The telecom tribunal is split on permitting roaming agreements between telecom players offering third generation (3G) mobile services.
While the Telecom Disputes Settlement and Appellate Tribunal’s Chairman, Mr Justice S.B. Sinha, ruled in favour of the operators, TDSAT’s other member, Mr P. K. Rastogi, gave a verdict against the roaming deals.
In December, the Government had issued a notice to the operators, including Bharti Airtel, Vodafone India and Idea Cellular, asking them to stop intra-circle roaming for 3G services.
Not off the hook
While the split verdict means that operators can continue to offer 3G service through roaming pacts, they are not off the hook.
The Department of Telecom can re-issue the ban order after giving the operators a hearing. The TDSAT chairman felt the DoT had not followed the procedure and the operators were not given time to put down their views. According to Mr Justice Sinha, it was a violation of natural justice.
Setting aside the DoT’s order to operators to stop intra-circle roaming, he asked the Department to start the procedure afresh by giving operators enough time to respond. Mr Justice Sinha said after hearing the operators, the Department can pass appropriate orders.
This, however, creates further uncertainty for telecom companies as the matter will probably be taken to the Supreme Court for a final resolution.
“The fact that the Bench did not unanimously write off the operators’ plea is a positive and a verity of the concept of intra-circle roaming. Whilst the operators may approach the apex court, the strength in the argument may coerce the DoT to possibly re-look its directive,” said Mr Prashant Singhal, Partner in member firm of Ernst & Young Global
The current licence rules allow operators to enter into roaming agreements to enable subscribers get seamless coverage as they move from one circle to another. But in the case of 3G services, operators are selling connections even where they do not have spectrum.
Spectrum sharing
For example, in Madhya Pradesh neither Bharti Airtel nor Vodafone has 3G spectrum but they have 36,490 and 1,558 subscribers, respectively, according to the DoT.
This is possible because the two operators have entered into an agreement with Idea Cellular.
The DoT said such an arrangement is tantamount to spectrum sharing, which is not permitted under the licence conditions.
The operators have defended their action saying the DoT itself had clarified before the 3G auction that intra-circle roaming will be permitted.