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Research

5G Technology
in India
Strategic, Legal and Regulatory
Considerations

October 2020

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 5G Technology in India
Strategic, Legal And Regulatory Considerations

October 2020

ndaconnect@nishithdesai.com

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 5G Technology in India
Strategic, Legal and Regulatory Considerations

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Strategic, Legal and Regulatory Considerations

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Acknowledgements
Dr. Mihir Parikh
mihir.parikh@nishithdesai.com

Vaibhav Parikh
vaibhav.parikh@nishithdesai.com

Puja Saha
puja.saha@nishithdesai.com

Siddhartha Sarangal contributed to an earlier version of this paper.

© Nishith Desai Associates 2020

 5G Technology in India
Strategic, Legal and Regulatory Considerations

Contents
SUMMARY 01

1. INTRODUCTION 02

2. 5G TECHNOLOGY 04

I. Evolution of Wireless Standards 04

II. 5G Frequency Spectrum 05
III. Open Radio Access Network 06
IV. Benefits Over Traditional RAN 07
V. O-RAN Alliance 07
VI. Telecom Infra Project (“TIP”) 08
VII. Associated Technologies 09
VIII. Pros and Cons 09
IX. 5G and Health Risks 10
X. Standards-setting Agencies 12

3. APPLICATIONS 13

I. Enhanced Mobile Broadband (“EMBB”) 13

II. Ultra Reliable Low Latency Communications (“URLLC”) 13
III. Massive Machine Type Communications (“MMTC”) 13
IV. Sector-Specific Applications 13
V. Internet of Things (“IoT”) 13
VI. Artificial Intelligence (“AI”) 13
VII. Media and Entertainment 13
VIII. Telemedicine 14
IX. Communications 14
X. Gaming 14
XI. Autonomous Vehicles 14
XII. Smart Cities 14

4. EVOLUTION OF TELECOMMUNICATIONS POLICY IN 15

INDIA
15
I. History
16
II. National Digital Communications Policy, 2018

17
5. REGULATORY LANDSCAPE
17
I. Key Regulations
18
II. Regulatory Agencies
18
III. Spectrum Allocation
20
IV. Plans For 5G

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 5G Technology in India
Strategic, Legal and Regulatory Considerations

6. KEY CONSIDERATIONS 22

I. Standards 23
II. Spectrum Availability 23
III. Infrastructure Investments 24
IV. Workforce Availability 24
V. Location of 5G Equipment 25
VI. National Security 25
VII. Law Enforcement 26
VIII. Network Security 27
IX. Data Protection & Privacy 28
X. Effects on Other Critical Applications 29
XI. Environmental and Societal Impact 29

7. CONCLUSION 30

© Nishith Desai Associates 2020

 5G Technology in India
Strategic, Legal and Regulatory Considerations

Summary
5G technology will usher in a much greater revolution than itself. At the base level, it will significantly
increase the capacity and reach of existing mobile networks through greater data throughput and
ultralow latency. But in a larger sense, 5G will become the backbone of many fourth industrial
revolution (IR4) technologies like Artificial intelligence, augmented reality/virtual reality, drones,
internet of things, telemedicine, and autonomous vehicles. Many kinds of devices, billions in number,
will be connected to each other through 5G and offer the kind of capabilities and user experience
never seen before. Our businesses and lives will change forever. And India is not staying behind in
this revolution. In this paper, we provide a primer on 5G technology in non-technical terms, overview
of extended 5G applications for various sectors, the regulatory landscape for 5G in India, and finally
outline various important strategic, policy, regulatory, technical and behavioral considerations.

* Prepared by the 5G Practice Core Team of Nishith Desai Associates

ƒDr. Mihir Parikh: Leads Strategic Legal Consulting from Silicon Valley office in Palo Alto, California.
ƒVaibhav Parikh: Leads the Technology, M&A, Private Equity, Blockchain and Virtual Currencies
practice and heads NDA’s US operations from New York office.

ƒPuja Saha: Member of Technology, Media & Telecommunications team based in New Delhi, India.

Acknowledgement: Siddhartha Sarangal contributed to an earlier version of this paper.

© Nishith Desai Associates 2020 1

 Provided upon request only

1. Introduction
The number of mobile users worldwide and In India, the mobile telecommunications
their data needs have increased exponentially market has recently undergone a tectonic shift.
over the last two decades. In the same The market has become highly competitive
time period, we have seen tremendous with the introduction of new players offering
improvements in mobile technologies. cheaper and better voice and data plans to
However, the existing mobile technologies consumers with better coverage. This has led to
are reaching their peaks. As more people and a price war affecting all mobile operators. Their
devices continue to join the network, the service profits have gone down and debts have gone up.
quality and efficiency will drop drastically This shift has also brought consolidation among
unless we move on to the new 5G technology. the mobile service providers to align synergies
and achieve economies of scale to better
With the promises of high data speed, ultralow
compete in the market.2 In addition, in October
latency, and billions of connections, 5G
2019, the Supreme Court ruled against the
technology for mobile networks is gaining
incumbent mobile operators and asked them
attention worldwide. The first 5G mobile
to reimburse US$13.9 billion in license fees,
networks are available to consumers in
penalties and interest payments (Bharti Airtel
Australia, China, Ireland, Monaco, New Zealand,
about US$3 billion; Vodafone Idea about US$3.9
Norway, Philippines, Romania, and South Korea.
billion and Reliance Jio about US$1.8 billion)
Other countries such as Finland, Germany and
to government.3 Recently, the Supreme Court
Pakistan have already held auctions for 5G
has provided 10 years period to pay the pending
spectrum and are expected to build and deploy
licensee fee in equal yearly instalments.4 These
networks soon. More than 40 telecom operators
developments seem to be clouding the rollout
worldwide have already launched 5G.1
of 5G in India.
5G is a highly scalable technology with high
However, the size of the telecom equipment
data throughput. Different types of 5G cells
sector is expected to grow to US$26.38 billion by
can support different types of deployment
2020, bolstered in part by the growth of internet
environments, such as homes, coffee shops,
subscribers in the country to 829 million by
small office, aircrafts, shopping centers, airport
2021. The overall internet traffic could grow
terminals, transportation hubs, and large
four-fold by 2021, at a 30% CAGR. The Mobile
open areas. When deployed in its full form,
Value-Added Services (MVAS) industry is
it is expected to replace two discontinuous
technologies, cellular mobile network and
Wi-Fi, with one continuous technology for
2. Sengupta, Devina (2020). “DoT okays merger of Tata Tele
seamless user experience on all types of mobile consumer mobility business with Airtel.” The Economic
and Internet of Things (“IoT”) devices. This Times. February 7, 2020. https://economictimes.indiatimes.
com/industry/telecom/telecom-news/dot-oks-merger-
convergence of cellular network with Wi-Fi will of-tata-tele-consumer-mobility-business-with-airtel/
also provide a significant reduction in power articleshow/73991445.cms. Last Accessed: October 14, 2020.
and https://economictimes.indiatimes.com/industry/telecom/
usage, technology complexity and cost. telecom-news/vodafone-idea-to-merge-aditya-birla-telecom/
articleshow/65847075.cms?from=mdr
3. Sarkar, Soumeet; Chaturvedi, Arpan (2019). “Supreme Court
Rules Against Telecom Operators in Rs 92,000-Crore AGR
Dispute” Bloomberg|Quint October 24, 2019. https://www.
bloombergquint.com/business/supreme-court-asks-telecom-
operators-to-pay-rs-92000-crore-dues. Last Accessed: October
14, 2020.
1. Kapoor, Sanjay; Banerjee, Ayon (2020). “How 5G technology is 4. Rajagopal, Krishnadas (2020). “Supreme Court directs telcos
critical to India’s digital dream” The Economic Times. February to pay AGR dues in 10 years” The Hindu, September 1, 2020.
20, 2020. https://economictimes.indiatimes.com/tech/ https://www.thehindu.com/news/national/supreme-court-
internet/how-5g-technology-is-critical-to-indias-digital-dream/ directs-telcos-to-pay-agr-dues-in-10-years/article32493787.ece.
articleshow/74232323.cms. Last Accessed: October 14, 2020. Last accessed: October 14, 2020.

2 © Nishith Desai Associates 2020

 5G Technology in India
Strategic, Legal and Regulatory Considerations

projected to grow to US$23.8 Billion by the end billion in the telecommunications sector by
of 2020 at a CAGR of 18.3%.5 In addition, the 2022.6 Such exponential growth potential
National Digital Communications Policy, 2018 entices mobile operators to jockey for a leadership
envisages attracting investments worth US$100 position in the future 5G market in India.

5. Indian Brand Equity Foundation (2020). Sector Report – 6. National Digital Communications Policy, 2018. The
Telecommunications, February 2020. https://www.ibef.org/ Department of Telecommunications, India. https://dot.gov.
download/Telecommunications-February-2020.pdf. Last in/sites/default/files/EnglishPolicy-NDCP.pdf. Last accessed:
accessed: October 14, 2020. October 14, 2020.

© Nishith Desai Associates 2020 3

 Provided upon request only

2. 5G Technology
I. Evolution of Wireless
Standards
The first generation of wireless communication
technology were in introduced in 1979 and are
referred to as 1G, until they were replaced by 2G
technology later in 1991. 2G was digital, allowed
for encrypted conversations, and introduced
data services for mobile phones. In the interim,
2.5G was also introduced, which denoted
networks that implemented packet-switched
network capabilities in addition to circuit-
switched capabilities.
The third generation of mobile network
standards, known as 3G, was introduced in 1998.
The 3G family of standards introduced much
higher bandwidths for transfer of information
and allowed for mobile broadband access to
smartphones and laptops. 3G made several
modern mobile phone features possible, such as
faster internet browsing, video calling, mobile
television. The current prevalent standard, 4G,
was introduced in 2008 and allowed for much
higher broadband speeds, internet protocol
telephony, gaming, high-definition video
and audio, video conferencing and cloud
computing.7 See Figure 1 for the evolution of
wireless standards.

7. Meraj ud in Mir, Mohammad; Sumar, Sumit (2015).

“Evolution of Mobile Wireless Technology from 0G to 5G“
International Journal of Computer Science and Information
Technologies, 6(3) , 2015, 2545-2551. https://ijcsit.com/docs/
Volume%206/vol6issue03/ijcsit20150603123.pdf. Last
Figure 1: Evolution of wireless standards
Accessed: October 14, 2020.

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 5G Technology in India
Strategic, Legal and Regulatory Considerations

The current standard of mobile network same channel bandwidth, at one point the laws of
technologies in the process of wide-scale physics constrain any further improvements.
deployment is 5G. With this latest iteration of
In order to provide a greater channel bandwidth,
standards, mobile internet speeds are expected
5G is planned to operate in three different
to reach up to 10 Gbps along with significantly
frequency ranges: Low-band, Mid-band, and
reduced latency, much higher capacity to
Millimeter Wave (mmWave). Low-band 5G
support a huge number of devices, and increased
uses the same frequency range as 4G, which is
bandwidth to transfer much larger amounts
typically below 3GHz. It offers slightly better
of data. As discussed further below, 5G is also
data speed than 4G at up to 250 Mbit per second
expected make several novel and innovative
(“Mbps”). Mid-band 5G uses a frequency range
applications possible, such as internet of things,
up to 6 GHz, typically used by Wi-Fi, to provide
drones, and autonomous vehicles to name a few.
a downlink speed of up to 1 Gbit per second
(“Gbps”). Millimeter wave 5G uses a much higher
II. 5G Frequency Spectrum frequency range between 24GHz and 300 GHz to
provide high-speed data at a downlink speed of 2
One of the significant differences between 5G Gbps, which can even go up to 20 Gbps.8
and older generations of wireless networks is the
The 3GPP, an umbrella group of leading
frequency of electromagnetic spectrum utilized by
telecommunications standards development
the latest standard of wireless technologies. Data
organization, has proposed 5G NR (New Radio)
throughput in a mobile network is limited by
as a new global standard for air interface of 5G
the channel bandwidth (the difference between
Networks. Under 5G NR, there are two frequency
highest and lowest signal frequencies) available
groups: FR1 (Frequency range <6 GHz), in the
for the technology to use. On the frequency
range of 3.3-4.2 GHz with maximum channel
spectrum, narrower channel bandwidths are
bandwidth of 100 MHz; and FR 2 (Frequency
available at lower frequencies, whereas at
range > 24 GHz) in the range of 24 GHz to 300
higher frequencies, wider channel bandwidths
GHz with minimum channel bandwidth of 50
are available. While digitization, multiplexing
MHz and maximum of 400 MHz. See Figure 2 for
techniques and software-based data compression
5G Frequency Spectrum with respect to visible
algorithms allow us to cram more data in the
light and human audio range.

