Telecom Scenario in India with regard to Policies, Regulations and Dispute Settlement

Telecom Scenario in India with regard to Policies, Regulations and Dispute Settlement [Abstract] The term ‘Communication’ is derived from the Latin word ‘communis’ which means ‘to share’. It is an activity of channelizing knowledge, information and instructions, through a network of messages, in the form of speech, visuals, signals, writing, or behavior. Telecommunication is a more advanced form of articulation and dissemination of information. We exist in a concomitant civilization wherein it has become a part and parcel of our routine lives. The Indian Telecom industry is broadly governed by the Department of Telecommunication (DoT) which administers the task of policy making, licensing, spectrum pricing and allocation. The recommendatory as well as regulatory functions are performed by the Telecom Regulatory Authority of India (TRAI). After the 2000 amendment, an adjudicatory body was setup by DoT, for the effective settlement of disputes arising in the Telecom industry. It is called as the Telecom Dispute Settlement and Appellate Tribunal (TDSAT).

In the present work, the author purports to critically examine the past and present scenario of Telecom sector in India. The author briefly touches upon the need, role and functions of DoT and TRAI, but lays special emphasis on dispute settlement. Thereafter, the author analyses the telecom model of developed countries comprising of USA, UK, Australia and China and thereby endeavors to provide suitable suggestions towards prosperity of this sector. Thereafter, the author gives the concluding remarks.

INTRODUCTION

“Leadership in telecommunications is also essential, since we are now in the age of e-commerce” In the recent past, Telecom services have acquired a predominant position in the Indian market. Various types of telecom services like electronic mail, voice mail, data services, audio tax services, video tax services, radio paging and cellular mobile telephone services are being made available to users by means of transmission or reception of signals, writing images and sounds. Intelligence of any nature is also being made available by wire, radio, visual and other electronic means. After the implementation of the New Economic Policy in 1991, apart from the public sector operators, many private operators (Indian as well as Foreign with Indian Collaborations) began providing their services to a gigantic pool of Indian subscribers. Consequently, to comply with the standards of the International Telecommunication Union (ITU), furthermore owing to the phenomenal growth in this sector, the essentiality of a statutorily recognized regulating body was contemplated. To create such a body with all the statutory powers vested in it, the Telecom Regulatory Authority of India Bill was tabled before the Parliament. The Bill received the assent of the President on 28th March 1997. Some of the core functions of this body are: to ensure effective interconnection between different service providers, to ensure compliance of terms and conditions of license agreements, fixation of tariff rates, etc. It can also make recommendations on specific matters provided under the Act. Before amendment in the year 2000, adjudicatory functions also lied with TRAI. However, after the amendment the TDSAT came into being as a body of dispute resolution. On the other hand, the DoT plays the role of a policy maker and licensor. It also handles spectrum allocation among public and private operators. The paper seeks to address the contemporary issues in the Telecom industry from the perspective of policies, regulations and dispute settlement. Furthermore, the paper is divided into various sections, each dealing with the legislative, regulatory and adjudicatory wings, respectively.

1. DEPARTMENT OF TELECOMMUNICATIONS

Telecom services have metamorphosed into an integral part of our society. In present times, the socio-economic growth of a nation is largely dependent upon the smooth and effective functioning of its telecom industry. The Department of Telecommunication (DoT) is a branch of the Ministry of Communications and Information Technology. It lies at the topmost level in the hierarchy of the telecom services sector. Since the time of its inception, DoT has been instrumental in drafting developmental policies for the accelerated growth of the Telecom services. At present, the DoT is essentially performing the role of a policy maker and licensor. The National Telecom Policy, 1994, 1999 and the more recent 2012, are few of the major contributions made by DoT for the purpose of transformation of the Indian Telecom sector.

1.1 ROLE OF POLICY MAKER

As a policy maker, DoT has formulated the National telecom policy, 1994, 1999 and 2012. A brief description of the objectives of each of them is highlighted hereunder-

1.1.1 NATIONAL TELECOM POLICY, 1994

The NTP 1994 came into force after the formulation of the New Economic Policy in 1991. NEP 1991 aimed at providing telecom services of unparallel quality to all the Indian subscribers at competitive rates. The success of this policy was underlined in the growth of telecom sector in India.

