Decided on December 13,2004



- (1.)FOR the decision of MA Nos.14 and 151 of 2004, the controversy raised, in brief, in this appeal is against the direction of the regulator, the TRAI constituted under the Telecom Regulatory of India Act, 1997 (for short the "Act") to all the BSOs/CMSPs (Basic Service Operators/Cellular Mobile Service Providers) directing direct connectivity between the service providers. TRAI is of the view that transmitting traffic between service providers in the same service area entailed avoidable transit charges that are eventually passed on to the consumers by the service provider in the form of higher tariff and further that from the traffic engineering point of view this carriage might not be desirable especially where subscribers are likely to grow. According to TRAI, it would not be techno-economically viable for a large amount of traffic transmitting through a route unnecessarily and that "in order to estimate such traffic, data was called for to have a considered justification of direct connectivity between BSNL Cellular and other private CMSPs. From the data obtained, it was observed that the data justifies the direct connectivity amongst the service providers in most of the areas."
(2.)BSNL has challenged this direction of TRAI in the appeal. BSNL requested TRAI to supply to it the data or the basis on which the TRAI had taken the decision to mandate direct interconnection between the service providers. TRAI is, however, of the view that traffic data on any network is commercially sensitive information and as a matter of policy it is not possible for the TRAI as regulator to share traffic details of other cellular operators with BSNL. TRAI also said that it had concluded that supply of such commercially sensitive information to any of the service providers was not desirable in the context of regulatory practices and principles. TRAI also said that the data was only one of the reasons for directing direct connectivity. It was argued by Mr.Meet Malhotra, learned counsel for TRAI that, apart from the data, there were sufficient grounds for TRAI to have ordered direct connectivity.
When the BSNL sought directions of this Tribunal to TRAI to produce the relevant data in question it came with an application (M.A.No.14 of 2004) raising the following pleas:

"Para 2

(v) It is emphasized that normally, in accordance with the regulatory principles and the law of the land, commercially sensitive information of one service provider is not shared with the other service providers. There may be exception to this general rule depending on the peculiar circumstances, for instance, the regulator disclosed some of the data pertaining to traffic and (audited) cost of the Appellant. In this case, the Respondent had taken a specific decision to base the interconnect usage charge and the access deficit charges estimates only on the Appellant data because the Appellant was the predominant operator. Further, this data was used to provide an explanation of the massive access deficit which the other operators are required to pay to Appellant, and for them to appreciate the rationale behind such a decision. This exception to the rule cannot therefore be taken as precedent. The general practice of the Respondent in this regard can be seen from the various Consultation Papers/Orders/Regulations of the Respondent.

(vi) In view of the above, the Respondent is not in a position to pass on the information as desired by the Appellant. Hon'ble TDSAT can be given the information, if it so desires."

(3.)BEFORE us it was not the case of TRAI that data was obtained only from the appellant BSNL.

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