TDSAT's judicial member says DoT wrong on 3G roaming
Though the intra-circle 3G roaming case has got a fresh lease of life with the TDSAT’s chief justice SB Sinha and member PK Rastogi ruling differently—both the government and the cellular operators will now move the Supreme Court—this is one case which should never have reached the court, and is symptomatic of the way investors feel they are being discriminated against by the government. The facts of the case are simple: telcos who collectively bid R68,000 crore in the 2010 auction for 3G spectrum, and then spent R20,000 crore to roll out their networks after this, signed intra-circle roaming pacts (a Bharti Airtel subscriber in Delhi gets to use Vodafone’s 3G network in Delhi, for instance) and the Department of Telecommunications (DoT) ruled that it was illegal. That was ironic since, with not enough spectrum for everyone, and with no telco winning all-India spectrum, you’d have thought the DoT would have welcomed intra-circle roaming as this was the only way to ensure customers all over the country got to use 3G services. Turns out, and this is what Justice Sinha has ruled (he is the only judicial member, Rastogi is a former steel secretary), the law allows it—Sinha has said services provided by telcos are not spectrum-specific and the law allows telcos to enter into agreements with other telcos; for the record, Rastogi has said the operators are offering what are called MVNO services and these are not permitted.
But what’s more interesting is the case goes way beyond legalese and the fine-print in the licence agreements. Since the telcos were going to invest large sums of money, even before the auctions begun, they asked the DoT for clarifications on intra-circle roaming, which the government had in any case allowed on June 12, 2008. These questions, and the government’s answers, were collated and issued by the government along with the bidding documents, so they are legally binding. Question 11 asked if “3G roaming is mandated or whether it will be a bilateral decision between operators?” The answer: “Mandatory roaming is not part of the Government’s telecoms policy. Roaming arrangements are based on bilateral decision between operators.” There are several such questions; the answer to question 48 says, “The roaming policy is applicable to the licences and not to specific spectrum bands. Hence, roaming will be permitted.” With Rastogi saying the responses given by the government to the questions asked during the bidding are not binding, this will have interesting repercussions on future such bids by the government and the assurances given in them. Perhaps that’s also something the Supreme Court will clarify when it hears the case.