The licensor reserves the right to take over the entire services, equipment and networks of the licensee, or revoke/terminate/suspend the license in public interest, or national security, or in the event of a national emergency/war, or low intensity conflict, or similar type of situations. Further the licensor reserves the right to keep any area out of the operation zone of the service, if implications of security so require. The decision of the licensor shall be final and binding in this regard.
14. Actions Pursuant to Termination of the License
14.1 If, under the license agreement, an event occurs which entitles the licensor to terminate the license agreement, the licensor shall proceed in accordance with the terms and conditions provided in the tripartite agreement, wherever such agreement is executed and signed. In cases where no tripartite agreement is signed, the action will be taken as per the clauses given below.
14.2 On termination, surrender or expiry of the license, the bank guarantees shall be released to the licensee only after ensuring clearance of all dues, and upon fulfilment of its roll-out obligations, otherwise the bank guarantees shall be encashed, without prejudice to any other action(s) for recovery of the amounts due to the licensor.
15. Obligations Imposed on the Licensee
15.1 The provisions of the Indian Telegraph Act, 1885, the Indian Wireless Telegraphy Act 1933, the Telecom Regulatory Authority of India Act, 1997 and the rules and regulations framed thereunder, as modified from time to time, or any other statute on their replacement, shall govern this license.
15.2 The licensee shall furnish all necessary means and facilities as required for the application of Section 5(2) of the Indian Telegraph Act, 1885, whenever the occasion so demands. Nothing provided and contained anywhere in this license agreement shall be deemed to adversely affect anything provided or laid under the provisions of the Indian Telegraphs Act, 1885 or any other law on the subject in force.
16. Network Standards
16.1 The licensee shall ensure adherence to the National Fundamental Plan (describing the numbering, routing and transmission plan) issued by the Department of Telecommunications, and any technical standards as prescribed by the licensor or TRAI from time to time. For providing a choice in international long distance (ILD) operators, the equipment shall support selection facilities such as dynamic selection or pre-selection as per prevailing regulations, directions, orders or determinations issued by the licensor or TRAI on the subject.
16.2 The licensee shall use any type of network equipment, including circuit and/or packet switches that meet the relevant International Telecommunication Union (ITU)/ Telecommunication Engineering Centre (TEC) standards, or any industry standards in the absence of these (ITU/TEC) standards .
Explanation: In cases where both ITU and industry standards exist, the ITU standards will prevail over industry standards.
16.3 In the case of new technologies where no standards have been determined, the licensee will seek the approval of the licensor before deploying them. Technologies which are successfully in use internationally for at least 1 (one) year continuously for a subscriber base of 1,00,000 (One Lakh) shall be preferred for adoption.
16.4 Requisite monitoring facilities/equipment, for each type of system used, shall be provided by the licensee at its own cost for monitoring as and when required by the licensor or a designated authority.
16.5 International long distance (ILD) service providers are permitted to deploy circuit-switched or managed VoIP networks to engineer their ILD networks. However, ILD service providers are also permitted to engineer lower than toll quality networks for the customers who do not mind some degradation in voice quality. The quality of service parameters shall be as prescribed by the licensor or TRAI from time to time. The toll quality will mean a mean opinion score (MOS) of 4 or above on a scale of 1-5.
16.6 The subscriber should be made fully aware of lower-than-toll-quality network, as well as a lower tariff for the same. A separate code, allotted by the licensor, will have to be offered by the operator for such services.
16.7 The engineered network shall conform to applicable international and national standards. The measurement of voice quality, both by objective as well as subjective methods, shall be as defined from time to time.
17. Network Interconnection
17.1 It shall be mandatory for all national long distance (NLD) service providers and all international long distance (ILD) service providers to provide interconnection to each other, whereby subscribers could have a free choice in making ILD calls through any ILD service provider. ILD traffic should be routed through the network of NLD service providers to the ILD service providers’ gateways for onward transmission to international networks. However, the access provider shall not refuse to interconnect with the licensee directly, in situations where the point-of-presence of the ILD service licensee and switches of the access provider (GMSC/transit switch) are located at the same station of Level I TAX .
17.2 The licensees (who are ILD, NLD, Basic or Cellular Mobile Telephone service operators) can have only one switch to perform the functions of ILD/ NLD/cellular/basic services, provided that the switch is located at the same station and separate accounts of all its operations are maintained, by duly apportioning the costs between various services. A separate TAX and gateway switch is not mandatory.
17.3 Interconnection with switched networks of different service providers within India shall be as per national standards of CCS No.7, issued from time to time by the Telecom Engineering Centre (TEC). For interconnection with packet-switched networks of different service providers within India, the relevant national standards are to be followed. For inter-networking between circuit-switched and VoIP based networks, the ILD service licensee shall install a media gateway switch.
