DUAL SPECTRUM-THE LEGAL BATTLE

Shilpi Mehta, Advocate

Considering the importance of issues like spectrum availability and management, it would not be incorrect to say that decision rendered by the Telecom Dispute Settlement and Appellate Tribunal (hereinafter referred to as “the TDSAT”) in Cellular Operators Association of India v. Union of India ¹is the landmark judgment ever known in the history of telecommunications in India . Vide this Petition, the GSM t elecommunication Operators inter alia challenged the decision of the Department of Telecommunications (hereinafter referred to as DoT) dated 18/19.10.2007 giving in-principal approval to the CDMA t elecommunication Operators, namely, Reliance Communications, Shyam and HFCL to use dual technology, Global Speciale Mobile and Code Division Multiple Access both (GSM and CDMA, respectively) in the same circles under the Unified Access Service Licence (hereinafter referred to as UASL). The Petitioners contended that while the UASL is technology neutral, every licensee could choose, at the outset, either GSM or CDMA platform to offer its mobile services and thereafter, it should operate within its designated band and therefore, within the chosen technology only. The Petitioners contended that the DoT's decision of permitting the existing private UAS licensees to expand their existing networks by using alternate wireless technology under the same licence is illegal, arbitrary, violative of principles of natural justice as well as violative of the mutually agreed contract between the Petitioners and the DoT.

The Tribunal, however, outrightly rejected the Petitioner's contention that the Licensee should be constrained by its original choice and categorically held that none of the clauses in the UASL prohibit dual technology / allocation of dual spectrum. The Tribunal held that the New Telecom Policy 1999 and the licence conditions stipulate that the UASL is technology neutral and the technology choice is not confined to one technology for all times. The Tribunal stated that although the licensee has to mandatorily indicate the technology (GSM, CDMA or any other technology) and on the basis of this choice, the spectrum and the additional spectrum is allocated to him, subject to availability and justification on a case to case basis, in the relevant frequency band, yet if a licensee chooses an alternate or an additional technology subsequently, it can indicate the other technology and await allocation of spectrum in the relevant frequency band subject to its availability and justification. The Tribunal rationalised its decision by stating inter alia that technology is continuously evolving and thus a licensee should not be barred from providing the advantages of new technology to its consumers.

In the contemporary world, where the giant Telecommunication Operators are competing for the invaluable, scarce spectrum and the issues like spectrum availability and spectrum management are drawing consideration all over the world, what has to be seen is whether the GSM Telecommunication Operators will succeed in the legal battle of dual allocation of spectrum in the country's Apex Court .

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1 Petition No. 286 of 2007-Judgment pronounced by TDSAT on 31 st of March, 2009.

2 The GSM Telecommunication Operators have preferred a civil appeal to the Supreme Court of India under section 18 of the Telecom Regulatory Authority of India Act, 1997 against the judgment dated 31 st March, 2009 delivered by the TDSAT in Petition No. 286 of 2007. Please see Cellular Operators Association of India  v. Union of India , Civil Appeal No. 3472 of 2009.