The key features of NTP 1994 are as follows:

• Easy accessibility of telecom services and availability of telephone on demand.

• Universal Service Coverage in rural areas providing basic access to telecom services at affordable and reasonable prices.

• Improving the quality of telecom services, redressal of public grievances and effective dispute resolution.

• To ensure that India emerges as a major manufacturing base and major exporter of telecom equipment.

• To protect the defense and security interests of the country.

1.1.2 NATIONAL TELECOM POLICY, 1999

Since NTP 1994 was not able to fulfill its objectives adequately, the policy makers felt the need for a more exhaustive legislation. Hence, the National Telecom Policy, 1999 came into force. It was formulated to appreciate the far reaching developments in the telecom, IT, consumer electronics and media industries world-wide. Congregation of telephone and broadcasting industries, separate licensing systems for basic, cellular, ISPs, satellite and cable TV operators, postulated a transformation of the existing policy framework. NTP 1999 envisioned India to become an IT superpower having a world-class telecom infrastructure.

The key features of NTP 1999 are as follows:

• Access to telecom services at reasonable and affordable rates, development of telecom facilities in all uncovered areas, comprising of rural, remote, hilly and tribal areas.

• To create a modern telecom infrastructure in harmony with convergence of IT, media, telecom and consumer electronics.

• Convert PCOs, wherever justified, into Public Teleinfo centers having multimedia capability like ISDN services, remote database access, government and community information systems etc.

• To create a competitive environment in both rural as well as urban areas, providing equal opportunities and level playing field for all players.

• To improve R&D facilities for building enhanced manufacturing capabilities.

• To achieve transparency and efficacy in spectrum allocation and management.

• To protect the defense and security concerns of the nation.

• To enable Indian telecom companies to become truly global players.

1.1.3 BROADBAND POLICY, 2004

Broadband is a wide bandwidth transmission medium, capable of transmitting multiple signals and traffic types concurrently. It can be in form of copper wire, optical fiber or wireless. It is a means of ensuring faster connectivity over an integrated services network. In the modern era, communal changes led to the advent of applications such as tele education, tele-medicine, e-governance, etc. These changes brought about an enhancement in the quality of life of the entire human civilization. The Indian Government also felt the need of providing high speed access to information and web-based communication. Consequently, the Government formulated a policy to accelerate the growth of broadband services and reach out to all the netizens. It is noteworthy that the demand for Broadband is primarily mobilized by Internet and PC penetration . This approach was held as the basis of this policy. It was projected that by the end of 2010, the estimated growth of internet and broadband subscribers would reach 40 million and 20 million respectively. According to a report of the World Telecom Industry (2011), India is expected to have approximately 1200 billion subscribers by 2013. The Broadband policy created infrastructure of telecommunication through various access technologies comprising of Optical fiber technologies, Digital Subscriber Lines on copper loop, Cable TV Network, Satellite Media, Terrestrial Wireless, etc.

1.1.4 NATIONAL TELECOM POLICY, 2012

The need of the hour is equitable and inclusive economic growth. India is moving ahead in the global telecom market. The National Telecom Policy 2012 was thus encapsulated to adopt such telecommunication technologies which would offer viable options in subjugating developmental challenges in the field of education, health and employment generation. NTP 2012 strives to ensure an investor friendly environment thereby attracting domestic as well as foreign investors. Currently, there is 74% investor friendly environment thereby attracting domestic as well as foreign investors. Currently, there is 74% FDI in the Indian telecom sector. The core objective of this policy is to provide affordable and effective communication facilities to all the citizens.

The key objectives of NTP 2012 are as follows:

• To provide broadband on demand by 2015 to all citizens and businesses in both rural and urban areas, and participate in internet and web economy. It also aims to achieve 175 million broadband connections by the year 2017 and 600 million by the year 2020 at minimum 2 Mbps download speed and making available higher speeds of at least 100 Mbps on demand.

• To support platform neutral services in e-governance and m-governance in key social sectors such as health, education and agriculture.

• To address and enable the coordinated action to respond to the dynamic needs resulting from confluence of telecom, broadcasting and IT sectors.

