SC asks TRAI to apprise it on amending call drops regulations

Supreme Court today asked the Telecom Regulatory Authority of India to consider the papers dealing with technical aspects of call drops and apprise it of its stand on whether it could consider amending regulations to impose penalty on telecom firms.

"Factually, it appears that nobody has seen technical papers on the day of (framing of) regulation. Please take into account the technical paper and tell us in affidavit whether you consider amending the regulations or you still want to stand by it. Whatever you have to say, tell us with reasons," the bench headed by Justice Kurian Joseph said.

The bench also comprising Justice R F Nariman said that prima facie it appeared that TRAI's technical papers, which cite reasons for call drops, were not taken into account while framing of the 2015 regulation.

Additional Solicitor General P S Narasimha, appearing for TRAI, said such technical papers are "periodically" released by the regulator on various subjects and both the regulations and the technical papers are "inconsistent with each other" and are "stand alone" things.

"You cannot shy away from the fact that exactly one month after the regulation on call drops, you have come out with the technical papers in which you admit that call drops will happen and the reasons can't be attributed to telecom companies alone," the bench said.

It also asked TRAI to explain why the technical papers on the issue was released a month after the regulations came into being.

TRAI's technical paper says that call drops in networks are not only due to the service providers and there could be several "other reasons" for it.

Senior advocate Kapil Sibal, appearing for cellular operators association, said the companies are willing to sit with TRAI to chalk out a roadmap to address the problems of call drops.

He said technical papers, released one month after the regulations, is "our response only" to the consultation paper on call drops floated by TRAI before the regulations.

"They (TRAI) did not consider our response at the stage of consultation paper and came out with a zero tolerance on call drops. Now, exactly one month after they come out with technical papers in which they admit what we have been saying that call drops are beyond the control of service providers," Sibal said.

Cellular Operators Association of India (COAI), a body of Unified Telecom Service Providers of India and 21 telecom operators, including Vodafone, Bharti Airtel and Reliance have challenged the Delhi High Court order upholding TRAI's decision making it mandatory for them to compensate subscribers for call drops from January 1, 2016.

During the hearing, Sibal apprised the court that an affidavit giving details of penalty imposed on service providers for call drops has been filed and there was only one instance of the penalty.

"There is only one instance of penalty imposed by TRAI on call drops but there were several instances where show cause notices were issued to service providers but the response was accepted by the regulator and no penalty was imposed," Sibal said.

The bench then asked the senior advocate to file details about the proceedings of penalty, show cause notices and reasons which were accepted by TRAI.

Sibal said that call drop is not a pan-India feature and limited to selected areas only and "despite the issues being raised by us, they want to penalise us."

He said call drops can happen for various reasons like weather, interference, congestion, shortage of towers, low frequency, shortage of spectrum, radiation and "we have discussed all these with TRAI but still they went ahead with regulations to penalise us."

"It is easy to blame the industry for the problem without recognising that it is performing a job of a very critical nature. The way forward is not the regulation of this nature," he said.

Sibal said telecom service needs to reach customers, for which both TRAI and the industry have to work together.

"This is not a adversarial litigation from our point of view. We want to provide quality service to our customers so that they are satisfied and our customer base increases. There are genuine problems. We are ready to cooperate with TRAI to solve the problems," Sibal said.

On March 10, the apex court had asked the telecom operators to given an undertaking that they have not exceeded the two per cent threshold limit of call drops as mandated in the regulations after the companies claimed helplessness in controlling the situation.

The apex court had also asked the cellular operator associations to inform it whether any penalty was ever levied on them for call drops.

Telecom companies have said there cannot be a perfect world in the world of radio waves and call drops will happen as they have no technology to control it.

The Delhi High Court had, earlier last month upheld the October 16, 2015 decision of Telecom Regulatory Authority of India (TRAI) making it mandatory for cellular operators to pay consumers one rupee per call drop experienced on their networks, subject to a cap of Rs 3 a day.

The court had said the regulation was made by TRAI "keeping in mind the paramount interest of the consumer".

The telecom operators had moved the high court seeking quashing of TRAI's regulation contending that it was a "knee- jerk reaction" which penalised them without proving any wrongdoing.

The telcos had termed the regulation as "arbitrary and whimsical", contending that providing compensation to consumers amounted to interfering with companies' tariff structure which could be done only by order, not regulation.

Earlier, TRAI had told the high court that consumers have a right to get compensated for call drops and this was different from the quality of service guidelines that cellular service providers have to follow under the licence conditions.

TRAI had on December 22, last year told the court that no coercive steps would be taken against telecom firms till January 6 for not complying with the call drop compensation norms.