17.4 An ILD service provider may enter into suitable arrangements with other service providers to negotiate interconnection agreements, whereby the interconnected networks will provide the following:
(a) To connect, and keep connected, to their applicable systems;
(b) To establish and maintain one or more points of interconnect as are reasonably required, and are of sufficient capacity and in sufficient numbers, to enable the transmission and reception of messages by means of the applicable systems;
(c) To meet all reasonable demands for the transmission and reception of messages between the interconnected systems.
17.5 The terms and conditions of interconnection, including standard interfaces, points of interconnection and technical aspects, will be as mutually agreed to between the service providers within the framework of orders, directions or regulations issued from time to time by TRAI, under the TRAI Act 1997.
17.6 ILD service licensees shall, for the purpose of providing the service, install its own equipment so as to be compatible with other service providers’ equipment to which the ILD service licensee’s applicable systems are intended for interconnection.
17.7 The ILD service licensee shall comply with any direction in relation to interconnection regulations issued by TRAI under the TRAI Act, 1997.
17.8 The ILD service licensee shall operate and maintain the licensed network conforming to quality of service standards, to be mutually agreed to between the service providers, in respect of network-to-network interfaces.
17.9 Charges for access or interconnection with other networks shall be based on mutual agreements between service providers, subject to the restrictions issued from time to time by TRAI under the TRAI Act, 1997.
17.10 Network resources, including the cost of upgrading/modifying interconnecting networks to meet the service requirements of the service, will be provided by the service provider seeking interconnection. However, mutually negotiated sharing arrangements for the cost of upgrading/modifying interconnecting networks between service providers shall be permitted, keeping in view the orders, directions or regulations issued by the DoT/TRAI from time to time.
18.1 The licensee will charge tariffs for the services as per the TRAI tariff orders/regulations/ directions issued in this regard from time to time. The licensee shall also fulfil requirements regarding the publication of tariffs, notifications and the provision of information as directed by TRAI through its orders/regulations/directions issued from time to time, as per the provisions of the TRAI Act, 1997 as amended from time to time.
19. Customer Service
19.1 The licensee shall register the demand for services from any applicant, without any discrimination, and provide the service, unless otherwise directed by the licensor. The licensee shall not in any manner discriminate between subscribers, and shall provide services on the same commercial principle and shall be required to maintain a transparent, open to inspection, waiting list. The licensor shall have right to impose suitable penalties, not limited to a financial penalty, apart from any other actions for breach of this condition. The licensee shall launch the service on a commercial basis only after commencement of registration in the manner prescribed. Before commencement of services in an area, the licensee shall notify and publicise the address where any subscriber can register a demand for such service. Any change of this address shall be duly notified by the licensee. The licensee shall ensure continuity of services to its customers.
19.2 The licensee’s contractual obligations towards the customer will include the terms and conditions under which the service shall be provided or terminated. The licensee shall notify its customers of all arrangements or with respect to billing, repair, fault rectification, compensation or refunds etc. All complaints in this regard will be addressed/handled as per guidelines, orders, regulations or directives issued by the licensor/TRAI.
19.3 Any dispute with regard to the provision of services shall be a matter only between the aggrieved party and the licensee, who shall duly notify this to all before providing the service. In no case shall the licensor bear any liability or responsibility. Hence, the licensee shall keep the licensor indemnified from all claims, costs, charges or damages in the matter.
20.1 An ILD service provider, either itself or through an access provider, may provide billing services to its customers. For this purpose, a suitable technical/commercial arrangement can be mutually made with the access provider/NLD service provider. No separate charge shall be levied for itemised billing. The licensee shall also maintain necessary records for the billing cycles as specified by the licensor or TRAI from time to time.
20.2 The ILD network should provide for an inter-carrier charge billing system based on the generation of call data records.
20.3 All complaints of customers in this regard will be addressed/handled as per guidelines, orders, regulations or directives issued by the licensor or TRAI from time to time.
21. Confidentiality of Information
21.1 Any encryption equipment connected to the licensee’s network, for specific requirements, has to have prior evaluation and the approval of the licensor or an officer specially designated for this purpose. However, the licensee shall have the responsibility to ensure the protection of privacy of communications and to ensure that unauthorised interception of messages does not take place.
21.2 Subject to the conditions contained in these terms and conditions, the licensee shall take all necessary steps to safeguard the privacy and confidentiality of any information about a third party and its business, to whom it provides the service, and from whom it has acquired such information by virtue of the service, and shall use its best endeavours to secure that:
a) No person acting on behalf of the licensee, or any member of the licensee’s group (associates) divulges or uses any such information, except as may be necessary in the course of providing such services to a third party; and
b) No such person seeks any information other than is necessary for the purpose of providing services to a third party.