• To incorporate framework for enhancing spectrum availability, comprising of triple play services (voice, video and data) using broadband technology.

• Common Service Centers, AADHAR based electronic authentication framework and Cloud computing enabled.

• To provide clear cut strategies to overcome challenges in network and communication security and communication assistance to law enforcement agencies.

• To recognize and reinforce the role of PSUs in proving telecom services in rural areas and broadband penetration in the country.

• To further empower the Telecom Regulatory Authority of India (TRAI) as a backbone of policy implementation.

• To recognize the need of robust and resilient telecom networks for mitigating any kind of natural or manmade calamities.

• To recognize the futuristic role of Internet Protocol Version 6 (IPv6) and its application in different sectors of Indian economy.

• Increase rural teledensity from the current level of around 39 to 70 by the year 2017 and 100 by the year 2020.

• Create a corpus to promote indigenous R&D, IPR creation, entrepreneurship, manufacturing, commercialization and deployment of state-of-the-art telecom products and services during the 12th five year plan period.

• To meet Indian telecom sector demand to the extent of 60% and 80% with a minimum value addition of 45% and 65% by the year 2017 and 2020 respectively.

• To simplify the licensing framework and create a one nation – one license policy across service and service areas.

• To achieve full mobile portability throughout India work towards free roaming.

• To reinvent mobile communication so as to provide proof of identity, full financial security, multi-lingual services, high quality seamless voice, data, multimedia and broadcasting services, fixed- mobile convergence.

• To make available additional 300 MHz spectrum for IMT services by the year 2017 and another 200 MHz by 2020.

• To provide for regular audit of spectrum usage, de-licensing additional frequency bands for public use, address the Right of Way (RoW) issues in setting up of telecom infrastructure, setting up of a common platform for interconnection of various networks for providing non-exclusive and non-discriminatory access.

• To enhance and continue adoption of green policy in telecom and incentivize use of renewable energy sources for sustainability. 1.2 LICENSOR Under the Indian Telegraph Act, 1885, the Central Government has exclusive jurisdiction to authorize and maintain telecom services in India and to grant licenses to various service operators. The Department of Telecommunications (DoT), a part of the Ministry of Communications and Information Technology, Government of India, acts as a licensor. It also does the task of formulating and enforcing telecom policies. It allocates and administers resources such as spectrum and series number. The DoT also promotes modernization and harmonization, R&D, private and foreign investment, and international cooperation in the matters relating to telecommunication services. The Wireless Planning and Coordination wing of DoT, is responsible for frequency spectrum management and exercises the statutory functions of the Central Government to issue licenses for allotment of spectrum and for establishing, maintaining and operating wireless stations .

2. TELECOM REGULATORY AUTHORITY OF INDIA (TRAI)

The Telecom Regulatory Authority of India (TRAI) was formed in Jan 1997 under the Telecom Regulatory Authority of India Act, 1997 with a view to provide an effective regulatory framework and adequate safeguards to ensure fair competition and protection of consumer interests. At the outset, the Government contemplated TRAI as a “non-statutory” body. However, the Standing Committee on Communications in its 22nd Report (Tenth Lok Sabha) observed that a statutory status ought to be accorded to the regulatory authority to empower it to function independently and effectively. Even the Supreme Court in Delhi Science Forum Case has observed that: "The existence of a Telecom Regulatory Authority with the appropriate powers is essential for introduction of plurality in the Telecom sector. The National Telecom Policy is a historic departure from the practice followed during the past century. Since the private sector will have to contribute more to the development of the telecom network than DoT/ MTNL in the next few years, the role of an independent Telecom Regulatory Authority with appropriate powers need not be impressed, which can harness the individual appetite for private gains, for social ends. The Central government and the Telecom Regulatory Authority have not to behave like sleeping trustees, but have to function as active trustees for the public good" . The Telecom Regulatory Authority of India Act was amended in the year 2000. The functions of the original TRAI have now been split between two bodies, Telecom Regulatory Authority of India (TRAI) and The Telecom Disputes Settlement and Appellant Tribunal (TDSAT). The TRAI has been assigned the recommendatory and regulatory functions and the dispute settlement functions are with TDSAT . The Telecom Regulatory Authority of India (TRAI) is the independent regulatory body which is empowered to make recommendations, either suo moto or on a request from the licensor on the matters relating to the telecommunications sector. Broadly, it can issue regulations on interconnection, quality of service, fixation and revision of tariff rates, etc. Apart from this, it has certain recommendatory functions as well. 2.1 REGULATORY FUNCTIONS Section 11 of the Telecom Regulatory Authority of India Act, 1997, enlists the powers and functions of the authority.

