Yet another spectrum issue… Justice denied to ISP

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Yet another spectrum issue… but this time both DoT and TDSAT has to share the blame on an equal basis…!!

Last year ISPAI ( a lobbying organization of ISP similar to COAI) sued DoT for making them surrender 2.5 GHz Wimax spectrum and ‘discriminating’ against ISPs. The spectrum was already allotted to ISPs in 2003, which DoT had asked all ISPs to surrender, to be put to auction. On 20th January, 2010 TDSAT delivered its decision on this issue (a copy of the judgment is provided here). There are certain issues which have been raised in this case and which requires our due attention.

The issues in this case were-

  • Whether DoT has any obligation to follow TRAI’s 2007 recommendations on Spectrum Auction and Broad band policy 2004 in letter and spirit.
  • That the prescribed Spectrum Auction guidelines fails to distinguish between an ISP license holder and UASL license holder thereby giving unfair advantage to  UASL license holder over ISP license holder.
  • That MTNL/BSNL has been given unfair privileges under the prescribed guidelines.
  • That the guidelines failed to protect the interest of small players like ISPs.

Though ISPs because of their plight and owing to their hardship in acquiring spectrum has my entire sympathy and support for their cause but the approach adopted by their counsels seems to influence the course of this case rather than the point of law or issues raised in this case, which I think if argued in a more systematic manner could have led to a different outcome. Also there are certain fallacies associated within the approach adopted by TDSAT.

The primary contention raised by the counsel for the petitioner was that DoT has largely ignored TRAI’s recommendations on spectrum auction and Broad Policy 2004. Though DoT refuted the petitioner’s contention by referring that “TRAI recommendations for allotment of spectrum to the ISP license holder is being confined to 3.4 to 3.6 GHz band, which is not the subject matter of auction”.  As the proposed guidelines are suppose to deal with the auction of spectrum bandwidth ranging from 2.3 to 2.4 GHz band and 2.5 to 2.69 GHz band respectively.

If we refer to Section 11 of the TRAI Act, the recommendation of TRAI is not binding on the DoT while drafting any policy. While DoT also cannot completely ignore TRAI’s recommendations as it has been acknowledged by TDSAT in this case. TRAI recommendation has more or less a persuasive while framing any policy.

Despite acknowledging TRAI’s influential role in policy making the TRAI’s recommendations are not much of a help for the contention raised by ISPAI. Since  TRAI in its recommendation suggested 3.4 to 3.6 GHz band as the suitable bandwidth for ISPs and the ISPs  2.5 GHz to 2.69 GHz band for usage as the suggested 3.4 to 3.6 GHz bandwidth is economically inefficient due to the high-cost equipments and infrastructure required for its usage.

Apart from this primary contention another contention which seemed to be more rationale in its approach and which TDSAT failed to appreciate is related to ITU (International Telecommunications Union) suggested bandwidth for ISP and BWA usage.

As the Tribunal mildly rebuked the petitioner’s counsel for not raising the issue of  ITU suggested bandwidth for ISP and BWA usage during consultation with TRAI.  Since TRAI   recommendation suggested 3.4 to 3.6 GHz band as the suitable bandwidth for ISPs and if petitioner could raised this their concerned regarding proposed bandwidth TRAI would recommended ISPs  2.5 GHz to 2.69 GHz bandwidth exclusively for ISP usage. ITU suggested the bandwidth only in 2006 and by 2007 few ISP acquired the ITU suggested bandwidth for usage. But the TRAI recommendation on spectrum auction was released on 2006 which suggested the proposed 3.4 to 3.6 GHz bandwidth and during the year 2007 there is TRAI recommendation on Growth of Broadband which is based on the spectrum bandwidth suggested by the previous 2006 recommendation. Therefore during the year 2007 there was neither any consultation or any recommendation regarding any bandwidth which TDSAT has failed to notice while addressing the contention regarding ITU suggested bandwidth.

Moreover TRAI has a mere recommendatory power and these recommendations cannot be challenged in court as they are not binding in nature. But DoT’s guidelines are binding therefore when DoT proposed these guidelines then only petitioner approached this court and TDSAT cannot reject this issue as non-justiciable or on a ground for not raising this issue before TRAI.

Though owing to the present circumstances regarding 3 G ruckus caused due to DoT lacunae in policy framing it might not be plausible for DoT to address this issue on a priority basis or to cancel BSNL/MTNL’s 3 G licenses but at least TDSAT should have asked DoT to reserve certain spectrum within the ITU proposed bandwidth during proposed spectrum auction.

The dynamics of this entire case would have been different if the counsels for the petitioner instead of relying entirely on TRAI’ recommendation could have argued that DoT has acted arbitrarily and against the public interest while destroying the level playing field….