The Department of Telecom-munications (DoT) has sought fresh legal opinion on whether it can ask Airtel, Vodafone and Idea Cellular to stop offering 3G roaming services beyond their licence areas under roaming pacts. Besides, it also wants clarity on whether it can levy penalty on the erring operators for violating licence conditions by offering 3G services with the permission to offer only 2G services.
In a letter to the Additional Solicitor General (ASG) A S Chandhiok, DoT said it wanted to know whether services provided by the operators should be stopped as otherwise “unjust enrichment of the service providers will continue along with illegal provision of services”.
Bharti Airtel, Vodafone and Idea had entered into mutual agreements to offer 3G services in circles where they could not bag 3G spectrum in an auction held in 2010. DoT had ruled such pacts illegal in December 2011 and asked the operators to stop offering 3G services beyond their licensed circles through roaming agreements. The operators had filed a petition challenging DoT’s verdict in the Telecom Disputes Settlement & Appellate Tribunal (TDSAT).
A two-member bench of TDSAT in July gave a spilt verdict on the matter. While member P K Rastogi said the operators could not provide roaming services as they were not allowed to provide 3G services with 2G licences, Chairman Justice S B Sinha ordered DoT to start the procedure afresh, as the department had not followed proper procedure and the operators were not given enough time to present their views.
Following the spilt verdict, the operators are maintaining “status-quo” and continuing with their 3G roaming pacts.
Immediately after the verdict was given, a senior DoT official wrote to Chandhiok seeking his opinion on the legal position with respect to applicability of the order of the tribunal.
According to a DoT official, ASG in his earlier communication, had agreed DoT could proceed to take action against the telecom service providers.”DoT will be well within its rights to proceed and take further action as per law which it wishes to take including termination,” ASG had opined.
However, he had also said DoT could not impose penalty on the service providers for violating licence condition.
ASG had said DoT could claim amounts earned by companies by providing 3G services for which they did not have any authorisation permission or licence from DoT based on the doctrine of “unjust enrichment” but cannot impose penalty for violating licence conditions. DoT in the fresh letter wants to get clarity on why it cannot invoke the penalty clause.