The court recognized the need for a regulatory framework for Over-The-Top services and ordered stakeholder consultations with the petitioner for re-examination of existing recommendations.

JUDGMENT

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. The Petitioner - World Phone Internet Services Pvt. Ltd. has filed the present petition seeking the following prayers:

"a) Pass an order directing the Respondents to enforce current regulations as applied to the Internet Telephony Services of Facebook messenger and WhatsApp to ensure that same are in compliance with the same regulatory/license framework as licensed TSPs/ITSPs/ISP's;

b) Pass an order directing the Respondents to enforce its regulations and make Facebook messenger and WhatsApp accountable for regulatory requirements as required under the UAS/ISP or Unified License granted under Section 4 of the Indian Telegraph Act 1885 and those issued by the Government from time to time;

c) Pass an order directing Respondent no 2 to forthwith immediately take steps to prevent services that are Licensed services as that of the Petitioner herein from being provided by Facebook messenger and WhatsApp;

d) Pass an order directing the Respondent no 2 to stop the unlicensed services of Facebook messenger and WhatsApp until they comply with the requirements as required under the UAS/ISP or Unified License granted under Section 4 of the Indian Telegraph Act 1885 and those issued by the Government from time to time;

e) Pass an order directing the Respondent no 2 to impose penalties for prior non compliance by Facebook and WhatsApp as required under the UAS/ISP or Unified License granted under Section 4 of the Indian Telegraph Act 1885 and those issued by the Government from time to time"

3. The case of the Petitioner is that it is an Internet Telephony Service Provider (hereinafter "ITSP"). It had entered into License Agreement bearing No.511/200-LR for category "A" Internet Service Providers for providing internet services (including internet telephony) in 2002, whereunder the Department of Telecommunication (hereinafter "DoT") imposed license fees of 6-8% of the Adjusted Gross Revenue earned from Internet Telephony. The license agreement has been renewed in 2019, by license agreement bearing no.DS-11/114/2015-DS-III. According to the Petitioner, the permissibility of internet telephony through various online communication channels such as Facebook and WhatsApp has worked to its detriment. While on the one hand, an ITSP pays the license fees per its license agreement (even for telephony services), such other companies and platforms are not regulated and do not pay any amounts to the Government. It was under these circumstances that the writ petition was filed seeking the above reliefs.

4. Notice was issued in this petition on 21st October, 2019. The affidavit of the DoT dated 25th November, 2022 has been filed on record. As per the said affidavit, which is sworn by the Assistant Director General, Department of Communication, Ministry of Communication and Information Technology, TRAI's recommendation suggesting that the regulatory framework for Over-The-Top (OTT) services is not required, has not been accepted. the Digital Communications Commission in its 19th meeting on 26th July, 2022, had referred the matter back to TRAI to suggest a suitable regulatory mechanism for OTT. Thus the Government has sent the said recommendations back to TRAI, and sought re-examination and re- consideration of the issue. Relevant paragraphs of the said affidavit are set out below:

"2. That the present Affidavit is being filed on behalf of Respondent No. 2 in view of the directions passed by this Hon'ble Court vide Order dated 08.09.2022, thereby, directing Respondent No. 2, to state on affidavit the status of