PROVIDED that the above para shall not apply where:
a) The information relates to a specific party, and that party has consented, in writing, to such information being divulged or used, and such information is divulged or used in accordance with the terms of that consent; or
c) The information is already open to the public and otherwise known.
21.3 The licensee shall take necessary steps to ensure that the licensee and any person(s) acting on its behalf, and members of the licensee’s group (associates) and any persons acting on their behalf, observe confidentiality of its customers’ information.
21.4 The licensee shall, prior to the commencement of the service, confirm in writing to the licensor that the licensee has taken all necessary steps to ensure that it, and its employees, are observing the confidentiality of its customers’ information.
22. Quality of Service
22.1 The licensee shall ensure the quality of service (QoS) standards as prescribed by the licensor or TRAI. The licensee shall adhere to such QoS standards and provide timely information as required therein.
22.2 The licensor or TRAI may carry out performance tests and also evaluate the QoS parameters in the licensee’s network at any time during the tenure of the license period. The licensee shall provide ingress and other support, including instruments, equipment etc. for carrying out such performance tests and the evaluation of QoS parameters.
22.3 The licensee shall enforce and ensure QoS standards, as prescribed by the licensor, from infrastructure provider(s) with whom it may enter into agreements/contracts for leasing/hiring/ buying, or any such instrument, for the provision of infrastructure or provision of bandwidth.
23. Security Conditions
23.1. The licensee shall provide necessary facilities to the government, depending upon the specific situation at the relevant time, to counteract espionage, subversive acts, sabotage or any other unlawful activity.
23.2 The licensee shall make available, on demand, to the agencies authorised by the licensor, full access to switching centres, transmission centres, routers etc. for technical scrutiny and for inspection, which can be a visual inspection or an operational inspection.
23.3 All foreign personnel likely to be deployed by the licensee for the installation, operation and maintenance of the licensee’s network shall be security cleared by the government of India prior to their deployment. The security clearance will be obtained from the Ministry of Home Affairs, Government of India, who will follow standard drill in the matter.
Note: As per paragraph 2 of Press Note 3 (2007 Series) issued by the Department of Industrial Policy and Promotion, it is obligatory on the part of telecom service providers that the position of the Chairman, Managing Director, Chief Executive Officer (CEO) and/or Chief Financial Officer (CFO), if held by foreign nationals, are to be security vetted by the Ministry of Home Affairs (MHA). Security vetting shall be required periodically on a yearly basis.
Service period/tenure of an employee, for the post of Chairman, Managing Director, CEO and/or CFO, including foreign nationals, is decided by the service providers themselves. Since security clearance to foreign nationals is granted only for one year, it is the responsibility of service providers to repeat the process of security vetting for subsequent years if a foreign national holds such post for more than a year.
All NLD/ILD service providers are requested to review the tenure of foreign nationals and to ensure that the process of security vetting is repeated for the subsequent year, in the case any foreign national holds such a post, as mentioned above, for more than one year.
23.4 The licensee shall ensure the protection of privacy of communications and ensure that unauthorised interception of messages does not take place.
23.5 The licensor shall have the right to take over the service, equipment and networks of the licensee, or revoke/terminate/suspend the license, either in part or in whole of the service area, as per directions if any, issued in the public interest, or in the case of emergency or war or low intensity conflict or any other eventuality.
PROVIDED that any specific orders or directions from the government issued under such conditions shall be applicable to the licensee and shall be strictly complied with.
PROVIDED FURTHER that the licensor reserves the right to direct the licensee to keep any area out of the operation of the service, if security implications so require, and the licensee shall abide by such directions without the slightest deviation.
23.6 The licensor reserves the right to modify these conditions, or incorporate new conditions, considered necessary in the interest of national security and public interest.
23.7 The licensee will ensure that the telecommunications installation carried out by it should not become a safety hazard, and is not in contravention of any statute, rule or regulation and public policy.
(i) Licensees shall be completely and totally responsible for the security of their networks. They shall have a well-outlined organisational policy on security and security management of its network, Network forensics, network hardening, network penetration test, risk assessment, actions to fix problems and to prevent such problems and to prevent such problems from reoccurring etc. should be part of the policy and they should take all measures in respect of these activities. They should submit their policy to the licensor within 30 (thirty) working days from the date of this amendment for record.
(ii) In furtherance of their organisational security policy, licensees shall audit their networks or get the network audited, from a security point of view, once a year from a network audit and certification agency. The first audit of the network should be completed within 12 (twelve) months of the issue of this amendment and thereafter, once in a financial year. A list of some of the agencies that might carry out the network audit from a security point of view will be displayed on the website of the DoT. The list is purely for information dissemination as a facilitating measure and telecom service providers are free to engage the service of any other agency for this purpose, which is certified to carry out the audit as per ISO 15408 and ISO 27001 standards, because network security is their responsibility.
