Telecom players question legality of TRAI’s suggestions

Finding it increasingly difficult to weather TRAI's recommendations of August 29 on spectrum allocation, industry is now taking an aggressive stand by questioning its legal legitimacy.

TRAI had asked over 30 questions in its consultation paper of June 12, on licence reforms and capping of number of service providers, but none of them directly referred to the need for revising or assessing subscriber criteria for allocating spectrum afresh, questions a leading mobile operator.

Since TRAI’s recommended criteria for spectrum allocation is not derived from a set of consultation questions, it will not survive legal scrutiny, says TV Ramchandran, Secretary General, COAI.

Even DoT’s reference to TRAI dated April 13, 2007 does not specifically seek recommendations on subscriber-linked spectrum allocation.

"Interim recommendations without relevant questions is most unusual," says a spokesperson from a leading CDMA firm. The grievance relates to TRAI’s stiffening of subscriber-linked criteria for allocation of spectrum, which adversely impacts all five pan-India operators Bharti, BSNL, Reliance, Tata and Hutch.

For example, a GSM operator who was earlier entitled to 8 MHz of spectrum for 0.8 million subscribers, will now need to wait till he has three million subscribers. For 10 MHz of spectrum, the new benchmark is five million (1.4 million) subscribers and for 15 MHz a whopping 10 million (2.6 million) subscribers.

Even in C category circles, 10 MHz kicks in only at four million (0.6 million) subscribers and 15 MHz at eight million (1.2 million). CDMA players face a similar blow. As with GSM, their allocation has been stiffened multiple times, especially in the 5th carrier, 6.2 MHz range for A, B and C categories of circles.

TRAI’s interim recommendations seriously undermine DOT/TECs standing guidelines. Equally, it raises questions about the GSM industry’s claim that it is short of spectrum. A debate that has already divided the industry, this could now lead to a three-way rift between TRAI, DoT and operators.

Experts agree that section 11, 1 (A) (VIII) of the TRAI Act allows it to make such recommendations suo moto, but industry is quick to point out that suo moto can mean without a government reference but does not allow circumventing the process of asking specific questions and inviting stakeholders views.

They back their allegation with a reference to Section 11 (4) of TRAI Act, which states: The authority shall ensure transparency while exercising its discharging its functions. Agrees a telecom lawyer: "A process of consultation is necessary to ascertain views of all stakeholders. It enhances credibility of the regulators decision."

When contacted, TRAI Chairman, N Misra declined to comment.