The following are the regulatory functions of TRAI:

• Ensure compliance of terms and conditions of license.

• Fix the terms and conditions of inter-connectivity between the service providers as well as ensure technical compatibility and effective interconnection.

 • Regulate revenue sharing arrangements amongst service providers.

• Lay down the standards of quality of service, including a periodical survey of such service providers for the protection interest of consumers.

• Lay down and ensure time period for providing local and long distance circuits of telecommunication between different service providers.

• Maintain a register of interconnect agreements and other related matters. This register must be available to the general public for inspection on payment of a stipulated fee.

• Ensure effective compliance of Universal Service Obligations.

2.2 RECOMMENDATORY FUNCTIONS

The TRAI can make recommendations on the following matters:

• Need and timing for introduction of new service provider.

• Terms and conditions of license to a service provider.

• Revocation of license for non-compliance of terms and conditions of license.

• Measures to facilitate competition and promote efficiency in the operation of telecommunication services so as to accelerate growth of this sector.

• Technological improvements in the services provided by the service providers.

• Inspection of type of equipment being used for providing services.

• Measures such as use of R&D centers for the development of telecommunication technology.

• Effective and efficient management of the available spectrum.

3. SOME RECENT DEVELOPMENTS

• An inter-ministerial group has been setup to examine the recommendations made by TRAI on whether the Central or State governments should be allowed to enter the domain of broadcasting services. According to the industry sources, TRAI has strongly opposed the entry of government funded entities to the cause of broadcasting.

• Recently TRAI has issued recommendations on a unified license regime and suggested that substantial equity or cross-holding requirement should be linked to the amount of spectrum held by companies .

• The new unified license guidelines unbundle spectrum from license (for mobile services) and allow unrestricted internet telephony. This should give a boost to broadband internet services in the country. The government has announced a roadmap for spectrum allocation for commercial mobile services, including 700 MHz digital dividend spectrum

• While issuing recommendations for granting new telecom licenses, TRAI asserted that it is the regulator's responsibility to propose guidelines and there is no provision in the law "to give concurrence" to the DoT's proposals. In November 2012, DoT had issued guidelines for grant of new telecom licenses in the Notice Inviting Applications (NIA) for held auction. DoT had further asked the authorities at TRAI to “examine and concur” with the terms and conditions in the Unified License (Access Services) given by the DoT. Officials at TRAI advocate that the Act does not impose upon it a duty to “concur” with the guidelines made by DoT. Its role is restricted only to the recommendation and regulation of any subject-matter relevant to the telecom sector .

4. TELECOM DISPUTE SETTLEMENT AND APPELLATE TRIBUNAL (TDSAT)

TDSAT comes across as a specialized body, designed and incorporated after the 2000 amendment, for the effective settlement of telecom disputes. Earlier the adjudicatory functions were being performed by the regulatory wing of the telecom sector i.e. TRAI. The need for functional clarity as well as strengthening the regulatory framework was deeply felt amongst government officials. A clear cut distinction was made between the regulatory, recommendatory as well as adjudicatory functions of TRAI. Consequently, a separate autonomous body was established to look after the domain of dispute settlement. TDSAT is an appellate tribunal empowered to adjudicate, decide and dispose of appeals with a view to protect the interests of service providers and consumers of the telecom sector. Apart from appellate, TDSAT also exercises its original jurisdiction. The Appellate Tribunal came into existence on 29th May, 2000 and started hearing cases since January 2001. Hon’ble Mr. Justice Suhas C. Sen, former Judge of Supreme Court of India, was appointed as its first Chairperson and succeeded by Hon'ble Mr. Justice D.P. Wadhwa and Hon'ble Mr.Justice N. Santosh Hegde, Mr. Justice Arun Kumar. In the context of powers of TDSAT, the Hon’ble Supreme Court of India in the leading case of Cellular Operators Association of India V. Union of India inter alia observed that: "… we have no hesitation in coming to the conclusion that the power of Appellate Tribunal is quite wide, as has been indicated in the statute itself and the decisions of this Court dealing with the power of a Court, exercising appellate power or original power, will have no application for limiting the jurisdiction of the appellate tribunal under the Act." Chapter IV of the Telecom Regulatory Authority of India (Amendment) Act, 2000, deals with the appellate tribunal.