Figure 2: 5G Frequency Spectrum

8. Nordrum, Amy; Clark, Kristen (2017). “5G Bytes: Millimeter

Waves Explained” IEEE Spectrum. https://spectrum.ieee.org/
video/telecom/wireless/5g-bytes-millimeter-waves-explained.
Last Accessed: October 14, 2020.

© Nishith Desai Associates 2020 5

 Provided upon request only

Since the low-band 5G can be built on the device is wirelessly connected to the core
existing 4G infrastructure and mid-band and telecom network, the RAN transmits its signal
mmWave require new spectrum auctions, low- to various wireless endpoints, and the signal
band 5G is expected to be rolled out few years travels with another networks’ traffic.
earlier than 5G in the other two bands. However,
A base station may consist of a radio, an
the true potential of 5G will be realized when
operating system, microprocessor, digital signal
mmWave 5G is deployed. Many countries have
processor and host of utilities and application
reserved or started to free up millimeter wave
code. However, in case of 5G these parts don’t
spectrum for 5G. It would take several years
need to exist inside a single base station unit and
before mmWave 5G would be deployed.
can be distributed across group of base stations
As mmWave 5G uses higher frequency, the including cloud.10 Further, the traditional RAN
signal travels to shorter distances. Since the requires significant upgrades to keep up with
coverage area is limited, many more cell towers increasing demand for data.11 Hence, creating
will be required to build a seamless 5G network. an Open Radio Access Network also known as
However, cell tower antenna size will be much Open-RAN will lead in leveraging the cloud
smaller, so less visible. Given the huge throughput infrastructure by enabling service providers
capabilities, each cell will be able to support to adopt new solutions such as multi-vendor
up to 10 times more connections (e.g. mobile RAN solution to meet the increasing network
phones, tablets and IoT devices) in the same areas demand due to adoption of 5G network.
compared to 4G. So, this 5G technology will be
The Telecom Infra Project (“TIP”) which was
very useful in densely populated urban areas.
formed by Facebook in 201612 to support the
development of disaggregated and interoperable
III. Open Radio Access Network 2G/3G/4G/5G RAN solutions13 defines Open-
RAN as: “an initiative to define and build 2G,
A Radio Access Network (“RAN”) connects 3G, 4G and 5G RAN [Radio Access Network]
wireless devices to other parts of the network solutions based on a general-purpose vendor-neutral
through radio waves. A RAN comprises of a base hardware, open interface and software-defined
station and antenna, which assists in providing technology.”14
radio access and in co-ordination of network
resources across wireless devices.9 When a

10. Bennett, Richard (2020). “Opening up the 5G Radio Access

Network”, HighTech Forum, July 16, 2020 available here:
https://hightechforum.org/opening-up-the-5g-radio-access-
network/, Last Accessed: October 13, 2020.
11. Accenture Strategy (2019), “Open-RAM: The Next generation
of Radio Access Networks”, Accenture, 2019, available here:
https://cdn.brandfolder.io/D8DI15S7/as/qcr9sa-6ckfrk-j253y/
OpenRAN-The_Next_Generation_of_Radio_Access_Net-
works_-_Report.pdf, Last Accessed: October 13, 2020.
12. Parallel Wireless (2020), “Understanding the Different Open
RAN Groups in the Telecom Industry”, Parallel Wireless,
August 3, 2020, available here: https://www.parallelwireless.
com/understanding-the-different-open-ran-groups-in-the-
telecoms-industry/, Last Accessed: October 13, 2020.
9. SDxCentral Staff (2018). “What Is the Radio Access
Network?”, SDXCENTRAL, January 18, 2018, available here: 13. TIP, “OpenRAN”, available here: https://telecominfraproject.
https://www.sdxcentral.com/5g/definitions/radio-access- com/openran/, Last Accessed: October 13, 2020.
network/, Last Accessed: October 13, 2020. 14. Ibid.

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 5G Technology in India
Strategic, Legal and Regulatory Considerations

Table 1:Traditional Ran And Open-Ran

Particulars Traditional RAN Open-RAN
Network Physical replacement of Network can be upgraded through simple
Upgrade infrastructure required. update of the software.
Disaggregation Hardware and software cannot Open-RAN puts software at the center of the
of hardware and be separated. network and allows disaggregation of hardware
software and software. Thus, allowing separation of
software from the underlying hardware.
Cost RAN accounts for Open-RAN is expected to lower the cost
approximately 80% of total associated with deployment and maintenance
network costs.15 of networks since the entire network is
virtualized over cloud.
Interoperability Traditional RAN interface does Open-RAN supports interoperability and can
not support interoperability feature technologies from multiple vendors.
between different vendors.

Other benefits of adoption of Open-RAN is

IV. Benefits Over Traditional that in the event any new technology emerged,
RAN the telecom operators do not have to replace
their infrastructure but undertake an easy
Traditionally, telecommunication companies software upgrade.16
followed a hardware-driven approach of adding a
Open-RAN will provide open interfaces which
layer to the network whenever a new technology
will enable multiple vendor deployment,
emerged. This approach required substantial
allowing small vendors and operators to
investment by the TSPs to upgrade their networks
introduce their own services or to customize the
whenever any new technology emerged. Hence,
network as per their own unique requirements.
it was not only financially burdensome for the
An open interface will also create less latency
TSPs to adopt new technologies, it also required
in the network, will provide higher availability
TSPs to rely on exclusive vendors for its network
qualities to support IoT services. In order for 5G
infrastructure and equipment with less scope for
to support an open, multi-vendor network with
adopting new, innovative and cheaper ways of
an enlarged supply chain, more innovation and
deploying and managing networks.
greater competition, adoption of Open-RAN by
Realising the restrictions of this approach, Open- the network providers should be encouraged.
RAN has emerged as a preferred technology
amongst telecom operators. Unlike traditional
RAN, Open-RAN decouples hardware and
V. O-RAN Alliance
software; and it is quicker to deploy open networks
The O-RAN ALLIANCE is a worldwide
as compared to traditional ones. This provides
community of over 200 mobile operators,
operators more flexibility to deploy and upgrade
vendors, and research and academic institutions
their specification. Further, the Open-RAN
operating in the RAN industry. It was founded
technology is cost efficient because it reduces
in February 2018 by AT&T, China Mobile,
operators’ reliance on exclusive vendors and
Deutsche Telekom, NTT DOCOMO and
reduces the expenditure incurred on infrastructure.

15. Baburajan K (2020), “5G mobile operator strategies to cut 16. Tele.Net (2020), “ORAN Promise: Industry explores the
their huge power cost”, Telecomlead, April 3, 2020, available potential to build flexible networks”, Tele.Net, July 2020,
here: https://www.telecomlead.com/5g/5g-mobile-operator- available here: https://tele.net.in/oran-promise-industry-
strategies-to-cut-their-huge-power-cost-94645, Last Accessed: explores-the-potential-to-build-flexible-networks/ , Last
October 13, 2020. Accessed: October 13, 2020.

© Nishith Desai Associates 2020 7

 Provided upon request only

Orange.17 O-RAN ALLIANCE seeks to: (i) re-shape have also started forming partnerships among
the RAN industry by promoting open, virtualized, themselves to accelerate the adoption of
and fully interoperable mobile networks, and (ii) Open-RAN. For example, TIP has collaborated
clearly define requirements for O-RAN. It also with the O-RAN ALLIANCE to jointly develop
publishes new specifications, open software for interoperable 5G open RAN solutions23; the
the RAN and supports its members in integration GSMA collaborated with the O-RAN ALLIANCE
and testing. O-RAN ALLIANCE specifications are on opening up 5G networks.24
based on 3GPP specifications.18
In October 2019, Rakuten successfully
Apart from the founding members and various implemented the world’s first open, virtualised
telecom operators such as SK Telecom, Telus and distributed Open-RAN in Japan.25 In UK,
Communications Inc., KDDI, Singtel, Vodafone, Vodafone also started trials for the deployment
Verizon, Airtel, O-RAN ALLIANCE also of open RAN.26 In India too, Vodafone Idea
include contributors such as Nokia, HCL, IBM, Limited has deployed Mavenir’s Open RAN
Qualcomm, Intel, Softbank, Samsung, Toshiba solutions for 4G.27 Another Indian operator,
Verizon, Facebook, Ericsson, amongst others.19 Bharti Airtel recently deployed Altiostar’s Open
In December 2018, India’s Reliance Jio also vRAN solution for 4G networks across multiple
joined the O-RAN ALLIANCE board.20 cities in India. This Open vRAN solution also
has 5G ready software and would provide
seamless upgradation to 5G network using the
VI. Telecom Infra Project (“TIP”) same architecture.28
TIP has over 500 members including telecom
operators, vendors, developers, service
providers, start-ups21 and seeks to promote
strong partnership among the industry towards
building next generation RAN, 23. Sharma, Ray (2020), “O-RAN Alliance, TIP Team Up to
Develop Interoperable Open RAN Solutions”, The Fast Mode,
Besides this, over 30 companies formed the March 2020, available here: https://www.thefastmode.com/
technology-solutions/16523-o-ran-alliance-tip-team-up-to-
Open RAN Policy Coalition to pressurize develop-interoperable-open-ran-solutions , Last Accessed:
governments to establish measures for adoption October 13, 2020.
of Open-RAN technology.22 These members 24. O-RAN ALLIANCE (2020), “GSMA and O-RAN ALLIANCE
Collaborate on Opening up 5G Networks”, O-RAN
ALLIANCE, May 29, 2020, available here: https://www.o-
ran.org/in-the-news/2020/5/29/gsma-and-o-ran-alliance-
collaborate-on-opening-up-5g-networks , Last Accessed:
17. O-RAN ALLIANCE, (2020) “Transforming Radio Access
October 13, 2020.
Networks Towards Open, Intelligent, Virtualised And Fully
Interoperable Ran”, O-RAN ALLIANCE, available here: 25. Business Wire (2020), “Rakuten Mobile and NEC Begin
https://www.o-ran.org/, Last Accessed: October 13, 2020. Production of Open RAN 5G Radio Equipment”, Business Wire,
March 23, 2020, available here: https://www.businesswire.
18. Shenbagaraman, Ganesh (2020), “Who disaggregated my
com/news/home/20200323005749/en/Rakuten-Mobile-and-
RAN”, RCR Wireless News, June 1, 2020, available here:
NEC-Begin-Production-of-Open-RAN-5G-Radio-Equipment ,
https://www.rcrwireless.com/20200601/open_ran/who-
Last Accessed: October 13, 2020.
disaggregated-my-ran, Last Accessed: October 13, 2020.
26. Fletcher, Bevin (2019), “Vodafone initiates first open RAN
19. O-RAN ALLIANCE, (2020) “Membership”, O-RAN ALLIANCE,
trials in the U.K., challenging traditional vendors”, Fierce
available here: https://www.o-ran.org/membership, Last
Wireless, October 7, 2019, available here: https://www.
Accessed: October 13, 2020.
fiercewireless.com/tech/vodafone-initiates-first-open-ran-
20. Khan, Danish (2018), “Reliance Jio Joins O-RAN Alliance trials-uk-challenging-traditional-vendors , Last Accessed:
Board”, The Economic Times, December 12, 2018, available October 13, 2020.
here: https://telecom.economictimes.indiatimes.com/
27. Business Wire (2020), “Vodafone Idea Deploys Mavenir
news/reliance-jio-joins-o-ran-alliance-board/67053871 , Last
OpenRAN Solution”, Business Wire, April 23, 2020,
Accessed: October 13, 2020.
available here: https://www.businesswire.com/news/
21. TIP, “Our Members”, available here: https://telecominfraproj- home/20200423005364/en/Vodafone-Idea-Deploys-Mavenir-
ect.com/members/ , Last Accessed: October 13, 2020. OpenRAN-Solution , Last Accessed: October 13, 2020.
22. Dyer, Keith (2020), “Lobby group formed to push Governments 28. Sharma, Ray (2020), “India’s Bharti Airtel Deploys
to drive Open RAN adoption”, The Mobile Network, May 5, Altiostar’s Open vRAN Solution”, The Fast Mode, May, 2020,
2020, available here: https://the-mobile-network.com/2020/05/ available here: https://www.thefastmode.com/technology-
lobby-group-formed-to-push-governments-to-drive-open-ran- solutions/17014-indias-bharti-airtel-deploys-altiostars-open-
adoption/ , Last Accessed: October 13, 2020. vran-solution , Last Accessed: October 13, 2020.

