The telecom department has rejected Bharti Airtel’s demand to take note of court observations while deciding whether the regulator can recommend that three operators should be fined for allegedly colluding and denying Reliance Jio Infocomm adequate access to their networks. The Digital Communications Commission, an inter-ministerial panel that is the top decision making body in the Department of Telecommunications, had sought the views of a DoT committee on the court rulings, which scrapped a probe into the allegations of cartelisation. The Competition Commission of India (CCI), acting on a petition by Jio, had ordered the probe after it found a prima facie case of cartelisation by Airtel, Vodafone Idea and Idea Cellular. The latter later merged into Vodafone Idea.
The telcos moved Bombay High Court, which quashed the CCI probe. CCI and Jio then approached the Supreme Court, which upheld the high court order. “The committee within DoT unanimously feels the Supreme Court’s ruling in December has no bearing on the current matter at hand,”. The opinion implies that the telecom regulator has the jurisdiction to recommend a penalty. DCC will now decide whether to accept or reject the combined penalty of Rs 3,050 crore proposed to be levied on Airtel, Vodafone India and Idea Cellular in October 2016. The date of the next DCC meeting isn’t known. Airtel didn’t respond to an emailed query seeking comment on the DCC decision.
Bharti Airtel had written to telecom minister Manoj Sinha mid-February, copying all nine DCC members, saying the panel should take cognisance of the court ruling. The Telecom Regulatory Authority of India had suggested penalties on Airtel, Vodafone and Idea for allegedly violating licence conditions by not providing enough points of interconnection (PoI) to Jio, which led to call failures and hurt quality of services. Airtel said that while the Supreme Court did not deal with the high court’s observations, they had not been set aside and so attained finality.
“Therefore, the government is estopped from operating on these recommendations and any action of the DoT on the basis of these recommendations would not be appropriate,” Airtel said in its letter. Airtel, Vodafone and Idea have contended throughout that they were not mandated to provide PoIs during the test period and had met the requirement to offer the PoIs during the 90-day period, starting from the launch period and not the test period. “Airtel had written to the DoT to go through the SC judgment, especially some points made in passing reference regarding the telecom regulator, before they decided upon the issue of penalties,” the official said. Consequently, the DCC, which met on February 21, decided to refer the matter to the seven-member committee, majority of which had voted against any penalty.
DoT officials clarified that no legal view from the Attorney General’s office had been sought in this matter so far. Trai had recommended fines of Rs 1,050 crore each on Bharti Airtel and Vodafone India for alleged breaches in 21 licensed service areas while Idea Cellular was penalised Rs 950 crore for the alleged violations in 19 zones.