(iii) The licensee shall induct only those network elements into its telecom network that have been tested as per the relevant contemporary Indian or international security standards (for example, IT and IT-related elements against ISO/IEC 15408 standards; for information security management system against the ISO 27000 series standards; telecom and telecom related elements against the SGPP security standards; 3GPP2 security standards etc. from any international agency/labs of the standards e.g. Common Criteria Labs in the case of ISO/IEC 15408 standards until 31 March 2013. From 1st April 2013 the certification shall be done from an authorised and certified agency/lab in India). The copies of test results and test certificates shall be kept by the licensee for a period of 10 (ten) years from the date of procurement of equipment.
(iv) The licensee shall include all contemporary security related features and features related to communications security, as prescribed under relevant security standards, while procuring equipment, and shall implement all such contemporary features into its network. A list of features, equipment, software etc. procured and implemented shall be kept by the licensee till they are in use, which may be subjected to inspection and testing by the licensor at any time, in the network or otherwise, at the option of the licensor.
(v) The licensee shall employ only resident, trained lndian nationals as Chief Technical Officer/s (CTO), Chief Information Security Officer (CISO) and nodal executives for handling of interception and monitoring cases, and to be in-charge of international long distance (ILD) gateway switches, softswitches, the central database and as system administrator/s.
(vi) The license shall:
a. Ensure that all documentation, including the details of software are obtained from the manufacturer/vendor/supplier in English.
b. Keep a record of operation and maintenance procedures in the form of a manual.
c. Keep a record of all operation and maintenance command logs for a period of 12 (twelve) months, which should include the actual command given, who gave the command, when it was given (with the date, time and from where it was given). For the next 24 (twenty-four) months, the same information shall be stored/retained in a non-online mode. For this purpose, the licensee shall keep a list of user ID’s linked with the name and other details of the user, duly certified by the system administrator. The user list shall be provided to the licensor, or such agencies designated by the licensor, as and when required.
d. Keep a record of all software updates and changes. The major updates and changes should be informed to the licensor within 15 (fifteen) days of completing such updates and changes.
e. Keep a record of the supply chain of the products (hardware/software). This should be taken from the manufacturer/vendor/supplier at the time of procuring the products.
f. Comply with the conditions of remote access (RA).
(vii) The licensee shall create facilities for the monitoring of all intrusions, attacks and frauds, and report the same to the licensor and/or to CERT-In. Such facilities shall be created by the licensee within 12 (twelve) months of the issuance of this amendment and shall be reported to the licensor as and when created during this period.
(viii) The licensee, through suitable agreement clauses with its vendors, shall ensure that the vendor/supplier allows the telecom service provider/licensor/DoT and/or its designated agencies to inspect the hardware, software, design, development, manufacturing facility and the supply chain, and subject all software to a security/threat check any time during the supply of equipment. The number of such visits will be limited to 2 (two) in a given purchase order. The expenditure for such visits for an order valued at more than INR 50,00,00,000 (Rupees Fifty Crores) up to 40 man-days per visit, shall be borne by the licensee directly or through the vendor.
(a) A penalty of up to INR 50,00,00,000 (Rupees Fifty Crores) will be levied for any security breach that has been caused due to any inadvertent inadequacy/inadequacies in taking precautions on the part of the licensee, as prescribed under this amendment. The licensor shall constitute a five-member committee, which shall include two cybersecurity experts, to determine whether the breach is due to any inadvertent inadequacy or otherwise. The committee shall also decide the amount of penalty depending upon the loss, gravity of breach etc.
(b) In case of any inadequate measures, as prescribed under this amendment, acts of intentional omissions, deliberate vulnerability left into the equipment, or in the case of a deliberate attempt at a security breach, the penalty amount will be INR 50,00,00,000 (Rupees Fifty Crores) per breach. The same breach, in the same equipment, purchased through the same purchase order, or in the same lot, or the same negligence at the same time at multiple locations in an operator’s network, will be considered as a single breach for the purpose of levying penalty under this clause. The licensee shall deposit the penalty amount with the licensor within 30 (thirty) days of the issue of notice.
(c) Besides the penalty, liability and criminal proceedings under the relevant provisions of various Acts such as the Indian Telegraph Act, Information Technology Act, the Indian Penal Code (IPC), Criminal Procedure Code (CrPC) etc. can also be initiated. In such cases, the license of the licensee can also be cancelled, and the vendor or supplier who supplied the hardware/software that caused the security breach could be blacklisted from doing business in the country, or both. The licensee must include a clause in the agreement signed with the vendor/supplier about the licensor’s discretion in blacklisting of vendors or suppliers.
