The Telecom Regulatory Authority of India (Trai) has been active in imposing hefty penalties in the past for call drops and which really helped, to a great extent, bring in improvement in call drops. Recently, Trai has again recommended hefty penalties to be imposed on some operators on the ground that they are not compliant with the terms and conditions of licence relating to interconnect and their actions are resulting into non-compliance of Quality of Service (QoS) rules and regulations. While making these recommendations, Trai appears to have completely closed its eyes on Reliance Jio.
This is an attempt to examine whether RJio falls in any “exempted category” under the QoS regulation and hence needs a different treatment?
The Standards of QoS of Basic Telephone Service (Wireline) and Cellular Mobile Telephone Service Regulations, 2009, as amended from time to time, apply to all service providers including BSNL and MTNL.
Under these regulations, certain terms and their meanings are relevant for our purpose:
- “Consumer” means a consumer of a service provider falling in sub-regulation (3) of regulation 1 and includes its customer and subscriber;
- “Licence” means a licence granted or having effect as if granted under section 4 of the Indian Telegraph Act, 1885 (13 of 1885), or the provisions of the Indian Wireless Telegraphy Act, 1933 (17 of 1933);
- “Licensee” means any person licensed under sub-section (1) of section 4 of the Indian Telegraph Act, 1885 (13 of 1885) for providing specified public telecommunication services;
- “Service provider” is any service provider to which these regulations apply.
On examination of these terms, we can conclude that since RJio has been issued a licence under the Indian Telegraph Act and is covered within the meaning of service provider under these regulations, it should be equally responsible for QoS compliance as any other operator. Thus, RJio is equally responsible to comply with QoS conditions.
Now, whether an operator can be non-compliant with QoS regulation because of lack of interconnection capacity?
On glancing through QoS regulations, we don’t find any clause where it says that in case any service provider is not able to meet QoS parameters due to lack of interconnect capacity provided by any other operator then such operator should be exempted from compliance and will not be liable for any action for non-compliance.
The issue was specifically reviewed by Trai while framing Trai regulations. In this connection, para 4.7 (2) and (3) of the explanatory statement under the main QoS regulation is relevant, which records that operators had raised an issue with the regulator that the issues which are not within the control of operators should be excluded, such as fibre cut, other operator in granting E1s due to port/equipment issues, outages due to other operator, important festivals, force majeure and natural calamity. Trai, while coming out with the final regulation, observed that the service providers and consumer organisations have generally agreed with the benchmark for POI parameter. As such, the authority has prescribed the benchmark of less than or equal to 0.5%. As regards the suggestions to exclude issues that are not in control of service providers, the authority is of the view that only performance affected due to force majeure conditions need be excluded for calculation purpose.
Moreover, in the recent past, when Trai had imposed penalty on the operators for call drops, it had said that the lack of spectrum and non-availability of towers cannot be accepted as an excuse for call drops by the operators, as these are the conditions imposed under the licence and hence should be taken care of by the operators. Now, in this case, on the same analogy, setting up sufficient interconnect capacity should be the responsibility of service provider.
Certainly, lack of interconnection capacity does not fall in the category of force majeure and, therefore, on this ground again, RJio does not seem to be eligible for any sympathetic or preferential treatment.
The next question is whether Trai or any other operator forced RJio to offer free services?
Now, an argument which could possibly be offered by RJio is that their minutes and data being consumed by their customers is very high, and hence the interconnect capacity they have been provided is not sufficient.
Here again, neither Trai nor the other operators forced RJio to offer free services. Before offering these services, they should have made a reasonable calculation with regard to interconnection capacity. In case the capacity was not adequate, they should not have offered the services free of cost or would have delayed providing services until they got sufficient capacity. Here again, in the enthusiasm to quickly acquire customers, they chose to give a go-by to the QoS and decided to take the customer for a ride.
Can a customer be taken for a ride because the services offered are free or partly free? Could Trai exempt an operator from QoS compliance because services offered are free or partly free? Unfortunately, here again, the answer is no.
So, when we look at the issue in toto, the following positions emerge that RJio is covered in the QoS regulation, it cannot be allowed to use the lack of interconnect capacity and free offering of service as an excuse, and it is in non-compliance of QoS parameters. The customer has nothing to do whether RJio suffering is because of interconnect seeker or interconnect provider. It is, in fact, because of both.
Thus, is it not fair to ask Trai that when the reason mentioned while recommending penalty on some operators is non-compliance with QoS conditions for which both the parties in dispute are in non-compliance, why and how RJio should not be held equally responsible for the same consequences by imposing penalty on the same principle because the fault lies equally with RJio as well.
The author is founder & CEO, Tathya Consulting. Views are personal