In a hard-hitting, 88-page judgment, TDSAT chairman justice Aftab Alam and member Kuldip Singh called the department of telecommunications stand misleading, its basic premise seriously flawed... and its extension to spectrums... even more fallacious and said its stopping of intra-circle 3G roaming violated the telcos fundamental right to do business guaranteed under Article 19(1)(g) of the Constitution.
The telcos had argued that, apart from the fact that their universal access service licence (UASL) allowed them to do intra-circle roaming, the government had even told them in writing at the time of the 3G auctions in 2010 that such roaming was permissible. When the DoTs counsel argued that it were the licence conditions that mattered more, the telecom tribunal came down heavily on the government.
On DoTs contention that the UASL allowed intra-circle roaming in 2G spectrum but not in 3G spectrum, TDSAT said there was no such thing as 2G and 3G licences, there was just one UASL. The judgment says, it is fundamentally incorrect to describe 900 MHz and 1800 MHz bands as 2G spectrums and 2100 MHz band as 3G spectrum. The ruling stated that since DoT allowed intra-circle roaming in the UASL (referring to allowing it in the case of 2G spectrum in 2008), then the same cannot be disallowed in the case of 3G.
The TDSAT reserved its harshest criticism for DoTs argument that while it was true the government had given certain answers to the queries of the telcos, it was the licence conditions that would prevail. The order reads: The queries were made in earnest and the Government of India was supposed to give its answers with full responsibility. The Government of India cannot be seen playing games in a matter of national importance such as allocation of spectrums that affects not only the operators but is crucial to the promotion and growth of communication in the country.
Welcoming the judgment, Rajan S Mathews, director general of Cellular Operators Association of India the GSM industry body said, TDSAT has recognised the stand of telecom operators on the basis of which they made aggressive bids for 3G spectrum. The judgment also benefits customers who will have more choices now. Moreover, operators can now freely invest in network coverage.
Analysts also viewed the judgment as positive for the telecom industry. It will allow spectrum sharing and optimal utilisation of precious spectrum, said Hemant Joshi, partner, Deloitte Haskins & Sells, adding that it will help in further proliferation of 3G services across the nation and operators can concentrate on their 3G service roll-outs and marketing.
Airtel through the intra-circle roaming (ICR) agreement had sought access to Vodafones 3G network in four service area Maharashtra, Kolkata, Haryana and UP East. Vodafone had access to six 3G circles of Airtel Assam, Bihar, Karnataka, North East, Rajasthan and UP West, besides seven circles of Idea Cellular Andhra Pradesh, Himachal Pradesh, Jammu and Kashmir, Kerala, Madhya Pradesh, UP West and Punjab. Meanwhile, as per the pact, Idea Cellular had secured rights to provide 3G services using Vodafones network in Delhi, Tamil Nadu, Chennai and Kolkata.
Tata Teleservices and Aircel too had signed a 3G ICR pact but immediately called off their agreement after DoT issued notices to them.