The following judgement deals with the pending appeals against the final order passed by Telecom Disputes Settlement and Appellate Tribunal (TDSAT) for which the TRAI has come up with an application for interim direction to the respondents to disclose information/details sought by the appellant regarding segmented offers. The order in question is Telecommunication Tariff (63rd amendment) Order, 2018.
The Supreme Court of India summarized the circumstances leading to the present application as follows –
1. TRAI issued an order exercising the powers conferred to it by Section 11(1)(b)(i) read with Section 11(2) of the Telecom Regulatory Act,1997. Challenging the said order, Bharti Airtel Ltd., Idea Cellular Ltd. and Vodafone Mobile Services Ltd. filed appeals challenging the “Reporting Requirements” and “Significant Market Power”. Yet another grievance was about the disclosure of segmented discounts/concessions.
2. Pending appeals sought interim stay on the Tariff Order. TDSAT issued an interim arrangement staying the relevant clauses relating to the Reporting Requirements and the definition of SMP. However, the Tribunal permitted the TRAI to ask for details of segmented discounts/concessions for analysis. The service providers were exempted from disclosing any sensitive information.
3. Challenging the interim arrangement, TRAI filed writ petitions before the High Court of Delhi which dismissed the writ petitions with a request to the the Tribunal to dispose of the appeals as expeditiously as possible. Thereafter TDSAT passed an order by which it set aside the Tariff Order in so far as it changes the concepts of SMP, Non predation and related provisions.
4. It was against the said final order of TDSAT that TRAI had come with appeals to the Supreme Court.
The Telecom Regulatory of India Act,1997 – aims at promoting and ensuring orderly growth of the telecom sector
Section 11(1)(b)(i) of the Act – ensure compliance of terms and conditions of licence
Section 11 (2) – notwithstanding anything contained in the Indian Telegraph Act, the authority may notify the rates at which telecommunications services shall be provided
The following are the major issues considered by the Supreme Court –
1. Should respondents disclose the information/details sought by the appellants?
2. Is the challenge to the Tariff Order valid?
Adhering to the desperate economic state that the Indian economy is in, it would not only have been easier but popular and preferable had the Supreme Court cut the Telecom Service Providers (TSPs) some slack. However, sticking to the rules, especially when it was difficult, the court has yet again proved how it strives to work for larger public welfare.
1. The applicant – TRAI – contended that the details of these offers are not even disclosed to TRAI and therefore, despite being a regulator it was not in a position to analyze whether the plans are transparent and nondiscriminatory and whether ‘predatory pricing’is resorted to by TSPs to provide information related to these offers, but the TSPs failed to disclose the information. The applicant contended that the TSPs are under a statutory obligation to offer tariffs in a transparent and nondiscriminatory manner and to report all tariffs to the authority.
2. The TSPs responded by contending that the impugned order constitutes “confidentially designed trade practices”therefore the TDSAT held that there was no need for reporting. But at the same time TDSAT allowed the applicant to seek from the TSPs the number of segmented offers made available to their existing customers, along with declaration that the principles of nondiscrimination were being followed. According to the respondents, they were complying with these directions. The respondents further added that whenever the TRAI wanted to call for details of segmented offers about which the TRAI received complaints, the respondents were ready and willing to furnish the same. However, so far the TRAI did not receive any complaints.
3. The apex court noted that the jurisdiction and power of TRAI to issue the Tariff Order was not seriously disputed by the TSPs. The TDSAT noted that the issue of nondiscrimination between the same “segment”was too important to be ignored and would require reporting in any particular case when Authority has called for it. In the light of the aforesaid finding, the TDSAT eventually ordered the remand of the matter back to TRAI, which the TSPs did not appear to be aggrieved by.
4. As far as the confidentiality was concerned, each of the parties agreed that requisite measures would be taken to ensure it is not breached. While there were several other issues involved in the appeal, the interim directions now sought are confined only to one of those several issues and only a limited direction is sought. What is sought by TRAI to ensure adherence to regulatory principles of transperancy, nondiscrimination and nonpredation is not illegal or wholly unjustified. Hence the appeal was allowed and directions were issued to the respondents to disclose information/details sought by the appellant regarding segmented offers.
The approach adopted by the Supreme Court, though orthodox, is directed towards greater transperancy between service providers and consumers. Its stand ensured that the core principles of nondiscrimination and nonpredation – those that often get lost with giant capitalist ventures pitted against each other – were followed. At first, the judgement does seem unfair to respondent companies that were already going through financial constraints, but an objective look justifies the long term advantages it could have in holding the service providers accountable in a liberalized economy that India is, and is becoming. CJI Bobde, who is known to be a proponent of stricter product liability rules in India- the judgement was no surprise coming from him. Time should tell what bearing the judgment has on up and coming businesses in telecom sector and consumer’s rights at large.