The various sections are elucidated as under:

4.1 ESTABLISHMENT OF TDSAT:

In the Telecom industry, various kinds of disputes can take place which include disputes with regard to licensing, policy making, reasonable and legitimate expectations, interconnections as well as commercial agreements between two or more service providers, malpractices and unfair competition, spectrum allocation, disputes arising due to regulatory actions etc. Under Section 14 of the Act of 2000, the Central government has the power to establish a specialized tribunal known as Telecom Dispute Settlement and Appellate Tribunal (TDSAT). This section further lays down the subject matter which comes under the jurisdiction of the said tribunal.

4.1.1 The tribunal has the power to adjudicate any of the following disputes:

• Between licensor and a licensee.

• Between two or more service providers.

• Between a service provider and a group of consumers.  

4.1.2 On the other hand, TDSAT does not have the power to adjudicate upon the below mentioned issues:

• As per Section 14 of the Act only a “group of consumers” can file a suit against one or more service providers in case they believe that their rights have been violated. However, the act does not define what is meant by a “group of consumers”. In common parlance it would mean two or more than two individuals. Hence, there is an ambiguity within the act with respect to this issue. On the other hand, a complaint from an “individual consumer” does not lie before the appellate tribunal. Such complaints are maintainable only before a Consumer Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under section 9 of the Consumer Protection Act, 1986.

• Cases dealing with monopolistic and restrictive trade practices, unfair competition, anti- competitive agreements, etc are the subject matter of the Competition Act, 2002, and are decided by the Competition Commission of India.

• Any dispute between the telegraph authority and any other person referred to in sub-section (I) of Section 7 B of the Indian Telegraph Act, 1885.

4.1.3 Who can file a complaint?

The central or state government or a local authority such as municipal corporations, or any person may make an application before the tribunal with reference to the disputes mentioned under section 4.1.1. Furthermore, any of above parties may prefer an appeal against any direction, decision or order made by TRAI.

4.2 COMPOSITION OF TDSAT:

The Tribunal comprises of a Chairperson and not more than two members. These authorities are appointed by the Central Government in consonance with the Chief Justice of India. To be qualified as a Chairperson, a person should be or should have been a Judge of the Supreme Court or the Chief Justice of a High Court. A Member should have held the post of secretary to the Government of India or any equivalent post in the Central Government or the State Government for a period of not less than two years. Such person must also be well-read in fields of technology, telecommunication, industry, commerce or administration. While deciding the composition of the tribunal, the Act clearly provides for the inclusion of judicial as well as technical experts in the bench.

 4.2.1 Term of office:

The Chairperson and every other member of the tribunal shall hold office for a term not exceeding 3 years from the date of joining. However, no Chairperson or member shall be allowed to hold office after he has attained:

• In the case of Chairperson, the age of 70 years and;

& 

 • In the case of any other member, the age of 65 years.

4.3 POWERS AND JURISDICTION:

The tribunal is empowered to exercise both original as well as appellate jurisdictions. The Act confers a special status upon it in the manner that no Civil court, High court or other authority has the jurisdiction to adjudicate upon any dispute which TDSAT is empowered to decide within the Act. In other words, TDSAT has exclusive jurisdiction over telecom, cable and broadcasting disputes. Another significant question which arises is that whether Arbitration proceedings are relevant on subjects over which TDSAT exercises its jurisdiction. This question was answered in the leading case of Aircel Digilink India Ltd Vs Union of India & Anr . In this case it was held that Arbitration is not permissible. It was contended that TDSAT has exclusive jurisdiction to hear telecom related disputes and therefore an arbitral tribunal has no jurisdiction to adjudicate upon such matters, irrespective of an arbitration clause in an interconnection agreement. Moreover, no injunction can be granted by any Court or other Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under TRAI Act on the Tribunal. Until now we must know that TDSAT has original jurisdiction to resolve disputes pertaining to a licensor and licensee, two or more service providers, and a service provider and group of consumers. It also has appellate jurisdiction and can hear appeals against any direction, decision or order of TRAI. These appeals must be filed within the stipulated time period of 30 days from the date of order etc. TDSAT is a forum wherein disputes are expected to be resolved expeditiously. For this purpose, a 90 days’ time period has been prescribed under the Act. Since 9th January 2004, the Government has included broadcasting and cable services also within the purview of TRAI Act and thereafter the Tribunal possesses the power and jurisdiction to settle disputes in the cable and broadcasting sectors also.

