Indian Tribunal Orders Spectrum Return

India's state-owned operators Bharat Sanchar Nigam Ltd. (BSNL) and Mahanagar Telephone Nigam Ltd. (MTNL) face the prospect of having to return some of the spectrum they were given in 2007, following a ruling by The Telecoms Disputes Settlement and Appellate Tribunal (TDSAT).

The TDSAT ruled that BSNL and MTNL had gained an unfair advantage in receiving 10 MHz and 12.5 MHz spectrum, respectively, when all other operators had to adhere to subscriber-linked criteria in order to secure additional spectrum.

And the Tribunal has initiated an immediate review of the subscriber base of the two operators and, using the subscriber-linked criteria applied to other operators, the withdrawal of any excess spectrum.

In evidence given to the Tribunal, figures for both operators suggested they did not have the numbers required to justify their current allocation, so the withdrawal of some spectrum is expected.

The TDSAT further ruled that subscriber targets recommended by the Telecom Regulatory Authority of India (TRAI) and adopted by the Department of Telecommunications (DoT) for the allocation of further spectrum were not developed in a transparent way or with a uniform process.

The ruling stated: "It [TRAI] cannot choose the procedure to suit its convenience… TRAI ought to have been more careful, painstaking and transparent in attempting this exercise."

The TDSAT accepted the current subscriber-based criteria as an interim measure, but directed that the numbers should be revised within a month of the DoT receiving a report from the committee responsible.

This was not the only criticism leveled at the regulator. Mr. Justice Arun Kumar and his team singled out TRAI's failure to clearly interpret the license conditions on technology neutrality as a cause of confusion for operators. The TDSAT did, however, uphold the right of operators, such as CDMA service provider Reliance Communications Ltd. , to run dual technology networks and receive 4.4 MHz of "start-up" GSM spectrum.

The TDSAT also criticized TRAI's recommendation, and the subsequent adoption, of a policy by the DoT that the number of operators in each "circle" (service area) should not be capped.

The Tribunal noted that the regulator's decision not to impose a cap was "puzzling" as the average allocation of spectrum per operator was lower in India than in other countries, and each of the 22 circles has between six and nine active operators, with more awaiting spectrum.

Furthermore, it said the argument that license holders without spectrum should roll out wireline services was "specious" -- an observation that will provide some comfort to those license holders still without wireless spectrum.

The TDSAT therefore recommended that the DoT look again at its "no cap" policy and take "appropriate action."

— Catherine Haslam, Asia Editor, Light Reading