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2014 Supreme(Online)(TDSAT) 27
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
HON’BLE MR. AFTAB ALAM, CJ, HON’BLE MR. KULDIP SINGH, J
Vodafone Mobile Services Ltd. & Ors. – Appellant
Versus
Union of India (DoT) – Respondent
Petition No. 518 of 2011 | Petition No. 519 of 2011 | Petition No. 520 of 2011 | Petition No. 521 of 2011 | Petition No. 522 of 2011 | Petition No. 308 of 2013 | Petition No. 349 of 2013 | Petition No. 353 of 2013
For the Appellants/Petitioners:Mr. Maninder Singh, Sr. Advocate, Mr. Manjul Bajpai, Advocate, Mr. Shashwat Bajpai, Advocate, Mr. Saravjeet Kumar Thakur, Advocate, Ms. Disha Sachdeva, Advocate, Mr. Tejveer Singh Bhatia, Advocate, Mr. Gopal Jain, Advocate, Mr. Ankur Sood, Advocate, Ms. Stephanie V. Sonowane, Advocate, Mr. Meet Malhotra, Sr. Advocate, Mr. Ravi S.S. Chauhan, Advocate
For the Respondents:Ms. Maneesha Dhir, Advocate, Mr. K.P.S. Kohli, Advocate, Ms. Neha Singh, Advocate, Mrs. Suchitra A. Chitale, Advocate, Ms. Eesha Mahapatra, Advocate, Ms. Shally Bhasin, Advocate, Mr. Nakul Mohta, Advocate
The intra-circle 3G roaming agreements among telecom operators do not violate Unified Access Services Licence provisions, affirming the right to enter into such commercial arrangements under the existing legal framework.
Headnote:(A) Indian Telegraph Act, 1885 - Unified Access Services Licence - Validity of Intra-Circle 3G Roaming Arrangement - Petitioners sought to provide intra-circle 3G services through bilateral arrangements with other operators - Union of India prohibited such arrangement citing violation of licence terms - Tribunal held that provisions of UAS licence permitted such agreements - The amendments to the UAS licence reflect that operators can enter into commercial agreements for intra-circle roaming - The prohibition imposed by Union of India deemed invalid. (Paras 214-215, 221-222, 250-254)
(B) Principles of Contract - Service Agreements - The Tribunal ruled that the permissibility of intra-circle 3G roaming should not be restricted by the license classification of operators; existing spectrum arrangements need clarification, but commercial agreements for bilateral service remained valid. (Paras 219-220, 225, 239-240)
Facts of the case:
Various telecom operators entered into bilateral arrangements for 3G roaming after being allocated spectrums in different circles; Union of India issued prohibitory communications based on perceived violative terms of their UAS licences. Central Government's lack of clarity was noted as factors contributing to confusion about the validity of these arrangements. (Paras 4-7, 214)
Findings of Court:
The Tribunal quashed the orders prohibiting such arrangements, stating that the arrangements were permissible within the license framework established by government regulations and the intention behind them did not contravene established law. (Paras 215-216)
Issues: The key matters addressed included whether the intra-circle roaming agreements constituted a violation of licensing terms given the differences in spectrum assignment; whether such arrangements could harm market competitiveness; and if they presented natural justice violations. (Paras 3, 257)
Ratio Decidendi: The Court emphasized that entering commercial agreements is a fundamental right under Article 19(1)(g) - prohibitions against such arrangements must be well-founded; confusion around licensing should not prevent operators from utilizing their rights under the license agreements, particularly with no explicit prohibitory language present. (Paras 224-226, 257-260)
Result: Petitions allowed, prohibitions set aside.
ORDER
By Aftab Alam, Chairperson The Dispute: its genesis
This batch of cases raises the question about the validity of what is loosely called as intra-circle 3G roaming. Or to put the matter in legalese: whether it is permissible for two mobile phone operators within the same service area/circle, one having its 2G network on the lower frequency 900 MHz (the primary GSM band) or 1800 MHz bands and the other, a 3G network on the higher frequency 2100 MHz band, to enter into a bilateral arrangement under which the subscribers of the former are able to roam on the 3G network of the latter?
The frequencies in 2100 MHz or 2.1 GHz (loosely called the 3G spectrum in this country) were allocated by the Central Government to different mobile phone operators on the basis of an auction. As everyone had known from before, owing to the limited availability of spectrum, no single operator was able to get the 3G spectrums in all the 22 circles in the country; some operators got the 3G spectrums in some of the circles while some others got it in the other circles. And this actually gave rise to the situation where service operators that had got the 3G spectrums in certain circles but not in other circles joined hands to supplement and complement each other.
After the allocation of 3G spectrums was made to the operators in the respective circles where they were the highest bidders they completed the roll out obligations in terms of the licence and then entered into the arrangement, the validity of which is in question, in the following manner. Operator X might have secured the rights to use 3G spectrum in circle A but it does not have the right to use 3G spectrum in circle B where those rights are held by operator Y. In circle B though operator X has its 2G network from before working on 900 or 1800 MHz spectrum earlier allocated to it and similarly operator Y has its 2G network in circle A from before. Operators X and Y entered into an arrangement through a bilateral agreement that provided for the subscribers of X in circle B to roam on the 3G network of Y and vice-versa the subscribers of Y in the circle A to roam on the 3G network of X.
Here it must be said in fairness that the above was not a clandestine arrangement but it was entered into between the operators openly and after giving due intimation to the Telecom Regulatory Authority of India (TRAI) and the Department of Telecommunication (the DoT). A copy of the agreement entered into by the operators was sent to TRAI. One of the petitioners before the Tribunal, Aircel Cellular Limited on 26 September 2011 informed the DoT that it had entered into an intra-circle roaming agreement with Tata Teleservices Limited, requesting the concerned authorities to test their systems and the authorities actually held a test of their centres.
The Union of India, acting through various agencies seems to have taken a while to take a view on the validity of the arrangement in question. For several months, even while the arrangement was in place and at work, TRAI, the DoT, and the different Term Cells appear to be speaking about it in different voices. But once the Central Government took a final view on the matter, it came down heavily upon the operators engaged in the arrangement. On 23 December 2011 it issued a communication, peremptorily instructing the operators engaged in intra-circle 3G roaming to discontinue the arrangement and to report compliance by the following evening. The petitioners are even aggrieved by the timing of the communication which according to them, was calculated to deny them recourse to the court. December 23 was a Friday and the courts and this Tribunal had closed for the winter vacation.
The Dispute does not get resolved
Anyhow, a number of operators, namely, (i) Vodafone Mobile Services Limited & others, [Petition no. 518 of 2011], (ii) Bharti Airtel Limited, [Petition no. 519 of 2011], (iii) Idea Cellular Limited, [Petition no. 520 of 2011], (iv) Aircel Cellular Limited and another
