Decided on April 27,2005



- (1.)IN this order we are going to deal with four matters, namely, (i) Petition No.9 of 2001 submitted under Section 14(a)(ii) read with Section 14(A) (1) of the Telecom Regulatory Authority of INdia (TRAI) Act 1997 filed by Association of Basic Telecom Operators(ABTO) and Others against Bharat Sanchar Nigam Limited (BSNL), (ii) Petition No.12 of 2003 under Section 14(A)(1) of TRAI Act 1997 by ABTO and Others against Bharat Sanchar Nigam Limited (BSNL) and Mahanagar Telephone Nigam Limited.(MTNL), (iii) Petition No.3 of 2002 submitted under the same provisions of the TRAI Act 1997 by the Cellular Operators Association of INdia (COAI) against Bharat Sanchar Nigam Limited (BSNL), (iv) Appeal No.5 of 2002 under Section 14(b) and 14(A) (2) of the TRAI Act by BSNL against Telecom Regulatory Authority of INdia and Others.
Although filed at different points of time there is almost a common history and background in the petitions and involves interpretation of Licenses issued at around the same point of time and the related INterconnect Agreements and INterconnect Regulations issued by Telecom Regulatory Authority of INdia (TRAI).

(2.)There is reference made to "License Agreement", "Interconnection Arrangements", "Interconnection Agreement". "Interconnection Charges". It would, therefore, be useful to understand clearly what is meant by these terms.
(a) License Agreement:- Under Section 4 (1) of the Indian Telegraph Act 1885, the Central Government has the power to grant a license on such conditions and in consideration of such payments as it thinks fit to any person to establish or maintain or work a telegraph in any part of India. Earlier, telecommunication services in the country were a government monopoly, being run and managed by the Department of Telecommunications (DoT) of the Central Government. Subsequently the Central Government took a policy decision to induct private sector which process has over the years continued to gain strength. The service providing functions of the Department of Telecommunications were also corporatised in the meanwhile and Bharat Sanchar Nigam Limited (BSNL) came into existence on 01.10.2000. The service providing functions of the Central Government in Delhi and Mumbai areas had been corporatised even earlier whereby Mahanagar Telephone Nigam Limited (MTNL) was created in 1986. For our purpose the Department of Telecommunications (DoT) is the Licensor and service providers (including BSNL and MTNL) are the Licensees.

(b) Interconnection Arrangement and Interconnection Agreement:- By its very nature, the telecommunication industry is a network industry. "Interconnection" in telecommunication parlance constitutes the mechanism by which one telecom service provider can connect his equipment, network and services to enable its customers to have access to customers service and network of other telecom service providers. By interconnection, the telecommunication network and services of various service providers get linked with each other so that they function as a coherent system and a subscriber in any one network may have access to any other subscriber in a different network. An interconnection agreement specifies the commercial, technical, operational and related terms. As stated in clause of the basic services license agreement, "Interconnection Agreement" for basic telephone services is meant to spell out "(1) Technical issues pertaining to interconnection, (2) Interconnect capacity - Planning and information system/aspects (3) Testing and commissioning of interconnect circuits. (4) Interconnect Performance standards, (5) Interconnection charges (6) Interconnect Billing systems and payments, (7) Liability, Indemnity and Intellectual Property rights, and (8) Disputes and arbitrations.

(c) Interconnection Charges:-. Interconnection involves linking of one telecom operator to the infra-structural facilities of another. Interconnection charges include charges for installing, maintaining and operating the points of interconnect, the charges for collecting the call at the point of interconnection and carrying it to the delivery point and payment for other supplementary services. In the matters before us we deal with two types of interconnection charges (i) port charges which constitute annual amounts paid by one operator who seeks to interconnect with another for physically establishing the interconnection; and (ii) access charges which constitute amounts paid to a Service provider for carriage/termination of telecom signal of another operator.

Petition 9 of 2001, MA 29 of 2002, Petition 12 of 2003:

Petition No. 9 of 2001 (ABTO and Ors. v BSNL) basically challenges the letters dated 28.4.2001 and 31.5.2001 of BSNL addressed to the Basic Service providers by which BSNL proposed new arrangements for interconnection charges falling in the description of 'Access Charges' and invited the Basic Operators for a discussion on that basis by a particular date failing which it would consider temporary suspension of the interconnection agreement.

The following prayer was made to the Tribunal:

(a) set aside the impugned letters dated 28.4.2001 and 31.5.2001 issued by BSNL to each of the Private BSOs.

(b) Direct BSNL to continue to provide and maintain interconnection with Private BSOs in accordance with the provisions of the Telecommunication Interconnection (Charges and Revenue Share) Regulation, 1999;

(c) Direct BSNL to disclose and furnish to TRAI full and complete information regarding costing and other details of its unbundled network elements;

(d) Impose exemplary and punitive fines on BSNL on account of the abuse of its dominant and virtual monopoly status.

(e) Award costs of the present Petition; and

(f) Pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case.

(3.)INTERIM order was issued by the Tribunal on 10/7/2001 directing maintenance of status quo and payment of admitted amounts in accordance with law in the following terms:
"Issue Notice. Reply on behalf of the Respondent be filed within 10 days. Rejoinder, if any, to the reply on behalf of the respondent be filed within 7 days thereafter. In the meantime, if the bill is raised by the respondent, the admitted amount of liability will be paid by the petitioner in accordance with the law. However, the amount in dispute will not be paid till the disposal of the Petition. The Petition is adjourned to 31st July, 2001".

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