Note: Some other suggested steps, which help in increasing the security of the telecom network are given below (Annexure to the letter). The government may, however, make any of these suggestions mandatory whenever it feels it necessary to do so.
Some suggested steps, which help in increasing the security of the telecom networks are as follows:
a) The licensee may sign a suitable agreement with the hardware/software manufacturer/vendor and/or supplier of services to ensure that the equipment/services/software they supply are ‘safe to connect’ in the network, have been checked thoroughly for risks and vulnerabilities, all addressable vulnerabilities have been addressed and that non-addressable vulnerabilities have been listed with remedial measures and precautions have been provided. The agreement should cover aspects related to security measures like access control, password control and management etc. Clauses addressing service continuity and service up-gradation should also be suitably included in the agreement, with consequences defined for each party in the case of breach, particularly for security breaches. As an information dissemination and facilitating measure, the suggested clauses for such agreement, in the form of a template, will be available on the website of the DoT. Service providers may take all, or selected, provisions from this template, depending upon the type of services they avail from a vendor/supplier. They are free to add, modify, delete any of the clauses from this template, because security of their networks is their responsibility and they will be liable for any security breach.
b) Licensees should endeavour to create a forum, say the Telecom Security Council of India (TSCI), on a voluntary basis to increase security assurance levels and to share common issues.
(c) The licensee shall build its own capability and capacity to maintain and operate the network, preferably through local maintenance personnel, because telecom networks are security sensitive infrastructure.
23.8 The licensee shall take measures to prevent objectionable, offensive, obscene, unauthorised or any other content, messages, communications or material which is lascivious, infringing copyright, intellectual property etc. in any form from being carried on its network, which is inconsistent with the established laws of the country. Once specific instances of such infringement are reported to the licensee by authorised agencies, the licensee shall ensure that the carriage of such material on its network is prevented immediately.
23.9 The licensee is obliged to provide, without any delay, tracing facilities to trace nuisance, obnoxious, offensive or malicious calls, messages or communications transported through its equipment and network. Any damages arising out of default on the part of licensee in this regard shall be payable by the licensee.
23.10 In case any confidential information is divulged to the licensee for proper implementation of this license agreement, it shall be binding on the licensee, its employees and servants to maintain its secrecy and confidentiality.
23.11 The licensee shall provide to the licensor, the location details of gateways, switching centres, transmission centres, servers and routers etc. and the location of these centres shall not be changed without prior approval of the licensor.
23.12 The licensee shall not employ bulk encryption equipment in its network. Any encryption equipment, which is connected to the licensee’s network for specific requirements, has to have prior evaluation by, and approval of, the licensor or officers specially designated for this purpose.
23.13 The designated person of the central/state government, as conveyed to the licensor from time to time, in addition to the licensor or its nominee, shall have the right to monitor all telecommunications traffic in every gateway switch, mobile switching centre server (MSC), base station controller (BSC) and any other point in the network set up by the licensee. The licensee should make arrangements for monitoring simultaneous communication traffic (at least 210 channels) by government security agencies at locations individually desired by the central government, the state government/union territory. The requisite infrastructure in terms of hardware/software required for monitoring of all telecommunication traffic shall be engineered, provided, installed and maintained by the licensee at the licensee’s cost. These arrangements for monitoring of all communications traffic by government security agencies, at locations designated by them ,should be made by the licensee.
23.14 The licensee should provide a list of its subscribers to authorised security agencies directly, as well as to the licensor, which should be updated at quarterly intervals. Additions and deletions in this list should be reported on a monthly basis. The licensee shall ensure adequate verification of each and every customer before enrolling him/her as a subscriber.
23.15 A format would be prescribed by the licensor to delineate the details of information required before enrolling a customer as a subscriber. Identification of subscribers supported by documents like photo identity card, ration card, driving license, passport, voters identity card, PAN Card etc. shall be a prerequisite before providing the service.
23.16 The licensee shall maintain all records including called and calling numbers, date, duration and time, etc. with regard to the communications exchanged on the network, for a period of one year, or as directed for scrutiny by the licensor/security agencies.
23.17 In areas which are sensitive from a security point of view, as may be notified from time to time by the licensor, implementation of any equipment installation and execution of the project shall be taken up only after the licensor’s approval.
23.18 The gateway station shall be set up only after getting permission or clearance from the licensor. This is a time consuming process and can take more than a month, subject to submission of required information in complete form.
23.19 The gateway station (transmission and switching centres) will not be set up in security sensitive areas. The security sensitive areas would be identified from time to time. As on date the security sensitive areas are Punjab, J&K, North Eastern States, border areas of Rajasthan, Andaman & Nicobar Islands and coastal areas of Gujarat and Tamil Nadu (excluding Chennai).
