Trai should assert itself

The parallels are too striking to miss. In 2001, when Reliance Infocomm was setting up a full-blown mobile phone network, as opposed to the limited-mobility one it had been allowed under its fixed landline licence, the then chairman of the telecom regulatory body, MS Verma, wrote to the department of telecommunications (DoT) saying it had to stop the company from violating the conditions of its licence. In response, the then DoT secretary, Shyamal Ghosh, politely told Mr Verma to mind his own business. Now when, among others, Reliance Communications (as it is now known) is being given spectrum, and Mr Verma's successor as Trai chairman, Nripendra Misra, says that this is contrary to his recommendations, DoT Secretary S Behura has told him to keep quiet! The grounds cited this time are that some telecom firms are in court, opposing the government's decision, so the matter is sub-judice. This is strange because, under the law, if the government chooses not to implement Trai's recommendations in toto, it can ask Trai to reconsider. If the reconsidered recommendations are also not to the government's liking, it has the right to ignore them, all that is required is that it has to give the reasons for its decisions "" which can then be challenged in a court of law. What is unique about matters this time round is that the government is insisting, including in affidavits submitted by it in court, that all its actions are based on Trai's recommendations. It is this that Trai is protesting "" it has written four letters of protest to the DoT and asked it to refer the matter back to it; the DoT, in its wisdom, has not even bothered to reply. So much, then, for independent regulators empowered by Parliament.

The substantive issue is that, while about 100 MHz of spectrum is theoretically available for GSM mobile services in the 900 and 1,800 MHz bands (enough for 10 players if each one gets 10MHz, compared to the maximum of 15MHz that is allowed), the government plans to issue spectrum to four crossover technology firms (like Reliance, other CDMA mobile firms also want to offer GSM mobile services) and has issued letters of intent to four new entrants "" this, while there are already six existing pan-Indian players. So, while the DoT is right in saying that Trai had rejected the idea of a cap on the number of firms offering mobile services, it is ignoring Trai's important rider that new licences could be issued only if there was enough spectrum for the current and future needs of all players. Trai's recommendation that crossover technology firms would have to pay a higher annual spectrum usage charge has also been given the go-by.

Now that the DoT has told Trai to shut up, what options does the regulator have? It is doubtful if the DoT letter has much legal merit since, under the law, the regulator has the right to interact with the government on its recommendations "" indeed, the government is obliged to consult it. But what does Trai do when the government ignores it, indeed uses just a few of its recommendations and after distorting them? One option is to challenge the government at the Telecom Dispute Settlement and Appellate Tribunal (TDSAT). This has precedent. When the TDSAT ruled that Trai had no jurisdiction on interconnection agreements between telephone companies, Trai under its then chairman, Pradip Baijal, went to the Supreme Court in appeal since it curtailed Trai's powers. Trai has done the honourable thing so far by writing to the government, reminding it of its obligations. Since this has not had the desired impact, it is time to take the next step.