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 5G Technology in India
Strategic, Legal and Regulatory Considerations

VII. Associated Technologies In addition to mobile operator networks using

5G for public networks, 5G will also be deployed
Despite the significant advantages offered by the by many organizations for private networks for
frequency spectrum utilized by 5G, millimeter internal use. Under the 5G NR FR2, various types
wave frequencies are affected by weather of cells can be used to support various types of
conditions and the geographic layout. They deployments:30 High power Metrocell can be
are absorbed by water vapor in the air, snow, used to cover urban areas to provide additional
rain and vegetation. They are also difficult to capacity to the regular 5G network coverage in
pass through walls, so it gives limited coverage the range of hundreds of meters. Medium power
inside buildings. To overcome these problems, Microcell can be used fill the gaps in regular
new associated technologies are introduced. coverage. Low power Picocell can be used in
Beamforming is a technology that enables public areas like airports, transport hubs, and
multiple bitstreams of data to use multiple shopping centers. Lowest power Femtocell can
antennas as phased arrays to reach each be used in confined spaces, like homes, coffee
connected device optimally. Edge computing shops and small offices, to cover up to 32 users
will enable basic computing of data closer to with a range of tens of meters.
the user to reduce congestion in data traffic and
latency. Small cells, which are low-powered
radio access nodes, can be independently set up
VIII. Pros and Cons
with a coverage area of up to several hundreds
Like any other technologies, 5G also has several
of meters to augment 5G networks. Multiple-
pros and cons, see Figure 3.
input and multiple-output (“MIMO”) antennas
have been used to multiply capacity of a mobile
connection through multipath propagation.
Massive MIMO antennas used in 5G will help
focus energy on a connected device through
multiple links and bring greater throughput and
efficiency.29

29. Qualcomm (2019). “How 5G massive MIMO transforms

your mobile experiences” Qualcomm Technologies OnQ 30. “5G speed vs 5G range-What is the value of 5G speed,5G
Blog. June 20, 2019. https://www.qualcomm.com/news/ range”. rfwireless-world.com. https://www.rfwireless-world.
onq/2019/06/20/how-5g-massive-mimo-transforms-your-mo- com/Terminology/5G-Speed-Vs-5G-Range.html. Last accessed
bile-experiences. Last Accessed: October 14, 2020. October 14, 2020.

© Nishith Desai Associates 2020 9

 Provided upon request only

Figure 3: Pros and Cons of 5G

reach, 5G antennas are also positioned at a

IX. 5G and Health Risks shorter height from ground levels and much
closer to people. So, it is natural for us to be
Radiation from electromagnetic waves has the
concerned about health risks in 5G. Many cities
potential to affect human bodies at the cellular
have banned, canceled or delayed installation of
level. When significant in quantity, they could
5G networks.31
pose serious health risks. For over a century, we
have been using electromagnetic waves for radio Despite operating at a higher frequency, 5G fits
transmission. However, its use has been increasing into the non-ionizing radiation zone, unlike
every decade by many folds. We currently live in a ultraviolet rays, x-rays and gamma rays, which
world in which we are continuously surrounded fall in the ionizing radiation zone. The highest
by invisible electromagnetic radiation generated allocated frequency of 5G is 300 GHz, which
by human activities such as the use of Wi-Fi, radio, is millions of magnitudes lower than ionizing
satellite television, etc. radiation zone frequencies at higher than 3 PHz.
5G frequencies are even significantly lower than
Like all other wireless technologies, 5G also uses
visible light. Among many other applications,
electromagnetic waves for transmission of data.
including satellite transmissions, full body
It uses higher frequency waves in the millimeter
wave range than those used by most widespread
applications, such as citizen band (CB) radio,
FM radio, on-air UHF and VHF television, 31. Mims, Christopher (2019). “Cities Are Saying No to 5G,
Citing Health, Aesthetics—and FCC Bullying” The Wall
microwave ovens, 4G mobile networks and Street Journal. August 24, 2019. https://www.wsj.com/articles/
Wi-Fi. Additionally, because of shorter signal cities-are-saying-no-to-5g-citing-health-aestheticsand-fcc-
bullying-11566619391. Last Accessed: October 14, 2020.

10 © Nishith Desai Associates 2020

 5G Technology in India
Strategic, Legal and Regulatory Considerations

scanners used at airports also operate in this that “To date, no adverse health effects have been
frequency range of millimeter wave. established as being caused by mobile phone use.”38
It has put mobile at par with substances like
The International Commission on Non-Ionizing
coffee and pickles for possible carcinogenic
Radiation Protection has issued guidelines
impact. However, WHO continues to monitor
for devices operating in non-ionizing zones,
health risks with evolving mobile technologies.
including the Radiofrequency Electromagnetic
Fields (“RF EMF”)32 of 100kHz to 300 GHz, In the US, two laws directly deal with health
where 5G operates. Based on several decades of risks posed by equipment using electromagnetic
research, the Commission has concluded that “RF waves or having electromagnetic radiation:
EMF exposure below the thermal threshold is unlikely The Radiation Control for Health and Safety
to be associated with adverse health effects.”33 Act of 196839 and the Occupational Safety and
Health Act of 1970.40 In India, the Telecom
An IEEE Spectrum article suggests that non-
Regulatory Authority of India (“TRAI”) released
ionizing radiation is “not the kind of radiation that
a paper on electromagnetic radiation from
could damage DNA and possibly cause cancer.” It
mobile towers reviewing various studies on
further points out that since millimeter waves
its effect on human health and concluded
don’t penetrate the body and “reflect off the
that there seems to be no causality between
skin’s surface,” they are less likely to damage
electromagnetic radiation due to mobile phone
the skin.34 IEEE Standards Association has
towers and disease in human beings.41 The
also issued standards for the safety levels with
Department of Telecommunications (“DoT”)
respect to human exposure to radiation at up to
also requires Telecom Service Providers (“TSPs”)
300 GHz frequency.35 IEEE Future Network has
to conduct a periodic audit as per procedure
also published guidelines for radiofrequency
established by the Telecommunication
exposure limits for 5G.36
Engineering Centre to ensure that emissions
The World Health Organization (“WHO”) has from mobile phone base stations for general
also delved into possible health risks associated public exposure conform to the set standards.42
with 5G.37 Previously in 2014, WHO had said

32. ICNIRP (2020). “ICNIRP Guidelines for Limiting Exposure

to Electromagnetic Fields (100 KHz to 300 GHz). HEALTH
PHYS 118(5): 483–524; 2020. https://www.icnirp.org/cms/
upload/publications/ICNIRPrfgdl2020.pdf. Last Accessed:
October 14, 2020.
33. ICNIRP (2020). “RF EMFS” International Commission on
Non-Ionizing Radiation Protection Website. https://www.
icnirp.org/en/frequencies/radiofrequency/index.html. Last
Accessed: October 14, 2020. 38. The World Health Organization (2014). “Electromagnetic
34. Pretz, Kathy (2019). “Will 5G Be Bad for Our Health?” IEEE fields and public health: mobile phones” The WHO
Spectrum. November 12, 2019. https://spectrum.ieee.org/news- Newsroom Fact Sheet. October 8, 2014. https://www.who.
from-around-ieee/the-institute/ieee-member-news/will-5g-be- int/news-room/fact-sheets/detail/electromagnetic-fields-and-
bad-for-our-health. Last Accessed: October 14, 2020. public-health-mobile-phones. Last Accessed: October 14, 2020.

35. IEEE SA (2019). “C95.1-2019 - IEEE Standard for Safety Levels 39. The Radiation Control for Health and Safety Act of 1968.
with Respect to Human Exposure to Electric, Magnetic, and Public Law 90-062. 82 Stat. 1173. https://www.govinfo.gov/
Electromagnetic Fields, 0 Hz to 300 GHz” IEEE Standards content/pkg/STATUTE-82/pdf/STATUTE-82-Pg1173.pdf. Last
Association. October 4, 2019. https://standards.ieee.org/ Accessed: October 14, 2020.
standard/C95_1-2019.html. Last Accessed: October 14, 2020. 40. The Occupational Safety and Health Act of 1970. Public
36. Foster, Kenneth R.; Kodera, Sachiko; Hirata, Akimasa Law 91-596. 84 Stat. 1590. http://www.gpo.gov/fdsys/pkg/
(2019). “5G Communications Systems and Radiofrequency STATUTE-84/pdf/STATUTE-84-Pg1590.pdf. Last Accessed.
Exposure Limits” IEEE Future Networks Tech Focus, Volume October 14, 2020.
3, Issue 2, September 2019. https://futurenetworks.ieee.org/ 41. Information Paper on Effects of Electromagnetic Field
tech-focus/september-2019/5g-communications-systems-and- Radiation from Mobile Towers and Handsets, Telecom
radiofrequency-exposure-limits. Last Accessed: October 14, 2020. Regulatory Authority of India, July 30, 2014.
37. The World Health Organization (2020). “5G mobile networks https://www.trai.gov.in/sites/default/files/EMF_Information_
and health” WHO Newsroom Q&A. February 27, 2020. Paper_30.07.2014.pdf. Last accessed: October 14, 2020.
https://www.who.int/news-room/q-a-detail/5g-mobile- 42. License Agreement for Unified License, Chapter IV –
networks-and-health. Last Accessed: October 14, 2020. Technical Conditions, Condition 24.1.

© Nishith Desai Associates 2020 11

 Provided upon request only

X. Standards-setting • CCSA – China Communications Standards

Agencies Association
• ETSI – The European Telecommunications
Standards Institute
A. Global
• TSDSI – Telecommunications Standards
ƒInternational Telecommunications Union Development Society, India
(“ITU”):
• TTA – Telecommunications Technology
• ITU Radiocommunication Sector (“ITU-R”): Association, Korea
Coordinates standards related to the usage
of radio-frequency spectrum internationally
• TTC – Telecommunication Technology
Committee, Japan
and satellite orbit resources.
• ITU Telecommunications Standardization B. India
Sector (“ITU-T”): Coordinates standards
for telecommunications and information ƒTelecommunications Standards Development
communication Society, India (“TSDSI” – https://tsdsi.in/):
• ITU Development (“ITU-D”): Coordinates An autonomous, member-based standard
development organization (SDO) supported
equitable, sustainable and affordable access
by the DoT and Ministry of Electronics and
to information and communications
Information Technology (MeitY) of the
technologies (“ICT”). Provides training
Government of India.
programs on policy and regulation
formation, and financial strategies for ICT ƒTelecommunication Engineering Center
deployment to developing countries. (“TEC” - http://www.tec.gov.in/): The TEC
is a body under the aegis of the DoT that is
ƒ3GPP – Industry Standard Group: Unites
responsible for specifying common standards
seven telecom standards development
with regards to telecom network equipment,
organizations (ARIB, ATIS, CCSA, ETSI,
services and interoperability; issuing interface
TSDSI, TTA, and TTC).
approvals and service approvals; formulating
• ARIB – The Association of Radio Industries standards and fundamental technical plans;
and Businesses, Japan and providing technical support and advice to
• ATIS – The Alliance for the DoT and TRAI.
Telecommunications Industry
Solutions, USA

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 5G Technology in India
Strategic, Legal and Regulatory Considerations