23.20 Office space of 20’ x 20’ with adequate and uninterrupted power supply and air-conditioning, which will be physically secured and accessible only to the personnel authorised by the telecom authority, shall be provided by the ILD service licensee, at each location, free of cost.
23.21 The cost of monitoring equipment shall be borne by the ILD service licensee.
23.22 The installation of the monitoring equipment at the gateway station is to be done by the licensee. After installing the monitoring equipment, the ILD service licensee should get it inspected by monitoring/security agencies. The permission to operate/commission the gateway will be given only after this.
23.23 The licensee shall adopt all means, and facilitate in every manner, the application of the Indian Telegraph Act, 1885 and Indian Wireless Telegraphy Act, 1933 as modified or replaced from time to time or the rules framed thereunder. The service shall be provided in accordance with the provisions of Indian Telegraph Rules, as modified and amended from time to time.
23.24 As per the provision of Section 5(2) of Indian Telegraph Act, the licensee will provide necessary facilities to designated authorities of the central/state government, as conveyed by the licensor from time to time, for the interception of messages passing through its network.
23.25 The licensor, or its authorised representative, shall have right to inspect the sites used for extending the service. The licensor shall have the right to, in particular but not limited to, access leased lines, junctions, terminating interfaces, hardware/software, memories of semiconductors, magnetic and optical varieties, wired or wireless options and distribution frames, and to conduct performance tests, including entering into dialogue with the system through input/output devices or terminals. The licensee will provide necessary facilities for continuous monitoring of the system, as required by the licensor or its authorised representative(s) including security agencies. The licensor will ordinarily carry out inspection after reasonable notice, except in circumstances where giving such a notice will defeat the very purpose of the inspection.
23.26 The licensee shall further ensure/implement the following:
(i) Active support must be extended by service providers to the Telecom Enforcement Resource and Monitoring (TERM) Cells of the DoT for the detection of clandestine/illegal telecommunication facilities. For this purpose, names of the nodal officers and alternate nodal officers, as communicated to law enforcement agencies for monitoring of telecommunications traffic, should also be forwarded to the respective Term Cell of the DoT, DDG (Security), DoT and the Carrier Services Cell of the DoT. The TERM Cell will contact the nodal officer/alternate nodal officer till the time such nomination is received, or in case of non-availability of such officer, the Term Cells will contact the Chief Executive Officer of the licensee for such support coordination.
(ii) Calling line identification (CLI) shall never be tampered with, as it is also required for security purposes and any violation of this shall amount to breach of security.
(iii) Leased circuits shall be checked for their bona fide use and to detect any misuse.
(iv) All ILD operators shall transit the CLI as received from foreign callers. In case CLI is received from the distant end (foreign party) then the ILD operator in the country shall introduce its assigned two-digit carrier identification code, followed by the country code from where the call is received. In no case shall the call be offered to basic service operators/CMTS licensees, without any CLI. This is to identify the origin of call and the ILD operator handling the call.
(i) The Chief Officer in-charge of technical network operations and the Chief Security Officer should be resident Indian citizens.
(ii) Details of the infrastructure/network diagram (technical details of the network) could be provided on a need-basis only to telecom equipment suppliers/manufacturers and the affiliate/parents of the licensee company. Clearance from the licensor (Department of Telecommunications, Government of India ) would be required if such information is to be provided to anybody else.
(iii) For security reasons, domestic traffic of such entities as may be identified/specified by the licensor shall not be hauled/routed to any place outside India. For this purpose, the location of satellites serving India for domestic traffic shall not be treated as being outside India.
(iv) The licensee company shall take adequate and timely measures to ensure that the information transacted through a network by subscribers is secure and protected.
(v) The officers/officials of the licensee companies dealing with lawful interception of messages will be resident Indian citizens.
(vi) The majority directors on the board of the company shall be Indian citizens.
(vii) The positions of the Chairman, Managing Director, Chief Executive Officer (CEO) and/or Chief Financial Officer (CFO), if held by foreign nationals, would require to be security vetted by Ministry of Home Affairs (MHA). Security vetting shall be required periodically on yearly basis. In case something adverse is found during the security vetting, the direction of the MHA shall be binding on the licensee.
(viii) The company shall not transfer the following to any person/place outside India:
(a) Any accounting information relating to subscriber (except for international roaming/billing)
Note: it does not restrict a statutorily required disclosure of financial nature); and
(b) User information (except pertaining to foreign subscribers using the Indian operator’s network while roaming).
(ix) The company must provide traceable identity of its subscribers. However, in case of providing services to roaming subscribers of foreign companies, the Indian company shall endeavour to obtain traceable identities of such roaming subscribers from the foreign company as a part of its roaming agreement.
(x) On request of the licensor, or any other agency authorised by the licensor, the telecom service provider should be able to provide the geographical location of any subscriber at a given point of time.
