The Supreme Court on Tuesday sought response from Bharti Airtel and Idea Cellular on an appeal by Reliance Communications (RCom) challenging a part of the TDSAT judgment that held that Interconnect Usage Charges for SMS Termination (SMS TC) were payable at the rate of 10 paise per SMS in respect of Interconnect Agreements.
“This is contrary to the regime of “Bill and Keep” which was followed by all telecom operators at that time (2012). Under the “Bill and Keep” regime, the telecom operators neither raised bills on each other nor was any payment made towards SMS TC,” RCom said.
A bench headed by justice Kurian Joseph admitted RCom’s appeals and tagged them with Aircel’s similar petition, which is pending before it since 2012. Even Tata Teleservices’ pleas on a similar issue against Idea Cellular and Vodafone India are pending before the apex court.
While relying on its September 2012 decision, the Anil Ambani firm said that the TDSAT in March had ignored the subsequent fact that Trai had in May 2013 issued the Short Message Service (SMS) Termination Charges Regulation, 2013 which prescribed that SMS TC should be cost based and, therefore, 2 paise per SMS was payable. “The tribunal failed to appreciate that in view of 2013 Regulation, the decision in Aircel matter was no longer good law and had to be reconsidered by TDSAT,” the company stated in its appeals.
According to RCom, having concluded that SMS TC has to be cost based; TDSAT could not have then held that SMS TC @ 10 paise per SMS would be payable where the Interconnect Agreement either contained a clause for payment of SMS TC or was silent in that respect.
TDSAT has ignored that under the contract law, the agreements can be both oral and in writing and even expressed by conduct, it said, adding that since neither party had raised any bills or made or accepted any payment for SMS TC at any time, the Bill and Keep arrangement between the parties “cannot be modified unilaterally” by imposing any SMS TC.