3. Applications
The ITU-R has defined three key usages of
5G wireless network technology: Enhanced
IV. Sector-Specific Applications
Mobile Broadband, Ultra Reliable Low Latency
The incredible speed and bandwidth afforded
Communications, and Massive Machine Type
by 5G networks have a huge potential to enable
Communications. In addition, as discussed
several applications of upcoming technologies.
further below, 5G also has sector-specific
A few of them are discussed in this section:
applications that enable the next generation of
emerging technologies.
V. Internet of Things (“IoT”)
I. Enhanced Mobile IoT refers to a network that connects devices,
Broadband (“EMBB”) instead of people. It has several applications
– such as for farming, industrial automation,
eMBB extends the current 4G LTE mobile smart retail, supply chain management,
broadband services to the next level of construction management, and disaster
higher bandwidth capacity. It also enhances management. 5G is uniquely positioned
connectivity and provides higher user mobility. to address the challenges posed by IoT by
Here, the data rate supported for downlink is up providing higher bandwidth and faster speeds
to 20 Gbit per second and uplink is up to 10 Gbit over wireless networks to allow a larger number
per second and latency is 4 ms. of devices to coordinate and communicate at
faster speeds.
II. Ultra Reliable Low Latency
Communications (“URLLC”) VI. Artificial Intelligence (“AI”)
5G technology will enable faster access to
With strict requirements for latency
huge data pools, data collection sensors and
performance (1 ms) and reliability of the
computing powers to rapidly build AI models.
connections, it provides robust, uninterrupted
Once initial AI models are built, they can be
data connections for mission critical
further refined through continuous usage and
applications in industry and governments, such
feedback loop. 5G will enable wider deployment
as aircraft navigation system, nuclear reactor
of AI models and the feedback loop. It will
safety system, power grid operations, intelligent
also provide access to real-time contextual
transport system, telemedicine, automated
information, such as macro-economic, weather,
factories and warehouses, etc.
socio-political events, etc., from various sources
to further improve the models. AI models
III. Massive Machine Type are also, in return in a different way, going to
Communications (“MMTC”) increase efficiency and improve management of
5G networks.
mMTC supports a very large number of
different types of devices, such as IoT devices VII. Media and Entertainment
and sensors, in a small area. The connection
density can be 10 million devices per square The media & entertainment market has
kilometer. witnessed a boom over the last few years.
Internet streaming platforms have only grown
in terms of number of subscribers and amount
of content available for consumption as more

© Nishith Desai Associates 2020 13

 Provided upon request only

and more people cut the cord on their televisions. X. Gaming

In addition, the quality of content available for
consumption has also increased as consumers Online multiplayer gaming requires high
slowly move from high-definition media to ultra- bandwidth and extremely low latency, which
high-definition media such as 4K resolutions. is made possible by 5G networks. Video games
5G networks will enable delivering such high is a booming industry and is expected to grow
bandwidth content to a growing number of in India as well, owing to the growing young
mobile and home devices at greater speeds. population increasingly adopting the internet
and smartphones. The newest technological
trend in gaming involves processing the game
VIII. Telemedicine data over the cloud and delivering the result to
the users’ device. In order to enable real-time
Telemedicine is a fast-emerging area in
delivery of the game data, higher speeds and
healthcare. Telemedicine uses various
lower latency is a prerequisite, which is made
technologies to remotely provide traditional
possible by 5G networks.
healthcare services. It is a broad concept
involving services such as tele-radiology, tele-
consultation, tele-nursing, tele-ICU and tele- XI. Autonomous Vehicles
surgery. Huge data throughput combined with
ultralow latency of 5G network will increase use Autonomous vehicles generate and process a
of telemedicine and provide access to quality huge amount of data, owing to the multiple
healthcare to people living in far away from sensors that enable it. They also require a
expert healthcare service providers. lot of bandwidth and lower latency in order
to communicate and make quick decisions,
that may be life saving for its passengers. 5G
IX. Communications networks are best equipped to provide the
sort of connectivity that is required to make
Long distance communication started with
autonomous vehicles a safe possibility.
telegraph in the 19th century and has since
evolved into video calling as technology and
capabilities have evolved over time. 4G was XII. Smart Cities
the first generation of networks that first made
video calling truly possible. As more and more Infrastructure needed for smart cities, like
consumers adopt video calling as a preferred traffic sensors, disaster monitors, early warning
mode of communication, higher amounts systems, autonomous vehicles, delivery robots,
of bandwidth intensive video will have to be drones, network sensors, public transport,
delivered over networks to mobile devices. public utility monitors, security systems, etc.
Businesses that allow remote work, which also require dedicated connectivity to enable
is becoming increasingly common, will also generating, carrying and analyzing the vast
require better network capabilities to enable amounts of data generated by each of these. The
video conferencing services to allow employees distinct advantages offered by 5G are highly
to connect remotely. 5G networks are expected suitable for smart city applications.
to make these applications smoother and easier
to handle.

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 5G Technology in India
Strategic, Legal and Regulatory Considerations

4. Evolution of Telecommunications Policy in

India
I. History Government of India v. Cricket Association of
Bengal.44 Through this judgment, the Supreme
Telecommunications in India originated in Court ruled that electromagnetic spectrum is
the mid-19th Century with the introduction public property and accordingly, “they have to be
of the telegraph by the British. It was not until used in the best interest of the society and this can be
much later that a law governing telegraph done either by a central authority by establishing its
communications was put in place – the Indian own broadcasting network or regulating the grant
Telegraph Act, 1885. This was followed by the of licenses to other agencies, including the private
introduction of the Indian Wireless Telegraphy agencies.” This judgement opened a way for the
Act, 1933, which is intended to regulate the privatization of telecom services and allowed
possession of the wireless telegraphy apparatus. private companies to offer telecom services in
These Acts provide an exclusive authority competition to government-owned public sector
to the Central Government for establishing, units. To regulate the activities of the private
maintaining, and working telegraphs, and sector, an independent regulatory agency was
wireless telegraphy equipment, and to grant required. In 1997, an autonomous statutory
licenses for such activities. Initially, telecom body – the TRAI – was set up under the Telecom
services were provided by the Indian Post & Regulatory Authority of India Act, 1997 to act
Telecommunication Department. Much later, as an independent regulator of the telecom
in 1985, the Indian government separated DoT industry in India.
from Indian Post and Telecommunication
This landmark Supreme Court judgment and
Department and set up two public undertakings
the setting up of TRAI was followed by the New
– the Mahanagar Telephone Nigam Limited
Telecom Policy, 199945 (“NTP 1999”), which
(“MTNL”) to run the telecom services of metro
focused on creating an environment to attract
cities, and Overseas Communication Services
investment in the telecommunications sector,
(OCS) was converted into Videsh Sanchar Nigam
making available affordable communication
Limited (“VSNL”) or international long-distance
to everyone, and creating a modern and
operations. Until the early 1990s, the Government
efficient telecommunications infrastructure.
had completely monopoly in the telecom sector.
Later, a revised National Telecom Policy46
In 1994, the National Telecom Policy43 (“NTP was introduced in 2012 (“NTP 2012”) with
1994”) was adopted with a view to achieving the intention of developing robust telecom
telecom growth and encouraging private infrastructure to provide seamless coverage to
investment to bridge the resource gap that rural and remote areas of India, proliferating
the government could not provide for. NTP high quality broadband, attracting foreign
1994 was the first step towards deregulation, and domestic investment, and repositioning
liberalization and private sector participation in the mobile device as an instrument of socio-
the telecom service sector. economic empowerment.
Another crucial development made way for the
growth of the telecom industry in India – the 44. (1995) 2 SCC 251. https://mib.gov.in/document/supreme-
court-judgement-airwaves. Last accessed: October 14, 2020.
landmark judgment of the Supreme Court
45. New Telecom Policy (1999). The Department of
in Ministry of Information and Broadcasting, Telecommunications, India. https://dot.gov.in/new-telecom-
policy-1999. Last accessed: October 14, 2020.
46. National Telecom Policy (2012). The Department of
43. National Telecom Policy (1994). The Department of Telecommunications, India. https://dot.gov.in/sites/default/
Telecommunications, India. https://dot.gov.in/national- files/NTP-06.06.2012-final_0.pdf. Last accessed: October 14,
telecom-policy-1994. Last accessed: October 14, 2020. 2020.

© Nishith Desai Associates 2020 15

 Provided upon request only

II. National Digital thinking about communications. The objectives

Communications of the latest policy include identifying and
making available new spectrum bands for
Policy, 2018 timely deployment of 5G networks, creating
a roadmap for emerging technologies and their
In 2018, a revised policy was released – the use in communications, and enabling high-
National Digital Communications Policy, 2018. speed internet and internet of things by rolling
The revised title of the policy itself signals a out 5G networks.47
change in the government’s approach towards

47. National Digital Communications Policy, 2018. The

Department of Telecommunications, India. https://dot.gov.
in/sites/default/files/EnglishPolicy-NDCP.pdf. Last accessed:
October 14, 2020.

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 5G Technology in India
Strategic, Legal and Regulatory Considerations

5. Regulatory Landscape
issues a number of tariff and quality of service
I. Key Regulations regulations applicable to provision of telecom
services.
A. Indian Telegraph Act, 1885
The Indian Telegraph Act, 1885 is one of the D. Unified License
oldest legislations governing telecommunications
In 2013, the DoT introduced the Unified License.
still in effect in India. This law: a) empowers
The Unified License paved the way for the
the Government of India to take control of
implementation of DoT’s One Nation - One
the existing telegraph lines and lay down the
License plan by consolidating license terms
necessary infrastructure for further expansion of
for different telecom services under the ambit
telecommunications in India; b) authorizes the
of one license, i.e. the Unified License. The
Government of India to grant telecom licenses to
Unified License replaces the old regime of a
establish, maintain, work a telegraph within any
telecom operator applying for separate licenses
part of India; and c) authorizes the Government
for separate services proposed to be offered by
of India to take possession of licensed telegraphs
bringing all the major telecom services under
and to order interception of messages on the
one license. The Unified License agreement
occurrence of any public emergency or in the
provides for several conditions that the service
interest of public safety.
provider must comply with, including general
conditions applicable to the licensee, commercial
B. The Indian Wireless Telegraphy conditions relating to tariff, license fees payable,
Act, 1933 and technical, operating and security conditions
applicable to provision of telecom services.
This Act was enacted to regulate the possession
of wireless telegraphy apparatus. According to
this Act, the possession of wireless telegraphy
E. Information Technology Act,
apparatus by any person can only be allowed in 2000
accordance with a license issued by the telecom
The Information Technology Act, 2000 is
authority. Further, the Act also levies penalties
applicable to information and communication
if any wireless telegraphy apparatus is held
technologies. While the law was not enacted
without a valid license.
to directly apply to the telecom industry, the
information technology industry and telecom
C. Telecom Regulatory Authority industry are closely linked and therefore
Of India Act, 1997 in 2008, the Act was amended to include
TSPs/Internet Service Providers (“ISPs”)
The Telecom Regulatory Authority of India Act, and ‘communication devices.’ TSPs and ISPs
1997 (“TRAI Act”) enabled the establishment are considered intermediaries under the law
of the TRAI which is a co-regulator of the because they receive, store or transmit data ‘on
telecom sector in India. Initially, the TRAI behalf of another person’.48 In addition, security
Act empowered the TRAI with quasi-judicial rules for protection of sensitive personal data or
authority to adjudicate upon and settle information also apply to TSPs and ISPs.49
telecom disputes. Later this Act was amended
by the Telecom Regulatory Authority of India
(Amendment) Act, 2000 to bring in better clarity 48. Section 2(w), Information Technology Act, 2000.
and distinction between the regulatory and 49. Information Technology (Reasonable security practices
recommendatory functions of TRAI. TRAI also and procedures and sensitive personal data or information)
Rules, 2011

