CELLULAR OPERATORS ASSOCIATION OF INDIA Vs. DEPARTMENT OF TELECOMMUNICATIONS
LAWS(TD)-2004-3-3
TELECOM DISPUTES SETTLEMENT AND APPELLATE TRIBUNAL
Decided on March 29,2004

Appellant
VERSUS
Respondents

JUDGEMENT

D.P.Wadhwa, - (1.)IN this petition filed under Section 14(a) of the Telecom Regulatory Authority of INdia Act, 1997 (for short TRAI Act), first petitioner is the Association of Mobile Service Providers (CMSPs) and petitioners 2 to 15 are its members. There are four respondents. First respondent is the Department of Telecommunications in the Ministry of Communications, Government of INdia. Second and third respondents BSNL (Bharat Sanchar Nigam Ltd.) and MTNL (Mahanagar Telephone Nigam Ltd.) are Fixed Service Providers and the 4th respondent is TRAI, the Telecom Regulatory Authority of INdia constituted under Section 3 of the TRAI Act. Functions of the TRAI are prescribed under Section 11 of the TRAI Act. Two of its functions are (i) to fix the terms and conditions of interconnectivity between the service providers and (ii) to regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication service. Access to the networks of other service providers is critical to a cellular service provider's ability to enable its subscribers to make calls to all fixed line and cellular subscribers across the country.
(2.)The issue involved in the present petition is quite simple. Petitioners say that in the exercise of its function TRAI issued the Interconnection Determination dated 8.1.2001 determining, inter alia, the retention of 5% of the passed through revenue by the cellular operators i.e. the petitioners but they say that the BSNL and MTNL, respondents 2 and 3 respectively have not paid this amount to the petitioners for the period from 8.1.2001 to 31.1.2002. Petitioners say that instead of 8.1.2001 they are agreeable that date could be 25.1.2001. In the bills raised by BSNL and MTNL though full amount was paid by the petitioners for passed through traffic from the networks of BSNL and MTNL but credit was not given to the petitioners of this 5% revenue.
The word 'determination' is not to be found in the TRAI Act. Under Section 14(b) of the TRAI Act this Tribunal is to hear and dispose of appeal against any direction, decision or order of the TRAI under that Act. But it is not disputed before me that this 'determination by TRA,I which is subject matter of this petition is, in fact a 'decision' of the TRAI and its binding nature. BSNL and MTNL on the other hand say that 'Determination' dated 8.1.2001 of TRAI consisted of a package of six issues and the petitioners, therefore, could not seek partial implementation of that portion of the Determination which favours them. They, however, did not point out which of the other issues were in favour of either BSNL or MTNL or how the claim of the petitioners was dependent on any of those issues. They also contend that petitioners had earlier filed an appeal before this Tribunal, it being Appeal No.2/2001, against the same very Determination dated 8.1.2001 of the TRAI which was ultimately dismissed as withdrawn on 13.8.2001. Further contention of these respondents is that TRAI notified on 14.12.2001 the Telecommunication Interconnection (Charges and Revenue Sharing) Regulation, 2001 (for short Interconnection Regulation) and under this the date of implementation of 5% revenue was "by 31st January, 2002" which the respondents have complied. Under this Interconnection Regulation payment to basic service providers i.e. BSNL and MTNL is @ Rs.1.14 per metered call unit against Rs.1.20 by CMSPs. The amount of Re.0.06 is to be retained by CMSPs to cover their cost of billing, collection and bad debts. Rs.1.14 per metered call unit against Rs.1.20 i.e. Re.0.06 per metered call comes to 5% and this amount was to be retained by CMSPs. Petitioners have prayed:

"It is therefore, most respectfully prayed that this Hon'ble Tribunal may be pleased to:-

(a) Director the Respondents to implement the TRAI Determination dated 08.01.2001 allowing CMSPs to retain 5% of their pass through revenue paid to the Fixed Operators for calls made by Cellular Subscribers with effect from 08.01.2001.

(b) Direct the Fixed Service Operators to refund/adjust all the excess amounts received by them from the Cellular Operators towards the said 5% of CMSPs pass through revenues with effect from 08.01.2001 upto 31.1.2002 together with interest thereon computed at prime lending rate of State Bank of India from the date of over payment in each bill by the CMSPs to the FSPs until the actual date of refund/adjustment."