(xi) Remote access (RA) to the network would be provided only to approved location(s) abroad through approved location(s) in India. The approval for location(s) would be given by the licensor after satisfying itself of its appropriateness.
(xii) Under no circumstance should any remote access to suppliers/manufacturers and affiliate(s) be enabled to access lawful interception systems (LIS), lawful interception monitoring (LIM), call contents of traffic and any such sensitive sector/data, which the licensor may notify from time to time.
(xiii) The licensee company is not allowed to use remote access facilities for monitoring of content.
(xiv) Suitable technical devices should be made available at the Indian end to designated security agency/licensor in which a mirror image of the remote access information is available online for monitoring purposes.
(xv) A complete audit trail of the remote access activities pertaining to the network operated in India should be maintained for a period of 6 (six) months, and provided on request to the licensor, or any other agency authorised by the licensor.
(xvi) Telecom service providers should ensure that necessary provision (hardware/software) is available in their equipment for lawful interception and monitoring from a centralised location.
(xvii) Telecom service providers should familiarise/train TERM Cell/security agency officers/officials in respect of relevant operations/features of their systems.
(xviii) It shall be open to the licensor to restrict the licensee company from operating in any sensitive area from a national security angle.
(xix) In order to maintain the privacy of voice and data, monitoring shall only be upon authorisation by the Union Home Secretary or Home Secretaries of the states/union territories.
(xx) For monitoring of traffic, the licensee company shall provide access to its network and other facilities to the security agencies, as well as to its books of accounts.
23.28 Lawful interception and monitoring of resellers’ circuits shall take place at the gateway of the ILD operator from whom the international bandwidth has been taken by the reseller.
24. Prohibition of Certain Activities by the Licensee
24.1 The licensee shall not hereunder engage, on the strength of this license, in the provision of services other than the services defined in this license agreement.
24.2 To remove any doubt, it is hereby clarified that nothing contained in Clause 24.1 shall preclude the licensee from engaging in advertising and promotional activities relating to any of the applicable systems.
24.3 The licensee is obliged to provide, without any delay, all tracing facilities to trace nuisance, obnoxious or malicious calls, messages or communications transported through its equipment and network to authorised officers of the government of India, including the police, customs, excise and intelligence department officers etc. when such information is required for investigations or detection of crimes, and in the interest of national security. Any damages arising on account of the licensee’s failure in this regard shall be payable by the LICENSEE.
24.4 In case any confidential information is divulged to the licensee for the proper implementation of the agreement, it shall be binding on the licensee, its employees, agents and servants to maintain its secrecy and confidentiality.
25. Interconnection Tests
25.1 The interconnection tests, for each and every interface with any service provider, may be carried out by mutual arrangement between the licensee and the other party involved. The interconnection tests schedule shall be mutually agreed to. On successful completion of interconnection tests, or on mutual agreement between service providers for rectification of deficiencies/deviations, if any, the licensee can commence the service. In case of any disagreement on the rectification of deficiencies/deviations in the conducted interconnection tests, the prior approval of the licensor shall be required.
26. Right to Inspect
26.1 The licensor or its authorised representative shall have the right to inspect the sites used for extending the service. The licensor or its authorised representative shall have the right to, in particular but not limited to, have access to leased lines, junctions, terminating interfaces, hardware/software, memories of semiconductors, magnetic and optical varieties, wired or wireless options, distribution frames, and also to conduct the performance test, including entering into dialogue with the system through input/output devices or terminals. The licensee will provide the necessary facilities for continuous monitoring of the system, as required by the licensor or its authorised representative(s). The licensor will ordinarily carry out inspections after reasonable notice, except in circumstances where giving such a notice will defeat the very purpose of the inspection.
27. Requirement to Furnish Information
27.1 The licensee shall furnish such documents, accounts, estimates, returns, reports or other information to the licensor as well as TRAI in such manner and at such frequency/time frames as either of them may demand, in accordance with rules/orders as may be specified from time to time.
27.2 Engineering details:
(a) The licensee shall furnish to the licensor, in such manner and at such times as the licensor may require, complete technical details with all calculations for engineering, planning and dimensioning of the system/network/routes, relevant literature, drawings and installation materials regarding the applicable systems for the service.
(b) List of performance tests conducted shall be furnished by the licensee 1 (one) month prior to the date of commissioning the services. The report shall clearly indicate the parameters, if any, not meeting the performance standards, and their effect thereof.
(c) The licensee shall supply all tools, test instruments and other accessories to the testing party of the licensor for conducting tests.
28. Disputes Settlement
28.1 As per the provisions of the TRAI Act, 1997, a dispute between the licensee and the licensor shall be settled in the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) if such a dispute arises out of, or is connected with, the provisions of this agreement. In the event of any amendment or modification or replacement of the TRAI Act, 1997 such modified provisions shall apply for adjudication of the said dispute.