© Nishith Desai Associates 2020 17

 Provided upon request only

II. Regulatory Agencies received TRAI’s recommendations, the DoT may

either accept or reject the recommendations.51
TRAI is also the sole authority to a) fix tariffs
A. The Department of for telecommunication services; b) setting out
Telecommunications terms of interconnection between telecom
providers and standards of quality of service for
As per the Allocation of Business Rules, 1961,
TSPs. It has been proposed that TRAI’s name
the DoT exercises the powers of the licensing
will be changed to Digital Communications
and regulatory authority for telecom in India.50
Regulatory Authority of India but the same has
Some of its important functions are: a) licensing
not been implemented yet.52
and regulation; b) international cooperation in
matters connected with telecommunications
(such as International Telecommunication
Union (ITU), International Telecommunication
C. Ministry of Electronics &
Satellite Organization (INTELSAT), etc; c) Information Technology
promotion of private investment in the Indian (“MEITY”)
telecommunications sector; d) promotion of
standardization, research and development in MEITY is responsible for “policy matters relating
telecommunications. to information technology; Electronics; and
Internet (all matters other than licensing of
Internet Service Provider)”, “administration of
B. The Telecom Regulatory the Information Technology Act, 2000 and other
Authority of India IT related laws”, and the “Unique Identification
Authority of India”.53 Some matters, including
TRAI acts as an independent regulator of the
privacy, relating to applications over the internet
telecommunications industry in the country
fall within the bounds of MEITY’s jurisdiction.
established under the TRAI Act. One of the
On the other hand, DoT imposes privacy
main objectives of TRAI is to provide a fair and
obligations on TSPs through the Unified License.
transparent policy environment to promote a
level playing field and facilitate fair competition
amongst various telecom players. TRAI’s powers III. Spectrum Allocation
are recommendatory, mandatory, regulatory
and judicial. The important recommendatory Spectrum is allocated in India based on the
powers of TRAI include: a) the need and timing National Frequency Allocation Plan,54 which
for introduction of new service providers; b) itself is based on the international frequency table
grant of telecom licenses including their terms issued by the International Telecommunications
and conditions; c) revocation of license for non- Union. A wing of the DoT, the Standing Advisory
compliance of terms and conditions of license. Committee on Frequency Allocation (“SACFA”),
The recommendatory powers of TRAI must be gives approval for radio frequency (spectrum)
viewed in light of the policy making powers used by TSPs. In addition to obtaining a telecom
of DoT. While the DoT is the sole authority for
licensing of all telecommunications services in
India, it is mandatory for the DoT to seek TRAI’s 51. This stipulation was brought about by an amendment to the
recommendations before making decisions TRAI Act in 2000.
with respect to the matters over which TRAI 52. Available here https://telecom.economictimes.indiatimes.
com/news/trai-to-be-renamed-as-digital-communications-
has recommendatory jurisdiction. Once it has regulatory-authority-of-india-manoj-sinha/65971515. Last
Accessed: October 14, 2020.
53. Government of India (Allocation of Business) Rules, 1961.
50. Government of India (Allocation of Business) Rules, 1961. 54. NFAP (2018). “National Frequency Allocation Plan – 2018.”
As Amended up to 31st January 2017. https://cabsec.gov.in/ The Department of Telecommunications, The Government of India.
writereaddata/allocationbusinessrule/completeaobrules/ https://dot.gov.in/sites/default/files/NFAP%202018.pdf. Last
english/1_Upload_1187.pdf, Last Accessed: October 14, 2020. Accessed: October 14, 2020.

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 5G Technology in India
Strategic, Legal and Regulatory Considerations

license, a no objection certification from SACFA In order to ensure optimal deployment of 5G,
is required to begin rolling out services. The adequate spectrum availability is imperative.
certificate is granted on the basis of a detailed The DoT had constituted a High Level Forum
technical evaluation including field studies (“HLF”) in 2017 to make recommendations
to determine possible aviation hazards and to steer India towards deployment of 5G
interference (Electro Magnetic Interference networks.58 The HLF recognized two crucial
(“EMI”)/Electro Magnetic Compatibility issues with spectrum allocation in India: (a) the
(“EMC”)) to existing and proposed networks. limited licensed mobile spectrum available in
India, i.e. 220 Mhz, compared to other countries;
The government is bound to ensure that its
and (b) the cost of spectrum, relative to per
spectrum licensing decisions are rational,
capita GDP, which is much higher than other
transparent, and free from arbitrariness. The
countries.59 The HLF recommended that 5G
courts have time and again upheld this principle
spectrum be released in three tiers:
of transparency. In the case of Delhi Science
Forum v. Union of India55, the Supreme Court 1. 8-803 MHz, 3300-3600 MHz, 24.25-
held that the privatization policy adopted by 27.5 GHz, and 27.5 – 29.5 GHz) are
the government is a necessary consequence of recommended to be declared as available
liberalization and that the procedures adopted for 5G networks in order to provide
for such grant should be “reasonable, rational certainty to the ecosystem
and in conformity with the conditions which
2. Identify Tier – certain bands (617-698
have been announced.”
MHz, 1427-1518 MHz, 29.5 to 31.3 GHz
The Supreme Court of India in the case of Centre for and 37.0 to 43.5 GHz) are recommended to
Public Interest Litigation and Ors. Vs. Union of India56 be designated for potential 5G use, which
held that electromagnetic spectrum is a natural may be announced after consultation with
resource that belongs to the public at large. The other domestic users.
government’s first-come-first-served policy of
3. Study Tier – certain bands (3600-3700
allocating spectrum was heavily criticized by the
MHz) are recommended to be designated
Court, which held that a public auction is the best
for exploratory studies for 5G use.
way of licensing public property. Consequently,
the Supreme Court delivered an order against In India, 5G spectrum allocation is tentatively
thirteen respondents holding that such scheduled for in mid-2020. According to reports,
respondents had been favored by the government 8,293.95 Mhz of 4G and 5G spectrum is due for
and had been illegally granted telecom licenses. auction, which may cost telecom companies
The Supreme Court ordered the cancellation approximately INR 5860 billion (about US$78
of 122 telecom licenses granted in various billion) if all the spectrum is sold at base price.60
service areas for the 2G spectrum and imposed
financial penalties ranging from INR 5 Million
(approximately US$65,000) to INR 50 Million
(approximately US$650,000) on the grounds that
the TSPs had benefited at the cost of the public
58. (7)Constitution of High Level Forum for 5G India 2020,
exchequer because of a wholly arbitrary and Department of Telecommunications, No. 6-33/2017 – IC.
unconstitutional decision taken by the DoT for https://dot.gov.in/sites/default/files/Details%20of%20HLF%20
for%205G%20India%202020_1.pdf. Last Accessed: October
grant of licenses and spectrum. Going forward, 14, 2020.
spectrum could only be allocated through a 59. (8)Report of the High Level Forum on 5G, p. 27,
public auction.57 https://dot.gov.in/sites/default/files/5G%20Steering%20
Committee%20report%20v%2026_0.pdf. Last Accessed:
October 14, 2020.
60. Next Spectrum Auction Likely in April-June 2020, Economic
55. 1996 AIR 1356. Times, December 4, 2019. https://economictimes.indiatimes.
com/industry/telecom/telecom-news/next-spectrum-auction-
56. (2012) 3 SCC 1
likely-in-april-june-2020/articleshow/72357947.cms. Last
57. (2012) 3 SCC 1 accessed: October 14, 2020.

© Nishith Desai Associates 2020 19

 Provided upon request only

IV. Plans For 5G a number of crucial categories to demonstrate

the use of 5G technology, such as: a) healthcare,
education and governance; b) environment,
A. Trai White Paper – ‘Enabling public safety and disaster management; c)
5G in India’ smart cities and infrastructure; d) logistics and
transportation; e) cyber security; f) multimedia
In February 2019, TRAI released a report61
and broadcast; g) AgriTech and livestock.64
outlining the necessities and challenges for
deploying 5G and where India currently stands
on each of them, respectively. The report C. TSDSI’s 5g Radio Interface
touched upon the architecture of 5G networks Technology
and tracked the spectrum and backhaul
requirements for 5G, regulatory challenges and ITU-R has set certain international standard
issues relevant to successful deployment of and specifications for 5G networks known as
5G networks, and scope for investment in 5G International Mobile Telecommunications -
networks and its applications. 2020 (“IMT 2020”). These standards are set to
be finalized in 2020. Some of the key features of
IMT 2020 are65:
B. 5G High Level Forum Report –
“Making India 5G Ready” ƒcompatibility of services within IMT and
with fixed networks;
In 2017, the Central Government set up a HLF
to recommend policy initiatives and action ƒcapability of interworking with other radio
plans towards the ends of rolling out early, access systems;
efficient and pervasive 5G networks; expanding
ƒhigh quality mobile services;
the manufacturing base for semiconductor
assembly and testing plants; and promoting ƒuser equipment suitable for worldwide use;
industry and research into 5G technologies. The
ƒenhanced peak data rates to support advanced
Forum published their report with suggestions
services and applications:
for spectrum policy, regulatory policy,
‘applications and use cases labs’, developing ƒInitially peak data rates of 100 Mb/s for high
application layer standards, and evaluating any and 1 Gb/s for low mobility
applicable international standards.62
ƒDownlink peak data rate of 20 Gb/s;
C. 5G Hackathon ƒUplink peak data rate of 10 Gb/s;
The Government of India is also trying to ƒTarget downlink “user experienced data rate”
provide a boost to research and development of 100 Mb/s;
of technologies leveraging 5G networks. Most
ƒTarget uplink “user experienced data rate” of
recently, the DoT organized a 5G Hackathon “to
50 Mb/s
identify & scale ideas, relevant to India, in the 5G
realm, that will be developed into workable products In 2017, India’s TSDSI had proposed adoption
and services”.63 The competition has identified of Low Mobility Large Cell (“LMLC”) as
mandatory 5G requirement, which was
also adopted by ITU-R IMT 2020 Technical
61. Enabling 5G in India, Telecom Regulatory Authority of India,
February 2019, https://trai.gov.in/sites/default/files/White_
Paper_22022019_0.pdf. Last accessed: October 14, 2020.
62. 5G High Level Forum (2019). “Making India 5G Ready” 64. 5G Hackathon Categories. https://www.5ghackathon.in/. Last
Report of the 5G High Level Forum. https://dot.gov.in/sites/ accessed: October 14, 2020.
default/files/5G%20Steering%20Committee%20report%20 65. ITU (2020). ITU-R FAQ on International Mobile
v%2026_0.pdf. Last Accessed: October 14, 2020. Telecommunications (IMT). Updated 27 April 2020. https://
63. 5G Hackathon Objectives. https://www.5ghackathon.in/. Last www.itu.int/en/ITU-R/Documents/ITU-R-FAQ-IMT.pdf. Last
accessed: October 14, 2020. accessed: October 14, 2020.

