The Telecom Dispute Settlement and Appellate Tribunal’s (TDSAT) judgment in what is popularly known as the dual-technology case is likely to have far greater ramifications than may be immediately obvious. TDSAT has rejected the argument that giving Reliance Communications and Tata Teleservices GSM-mobile spectrum in addition to their existing CDMA-mobile spectrum (dual-technology) was bad in law. TDSAT has also said that existing GSM-mobile players like Bharti/Vodafone/BSNL/Idea do not have an automatic right to spectrum beyond 6.2 MHz — most of these players have got 8-10 MHz and have been arguing that they have an automatic right to get up to 15 MHz when their subscriber numbers go up. While TDSAT has made no recommendation on how the department of telecommunications (DoT) is to deal with the extra spectrum these firms have got, it has declared that undue favours have been shown to state-owned telcos BSNL and MTNL, and that the extra spectrum with them has to be taken back. The clear message is that the process of granting spectrum has been arbitrary.
TDSAT says that dual technology was always allowed. In that case, how does TDSAT explain DoT asking Trai for a recommendation on this issue, or DoT putting out a press release notifying it as a new policy? TDSAT comes down heavily on Trai for recommending that no cap be put on the number of mobile phone service providers — which is what allowed the government to bring in new players, including the dual-technology ones. TDSAT says that the existing players needed more spectrum, that Indian firms get a lot less spectrum than their global counterparts get … “it is therefore puzzling as to why Trai recommended a no cap policy … in our view, DoT would be well advised to review this policy …” If Trai’s recommendation was a bad one, what does it say of the process and the licences that flowed from it? Similarly, TDSAT says Trai’s decision to jack up the subscriber criterion for spectrum allocation by 3-5 times was not arrived at in a transparent manner and did not give stakeholders enough of a chance to make their case. But it was these very tightened norms that allowed the government to have enough free spectrum to give it to the new players; if the new Trai norms had not been accepted, the existing players were entitled to extra spectrum, and so very little would have been left for new players. IN short, the TDSAT judgment picks holes in the key decisions of the past, and when it tries to say they were ok, it runs into contradictions.
It is of a piece with this that TDSAT should dismiss DoT’s clearing of Reliance Communications’ dual technology licence a day before it even announced the policy, as “early completion of formalities” which does not require “intervention at our level”. What is even more troubling is TDSAT’s stand on the petition that the government had disregarded Trai’s recommendations on critical issues like roll-out obligations and spectrum usage charges for dual-technology firms. By agreeing with the government argument, the appellate tribunal has said it is all right for the government to cherry-pick from the recommendations. This undermines the very basis for having a so-called independent regulator. In short, the country hasn’t moved from the days when most levers of authority vested in the government, which acted arbitrarily and then dreamt up creative explanations to justify its actions.