29. Force Majeure
29.1 If, at any time during the continuance of this license, the performance, in whole or in part, by either party, of any obligation under it, is prevented or delayed, by reason of war, hostility, acts of the public enemy, civil commotion, sabotage, fire, flood, natural calamities, Acts of State or any direction from a statutory authority, explosion, epidemic, quarantine restriction, strikes and lockouts (not limited to establishments and facilities of the licensee), or an Act of God (hereinafter referred to as ‘event’), provided that notice of the happening of any such event is given by the affected party to the other, within 21 (twenty-one) calender days from the date of occurrence thereof, neither party shall, by reason of such event, be entitled to terminate the license, nor shall either party have any claims for damages against the other, in respect of such non-performance or delay in performance.
PROVIDED that the service under the license shall be resumed as soon as practicable after such an event comes to an end or ceases to exist. The decision of the licensor as to whether the service may be so resumed (and the time frame within which the service may be resumed) or not, shall be final and conclusive. However, the force majeure events noted above will not in any way cause extension in the period of the license and will also not be a ground for non-payment of license fee.
29.2 Set Off Clause
In the event any sum of money or claim becomes recoverable from, or payable by the licensee to the licensor, either against this license agreement or otherwise in any manner, such money or claim can be (without restricting any right of set-off for counter claim given or employed by law) deducted or adjusted against any amount or sum of money then due, or which at any time thereafter may become due to the licensee under this license agreement, or any other agreement or contract between the licensor and the licensee.
29.3 The aforesaid sum of money payable to the licensee company shall include any valuable security, which can be converted into money.
29.4 After exercising the right of set-off, the licensor shall expressly notify such action to the licensee company immediately in writing.
30. Way Leave
30.1 The licensee shall make its own arrangements for right of way (ROW). However, the central government has issued necessary notifications, conferring requisite powers upon the licensee for the purposes of placing telegraph lines, under Part III of the Indian Telegraph Act, 1885.
PROVIDED that the non-availability of the ROW, or delay in getting permission/clearances from any agency, shall not be construed or taken as a good reason for non-fulfilment of the roll-out obligations.
31. Frequency Authorisation
31.1 A separate specific authorisation shall be required from the wireless planning and coordination (WPC) wing of the Ministry of Communications & IT, which will permit utilisation of appropriate frequencies/bands for the establishment, possession and operation of the concerned wireless element of the telecom service, under usual terms and conditions, including payment for the authorisation. The grant of authorisation will be governed by normal rules, procedures and guidelines and will be subject to the completion of necessary formalities prescribed therein.
31.2 For this purpose, a separate application shall be made to the “Wireless Advisor to the Government of India, WPC Wing, Ministry of Communications, Dak Bhavan, Sansad Marg, New Delhi-110 001” in a prescribed application form available from WPC Wing.
31.3 Siting clearance in respect of fixed stations and its antennae mast shall be obtained from the WPC wing, for which the applicant shall apply to the Secretary, SACFA (Standing Advisory Committee on Frequency Allocations) in a prescribed application form, at the following address: The Secretary (SACFA), WPC Wing, Ministry of Communications, Dak Bhavan, Sansad Marg, New Delhi-110 001.
Note: SACFA is the apex body in the Ministry of Communications for considering matters regarding the coordination for frequency allocations and other related issues/matters. (Siting clearance refers to the agreement between major wireless users for the location of proposed fixed antennae, from the point of view of compatibility with other radio systems and aviation hazards. It involves inter-departmental coordination and is an involved process). Siting clearance procedure may take two to six months, depending on the nature of the installations and the height of the antennae/masts.
31.4 For establishing various point-to-point radio links, the frequency bands earmarked for various agencies is indicated in the National Frequency Allocation Plan (hereinafter called NFAP, 2002) which can be modified from time to time. The mere indication of the band does not guarantee availability of the frequency spectrum, which has to be coordinated on case-to-case basis.
31.5 The licensee shall not cause harmful interference to other authorised users of radio spectrum. The licensee shall abide by any instructions of the government for the elimination of harmful interference to other authorised users.
31.6 The licensor, or its representative, shall have the right to inspect, from time to time, the installations from technical angles to check its conformity with the WPC wing’s license.
31.7 In case of provisioning of bandwidth by the licensee through satellite media, the licensee shall abide by the prevalent government orders, regulations or directions on the subject, like the satellite communications policy, V-SAT policy etc.
31.8 For the use of space segments, setting up and operationalisation of earth stations etc., the licensee shall directly coordinate with, and obtain clearance from, the network operations and control centre (NOCC), apart from obtaining SACFA clearance and from other authorities.