20 © Nishith Desai Associates 2020

 5G Technology in India
Strategic, Legal and Regulatory Considerations

Performance Requirements as a mandatory ƒHigh speed connectivity;

test configuration under the Rural eMBB test
ƒLarge Coverage (in particular for Rural areas);
environment.66 LMLC fulfills the requirements
of affordable connectivity in rural, remote and ƒSupport multiple frequency bands including
sparsely populated areas. mmWave spectrum69
In 2019, at the ITU-R working party meeting However, as per news report,70 the TSPs in
i.e. ITU-R WP 5D, TSDSI had also submitted India are likely to approach the DoT to seek its
its specifications and standards “IMT-2020 intervention on adoption of India specific 5G
Radio Interface Technology (“RIT”)”. TDSI’s standards. As per the TSPs, India should align
RIT incorporates India-specific technology its standards and adopt the global 5G network
enhancements that can enable larger coverage standard approved by the ITU. In case global
for meeting the LMLC requirements.67 standards are not adopted, it may lead
to interoperability issues between network
Currently, RIT has completed the 7th step of
and devices.
the 8-step process of ITU-R WP5D. Further,
the specification of the TSDSI technology has However, the TSDSI Chairman Prof. Bhaskar
been added in the draft IMT-2020 specification Ramamurthi has contended that both the
document, which is being undertaken and Indian and ITU standards have similar costs
is expected to be finished in the meetings of and have the ability to interoperate in networks
ITU-R WP5D to be convened in October and across the world. He further slammed the rural
November 2020.68 connectivity contention of the telcos and argued
that while ITU compliance would render 60%
TSDSI RTI is an adaptable radio interface
rural coverage, the proposed Indian standards
wherein all the technical requisites of IMT 2020
would cover 95% rural areas.71
are fulfilled over the varied test environments.
The main focus of this is to connect next The adoption of global standards is more in line
generation devices and provide services across with the interest of TSPs and consumers both as
various sectors. The key focus of TSDSI’s RIT is it would lead to leveraging the global 5G expanse.
on following:- It would also provide convenience to overseas
Indian users and foreigners. Further, adopting
ƒEnhanced spectral efficiency and broadband
the Indian standards would be strenuous and
access;
financially cumbersome for the TSPs.
ƒLow latency communication;
ƒSupport millions of IOT devices;
ƒPower efficiency;

66. Weissberger, Alan (2019), India’s TSDSI candidate IMT 69. Weissberger, Alan (200), TSDSI’s 5G Radio Interface spec
2020 RIT with Low Mobility Large Cell (LMLC) for rural advances to final step of IMT-2020.SPECS standard. 28 July
coverage of 5G services. 5 July 2019. https://techblog.comsoc. 2020. https://techblog.comsoc.org/2020/07/28/tsdsis-5g-
org/2019/07/05/indias-tsdsi-candidate-imt-2020-rit-with-low- radio-interface-spec-advances-to-final-step-of-imt-2020-specs-
mobility-large-cell-lmlc-for-rural-coverage-of-5g-services/. standard/. Last accessed: October 14, 2020.
Last accessed: October 14, 2020.
70. Parbat, Kalyan (2020). Telcos to move DoT to stop adoption
67. Weissberger, Alan (200), TSDSI’s 5G Radio Interface spec of India-specific 5G standards, else costs will jump. 16
advances to final step of IMT-2020. SPECS standard. 28 July September 2020. https://telecom.economictimes.indiatimes.
2020. https://techblog.comsoc.org/2020/07/28/tsdsis-5g- com/news/telcos-to-move-dot-to-stop-adoption-of-india-
radio-interface-spec-advances-to-final-step-of-imt-2020-specs- specific-5g-standards-else-costs-will-jump/78126187. Last
standard/. Last accessed: October 14, 2020. accessed: October 14, 2020.
68. TSDSI (2020). TSDSI’s 5th Generation Radio Interface 71. MoneyControl (2020). Telcos to approach DoT against
technology reaches final step to be notified as an IMT2020 India-specific 5G standards citing cost concerns: Report. 16
standard by ITU, 23 July 2020. https://tsdsi.in/tsdsis-5th- September 2020. https://www.moneycontrol.com/news/
generation-radio-interface-technology-reaches-final-step-to- business/companies/telcos-to-approach-dot-against-india-
be-notified-as-an-imt2020-standard-by-itu/. Last accessed: specific-5g-standards-citing-cost-concerns-report-5845651.
October 14, 2020. html. Last accessed: October 14, 2020.

© Nishith Desai Associates 2020 21

 Provided upon request only

6. Key Considerations
5G is going to revolutionize not just the mobile telecommunications sector but also how we use
technology in our businesses and lives. The implications are far reaching. In this section, we will
review some key strategic, policy, regulatory, technical and behavioral issues (Figure 4) that need to be
considered as we move to implement 5G.

LOCATION OF
5G EQUIPMENT STANDARDS

ENVIRONMENT AND
SOCIETAL IMPACT
NETWORK SECURITY

L ICY BE
O
P

HA

DATA PROTECTION
VIO

& PRIVACY
LAW ENFORCEMENT
R AL
ATEGIC

Key
Considerations
S TR

TEC
H NI

CA
WORKFORCE O RY L
AT
AVAILABILITY REGUL EFFECTS ON OTHER
CRITICAL APPLICATIONS

INFRASTRUCTURE SPECTRUM
INVESTMENTS AVAILABILITY
NATIONAL
SECURITY

Figure 4: Key Considerations

22 © Nishith Desai Associates 2020

 5G Technology in India
Strategic, Legal and Regulatory Considerations

I. Standards to maximally utilize allocated frequency

bands and repurpose under-used or inefficient
5G technology is not based on one set of standards. frequency bands used by older technologies to
Various views exist on 5G standards in different emerging technologies.
countries and with different equipment makers.72
The DoT has specified a range of 300 MHz
Traditional mobile infrastructure technology
in the mid-band of 3.3-3.6 GHz for 5G.75 This
providers, such as Ericsson, Nokia, Samsung
will enable a start of 5G network. However,
and Qualcomm, each have their own sets of
to receive the real benefits of 5G technology,
standards. Newer providers, such as Huawei and
the government has to free up frequency in
ZTE, offer entirely new integrated, end-to-end
millimeter wave range of greater than 24 GHz.
systems with different sets of standards. In a
contrast to these hardware switch-based standards, In most countries with private mobile operators,
Japanese company Rakuten has developed a new telecom authorities undertake the auction
virtualized, cloud-native mobile network.73 process to license the use of a specific band
of frequency within the allocated frequency
The legacy mobile networks in most countries
to a mobile operator to build its network.
are based on technology and equipment
These auctions fetch millions of dollars. For
provided by the US and European companies,
example, a base price of one MHz fetches
such as Ericsson, Nokia, and Qualcomm. Their
US$26 million in Italy, US$18 million in South
5G technology is likely to be built on standards
Korea, US$10 million in the US and US$5
providing incremental upgrade from 4G. This
million in Australia.76 Also, given the huge
will reduce the costs but also delay achieving
capital cost requirement for being a mobile
the full potential of 5G networks.
operator most countries have only few mobile
Some countries where the mobile infrastructure operators capable of participating in the auction
is still growing are more likely to leapfrog to process. This increases the risk of collusion and
5G technologies. The company that is first to reduction in the income from the action.
rollout 5G installations in various countries
In India, the DoT conducts such auctions.
will be able to control the de facto standards and
The TRAI has recommended a base price of
create lasting dominance.74
Rs.492 Crore (about US$66 million) per MHz.
A band of 100 MHz required to operate 5G
II. Spectrum Availability network would cost US$6.6 billion in just
licensing the frequency. Some leading mobile
With the explosive growth of frequency usage operators have protested the pricing and
in various wireless applications have put huge asking the government to delay the auction by
pressure on spectrum availability. Frequency three to four years to recover from the recent
spectrum being a constrained resource, telecom competitive war.77 This can delay or slow down
authorities worldwide are continuously trying the rollout of 5G in India.

75. Kapoor, Sanjay; Banerjee, Ayon (2020). “How 5G technology is

72. 5GPPP (2019). “View on 5G Architecture” 5G PPP Architecture critical to India’s digital dream” The Economic Times. February
Working Group Report. European Union. June 2019. 20, 2020. https://economictimes.indiatimes.com/tech/internet/
https://5g-ppp.eu/wp-content/uploads/2019/07/5G-PPP-5G-Ar- how-5g-technology-is-critical-to-indias-digital-dream/article-
chitecture-White-Paper_v3.0_PublicConsultation.pdf. Last show/74232323.cms. Last Accessed: October 14, 2020.
Accessed: October 14, 2020.
76. Kaushik, Manu (2019). “Why telecom ministry rejected de-
73. Hardesty, Linda (2019). “Rakuten builds a greenfield wireless mand to cut 5G spectrum prices.” Business Today. November
network in Japan” FierceWireless. February 14, 2019. https:// 27, 2019. https://www.businesstoday.in/sectors/telecom/
www.fiercewireless.com/wireless/rakuten-builds-a-green- why-telecom-ministry-rejected-demand-to-cut-5g-spectrum-
field-wireless-network-japan. Last Accessed: October 14, 2020. prices/story/391156.html. Last Accessed: October 14, 2020.
74. Duesterberg, Thomas (2019). “Problems and Prospects for 77. Kumar, Rohit (2020). “Indian telecom players protest push
5G Deployment in the United States.” Forbes. April 30, 2019. for pricey 5G spectrum auction” Nikkei Asian Review. Febru-
https://www.forbes.com/sites/thomasduesterberg/2019/04/30/ ary 20, 2020. https://asia.nikkei.com/Spotlight/5G-networks/
problems-and-prospects-for-5g-deployment-in-the-united- Indian-telecom-players-protest-push-for-pricey-5G-spectrum-
states/#589bd75d312e. Last Accessed: October 14, 2020. auction. Last Accessed: October 14, 2020.

© Nishith Desai Associates 2020 23

 Provided upon request only

While there is growing commercial demands Another issue for India is that a large population
for spectrum allocation for mobile wireless of India lives in rural areas. Also, the population
networks, spectrum allocation also needs to in rural India is dispersed across family farms.
be effectively managed to protect other usages, Because of the shorter reach of high frequency
including those by defense organizations, 5G signals, mobile operators would have
government services, first responders, local to do many more installations for the same
police force, and scientific community. population coverage compared that in urban
areas. Given that the affordability of rural India
is significantly lower, the operators would be
III. Infrastructure Investments less inclined to rollout 5G in rural areas, unless
the government provides incentives, such as
Transitioning from 4G to 5G will involve two
grants or lower-rate loans. One alternative for the
major costs: 1) purchasing license for new
government is to allocate a portion of income
frequencies, 2) building new 5G infrastructure.
generated from spectrum auctions to fund
The overall costs are expected to be in trillions
installations in rural, lower density areas.
of dollars worldwide.78 Given the huge up-front
costs, governments and mobile operators together
have to develop various investment strategies and IV. Workforce Availability
identify various funding sources for long-term
investments, including private equity, sovereign Successful and speedy rollout of 5G will depend
funds, and infrastructure investment funds. on the availability of qualified workforce to
install new access points and build up the
Fortunately, 5G enables much greater device
5G network. Previous generations of mobile
density or significantly more connections
network used large towers which provided
within a coverage area. As indicated by Randall
coverage for many kilometers around a tower.
Stephenson, the CEO of AT&T, at CEO Speaker
5G is based on technology with much smaller
Series of Council on Foreign Relations, “4G
coverage, requiring setting up smaller bases.
networks, in a square mile you can connect thousands
Millions of small cells will be required to be set
of devices. 5G, millions of devices per square mile, much
up.81 In some cases, even retrofitting streetlights
lower power, much lower compute requirement.”79 So,
and traffic signals. They will require skills in
these costs will be divided among much greater
small cell antenna installation, 5G equipment
number of users and devices.
specifications, 5G construction best practices,
In India, like in most large economies, with the 5G infrastructure design, distributed antenna
exception of China, the mobile network is built systems, fiber optic backhaul installations, etc.82
and operated by private companies. According to
Several mobile industry leaders have suggested
UBS, the cost for mobile operators to rollout 5G in
that the Indian workforce is not ready for
India would be as high as US$30.5 billion.80

78. Kharif, Olga and Moritz, Scott (2017) “Upgrade to 5G Costs

US$200 Billion a Year, May Not Be Worth It” Bloomberg.
December 18, 2017. https://www.bloomberg.com/news/
articles/2017-12-18/upgrade-to-5g-costs-200-billion-a-year-
and-may-not-be-worth-it. Last Accessed: October 14, 2020.
And. Gopalaiah, Satish (2020). “Why 5G is seen as a game-
changer for India.” Business Today. January 29, 2020. https://
www.businesstoday.in/opinion/columns/why-5g-is-seen-as-
a-game-changer-for-india/story/394896.html. Last Accessed: 81. Dano, Mike (2019). “Technicians to Actually Install 5G in Short
October 14, 2020. Supply.” Light Reading. May 28, 2019. https://www.lightreading.
79. Council on Foreign Relations (2019). “CEO Speaker Series com/employment/technicians-to-actually-install-5g-in-short-
with Randall Stephenson.” September 18, 2019. https://www. supply/d/d-id/751711. Last Accessed: October 14, 2020.
cfr.org/event/ceo-speaker-series-randall-stephenson. Last 82. Maurer, Roy (2020). “The 5G Workforce Needs a Big Boost”
Accessed: October 14, 2020. SHRM. January 28, 2020. https://www.shrm.org/resource-
80. BusinessLine (2019). “ 5G in India will need investment of sandtools/hr-topics/talent-acquisition/pages/5g-workforce-la-
US$30 bn from telcos: UBS bor-shortage.aspx. Last Accessed: October 14, 2020.

