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Legality of limited mobility phone services upheld

By Sandeep Dikshit

NEW DELHI AUG. 8 . The Telecom Dispute Settlement and Appellate Tribunal (TDSAT) today upheld the legality of the Wireless in Local Loop (WLL)-based limited mobility services, but asked the Government to ensure that the operators complied with certain restrictions and relief was given to their cellular counterparts.

The last word, however, has not been said as the aggrieved party can approach the Supreme Court.

Till late this evening, legal advisers of basic and cellular companies were going through the 135-page judgment and had not formed a firm opinion.

By a majority judgment, the TDSAT recommended changes in the existing policy for limited mobility companies. Appropriate software should be deployed to ensure that no handover of limited mobility calls takes place from one local calling area (SDCA in telecom parlance) to another "under any circumstances".

It also wanted the limited mobility companies to pay additional entry fee over and above what they are paying. The modality should be determined within four months by the Telecom Regulatory Authority of India (TRAI). The Government should allocate additional spectrum to the limited mobility companies, but they should be asked to pay for it.

The order also wanted the cellular operators to be given relief with regard to the points of interconnection and raising the ceiling for retention of access charges since "there was no doubt that the entry of basic phone services with limited mobility had affected the cellular mobile service providers". However, there was no patent illegality in the action of the Government and various reliefs at that point were provided to cellular operators.

The majority judgment by the two TDSAT Members, R.U.S. Prasad and P.R. Dasgupta, criticised the Government for not charging any fees from the limited mobility companies even though the National Telecom Policy '99 and the Department of Telecom had envisaged the levying of such a charge.

They asked the TRAI to determine the quantum of the fees and indicated the manner in which it could be done — either as a one-time fee from all or limited to SDCAs located in the four metros and `A' category circles. But the decision should be taken in a time-bound manner, preferably within four months.

The minority judgment by the TDSAT Chairperson and former Supreme Court judge, D.P. Wadhwa, also criticised the Government, but more sharply, and said that the decision granting limited mobility be set aside.

The TRAI's approach towards ushering in limited mobility was faulty because "it posed a wrong question and got the wrong answer". It should have first asked whether limited mobility was permissible instead of considering whether it should be permitted and if it was permitted, what should be the context.

Mr. Wadhwa held that limited mobility was a new service and that the DoT had violated the law. "Too much stress was laid on affordability, teledensity and reach to rural areas. Today's scenario shows that affordability is a myth and speedy rollout in rural areas is a bogey. This (failure by private basic phone companies to provide phones in villages) was a dismal performance and instead of taking action against them, the Government has rewarded them by allowing limited mobility and use of handsets."

He observed that the DoT's record showed that it was hurrying the TRAI into sending its recommendations "as if it was to beat some deadline. We cannot brush aside the argument of the petitioners that the TRAI fell in line with what DoT required. The DoT suppressed its earlier decisions which prohibited mobility in any form and overturned the same without any reason".

Mr. Wadhwa held that the authorities were actuated by "ulterior motives" to grant favour to the basic phone companies and observed that "judicial discipline restrains us from using strong language but the whole thing proceeded on specious pleas to grant benefit to fixed service providers."

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