Decided on August 10,2004



- (1.)THIS is an application by Telecom Regulatory Authority of India (TRAI) seeking review of our Order dated 21st April 2004 in Appeal No. 2 of 2004 entitled BSNL vs. TRAI and others.
(2.)On the face of the application we do not find any ground for review. However, it has been submitted by TRAI that "while the impugned direction of TRAI might possibly be faulted on account of use of the words `dispute' and `determination' therein, the powers of TRAI to intervene in an impending disconnection cannot be questioned." It is stated by TRAI that this submission is "based on and is reinforced by the relevant aspects of the Telecommunication Interconnection (Reference Interconnect Offer) Regulation 2002" and that these Regulations have been framed under Section 36 of the Act which are in the nature of delegated legislation having statutory force. It is also the submission of TRAI that the validity of the Regulations cannot be questioned by the Tribunal and in support of that it has cited a decision of the Supreme Court in West Bengal Electricity Regulatory Commission vs. C.E.S.C. Limited and others (AIR 2002 SC 3588). This judgment of the Supreme Court, in our view, hardly advances the case of TRAI.
Regulations have to be consistent with the Act. What the Regulations envisage is publishing of Reference Interconnect Offer (RIO) by the Telecommunication Service Providers holding significant market power based on the model of RIO, which is annexed with the Regulations as Annexure-B. BSNL is stated to be a service provider holding significant market power. Regulation 3.2 needs to be seen in particular as it provides that "A published RIO may undergo any change only with the prior approval of the TRAI. Interconnection Agreements are required to be entered into by and between all Service Providers based on the RIOs so published, provided, however, that by mutual agreement the two parties concerned i.e. the interconnection provider and the seeker may modify and/or add to the terms and conditions stipulated in the published RIO for entering into an Individualised Agreement."

(3.)RELIANCE by TRAI is placed on Article 17.1 of the model RIO which is Annexure-B to the Regulations. This article deals with termination of the interconnection agreement between the parties. Article 17.2 deals with withdrawal of interconnection for non-payment and Article 18 deals with disputes. As noted above Regulation 3.2 itself provides that all these Articles of the model RIO may be changed by parties by mutual agreement. How can a model RIO which can be even modified by the parties who enter into interconnection agreement be termed as having statutory proportions as far this Tribunal is concerned? How can any Regulation provide a different dispute settlement mechanism than provided in the Act? Any such Regulation or RIO contrary to the Act has no value. It has not been pointed out as to how our Order in any way contravenes the provisions of the Act.

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