In a leading judgment of the Delhi High Court , it is held that TDSAT does not have any jurisdiction or competence to decide upon the constitutionality of a statutory provision under which it has been created. Consequently, TDSAT also does not have the power to examine the validity of any subordinate legislation i.e. Regulation formulated by the TRAI. However, under the same judgment, the bench observed that since the Regulation was administrative and executive in nature and not legislative, TDSAT had the power to adjudicate thereupon. So far we have discussed the substantive aspect of powers of TDSAT. Let us now consider the procedural aspect of it: Although the act states that TDSAT is not bound by the provision of Code of Civil Procedure, 1908 and Law of Evidence, still these provisions are applicable in one or the other manner. For instance, TDSAT has the power of issuing summons to the parties and witnesses procure attendance of parties and witnesses, production, inspection, examination of relevant documents, etc are some of the directions which can be laid down by TDSAT. It must be noted that the orders of this tribunal has have the same binding effect as that of a decree of a civil court. Every proceeding before the Tribunal is deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code (45 of 1860). The tribunal is deemed to be a Civil Court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. TDSAT also has the power to formulate its own procedure which is primarily guided by the principles of natural justice, equity and good conscience.   /span>

4.3.1 TDSAT Procedures, 2005

TDSAT prescribed certain procedures for its effective and smooth functioning and faster dispensation of justice. These procedural rules came into force on December 12, 2005. Section 2 defines terms such as Bench, certified copy, chairperson, member, registrar, tribunal, etc. it also prescribes the procedure for filing petition, appeal, or any miscellaneous application and other pleadings before the tribunal.

The detailed procedure is provided under Section 4 which is as follows:

• An advocate representing a party in a case shall file a duly executed Vakalatnama bearing court stamp of Rs.2.75.

• Parties/Counsel will be required to file one original and four copies of the petition/ appeal/ misc. application and all other pleadings.

• Wherever any page of a document is not legible, a typed copy shall be annexed.

• The petition shall be in the proforma appended to these procedures. The appeal shall be in form A appended to the Telecom Disputes Settlement and Appellate Tribunal (Form, Verification and the Fee for filing an appeal) Rules, 2003 notified by the Central Government in the Gazette of India on 2nd April 2003.

• The contents of the petition/appeal/misc. application/counter affidavit etc. shall be supported by a verification regarding their correctness by the petitioner/appellant/applicant or respondent or the person authorized to sign petition/appeal/misc. application/counter affidavit etc.

• Before filing any petition/appeal/misc. application/other pleadings before the tribunal, a copy of the same shall be served on opposite parties and proof of service may necessarily be enclosed.

• Pagination of the cases before the tribunal shall be in continuous manner beginning from the petition/appeal along with the annexures. Counter- affidavit, rejoinder, and other miscellaneous applications etc filed from time to time shall follow ad seriatum. The petition/appeal/counter- affidavit/rejoinder etc shall be retained in the same volume. However, if the number of pages exceeds 200, a separate volume numbered as volume II and so on shall be prepared. The index page of volume I shall be formatted in a manner that leaves enough space for additional entries to be made in regard to the documents submitted subsequently.

• The parties concerned shall do proper pagination while filing petition/appeal/counter- affidavit/rejoinder etc. The concerned advocate(s) or their representatives shall obtain the last page of the volume already on file from the Registry of the Tribunal and shall arrange to paginate their documents in continuation and coordination with the officials of the Registry in all the copies.