24 © Nishith Desai Associates 2020

 5G Technology in India
Strategic, Legal and Regulatory Considerations

5G.83 5G technology has many new, radically Act of 193485 to curtail the involvement of local
designed technologies. Indian workforce will zoning authority and speed up 5G installation
need to be trained for the new architectural and process. National League of the Cities and
installation requirements for 5G. While India National Association of Counties have opposed
has a large IT workforce, the workforce is not this bill, arguing that it: complicates existing
sufficiently trained for security sensitivities in efforts to deploy small cell infrastructure;
network infrastructure. transfers public property to private companies
with no public obligation; imposes unfair and
The industry, academic institutions and
inappropriate timelines on local governments,
governments will have to come together to
restricts fees the local authorities can charge to
develop a large workforce in a short time. They
process installation requests, and creates a new
will have to prepare specific curriculum to
unfounded mandate on local governments.86
develop practical skills, bring industry experts
and master operators to train people, create In India, this issue is going to be even more
awareness about career opportunities in 5G to critical given many more new towers will be
attract people, offer financial aids to support required for small cell operations. Telecom
training, and provide attractive compensation to companies in India have to install mobile
retain skilled workers. towers, especially in cities, on private properties
in densely populated areas. In 3G and 4G
installations, they had found it difficult to
V. Location of 5G Equipment install towers near schools, residential areas and
hospitals due to opposition by local residents.
5G technology, specifically millimeter Wave
While state governments have issued guidelines
technology, uses high frequency in the range
for the installations, local municipal bodies do
of 24 GHz to 300 GHz. At this frequency, 5G
not issue or significantly delay permissions.87
requires a greater number of access point
The DoT at the Central Government level has
installations due to shorter coverage reach than
been creating awareness regarding the key fear
those required by the previous 4G technology
factor of EMF radiation through online portal,
to cover the same area. This not only increases
articles, and seminars to reduce opposition.88
the installation costs but also involves approvals
from local authorities requiring varying timeline
for the deployment.84 VI. National Security
In the US, the STREAMLINE Small Cell
National security has come on the forefront in the
Deployment Act (S. 1699) was introduced in June
deployment of 5G infrastructure. 5G is expected
2019 to streamline the process required for the
to provide the backbone to most government,
approval for small cell deployment. It aims to
amend Section 332(c) of the Communications
85. 47 U.S.C. 332(c).
86. National League of Cities. https://nlc.quorum.us/
campaign/22944/ and https://www.cacities.org/CMSPages/
83. ET Telecom (2019). “ETTelecom 5G Congress 2019: 5G-ready
GetFile.aspx?nodeguid=a78c750e-2bad-4c0b-9b30-
infrastructure, low cost devices, advanced apps, robust
521296c01cc7&lang=en-US. Last Accessed: April 25, 2020.
workforce critical for 5G adoption” The Economic Times
National Association of Counties. https://www.naco.org/
Telecom. August 2, 2019. https://telecom.economictimes.
articles/senators-why-rush-5g-while-rural-areas-ignored. Last
indiatimes.com/news/5g-congress-5g-ready-infrastructure-
accessed: October 14, 2020.
low-cost-devices-advanced-apps-robust-workforce-critical-
for-5g-adoption/70481706. Last Accessed: October 14, 2020. 87. Shrinivasa, M (2018). “Citizens don’t want telecom towers in
And Ashwin, Anusha (2018). “5G will require upskilling residential areas.“ The Economic Times. April 16, 2018. http://
and reskilling of existing workforce: Sriram T.V., Juniper timesofindia.indiatimes.com/articleshow/63778224.cms. Last
Networks” Voice & Data. December 10, 2018. https://www. Accessed: October 14, 2020.
voicendata.com/job-opportunities-5g-will-require-upskilling-
88. PTI (2018). “Telecom Minister blames people obstructing
reskilling-existing-workforce-sriram-t-v-juniper-networks/.
mobile tower installation for call drops.” The Economic Times,
Last Accessed: October 14, 2020.
September 27, 2018. https://economictimes.indiatimes.com/
84. Fisher, Tim (2020). “5G Challenges: Why It Isn’t Rolling industry/telecom/telecom-news/telecom-minister-blames-
Out Faster.” Lifewire. https://www.lifewire.com/5g- people-obstructing-mobile-tower-installation-for-call-drops/
challenges-4580354. Last Accessed: October 14, 2020. articleshow/65984269.cms. Last Accessed: October 14, 2020.

© Nishith Desai Associates 2020 25

 Provided upon request only

military, infrastructure and critical commercial India is facing the same national security
applications. For most countries, many of the concerns as other nations. On one hand, it
equipment and underlying hardware and does not want to be left behind in this highly
software technologies used in 5G are not locally impactful technology. On the other hand, it does
produced. This dependence on other countries to not want to compromise national security. India
help develop and sustain this vital infrastructure recently revised its foreign direct investment
brings with it new vulnerabilities and risks. Many policy to restrict investments by individuals and
countries fear espionage by foreign governments companies from neighboring countries.93
once 5G becomes an integral part of national
In this interconnected, globalized world, it would
informational infrastructure.89
be difficult to isolate and develop the entire range
In the United States, the government passed a of mobile technology indigenously. Countries
law Secure 5G and Beyond Act of 2020 (S. 893) to have to carefully look into the level of risks
require the President to develop and implement involved in key parts of the 5G technology and
a strategy to secure next generation wireless develop a strategy to manage and monitor those
communications systems and infrastructure.90 risks, when those technologies are imported.
In March 2020, the President issued a special
policy guideline—National Strategy to Secure
5G.91 It outlines the lines of effort involved in
VII. Law Enforcement
facilitating the rollout of 5G in the US, assessing Huge amount of data will be flowing through a
risks and identifying core security principles, 5G network. Encryption of data is an important
addressing risks to economic and national tool to ensure that the data, whether at rest
securities, and promoting responsible global at servers or in motion in networks, is secure.
development and deploying 5G. Encryption becomes even more critical in
5G networks as almost all mission critical
Congressional Research Service which assists
applications in government and corporate
the US Congress in legislative process has also
sectors will be running on it.
issued a report outlining national security issues
in 5G technology.92 The report argues that However, encryption has been at the center stage
poor business practices of foreign technology of the security debate for a while now. Stronger
companies combined with local laws requiring encryption allows greater protection of data, but
these companies to cooperate for national it reduces the ability of law enforcement to timely
intelligence work would significantly increase monitor and detect fraudulent and terror activities.
national security risk for other countries. Law enforcement and security agencies tend to
look unfavorably upon encryption. They logically
argue that it makes investigation and collecting
89. National Cyber Security Center, UK (2019). “Annual Report: evidence tougher while allowing suspects and
Huawei Cyber Security Evolution Centre Oversite. https:// perpetrators to hide behind strong encryption. Law
assets.publishing.service.gov.uk/government/uploads/system/
uploads/attachment_data/file/790270/HCSEC_Oversight- enforcement in the US and UK have even asked
BoardReport-2019.pdf. Last Accessed: October 14, 2020. for a “backdoor” access capability for encrypted
Also, Bryan-Low, Packham, et. al (2019). “ Hobbling Huawei: Inside
the U.S. war on China’s tech giant” Reuters. May 21, 2019. communication. These arguments have received
https://www.reuters.com/investigates/special-report/hua- a pushback from the tech industry arguing that
wei-usa-campaign/. Last Accessed: October 14, 2020.
encryption is essential for security and consumers
90. S.893 - Secure 5G and Beyond Act of 2020. https://www.
congress.gov/bill/116th-congress/senate-bill/893. Last demand strong privacy protection.
Accessed: October 14, 2020.
91. The White House (2020). “National Strategy to Secure 5G
of the United States of America” March 2020. https://www.
93. NDA Hotline (2020). “FDI Policy Revised: Neighbouring
whitehouse.gov/wp-content/uploads/2020/03/National-
Countries Restricted From Opportunistic Investments” Nishith
Strategy-5G-Final.pdf. Last Accessed: October 14, 2020.
Desai Associates Regulatory Hotline. April 20, 2020. http://
92. Hoehn, John R., Sayler, Kelley M. (2020). “National Security www.nishithdesai.com/information/research-and-articles/
Implications of 5G Mobile Technologies” Congressional nda-hotline/nda-hotline-single-view/article/fdi-policy-revised-
Research Service. March 25, 2020. https://crsreports.congress. neighbouring-countries-restricted-from-opportunistic-
gov/product/pdf/IF/IF11251. Last Accessed: October 14, 2020. investments.html. Last Accessed: October 14, 2020.

26 © Nishith Desai Associates 2020

 5G Technology in India
Strategic, Legal and Regulatory Considerations

In India, Section 69 of the Information more likely to be exposed to cyberattacks.97

Technology Act allows certain government Billions of devices are expected to join
agencies to order decryption of communication. the network, including IoT devices. This
However, this is limited only to cases where significantly increase the surface area of
any such entity has the capability to decrypt cybersecurity attacks.98 Additionally, these
in the first place. Accordingly, it may be difficult devices will have varied degrees of security
to enforce this power in the case of end-to-end features built into them. Such diversity in
encryption. security features will also make some nodes
more susceptible to attacks.
The Unified License issued to TSPs has a
provision that prohibits them for employing bulk Denial-of-service and distributed denial-of-
encryption on their network. At the same time, service attacks have been around for over two
the license also imposes an obligation on the decades. Under these attacks, the attacker does
service provider to preserve the privacy of users’ not enter into the network, but overwhelms it
communication. With 5G, it may be possible from outside by continuously sending a torrent
to ensure some level of security and privacy by of data packets to various devices and servers
encrypting only the edges of the network rather within the network. 5G is likely to be vulnerable
than the entire network itself. to these types of attacks given the huge number
of connected devices. The factors that will fuel
Additionally, 5G allows data to be transferred
these attacks, include: 1) The gap between
through multiple types of networks and devices.
developing and adopting a new technology and
This makes it difficult for law enforcement
property securing it; 2) availability of cheap
agencies to undertake digital audit or track
bots to do such attacks; 3) hyper connectivity;
suspects complicating digital evidence gathering
4) insufficient resources to monitor and tackle
and surveillance.94 Europol, a pan-European
these attacks.99
law enforcement agency, has warned that 5G
will affect the ability of law enforcement in More than 70% of breaches in a network begin at
crime prevention as criminals will be difficult the endpoint.100 The transition to edge computing
to track over 5G networks.95 On the other hand, in 5G technology will bring computing
significantly accurate device location will improve capabilities closer to the users at endpoints to
relocating missing person or get more accurate reduce bandwidth usage.101 However, it adds
starting point to trail a missing person as well as new challenges to network security. It has to be
identifying the buildings or locations of interests managed at every aggregation point of the edge
in illicit drug and other fraudulent activities.96

VIII. Network Security 97. Maddison, John (2019). “Addressing New Security Challenges
with 5G” CSO Online. February 19, 2019. https://www.
csoonline.com/article/3341381/addressing-new-security-
challenges-with-5g.html. Last Accessed: October 14, 2020.
5G technology is based on virtualized network
98. Netscout (2018). “Netscout Predicts 5G Trends in 2019”
architectures that use “flat” packets, which is December 27, 2018.
https://www.netscout.com/blog/5G-trends-predictions-2019. Last
Accessed: October 14, 2020.
99. Sirbu, Maria (2019). “Security concerns in a 5G era” SC
Magazine. May 30, 2019.
https://www.scmagazineuk.com/security-concerns-5g-era-
94. Watson, Ariel (2019). “How 5G Challenges and Benefits Law networks-ready-massive-ddos-attacks/article/1584554. Las
Enforcement.” Cellebrite. February 28, 2019. https://www. Accessed: October 14, 2020.
cellebrite.com/en/blog/how-5g-challenges-and-benefits-law-
100. Absolute (2019). “2019 Endpoint Security Trends Report”
enforcement/. Last Accessed: October 14, 2020.
Absolute Software Corporation Study. https://www.absolute.
95. BBC (2019). “Police will ‘struggle’ to track criminals via com/go/study/2019-endpoint-security-trends/. Last Accessed:
5G.” BBC.Com. July 19, 2019. https://www.bbc.com/news/ October 14, 2020.
technology-49043822. Last Accessed: October 14, 2020.
101. Hardesty, Linda (2019). “Rakuten builds a greenfield wireless
96. Roke (2020). “5G & Law Enforcement – How It Could Impact network in Japan” FierceWireless. February 14, 2019. https://
Investigation & Crime Prevention” Roke.com. February 21, www.fiercewireless.com/wireless/rakuten-builds-a-greenfield-
2020. Last Accessed: October 14, 2020. wireless-network-japan. Last Accessed: October 14, 2020.

