Terming the appeal filed by Reliance Jio Infocomm (RJIL) “misconceived and frivolous”, Bharti Airtel has told the Supreme Court that sectoral regulator Trai must take action against the Mukesh Ambani firm for misutilising ‘the test phase’ by offering free services prior to the commercial launch so as to create “illegal” subscriber base of more than six million. In its reply to RJIL’s and the Competition Commission of India’s (CCI) appeals, Airtel said all other incumbent service providers also felt that if at all there has been any violation of Trai norms, it is by RJIL, as the latter not only provided free services — voice or data — prior to commercial launch on September 5, 2016, but also made unreasonable demand on Airtel to grant “humongous points of interconnection (PoIs)” during the test phase itself. Such an act of providing full-blown and full-fledged services masquerading as tests was done in violation of Trai’s directions, regulations and tariff orders, it said. Airtel further submitted that during its ‘beta launch’, RJIL acquired more than 6 million subscribers and therefore RJIL’s test phase was “only a charade”.
“This unreasonable demand during the test phase of an unreasonably large number of PoIs from RJIL was clearly misutilising ‘the test phase’ by offering free services by which it was to obtain a large number of customers even before the commercial launch of services and thus as a sectoral regulator, Trai must take action,” Airtel told the apex court. It sought dismissal of the appeals filed by both CCI and RJIL against the Bombay High Court’s order that quashed the investigation ordered by the fair trade regulator into charges of cartelisation made by three telecom companies — Bharti Airtel, Vodafone India and Idea Cellular.
The HC, in its September 21 order, had held that CCI had “no jurisdiction” to interpret contract conditions or policies of the telecom sector, which was governed by the Telecom Regulatory Authority of India (Trai) Act, and hence, to order a probe in the case. The affidavit stated that the test/service cards can be given free of cost to employees and business partners to check quality of service and such people are to be deducted while calculating the number of subscribers of a telecom service provider. However, RJIL extended the same services to the general public as well.
Stating that CCI has committed grave error by assuming jurisdiction, Airtel said the entire grievance of RJIL regarding the alleged delay and denial of PoIs can only be dealt by the expert sectoral regulator and any dispute pertaining to any breach or failure on part of a cellular operator to fulfil its obligations under ICA can be challenged only before TDSAT. Airtel also said Trai’s October 2016 recommendation for imposing penalty of Rs 50 crore per circle on the three incumbents for failing to provide requisite number of PoIs to RJIL is under the Department of Telecom’s (DoT) consideration.