• Petition/appeal/ misc. application shall accompany the required fees in the form of Demand Draft, in favour of Drawing and Disbursing Officer, Telecom Disputes Settlement & Appellate Tribunal. The fee for filing a petition and misc. application shall be Rs. 5,000/- and Rs. 1,000/- respectively. The fee for filing an appeal shall be as provided in Telecom Disputes Settlement and Appellate Tribunal (Form, Verification and the Fee for filing an appeal) Rules, 2003.

• Interim prayers, if any, shall form part of the petition/appeal and no separate application in this regard may be filed.

• No documents/pleadings shall be filed by the parties/counsel except by leave of the Bench. If any party / counsel seeks to file additional document / affidavit otherwise than by direction of the Bench, the same shall be filed in the form of misc. application with requisite fee.

• No fee shall be charged for filing an application for ‘condemnation of delay’ or ‘urgent hearing’.

• Timings for filing the documents in the Registry shall be from 10.00 a.m. to 4.00 p.m. on all working days. No documents shall be accepted by the Registry beyond these timings. • All documents/pleadings in a case shall be filed before 12.00 noon where the case is listed on the next working day.

• The Registry shall deliver copies of order or any other document only to the advocates/law firms or their authorized representatives or persons who are parties to the proceedings. 4.4 APPEALS It has been mentioned before that TDSAT can hear and dispose of appeals against any direction, decision or order of TRAI. Furthermore, an appeal may also lie against any order of TDSAT as well. However, the order must be final in nature, as in the case of interlocutory orders no appeal shall lie with the consent of the parties. This indicates that the orders of the tribunal are final and statutorily binding upon the parties. It is noteworthy that an appeal against any order or decision of the tribunal shall be made only before the SC. The appeal to Supreme Court can be preferred within 90 days from the date of the decision or order appealed against. We must understand that such an appeal is maintainable only if it relates to a substantial question of law. Can appeal against any order of the tribunal lie before a High Court? There is no provision under the Act wherein an aggrieved party can approach a High Court. However, one can resort to the constitutional provision of filing of writ petition if need be. With respect to High Courts, a writ can be invoked under Article 226 of the Indian constitution.

4.5 PENALTY FOR NON- COMPLIANCE OF TDSAT’s ORDERS:

Willful failure to comply with the order of the Tribunal is punishable with fine which may extend to one lakh rupees and in case of a second or subsequent offence it may extend to two lakh rupees and in case of continuing contravention with additional fine which may extend to two lakh rupees for every day during which such default continues.

4.6 JURISDICTION OF TDSAT WITH RESPECT TO CABLE AND BROADCASTING:

The Cable Television Networks (Regulation) Act, 1995 was enacted by the government to regulate the operation of Cable TV Network in India. In the year 2004, several major developments took place in the domain of Broadcasting and Cable Networks. Thereafter, TDSAT was empowered to entertain disputes pertaining to broadcasting as well. With respect to this power, various issues were raised regarding the definition of the term “Service Provider” with the meaning of Section 2(1) (j) of the TRAI Act, 1997. In the case of Sea T.V. Network Limited V. Star India Limited and another TDSAT was confronted with the question that whether a Cable Operator is a Service Provider or not with the Act. TDSAT held the following: “…taking note of the beginning words of the Section 2 of the TRAI Act i.e. "in this Act unless the context otherwise requires" and the power of the Government under proviso to Section 1(k) to include other services to be telecommunication service under which power a notification dated 9th January, 2004 has been issued and taking note of the power of the TRAI to make Regulations and the fact that these Regulations have the force of law, and the Regulations so made include a multi-system operator like petitioner or a cable operator as a service provider and bearing in mind the subject matter and the context in which the definition clause has been used in the TRAI Act and the object underlying the Act and principles, as laid down by the apex Court in the cases cited above, we must hold that for the purpose of Section 2(j) of the TRAI Act, 1997 apart from the Government as a service providers and the licensee, even broadcaster, multi system operator, cable operators or distributors of TV channels will have to be construed to be service providers and if so construed, any dispute between them will be a dispute that has to be settled by this Tribunal under section 14 of the Act.” It is duty of every Broadcaster to provide its TV channels on non-discriminatory terms to all distributors of TV channels as per the Telecommunication (Broadcasting and Cable Services) Interconnection Regulation, 2004. In this context, TDSAT has held that the seeker of signals must negotiate with the supplier of signals and if such negotiations fail, it is for the seeker of the signals to approach TDSAT for the redressal of its grievances.  

