The Telecom Regulatory Authority Of India (Trai) has come out with its finding on the incumbent operators versus Jio tussle after taking a considerable amount of time. It is not clear whether this is the final action that Trai is contemplating? And if it is so, then the question arises if this action is enough to solve the problem?
Since the order issued by Trai is in public domain, the order raises three important questions, whether Trai has exercised its authority fully and rightly? Has it done all that could have been done? And, whether it has actually and effectively resolved the problem of “quality of service”and “consumer pain”?
Under section 11 (1)(b) of the Trai Act,Trai inter alia has the authority to discharge the following functions, “(i) ensure compliance of terms and conditions of license; (ii) notwithstanding anything contained in the terms and conditions the license granted before the commencement of the Telecom Regulatory Authority of India (Amendment) Act, 2000 , fix the terms and conditions of inter connectivity between the service providers; (iii) ensure technical compatibility and effective inter connection between different service providers; (iv) regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services; (v) lay down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of such service provided by the service providers so as to protect interest of the consumers of telecommunication services.”
The above provisions provide Trai the final authority, and in discharge of its functions it has powers to issue rules and regulations which serve the purpose of the Act. It is fair to expect that Trai should constantly endeavour to review its regulations in order make them suitable for the changing environment. Disputes between the operators on setting up interconnection are not new and are a subject matter of controversy right from the time of privatisation of the telecom sector. Therefore, the obvious question is why has it failed to come out proactively with interconnection rules and regulations which are foolproof and provide a mechanism for fast and efficient interconnection between the operators?
More important, Trai has erred in combining the two issues of” Interconnection” and “Quality of Service” into one cause of action. Both the interconnection and QOS are regulated by an independent regulation. Then, why has it not opted to invoke the cause of action separately for interconnection and QOS and suggest an independent action for default for each one, rather than combining the two? One regulation is not subordinate to the other and both have a requirement of an independent compliance.
So, is it enough? We just examined that under section 11 of the Trai, it has the authority to make regulations on several matters. Trai has exercised this authority and has prescribed regulations for QOS as well as for interconnection. Along with this, the Act has given enough power to Trai to enforce such regulations. As per section 13 of the Trai Act ,Trai has the authority to issue directions. The authority may, for the discharge of its functions under sub-section (1) of section 11, issue such directions from time to time to the service providers, as it may consider necessary. The act further provides that no direction under sub-section (4) of section 12 or under this section shall be issued except on the matters specified in clause (b) of sub-section (1) of section 11. This matter clearly and squarely falls into the category of section 11(1) (b). The question is why the Trai has shied away from exercising its authority to issue directions in exercise of power. In case the authority was exercised and a direction was issued to the defaulting operator(s), the authority under section 30 of the Act could have punished the defaulter for default with fine which may extend to R1 lakh and in case of second or subsequent offense with fine which may extend to R2 lakh and in the case of continuing contravention with additional fine which may extend to R2 lakh for every day during which the default continues.
Further, the recommendation made to DoT for imposition of penalty is made under section 11(1)(a)(iii) of the Trai Act. It is clear in the Trai act that the recommendation made by Trai under this section is not binding upon the Central government. In the matter of interconnection DoT has taken a consistent stand that interconnection related issues are in the domain of Trai and they would not intervene in Trai’s authority. A quick glance at the licence provision reveals the DoT stance as stating that “ Licensee shall interconnect with other Telecom Service Providers at the Points of Inter-connection (POI) subject to compliance of prevailing regulations, directions or determinations issued by Trai. The charges for accessing other networks for inter-network calls shall conform to the Orders/ Regulations/ Guidelines issued by the Trai/ Licensor from time to time”.This clause re- enforces that the operator must comply with prevailing regulations,directions or determination issued by Trai. Unfortunately, Trai decided not to enforce the interconnection through any determination or direction and in the alternative decision pushed the ball in DoT’s court.
In fact in this specific case the same stand was taken by DoT, when it was approached by the concerned operators. In this background why would DoT not reject the recommendation of Trai to impose penalty ,when Trai has enough power to enforce its regulation under the Act and take remedial measure on its own. DoT would not allow Trai to fire from its shoulder when Trai has enough ammunition and resources to fire on its own.
So, has Trai actually and effectively resolved the problem of “QOS” and “consumer pain?” Not really. The recommendation to impose penalty is not going to get implemented, and therefore is not a deterrent for the defaulting operators to improve the situation. If the penalty is paid, in that case are the operators are exonerated from any other action? Trai has not issued any directive to the defaulting operators which means it does not intend to press its regulation in any other manner at their end. So, how is this action of Trai resolving the customer pain in any manner.
Trai has exercised it’s authority under section 11(1)(a) of the Trai Act which only gives it right to make recommendation rather than under Section 11(1)(b) of the Trai Act which gives it the authority to take action on its own. If this is the only action that Trai is contemplating, this certainly raises a question that either the regulator is just passing on the buck to DoT; or lacks willingness to exercise authority?
All said and done the customer will continue to suffer.
The author is founder and CEO, Tathya Consulting.
Views are personal