DoT to seek legal view on extra spectrum allocation to operators

The Department of Telecommunications (DoT) has decided to seek legal opinion in the matter of allotment of additional radio waves beyond 4.4 Mhz to mobile operators. An internal note of the DoT said: “We may seek legal opinion in the matter of allotment of additional spectrum beyond 4.4 Mhz to operators who meet the criteria.”

DoT turned to legal advice after its options in this matter got limited due to a pending decision on the Spectrum Panel report and a TDSAT order. Both are against the current subscriber-linked allocation of the spectrum norm. The Telecom Disputes Settlement and Appellate Tribunal, or TDSAT, in March this year had categorised all the spectrum allocated beyond 6.2 Mhz as illegal in an order. DoT is seeking the view, according to an internal note of the Department, “so that the growth of the industry is not adversely affected”.

At present, the licence agreement provides allotment of spectrum up to 6.2 Mhz. Mobile operators like Bharti Airtel, Vodafone-Essar, Idea Cellular, and Reliance Communications who have sought (2G) spectrum beyond 6.2 Mhz in certain circles have not got it, in accordance with the legal advice provided to DoT by the Solicitor General of India Goolam E Vahanvati.

However, the solicitor general’s advice applies to allocations only beyond 6.2 Mhz and not beyond 4.4 Mhz. Thus, operators seeking spectrum beyond 4.4 Mhz and up to 6.2 Mhz are still eligible for getting the same, according to a Trai order of January 17, 2008, and DoT is trying to accommodate it.

A Spectrum Review Committee report of DoT, which is currently being examined by the Telecom Regulatory Authority of India (Trai), has suggested that “no additional spectrum should be assigned to any licensee in the future based on subscriber-linked criteria (SLC). This includes licensees who may have already become eligible for additional spectrum”. It further said all assignments of 2G spectrum auction in future should be through auction.

DoT feels Trai will launch a consultation process and seek the views of all stakeholders before stating its views on the spectrum panel’s report which is a time-consuming process. “After the receipt of the recommendation of Trai, the government will have to take further decision in the matter. If the government decides on allotment of additional spectrum through auction and not on SLC, withdrawal of spectrum already allotted will be difficult and may also lead to litigation”, said the DoT note.

Lack of clarity in this regard has impacted mostly the existing operators’ expansion plans who are in dire need of spectrum in various circles as they have met the prescribed subscriber mark.