3. Petitioner and others had filed an appeal (appeal No.2/2001) in this Tribunal on 9.3.3001 seeking to set aside the TRAI's Determination dated 8.1.2001 and the letter dated 12.2.2001 written by BSNL to all its Chief General Managers. Though BSNL and Association of Basic Telecom Operators were respectively respondents 2 and 3 in the appeal, the main prayer was against TRAI. The subject of the letter dated 12.2.2001 of BSNL was "connectivity at the point of interconnection between cellular networks and BSNL/MTNL fixed networks". When this appeal came up for admission on 15.3.2001 before this Tribunal there was an application by the petitioner for interim relief "on the apprehension that the letter dated 2nd March, 2001 sent to all Chief General Managers, Telecom Circles/Districts by Assistant Director General (Tech) will not be implemented". This was a letter written by BSNL to all its field units asking them to comply with the directions contained in the letter dated 28.2.2001 of TRAI*. On this Mr. C.S. Vaidyanathan, learned Senior Advocate on behalf of the BSNL assured the Tribunal that letter had been put into effect or if not, will be put into effect without any loss of time. He also assured that although the letter dated 2.3.2001 will be implemented, no additional points of interconnection will be given as mentioned in the letter till the appeal was heard. On this Tribunal disposed of the application for interim relief. On the next date it was pointed out by the learned counsel for the petitioners that in spite of order dated 15.3.2001 the reactivation of Dehra Dun, Bareilly, Saharanpur and Muzzafarnagar had not taken place. On this Mr.Vaidyanathan stated that if these points were disconnected, those will be reactivated, if not already reactivated. The Tribunal clarified that all points of

*TELECOM REGULATORY AUTHORITY OF INDIA 16TH FLOOR, JAWAHAR VYAPAR BHAWAN TOLSTOY MARG, NEW DELHI-110 001

xxxxx

To

The Chairman-cum-Managing Director, Bharat Sanchar Nigam Ltd., Sanchar Bhavan, New Delhi-110 001.

Subject: Representation of COAI in respect of POIs with BSNL.

It has come to the notice of the TRAI that some POIs are being altered/disconnected by BSNL unilaterally without any explanations and/or notice to the concerned Cellular Mobile Service Providers. Presumably, the action results from a particular interpretation given by BSNL to the Authority's determination on inter-connection dated the 8th January 2001 interconnection which were disconnected on or after 8.1.2001 will be restored. There is no further interim order and ultimately the appeal was allowed to be withdrawn. The Tribunal while dismissing the appeal also imposed cost of Rs.20,000/- on the petitioners but that was not on account of any wrong filing of the appeal, but on account of the fact that person verifying the affidavit in support of appeal had stated that petitioner was not invited by TRAI on its meetings on two dates, when in fact, he had been so invited and has also participated. The deponent, in fact, admitted the mistake and said that the mistake was due to inadvertence and he expressed his regrets.

It is not necessary for me to refer to the grounds in the appeal (2 of 2001) on the basis of which petitioners sought quashing of TRAI's Determination dated 8.1.2001 but basically Determination concerned with the number of points of interconnection. After the amendment to the TRAI Act, the appellant in the appeal said that they had been requesting the TRAI to set out the regulatory principles/framework for interconnection so that the Interconnection Agreement could be finalized. Instead of exercising its powers under the TRAI Act, TRAI

The Authority would like to advise in this regard that the basis of all inter-connection arrangements has to be mutual agreement between the parties concerned and a determination by the regulator is necessitated only when the two parties fail to arrive at such a mutual agreement. In the present instance also TRAI was required to intervene when the two extreme positions of the basic service operators on the one hand and the cellular mobile service operators on the other could not be reconciled by them mutually. A determination, therefore, had to be issued by the TRAI to meet reasonably the cellular mobile service operators' request for liberalizing the existing interconnection regime and making it more equitably by providing a larger number of POIs. The determination by the TRAI, should not, therefore, be so interpreted by any of the involved parties that it defeats its basic objective of achieving a more liberal and equitably interconnection regime than what existing prior to its issuance. played the role of mediator and tried to get the parties to arrive at mutually agreeable terms on the basis of which the Interconnection Agreements could be finalized. There were 18 issues pending with the TRAI for interconnection and TRAI on 13.11.2000 gave its opinion on 13 issues. Subsequently on 8.1.2001, the appellants alleged that without there having been any finalisation of the outstanding issues between the BSNL and the appellants, TRAI gave its Determination on six issues that remained outstanding after its letter dated 13.11.2000 which was in complete departure from the role of TRAI as mediator which it had assumed until then. I have been taken through the grounds of appeal and I find that appellants had objected on the question of issue of revenue sharing between the CMSPs and FSPs and said it denied parity to CMSPs. It would, therefore, appear that appellant wanted more as its share of revenue on the calls made from its network and transmitted or terminated in another service provider's network.

