Though none of the three operators commented officially on the development, sources said that they plan to move the Supreme Court challenging the governments move.
The operators' stand is that since the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) gave a 1:1 split verdict on the matter in July, the government cannot interpret it to mean that it is within rights to ask them to stop the services.
However, the government views the matter differently stating that since the TDSAT has not given any binding order to the government and the tribunals interim stay order has ceased in effect with the split verdict, it has full right to seek compliance of its direction sent to the operators in December 2011 to stop the services as it was illegal. We have a legal opinion by the law ministry and are acting according to it, a DoT official said.
The official added that two separate notices would be sent out to the three operators regarding intra-circle roaming. The first one, which has currently been served asks them to stop the services and report compliance, while the other one to follow would relate to unjust enrichment as a result of the act, where the government would levy fine on them which could be as high as R50 crore per circle.
Intra-circle roaming means that through roaming pacts operators are able to provide 3G services to their home customers even in circles where they do not have 3G spectrum. This is distinct from inter-circle roaming which allows the services while travelling from the home circle to any other circle. The need for intra-circle roaming arose as no mobile operator won 3G spectrum on a pan-India level. Therefore, by entering into such pacts they were able to provide services on a pan-India level.
The operators claim that the DoT had permitted intra-circle roaming as part of the bidding conditions and had provided written clarifications also to this effect.
However, the government maintains that operators cannot provide the services where they do not have the spectrum.
In December 2011, it sent notices to the three operators to stop the services. The operators challenged it in the TDSAT and obtained an interim stay order. Thereafter, hearings commenced with the TDSAT giving a 1:1 split verdict in July with the chairman SB Sinha stating that the services were legal while member PK Rastogi categorising them as illegal.
The slot of the third member was vacant so a majority verdict could not come.
The operators continued the services as they did not see any binding direction to them from the tribunal, the same interpretation now resorted by the government to send out the notices.
The rulings of the TDSAT can be challenged in the Supreme Court, which the operators plan to do now.