It's not too often that you want to change your profession, but the Telecom Dispute Settlement & Appellate Tribunal’s (TDSAT) latest judgement in the dual-technology case makes you want to do just that — to become a lawyer, to challenge this in the Supreme Court (unlike newspaper articles, the government has to take the Court seriously), to rip it to shreds. Not just because the judgement stands facts on their heads (sheershasan, in yoga parlance), or that it performs several other yogic-contortions, but because it’s full of contradictions.
BSNL/MTNL were unfairly given extra spectrum that should be taken back.
Some of these decisions, like the second and the third one, it is true, were based on recommendations by the Telecom Regulatory Authority of India (TRAI) but not everything the TRAI recommends becomes law — indeed, one of the key issues in this case was that the Department of Telecommunications (DoT) accepted only those TRAI recommendations that suited it. So, the DoT is as much to blame; Decisions 1 and 4, in any case, have only to do with the DoT. Yet, the TDSAT is quick to criticise the TRAI but says precious little about the DoT. Perhaps the fact that two of the TDSAT members have served with the DoT ensured this?
Even more shocking, is the manner in which the DoT is let off the hook for its blatant favouritism. It set a deadline for receiving applications (October 1, 2007), but processed only those that came before September 25 (the date on which it announced the deadline!); it announced the policy of ‘dual-technology’ a day after it approved Reliance Communications’ application (made on 6/2/06 when there was no policy of ‘dual technology’!) and a few hours after Reliance paid the money (the date/time of payment determined who was first in the queue for scarce spectrum!). Yet, the TDSAT ignores all this; it ignores the DoT’s refusal to auction the spectrum which is what the law demands; that it chose to give the spectrum at the same price discovered through an auction way back in 2001 — this, the subsequent sale of part of their equity by some of the favoured few showed, caused a loss to the exchequer of at least $10 billion. The TDSAT disingenuously describes this as ‘early completion of formalities’ and says this ‘is not a matter that would require intervention at our level’!
There are then the contortions that would make any yoga guru feel envious. The crux of the case is whether dual-technology is old or new — ‘dual technology’ is what allows a CDMA-mobile phone firm like Reliance/Tata Teleservices to get, on its existing licence, GSM spectrum in addition to the CDMA-spectrum it already has; if it is new, Reliance’s application of 2006 is null and void. The TDSAT interpreted the licence and the New Telecom Policy of 1999 in a manner no one has so far, that ‘dual technology’ is the same as the ‘technology neutrality’ that is allowed — ‘technology neutrality’, on the other hand, just means a company is free to offer either CDMA- or GSM-based services. The TDSAT’s interpretation is gobbledegook, but if dual-technology was always allowed, why did the DoT ask the TRAI for recommendations on this on 13/4/07? According to the TDSAT, “It appears to us that there was avoidable confusion in this regard”. And what is the confusion? The TDSAT avers all the DoT ever wanted was a recommendation on the ‘need and timing’ for getting in new players. But “the confusion has been created by TRAI”. Even a perfunctory reading of the DoT’s letter makes it clear this is not correct, but even if it is, why did the DoT, on 19/10/07, notify that it was now coming up with a dual-technology policy? Surely this means the policy was a new one?
Finally, the TDSAT judgement changes the entire balance of power between the TRAI and the DoT. For one, it makes it clear the TRAI is irrelevant — each instance of the government ignoring the TRAI (on charging firms like Reliance and Tata more since they had extra spectrum, for instance) is dismissed by the TDSAT as being okay. Even more amazing is the TDSAT’s gratuitous comments on how it hopes the DoT will write up the merger and acquisition (M&A) rules keeping in mind the need for more spectrum — while the current guidelines prohibit M&A involving the new licencees till they meet their rollout obligations, the TDSAT hints the DoT relook these norms. This will allow the favoured few who got dirt-cheap licences, who have no intention of setting up networks, to sell their companies at a fancy price.
Ideally, the TRAI should contest the judgement since it has been singled out for punishment, and its powers whittled away to non-existence, but this won’t happen. The next TRAI chief will be chosen by the government and the last thing it wants is that its game be exposed. In which case, shavasan (lying like a corpse) is the TRAI’s best bet.
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