4.7 TDSAT vs. TRAI:

In the leading case of MTNL Vs. TRAI the question raised was that whether TDSAT has any jurisdiction hear an appeal against any regulation made by TRAI. The appeal was made by MTNL with respect to the regulator’s decision on access deficit charge (ADC). TRAI contended that since the regulations framed under Section of the Act were statutory in nature, a tribunal constituted under the Act cannot question the validity of the legislation. However, in an interim order dated January 31, 2005, TDSAT held that it has jurisdiction over the impugned subject-matter. It further held that no subordinate legislation can take away jurisdiction conferred upon it by the provisions of the Act. It also contended that any clause within the regulation seeking to divest TDSAT of its jurisdiction is liable to be ignored. This had been challenged before Delhi High Court which upheld TDSAT jurisdiction.

4.8 INTERNATIONAL PERSPECTIVE WITH RESPECT TO SETTLEMENT OF TELECOM DISPUTES:

The Telecom industry by and large plays a significant role in the socio-economic growth of a nation. Hitherto prolonged litigation and cost of resolving telecom disputes have an adverse effect on investment thereby leading to slow growth. Therefore, the international community recognized the need to understand the technicality and complexity of telecom disputes as a critical element to the future efficacy of telecom infrastructure and services. Telecom dispute resolution can be looked at from the perspective of Investors, Subscribers and the Economy. Telecom sector requires enormous capital investment. Therefore, investors need assurance about a transparent and effective dispute resolution mechanism. Similarly, the Subscribers too are worried about the ill effects of a delayed system. Such delays and prolonged hearings are not viable for the general economic and technological advancement of the country. Thus, a successful dispute resolution mechanism becomes imperative.

4.8.1 TECHNIQUES OF DISPUTE RESOLUTION:

There are various techniques through which telecom disputes can be decided. Broadly, these techniques can be classified into Regulatory and Non-Regulatory. Of these, Regulatory Adjudication is the most traditional and conventional technique. Under this technique, most regulatory bodies also adjudicate disputes. Regulatory Adjudication is a formal process similar to a regular court proceeding which comprises of submission of pleadings, framing of issues, examination and cross-examination of witnesses, hearing of oral arguments and lastly a final determination of the said issues. Moreover, these decisions and determinations are subject to review by the regulatory agency itself. Other Non- Regulatory techniques of dispute resolution could be Court adjudication, Alternative Dispute Resolution comprising of Arbitration, Mediation and Negotiation.

4.8.2 Some of the telecom regulators performing adjudicatory functions as well are discussed hereunder:

• The Federal Communications Commission (FCC), telecom regulatory body of the US Federal Government, has a Market Dispute Resolution Division (MDRD). MDRD is responsible for resolving complaints by market participants, entities or organizations against common carriers for alleged violations of the Communications Act that are filed pursuant to Section 208 of the Act. The division also resolves complaints filed by cable operators, telecommunications carriers, utilities and other parties relating to the reasonableness of rates, terms, and conditions for pole attachments . There is no separate appellate mechanism for telecom in the US.

• The United Kingdom has an independent regulator and competition authority for its communications industries. The regulator is known as OFcom. It also performs the functions of an adjudicator .

• ARCEP is an independent telecom administrative authority under the government of France which performs regulatory, consultative and dispute settlement and conciliatory functions. It can decide matters with respect to disputes between operators. It has the power to impose sanctions for non-compliance of legislation and regulations. 4.9 CONCLUSION: India follows a unique model of dispute settlement of telecom disputes since the 2000 amendment in the act. The act provides for a specialized agency known as the Telecom Dispute Settlement and Appellate Tribunal (TDSAT) whose sole purpose is to resolve disputes pertaining to the telecom, cable and broadcasting sector. This provision has been helpful in overcoming the shortcomings of Regulatory Adjudication. TDSAT is an independent body which has gathered the required expertise and it acts expeditiously.