HC refuses to interfere with TDSAT stay of TRAI rule on reporting customised offers

The Delhi High Court today refused to interfere with telecom tribunal TDSAT's interim order putting on hold regulator TRAI's rule mandating reporting of customised discounts and concessions offered to select subscribers by older service providers Airtel, Idea and Vodafone.

Justice Rajiv Shakdher, before whom the TDSAT order was challenged, declined to stay the decision and said he will request the tribunal to expedite the hearing of the pleas moved by Bharti Airtel and Idea Cellular against TRAI's rule.

With the observation, the court disposed of the appeal by the Telecom Regulatory Authority of India (TRAI) against the April 24 order of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT).

Apart from mandating reporting of the discounts and concessions provided by the service providers to individual consumers, the TRAI rule had changed the definition of 'significant market power' to determine 'predatory pricing' offered by the telecom majors.

Both these provisions were stayed by TDSAT which, however, had said that TRAI would be entitled to ask for details of the discounts and concessions for analysis but "no penalty shall be imposed on that basis" on the service providers.

Under the new rules, TRAI had said it will impose financial disincentive of up to Rs 50 lakh per circle on operators if their service rates are found to be predatory in nature.

In its appeal in the high court, TRAI, represented by Additional Solicitor Generals (ASGs) Tushar Mehta and Sandeep Sethi, contended that the TDSAT gave no reason for putting on hold the operation of the rules which were framed after more than a year of deliberations, including inviting views of all stakeholders.

The ASGs told the court that subsequent to the TDSAT decision it cannot take any action against the service providers for predatory pricing.

Airtel and Idea, represented by senior advocates P Chidambaram, Darius J Khambata and Gopal Jain, said that the discounts and concessions would not lead to a new tariff plan as claimed by TRAI.

They also alleged that the prevailing definition of 'significant market power' (SMP) was amended to ensure that Reliance JIO, a new entrant in the market, does not fall under that category.

They claimed that two factors -- volume of traffic and switching capacity -- were dropped from definition of SMP while retaining the conditions of large subcriber base and turn over, which led to the category being applicable only to Airtel, Idea and Vodafone.

Reliance JIO (RJIO), meanwhile, supported TRAI's rule saying it was framed to ensure there is no discrimination between similarly placed subscribers, prevent predatory pricing, bring in transparency and ensure a level field for competition.

It said it was the only service provider which was adhering to the TRAI rule to have a maximum of 25 tariff plans which are to be made public on its website.

It said the older service providers offer the special discounts and concessions to people who want to migrate or port their number to another service provider.

RJIO said these special offers are not provided to other customers which amounts to discrimination.

This was also the argument made by TRAI which said it had received several complaints about such practices and it was found that these special discounts were not even communicated to it.

The regulator said that by offering such discounts and concessions in each plan to individuals, the service providers are creating hundreds and thousands of tariff plans.