The Telegraph
Since 1st March, 1999
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SC frowns on telecom tribunal

New Delhi, Dec. 18: The Supreme Court has criticised the Telecom Dispute Settlement Appellate Tribunal (TDSAT) for being guided solely by “consumer interest” while deciding to uphold the government's permission to basic telephony operators to offer wireless in local loop (WiLL) services.

The three-member bench of the Supreme Court headed by Chief Justice G. B. Pattanaik said TDSAT had erred by failing to consider other issues like whether the actions of the government and the recommendations of the Telecom Regulatory Authority of India were within their respective jurisdiction.

This would have questioned the government’s decision to allow the basic service providers to offer limited mobility (was it within the licence condition or part of NTP 1999) and whether prior approval of TRAI was taken before allowing a new service.

The Supreme Court order — the full text of which was released today — is a strong indictment of the way TDSAT decided the issue without critically examining all the documents that were placed before it.

“TDSAT went through its first agni pariksha and it has miserably failed,” commented Gopal Jain, a counsel for Cellular Operators Association of India. This is the first case against a TDSAT order in Supreme Court since its inception in 1999.

The order also castigated the TDSAT since it failed to give its finding on the main issues: whether limited mobility through WiLL was a new service within the meaning of National Telecom policy 1999, whether it is within the policy or outside the policy amounting to a change in the policy, or whether the conditions attached by the authority and its recommendation of January 8, 2001 have been satisfied.

In a concurrent order, Justice S. B. Sinha said the tribunal decided “the issues only from the angle of consumers’ interest. Consumers’ interest is only one of the relevant factors. It by itself cannot be decisive. Consumers’ interest is required to be taken into consideration only when it is found that the actions of the government as also the recommendations of the Authority (Trai) were within their respective jurisdiction.”

Justice Sinha also said, “We may notice that most of the findings recorded by the TDSAT are not supported by any cogent reason. It arrived at some findings without referring to any material records.”

The Supreme Court has also noted that the telecom tribunal had failed to answer the questions relating to level playing field.

“The bald conclusion of the tribunal that the cellular operators have already been compensated in various ways and the erosion of profits has also been taken care of by the entry of the fourth cellular operator, cannot be held to be a conclusion on the issue of level playing field,” states the order.

The order adds that TDSAT has ample powers to adjudicate on matters of policy, and it has erred in its judgment that it only has supervisory jurisdiction.

“A bare comparison of the provision of section 14, which confers jurisdiction on the tribunal and section 18, which confers jurisdiction on the Supreme Court, would unequivocally indicate that the tribunal has much wider jurisdiction than the jurisdiction of this Court (the Supreme Court) under section18,” said the order.

“This court can interfere only on a substantial question of law, which arises from the judgment of the tribunal and not otherwise,” states the order.

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