3G Intra Circle Roaming (ICR) issue

Last week couple of news on 3G Intra Circle Roaming(ICR) arrangements in India raised the interests of the stakeholders. A brief background will help in understanding the issue better. Department of Telecom (DoT) who is the licencor and issues all telecom licences in India had earlier asked 3 Telecom service providers viz. Airtel, Idea and Vodafone to stop ICR based 3G services in the service areas where 3G spectrum was not assigned to them. In reaction to this, these 3 operators filed petitions in TDSAT (the tribunal which hears cases related to telecom in India). Incidentally the two members of TDSAT gave a split judgement. Subsequently DoT asked these operators to stop the 3G services based on ICR arrangements and even slapped penalties. The operators went to High Court and got a stay. Last week the stay has been vacated. To understand the issue of 3G ICR, the best is to go through the split judgement of TDSAT. To help the readers of this blog, I have summarized the same below. However I advise the readers to go through the original judgement so as to obviate any errors that may arise because of my understanding of the judgement. In case you are short of time, here you go ----

    Split Judgment by TDSAT on ICR dated 03.07.2012 - Finding the plea acceptable and valid, TDSAT Chairman Justice  S B Sinha allowed the operators’ plea against the government's directive to stop intra circle 3G roaming saying that it was violative of natural justice. The Petitions were allowed, the impugned orders dated 23.12.2011 was set aside with liberty to the Respondent to pass appropriate orders upon giving due opportunity of hearing to the Petitioner. However, differing in the decision taken, TDSAT Member P K Rastogi dismissed plea saying that the petitioners who have not got 3G spectrum allotted by the licensor in certain circles, cannot provide 3G services to its customers in those circles by way of making intra circle arrangement with the service providers having 3G spectrum. 

 Salient points deliberated in judgement delivered by TDSAT Member P K Rastogi

a.   On the principal question as to whether the petitioners having UASL/CMTS license along with 2G spectrum in certain circles can provide 3G services to its customers in these circles although 3G spectrum has not been allotted to them and whether such services can be provided by making intra circle roaming arrangements with operators having 3G spectrum in these circles, Member TDSAT has taken a view that the reading of cl. 2.2 (a)(i) of UASL shows that services to be provided by the licensee cover collection, carriage, transmission and delivery of voice and/or non-voice messages over licensee’s network in the designated service area and includes provision of all types of access services. In addition to this, except those services listed in para 2.2 (b)(i), licensee cannot provide any service which require a separate licence. Further he deliberated on the issue –“whether provision of 3G services requires a separate license”. On the issue, he is of the opinion that it is clear from the terms and conditions of license that the provision of 3G services cannot be provided without amendment to the UAS licence under Indian Telegraph Act, 1885 and without getting a license from WPC wing of DOT under Indian Wireless Act, 1933 for the relevant spectrum required to provide 3G services.  Thus, in his view, the provisions of 3G services require a separate license.  If the UASL licensee does not have separate license to provide 3G servies, it violate clauses 2.2(a) (i) and 2.2(b) (i) of the terms and conditions of the license.  

b.   3G services have been defined in the notice inviting applications (NIA) issued in connection with auction of 3G and BWA spectrum as “In case of successful bidders, services offered under the scope of respective service licenses using 3G/BWA spectrum assigned through the auction process.” Therefore, 3G services are those services which use 3G spectrum and 3G spectrum can be got through the process of auction only. In this petition, the petitioners have not got the 3G spectrum allocated to them in the impugned circles.

c.    On the question as to whether it is possible to provide 3G service by the petitioners to its subscribers by way of intra circle roaming arrangement with other operators having 3G spectrum, Member TDSAT has taken a view that the definition of ‘service’ and that of ‘subscriber’ show that the petitioner should have the license and the required network to provide particular type of service to its subscribers.  The petitioners have established only 2G network and have not setup 3G network which requires separate equipment and separate allocation of frequency. In case of intra-circle roaming, the roaming seeker should also have its home network and the licence for the spectrum for which it is providing service to its subscribers. Its subscribers can roam on the facility of roaming provider temporarily only and not permanently. Such arrangement is not permissible under the terms and conditions of license. In fact, UASL licensee without having the relevant (3G) spectrum providing 3G services to its subscribers will be acting as Mobile Virtual Network Operator (MVNO) where the service provider does not have its network in that frequency still provides services to the subscriber.  At present, MVNO is not part of government telecom policy and is specifically prohibited. The arrangement made between the parties are such that it specifically bars 2G roaming, and allows only 3G roaming for the subscribers of the roaming seekers i.e. petitioners herein. The roaming seeker neither has network nor the spectrum for 3G services. As the roaming seeker is providing 3G services by using the spectrum and network of the roaming provider, the Petitioner work like MVNO which is not permissible at present.

d.   In its judgment, Member TDSAT also quoted the terms and conditions of the roaming agreement entered by M/s TATA and Aircel and opined that the agreement indicates that the roaming provider having 3G spectrum have limited the usage of its 3G spectrum to the roaming seeker to certain percentage. This shows that the 3G spectrum is being earmarked to certain percentage for roaming seeker. Such arrangement of earmarking the part of the 3G spectrum allotted by a successful bidder to a service provider without any authorization by the licensor is not permissible.

e.    3G and 2G spectrum are allotted with different carrier sizes. While 3G spectrum (in 2100 MHz Frequency band) has been allotted with carrier size of 5 MHz; TDMA (2G)spectrum is allotted with carrier size of 200 KHz each for in 900 MHz/1800 MHz frequency band and 1.25 MHz each for CDMA in 800 MHz frequency band.

f.     On the issue of promissory estoppel that was raised by petitioners on the grounds that the DoT in its response to specific query in pre bid conference has said that roaming facility between 2G and 3G service will be available and once that commitment has been made the responses given by the DOT are definitely binding on the licensor, Member TDSAT was of the view that the doctrine of promissory estoppel cannot be invoked by a third party.  The petitioners in these petitions are not successful bidders in the auction. No contract was signed between the petitioners and the respondent.  Any response given during the process of auction cannot be binding on the licensor vis-à-vis these petitioners. As no promise has been made to these petitioners, the doctrine of promissory estoppel is not applicable. Therefore, the petitioners will not get any benefit out of the response given by DOT during the auction proceedings. The petitioners will be governed by their own license agreement. The query and responses are not in the nature of circular instructions of the department. The responses are for the purpose of auction of the 3G spectrum only. These responses cannot create any new right to the parties having effect of changing the terms and conditions of their licenses.

g.    On the issue of Natural Justice raised by Petitioner that the impugned communication of DoT dated 23.12.2011 to stop 3G services violated the principle as neither show cause notice was issued before the said communication by the Respondent nor any opportunity of hearing was given to the Petitioners, Member TDSAT has taken a view that various TERM cells of DoT had issued letters to the petitioners. Thus, they were well aware of the objections raised by the respondent at different points of time. The unsuccessful bidders did not get either the amendment to their licence or the allocation of 3G spectrum from the respondent.  It is not understood as to how the petitioner got any right to start 3G services.  The licensor did not confer any right to such effect. The show cause notice would have been necessary, if the petitioner were conferred any right to provide the 3G services to its customer under the licenses granted to it and the impugned letter of the respondent dated 23.12.2012 would have curtailed such rights.