HC declines to pass any order on spectrum allocation

'Can't pass status quo order without going into the details.'

The Delhi High Court today refused to pass any order on the telecom appellate tribunal TDSAT's decision pertaining to spectrum allocation, even as GSM mobile players sought a probe into the government's move to allow use of dual technology.

"I can't pass status quo order without going into the details. Let me go through the petition. You (Ram Jethmalani) yourself saying that matter is complicated," Justice Sanjeev Khanna said while posting the matter for hearing on January 3.

Senior advocate Ram Jethmalani, along with Fali S Nariman, appearing for the Cellular Operators Association of India (COAI), contended that the biggest scam has occurred and it needed police inquiry and hence it required urgent hearing. But the court turned down the request.

At the very beginning, Additional Solicitor General Vikas Singh contended there was no urgency involved in the matter.

Telecom tribunal TDSAT had, on December 12, passed the order allowing the government to go ahead with spectrum allocation and dual technology. Though the high court was open till December 20, the COAI chose to come during vacation time despite the fact that their petition was ready by December 13, Singh said.

The petition filed by the COAI sought stay of the government's October 18 and 19 decisions to permit the use of dual technology and regulator Trai's recommendation of enhanced subscriber-linked criteria for allocation of additional spectrum.

The COAI's petition also sought direction from the court to restrain the government from allocating any GSM spectrum to CDMA operators and any licence/spectrum to any new applicant.

The petitioner submitted that the said "in-principle" approval and decision of the DoT on December 18 and December 19 allowing use of dual technology to Reliance and others was unfair, unreasonable and legally malafide denying equal opportunity and a level-playing field to GSM operators.

The COAI submitted that permitting dual technology requires prior approval of the Union Cabinet. However, instead of procuring requisite approval for its decision to amend the National Telecom Policy 1999, the DoT with unseemly haste issued an "in-principle" nod to Reliance on December 18 for use of GSM and CDMA technology by single player.

GSM operators alleged that the said approval was issued to Reliance after office hours on December 18 and Reliance was ready with the required money to be deposited with the DoT on the morning of December 19 itself.

It was only after the fait accompli was achieved and the largesse to Reliance was effectively sealed that the DoT chose to inform the world at large late afternoon of December 19 that a decision had been taken to permit use of dual technology under unified access services licence.

The petition alleged that after having acknowledged and recognised that licensing regime does not allow for allotments of spectrum in more than one technology, Trai has without any cogent reasons wrongly recommended that allocation of dual spectrum/cross technology allotment may be permitted.

The DoT has been of firm opinion that allotment of frequency shall be made either on GSM or on CDMA platform, the COAI petition said, adding that it does not contemplate allotment of both types of spectrum to a single licensee for provision of same service on different platforms.

In 1999-2000, when some GSM operators had applied for CDMA spectrum, their request was turned down by the DoT on the ground that operators were technology-neutral only within their designated band.