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Bharat Sanchar Nigam Limited (BSNL) has filed an affidavit before the Supreme Court regarding the 3G intra-circle roaming issue, saying that the special leave petition filed by Bharti Airtel should be “dismissed with costs”.
In the affidavit, BSNL has stated that Bharti Airtel, along with other law-violating telecom service providers like Vodafone, Idea Cellular and Tata Teleservices, have formed a cartel and are violating the law pertaining to use of 3G spectrum and the licence terms.
While BSNL had paid Rs 10,186.31 crore for 3G spectrum charges in 20 circles as determined through auction, the state-run telco, in its affidavit has stated that the private telcos, which are violating laws, have neither paid for 3G spectrum charge nor have invested in setting up their infrastructure for providing 3G service and are yet illegally obtaining benefit by illegal roaming arrangements.
As Bharti Airtel and other law violating telcos, as mentioned in the affidavit, have bid for almost all the circles, BSNL said that the companies must have involved in bidding wars with each other, which would ultimately have lead to an increase in price of the auctioned spectrum.
The cartelisation by Bharti with other private telcos who have participated in the 3G spectrum auction have clraely robbed the Department of Telecommunications (DoT) of the benefit of higher auction fees from the eventual licencees.
This had caused detriment of public interest and exchequer, BSNL added. Incidentally, BSNL did not participate in the 3G spectrum auction but was asked to pay the auction determined price as the Government had then decided to allocate 3G spectrum to state-owned telcom service providers BSNL and MTNL.
BSNL also mentioned that Bharti Airtel, along with Vodafone and Idea Cellular, have been offering almost all telecom circles
across the country, but did not require to pay a single penny for 3G spectrum in some circles. As per the licence conditions, these companies are prohibited and not authorised or entitled to provide 3G services, BSNL stated in the affidavit, adding that it is heavily losing in these markets.
Intra-circle roaming arrangements in respect of service can only be entered into between two service providers when they both have licences to provide that particular service in the designated service area, BSNL pointed out.
The state-run operator has also stated that without the 3G intra-circle arrangements among Bharti Airtel, Vodafone and Idea Cellular, BSNL could have had about one fourth market share for the 3G services. Increase of service providers in each circle due to spectrum sharing, market share would shrink to less than 10%, it added.
Bharti had earlier stated that 3G ICR services are clearly permissible under the terms of the License issued by the DoT and, besides, in response to specific queries raised to it before the auction of the 3G spectrum, DoT had unequivocally and expressly clarified that the 3G ICR services are permitted.
It was on the basis of this representation of the DoT that the operators invested huge amounts running into thousands of crores of Rupees to acquire 3G spectrum and set up the network.
In a separate affidavit, DoT has stated that the roaming arrangements entered into between Bharti AIrtel and other 3G service providers makes it clear that Bharti Airtel was subleasing the spectrum of 3G service providers.
Requesting the SCto dismiss Bharti Airtel’s special leave petition, DoT further mentioned that as per the conditions in the Unified Access Service licence, the roaming facility is to offer as existing subscriber the same services it receives on the operator’s licences network and not to enable the licensee to acquire additional customers by sub-leasing the network of their service providers without having a right or licence to operate a network of its own.
On April 11, the SC had said that Bharti Airtel will not be able to add new 3G customers in seven circles where it does not have required licences and offers the services through ICR pacts with other carriers. But, it did not bar the company from offering service to its existing 3G customers in the seven telecom zones — Kolkata, Madhya Pradesh, Haryana, Gujarat, Maharashtra, Uttar Pradesh East and Kerala.
The SC bench had issued notices to all parties and BSNL to formally place their views on the subject before the court within four weeks. The case will now be listed on May 9, for final hearing.
Bharti Airtel, Vodafone India and Idea Cellular together have about 12 million 3G subscribers in India.
Of these, Bharti Airtel has 6.8 million 3G subscribers (5.2 million active) till December 2012, an increase of about 30% from four million active 3G data users (5.4 million total 3G customers) till September 30, 2012. Idea Cellular has 2.8 million and Vodafone India has 2.5 million 3G customers.
Earlier, the Department of Telecommunications (DoT) had asked Bharti Airtel, Vodafone India and Idea Cellular to end the intra-circle (ICT) 3G roaming pacts, besides imposing penalties on each of the telcos.
While Bharti Airtel was slapped with a penalty of Rs 350 crore, penalty for Vodafone India was Rs 550 crore and Rs 300 crore on Idea Cellular for alleged violation of licence norms. With today's SC order, the companies will be able to continue with the 3G ICR pacts till April 11.
