UPDATE: TDSAT upholds policy allowing CDMA players to enter GSM

The telecom tribunal TDSAT today upheld the dual spectrum allocation policy that allowed Anil Ambani group company RCom and Tatas to get GSM spectrum for operating mobile services.

Rejecting GSM operators' allegations, TDSAT said: "...We do not find any ground to level malafide intention on the part of Department of Telecom (DoT) and accordingly hold that the issue of early completion of formalities is not a matter that would require intervention at our level."

After DoT's decision on October 18, 2007 that amended the telecom licence allowing CDMA players to enter GSM mobile space, the COAI had questioned the manner in which Telecom Minister A Raja had implemented the decision.

"We are unable to agree with COAI that the DoT's impugned order of October 19, 2007 has disturbed the level playing field," the TDSAT said in its judgement, adding that "we hold that there is nothing irregular in grant of 4.4 MHz as start- up spectrum to respondent (RCom)."

The tribunal also rejected the GSM group's contention that as per licence condition and National Telecom Policy of '99, they have the right to hold spectrum up to 15 MHz.

"We hold that there is nothing in either the NTP 99 or the licence condition or orders to support the contention of COAI that they have vested right to 15 MHZ," said the TDSAT bench while rejecting COAI'S contention.

TDSAT also clarified that concept of dual technology under which CDMA operators such as RCom and others got GSM spectrum was not new.

"A reading of NTP 99 and the licence condition reveals that the concept of dual technology is not a new concept and that this is contained in the above documents," the tribunal observed.

Moreover, the tribunal also slammed sectoral regulator Trai for not being fair enough and doing proper exercise over the concept of technology neutrality.

"Trai did not exhibit the required degree of care and has avoidably given the impression that the concept of technology neutrality was something new."

The tribunal also hit out at telecom regulator TRAI for recommending subscriber-linked criteria for allocating additional spectrum, saying these were not fair and transparent.

"We hold that in arriving at the subscriber linked criteria, Trai failed to observe the principle of transparency. It is expected from the institution like Trai to follow a uniform procedure while making recommendations. It cannot choose the procedure to suit its convenience.

Interestingly, the tribunal gave a clean chit to DoT which implemented Trai's recommendation as interim measure but directed to revise the figures within one month on the receipt of the report of the spectrum review committee formed over it.

"DoT, given the background of the recommendations of Trai, TEC and the DoT spectrum review committee, was right in adopting the criteria recommended by Trai as interim measure," observed TDSAT.

However, TDSAT pulled up DoT for allocating additional spectrum to government-controlled firms BSNL and MTNL and held that the allotment was discriminatory against the private telecom operators. It said the revised criteria of spectrum allocation on subscriber should apply on these PSUs and DoT should withdraw the additional spectrum hold by them.

"Allocation of additional spectrum to BSNL and MTNL on the basis of the criteria laid down... Is a discrimination against the private GSM operators. We accordingly direct the DoT to immediately review the subscriber base of these PSUs in all the circle and withdraw the spectrum that is beyond the criteria laid down by the DoT," said TDSAT.