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2016 Supreme(Online)(TDSAT) 22
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
Aftab Alam, CJ, Kuldip Singh, J
Cellular Operators Association of India & Ors. – Appellant
Versus
Union of India – Respondent
Telecommunication Petition No.271 of 2013 | MA No.174 of 2013 | MAs Nos.234 & 242 of 2014
For the Appellants/Petitioners: Dr. A.M. Singhvi, Mr. Ramji Srinivasan, Mr. Navin Chawla
For the Respondent: Mr. Abhay Prakash Sahay
The imposition of penalties for delayed self-certification by telecom operators was ruled unreasonable, leading to the invalidation of previous penalties due to regulatory ambiguities and lack of clear distinctions.
Headnote:(A) Telecommunications law - Penalty for non-submission of EMF radiation self-certificates - Departments issued a scheme of penalties relating to self-certification of BTS compliance with ICNIRP standards - Tribunal found the penalty imposition unreasonable and unjust as original flaw stemmed from lack of clarity in regulations. (Paras 9, 20, 24, 30)
(B) Radiocommunication Standards - Compliance and Assessment by Licensees - Clarity regarding distinction between existing and new BTS installations regarding self-certificates must be well-defined in the law - The tribunal noted that penalties cannot be imposed retroactively without clear guidelines. (Paras 11, 15, 40)
Facts of the case:
This petition collectively filed questions the imposition of penalties for non-submission of EMF radiation self-certificates by the Department of Telecommunications against numerous operators, invoking various circulars without proper curative measures or clarity in their application.
Findings of Court:
The Tribunal concluded that the scheme imposed penalties for lapses in procedural compliance while not discerning between genuine delays in self-certification and actual non-compliance; penalties were deemed unfair.
Issues: Whether penalties imposed due to non-submission of self-certificates were reasonable and whether the circulars adequately clarified distinctions between existing and new BTS sites.
Ratio Decidendi: The tribunal ruled that regulatory ambiguities and retroactive penalty applications are unjust, leading to the invalidation of the strict penalties imposed under earlier circulars.
Result: The impugned penalty demands were set aside with directions to form a fresh penalty scheme.
| Table of Content |
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| 1. overview of telecom operators' challenge against penalties (Para 1 , 2) |
ORDER
By Aftab Alam, Chairperson –
This Petition is filed on behalf of two associations, [Cellular Operators Association of India (Petitioner No.1) and Association of Unified Service Providers of India (Petitioner No.2)] that jointly represent all the major telecom operators in the country; besides the two associations, two companies of the Bharti group are petitioners 2 and 3, eight companies of the Vodafone group are petitioners 3 to 11, two companies of the Reliance group are petitioners 15 and16, two companies of the Tata group are petitioners 17 and18, and three other telecom companies are petitioners 12, 13 and 14. Veritably thus, all the private operators in the telecom sector have come together to question and assail the action of the Department of Telecommunication (DoT) in imposing penalty for non-submission of EMF radiation self-certificate for the “new” Ba sic Transceiver Stations (BTS) sites by the due date. The penalty is at the rate of rupees five lakh for each BTS but as the number of stations held liable for imposition of penalty is very large, the total amount of penalty against each of the operators runs into huge figures. Needless though to say, that before the Tribunal the legality and validity of the charge would be judged strictly in accordance with law, regardless of the amounts of penalty-especially in a matter as important as compliance with the radiation norms.
In order to examine the matter properly, it is necessary to take note of the following facts that are beyond any controversy. On 4 November 2008 the Government of India (the Licensor) amended the UAS licence making it compulsory that the Base Transceiver Station (BTS) Emissions for public exposure should conform to the limits/levels as prescribed by the International Commission on Non-Ionising Radiation Protection (ICNIRP) and further mandated that the compliance with the ICNIRP standards would be in the form of self-certificate submitted by the licensee. The amendment was brought about by incorporating into the UAS licence, clause 43.6A, which is as under.
“43.6A. Licensee shall conduct audit and provide self certificates annually as per procedure prescribed by Telecommunication Engineering Centre (TEC)/or any other agency authorized by Licensor from time to time for confirming to limits/levels for antennae (Base Station Emissions) for general public exposure as prescribed by International Commission on Non-Ionizing Radiation Protection (ICNIRP) from time to time. The present limits/levels are reproduced as detailed below:
| Frequency Range | E-Field Strength [Volt/Meter (V/m)] | H-Field Strength ([Amp/Meter (A/m)] | Power Density [Watt/Sq. Meter (W/Sq.m)] |
| 400 MHz to 2000 MHz | 1.375f½ | 0.00037f½ | f/200 |
| 2GHz to 300 GHz | 61 | 0.16 | 10 |
(f = frequency in MHz) Note: The compliance in the form of Self Certificate shall commence six months after the date of issue of prescribed test procedure by TEC or any other agency authorized by Licensor.”
In furtherance of the amendment in the licence, the Telecom Engineering Centre (TEC) issued the test procedure that was intimated to the licensees by letter dated 9 November 2009. A few months later, on 8 April 2010 the DoT issued a circular of which the relevant portions are extracted below.
“2. TEC has since issued the test procedure No.TEC/TP/EMF/001/01.SEP- 2009 which has been intimated to the Licensees vide letter dated 09.11.2009.
3. In view of the above, following instructions are issued for meeting the ICNIRP guidelines: (i) All existing BTSs should be ICNIRP guidelines compliant by 08.05.2010 as the TEC test procedure has been circulated on 09.11.2009. Therefore, all BTSs should be self certified as meeting the radiation norm. Self certification should be submitted to respective Telecom Enforcement Resource & Monitoring (TERM) Cells of DOT by 15.05.2010. (ii) All new BTS sites should start radiating only after self certificate has been submitted