The Authority, therefore, advises you not to alter/disconnect any POI with any service provider except by mutual agreement till the 7th April, 2001 which is 90 days from the date of the determination i.e. 8.1.2001. Status quo Ante should be restored forthwith in respect of all POIs which have been disconnected on or after 8.1.2001 unilaterally. The issue may be discussed between the concerned parties during this period for resolution. A meeting is being convened by the Authority to facilitate mutual agreement between the parties concerned. You will be advised further in this regard shortly.

Yours faithfully,

Sd/- (Rajendra Singh) Adviser (MN) Tel No.3357815

CC: Cellular operators Association of India, 14, Bhai Vir Singh Marg, New Delhi-110 001.

(3.)IT is contended by Mr. Kirit Raval, learned Solicitor General that this petition has been filed to get over the bar of limitation inasmuch as Interconnection Regulations were notified by TRAI on 14.12.2001 and this petition was filed on 10.7.2003. Learned Solicitor General raised the following points in opposition of the petition:
1. Petitioners are seeking partial implementation of TRAI's Determination dated 8.1.2001 and which pertains to revenue sharing, particularly, when whole of the issues in the Determination were challenged by the petitioners in Appeal No.2/2001 which was eventually withdrawn on 13.8.2001. The Determination dated 8.1.2001 was a composite package which could not be implemented till the end of 2001. Although retention of 5% passed through revenue was permitted to cellular operators, there were certain other fundamental changes in the routing /handover of calls prescribed whereby undue revenue losses were being caused to BSNL on account of incorrect/improper routing being followed by cellular operators and these were to be eliminated. Everything came into place by the end of 2001. Interconnection Regulations were notified on 14.12.2001. Since the petitioners themselves got an interim order of stay in the appeal, TRAI's Determination dated 8.1.2001 could not be implemented till 13.8.2001 when the appeal was withdrawn.

2. Petitioners have not challenged the Interconnection Regulations which Regulations are statutory and which prescribed the date of implementation of retention of 5% passed through revenue by cellular operators as 31.1.2001. The Interconnection Regulations could be challenged only in appeal and 30 days period is prescribed for the purpose. In the absence of challenge to Interconnection Regulations and these having attained finality the petitioners are estopped/barred from pursuing the present petition.

3. Petitioners themselves wrote a letters dated 15.12.2001 and 28.3.2002 to TRAI contending that passed through charges should be payable w.e.f. 8.1.2001 and not 31.1.2002 which contention was rejected by TRAI on 10.4.2002. The Department of Telecommunication (DOT) also rejected the contention of petitioners by its letter dated 13.6.2002. Those rejections of TRAI and DOT have not been challenged by the petitioners.

4. Reliance of the petitioners on the judgment of the Tribunal dated 8.8.2003 in Petition No.1/2001 dealing with limited mobility in WLL is misplaced. When the judgment was given 5% retention of passed through charges by CMSPs had already become permissible and acted upon as per Interconnection Regulations notified on 14.12.2001 which prescribed that this amount is payable "by 31.1.2002". In any case the judgment of the Tribunal in Petition No.1/2001 did not state that the 5% retention was to be implemented w.e.f. 8.1.2001. In this respect principles of 'sub silentio' was invoked. 'Sub silentio' - under silence; without notice being taken, without being expressly mentioned - Black's Law Dictionary 7th Edn.' In support of this a reference was made to the decisions of the Supreme Court in Arnit Das vs. State of Bihar - (2000) 5 SCC 488 and A-One Granites vs. State of U.P. and Ors. - (2001) 3 SCC 537.



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