© Nishith Desai Associates 2020 27

 Provided upon request only

computing nodes as supposed to at the central users rather than at servers. This will improve
level. Security features and functions will have to privacy protections as the sensitive data would
be embedded directly on the edge compared to be accessible only to the nodes connected to
“bolted on” in a traditional network.102 the edge server. Distributing personal data of
users across the network will make it harder for
5G uses Authentication and Key Agreement
malicious hackers to gain access to a large pool of
(“AKA”) protocol to establish a secure
data with minimal effort.105
connection between a network and a device.
The same protocol is also used in 3G and 4G On the other hand, some argue that data
networks. While 5G AKA proposed by 3GPP is protection and privacy are more likely to be
has closed several gaps in the previous version compromised, as 5G is expected to bring “billions
of the protocol. However, several gaps may still of cameras, sensors and other ‘smart’ devices’
exist in the new protocol.103 online.106 Sheer increase in the collected data and
greater ability to cross-reference the data points
In addition, 5G will have to exists in parallel
from textual, graphical, audio and visual formats
to older cellular technologies, such as 4G and
will create huge risks for user privacy.
3G, especially in rural areas where dispersed
population density will not make economic Additionally, the short range 5G data cells
sense to upgrade existing cellular infrastructure. will allow more accurately pinpoint the user’s
When a downgrade attack happens on a device, location. With 4G technology, we are able to
where the device is tricked into operating in an geographically locate a device within meters
older protocol or lack of 5G availability will the with much less precision. Whereas, 5G enables
security risk will increase in many folds.104 location within a couple of centimeters.107 In
some cases, specifically financial payment
transactions, this will increase security, but in
IX. Data Protection & Privacy many other cases, this may also lead to increased
privacy abuse and security risks.
An important concern that 5G is also expected
to address is privacy and security. Current Always connected devices along with the user’s
networks, where cellular network is separate inability to use a device (including 5G-based
from computer wi-fi/ethernet network, require appliances) without agreeing to certain licensing
data to be transferred to a centralized server conditions may also lead to indiscriminate data
for processing after data collection. This collection and potential abuse of privacy. Privacy
puts personal data at risk not only because International has offered recommendations for
the data is pooled collectively in a common regulatory agencies and corporations for self-
centralized server, but also during transmission regulation.108
over multiple networks in order to reach its
destination. Edge computing will allow to filter
certain sensitive data and store it closer to the 105. Cherrayil , K. Naushad (2019). “Advantages and disadvantages
of edge computing and cloud computing” TechradarPro.
December 11, 2019. https://www.techradar.com/news/
advantages-and-disadvantages-of-edge-computing-and-cloud-
102. Maddison, John (2019). “Addressing New Security Challenges
computing. Last Accessed: October 14, 2020.
with 5G” CSO Online. February 19, 2019. https://www.
csoonline.com/article/3341381/addressing-new-security- 106. FitzGerald, Drew (2019). “5G Race Could Leave Personal Privacy
challenges-with-5g.html. Last Accessed: October 14, 2020. in the Dust” The Wall Street Journal. November 11, 2019. https://
www.wsj.com/articles/5g-race-could-leave-personal-privacy-in-
103. Basin, David; Dreier, Jannik; Hirschi, Lucca, et al (2018). “A
the-dust-11573527600. Last Accessed: October 14, 2020.
Formal Analysis of 5G Authentication.” CCS ‘18: Proceedings
of the 2018 ACM SIGSAC Conference on Computer and 107. Council on Foreign Relations (2019). “CEO Speaker Series
Communications Security, January 2018 Pages 1383–1396 with Randall Stephenson.” September 18, 2019. https://www.
https://doi.org/10.1145/3243734.3243846. Last Accessed: cfr.org/event/ceo-speaker-series-randall-stephenson. Last
October 14, 2020. Accessed: October 14, 2020.
104. Privacy International (2019). “Welcome to 5G: Privacy and 108. Privacy International (2019). “Welcome to 5G: Privacy and
security in a hyperconnected world (or not?)” July 23, 2019. security in a hyperconnected world (or not?)” July 23, 2019.
https://privacyinternational.org/long-read/3100/welcome- https://privacyinternational.org/long-read/3100/welcome-
5g-privacy-and-security-hyperconnected-world-or-not. Last 5g-privacy-and-security-hyperconnected-world-or-not. Last
Accessed: October 14, 2020. Accessed: October 14, 2020.

28 © Nishith Desai Associates 2020

 5G Technology in India
Strategic, Legal and Regulatory Considerations

X. Effects on Other Critical XI. Environmental and

Applications Societal Impact
5G technology uses frequencies nearby to those Many countries have specific laws related to the
used by weather and Earth observation satellites. environmental impact of any new construction.
Any interference from 5G to the operations of US The National Environmental Policy Act in
these satellites can affect the speed and accuracy the US specifies that efforts must be taken to
of weather forecast.109 The FCC had auctioned “prevent or eliminate damage to the environment
the 24 GHz spectrum band in March 2019 over and biosphere and stimulate the health and
the objections of NOAA and NASA, receiving welfare of man.”114 While countries are speeding
nearly US$2 billion in bids.110 On May 16, 2019, up the rollout 5G in order to not left behind, the
Neil Jocobs, Acting Under Secretary at National environmental and other societal impact of this
Oceanic and Atmospheric Administration new technology are often not fully assessed.
(NOAA), testified111 to the US Congress that
On August 9, 2019 in the US, the US Court of
there could be as much as 30 percent reduction
Appeals for the D.C. Circuit ruled that it was
in the accuracy causing two- to three-day delay
not in the public interest for the FCC to remove
in hurricane preparations. This is also expected
regulatory requirements related to environmental
to affect operations of NASA. The Ranking
and other societal impact in order to expedite the
Members of the Senate Committees on Finance
rollout of 5G service.115 The Court specifically
and Commerce, Science and Transportation wrote
noted that, while such impact of microcell
to the FCC to not allow “wireless companies
technology used by the current cellular network
to operate in a 24 GHz band until vital weather
has been understood, such impact of the newer
forecasting operations are protected.”112 In
small cell technology used in 5G need to be
November 2019, the World Radiocommunications
assessed before their deployment.
Conference organized by the Interlamination
Telecommunications Union decided to create This type of rulings in other jurisdictions,
new international standards that would include including in India, will affect new constructions
24 GHz band and may interfere with other critical of 5G small cells, specifically delay the new
applications operating in this frequency range.113 installations and increase costs of the rollout of 5G.

109. Miller, Eric (2019). “5G Networks Could Throw Weather

Forecasting Into Chaos.” Wired. May 17, 2019.
https://www.wired.com/story/5g-networks-could-throw-weather-
forecasting-into-chaos/. Last Accessed: October 14, 2020.
110. American Institute of Physics (2019). “NOAA Warns 5G
Spectrum Interference Presents Major Threat to Weather
Forecasts”. May 22, 2019). https://www.aip.org/fyi/2019/
noaa-warns-5g-spectrum-interference-presents-major-threat-
weather-forecasts. Last Accessed: October 14, 2020.
111. US House Hearing (2019). “The Future of Forecasting:
Building a Stronger US Weather Enterprise.” Subcommittee
on Environment. May 16, 2019. https://science.house.gov/
hearings/the-future-of-forecasting-building-a-stronger-us-
weather-enterprise. Last Accessed: October 14, 2020.
112. US Senate (2019). A letter to The Honorable Alit Pai, Chairman
of the FCC, from Sen. Ron Wyden and Sen. Maria Cantwell. radio-frequency. Last Accessed: October 14, 2020.
https://www.wyden.senate.gov/imo/media/doc/05132019%20
FINAL%20Wyden%20Cantwell%20Letter%20to%20 114. National Environmental Policy Act of 1969. Sec. 2 42 USC § 4321.
FCC%20re%205G%2024%20GHz%20Spectrum.pdf. Last 115. United Keetoowah Band of Cherokee Indians in Oklahoma vs.
Accessed: October 14, 2020. FCC (2019). US Court of Appeals for the District of Columbia
113. Calma, Justine (2019). “Weather forecasters lost the battle Circuit. No. 18-1129. Decided August 9, 2019.
for strict interference limits on 5G” The Verge. November https://www.cadc.uscourts.gov/internet/opinions.nsf/4001BE-
22, 2019. https://www.theverge.com/2019/11/22/20975652/ D4E8A6A29685258451005085C7/US$file/18-1129-1801375.
weather-forecast-interference-limits-5g-egypt-conference- pdf. Last Accessed: October 14, 2020.

© Nishith Desai Associates 2020 29

 Provided upon request only

7. Conclusion
Arguably, the story of human progress over Even though telecom service providers may
thousands of years is the story of evolution have faced some setbacks in the Indian market,
of technology over time. With each iteration, the industry is poised for enormous growth.
humans improve the tools at our disposal to Building on the initiatives that it has already
enable a better quality of life. 5G standards are taken, the government should streamline its
the next step in network evolution that will telecom policy measures and consider more
provide a much-needed impetus to emerging innovative revenue models to incentivize
technologies that are awaiting deployment. deployment of 5G networks. To ensure that the
benefits of 5G networks also flow down to rural
As discussed, there are considerable challenges
areas, the government should consider various
to overcome in deploying next-gen networks
forms of incentives to allow telecom companies
but they are by no means unsurmountable. The
to expand 5G coverage while ensuring steady
Indian government is making consistent efforts
revenue growth. Commercial 5G networks could
to make sure that the country does not fall
easily complement the government’s existing
behind and keeps pace with the rest of the world.
efforts to provide broadband connectivity, such
This clearly indicates that the government is
as BharatNet.
cognizant of the numerous advantages that 5G
networking technology can provide.

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The following research papers and much more are available on our Knowledge Site: www.nishithdesai.com

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April 2020

NDA Insights
TITLE TYPE DATE
Delhi Tribunal: Hitachi Singapore’s Liaison Office in India is a Permanent Tax November 2019
Establishment, Scope of Exclusion Under Singapore Treaty Restrictive
CBDT issues clarification around availment of additional depreciation Tax October 2019
and MAT credit for companies availing lower rate of tax
Bombay High Court quashes 197 order rejecting Mauritius tax treaty benefits Tax May 2019
Investment Arbitration & India – 2019 Year in review Dispute January2020
Changing landscape of confidentiality in international arbitration Dispute January2020
The Arbitration and Conciliation Amendment Act, 2019 – A new dawn or Dispute January2020
sinking into a morass?
Why, how, and to what extent AI could enter the decision-making boardroom? TMT January2020
Privacy in India - Wheels in motion for an epic 2020 TMT December 2019
Court orders Global Take Down of Content Uploaded from India TMT November 2019
Graveyard Shift in India: Employers in Bangalore / Karnataka Permitted to HR December 2019
Engage Women Employees at Night in Factories
India’s Provident Fund law: proposed amendments and new circular helps HR August 2019
employers see light at the tunnel’s end
Crèche Facility By Employers in India: Rules Notified for Bangalore HR August 2019
Pharma Year-End Wrap: Signs of exciting times ahead? Pharma December 2019
Medical Device Revamp: Regulatory Pathway or Regulatory Maze? Pharma November 2019
Prohibition of E-Cigarettes: End of ENDS? Pharma September 2019
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Research @ NDA
Research is the DNA of NDA. In early 1980s, our firm emerged from an extensive, and then pioneering,
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cornerstone of our practice development. Today, research is fully ingrained in the firm’s culture.
Our dedication to research has been instrumental in creating thought leadership in various areas of law and
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Every member of the firm is required to participate in research activities. The seeds of research are typically
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Over the years, we have produced some outstanding research papers, articles, webinars and talks. Almost on daily
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