TRAI Changes Tune

[June 15, 2009 – The Pioneer]

Having consistently taken the position that the first-come-first-served system adopted by the Telecom Department for allotting spectrum was improper, the Telecom Regulatory Authority of India (TRAI) has suddenly turned coy and tacitly started backing the controversial process. Incidentally, the change in opinion coincides with the arrival of a new face as the regulatory panel head.

In an affidavit filed recently in the Delhi High Court, which is hearing a public interest litigation against the controversial allotment of 2G spectrum, TRAI diluted its opposition to the first-come-first-served formula. The court had asked for the regulator’s opinion on the dubious allotment of spectrum in February-end. The affidavit, which downplays the organisation’s consistent opposition to the dubious allotment, was filed after the appointment of JS Sharma as the new TRAI chairman.

A copy of the affidavit — which The Pioneer possesses — does not even mention ‘first-come-first-served’ as a basis for allotment, though the court had asked it to comment precisely on the allotment process.

Even though TRAI did say that it had suggested the auction method to determine market price of the spectrum on several occasions, it did not comment on its stand regarding the first-come-first-served system, let alone express its known unequivocal opposition to it.

Seeking to distance itself from the contentious issue, TRAI told the court, “It is respectfully submitted that the policy of allotment of telecom spectrum is an administrative matter under the jurisdiction of the Department of Telecom.” It added, “In the 2G bands, the allocation through auction may not be possible as service providers were allocated spectrum at different times of their licence and the amount of spectrum with them varies from 2x4.4MHz to 2x10MHz for GSM technology and 2x2.5MHz to 2x5MHz in CDMA technology. Therefore, to decide the cut-off after which the spectrum is auctioned, will be difficult and might raise the issue of level playing field.”

Interestingly, TRAI did not mention a word about a crucial letter written by its former chairman Nripendra Misra to Telecom Secretary Siddharth Behura on January 14, 2008, in which he had vehemently criticised the spectrum allotment on first-come-first-served basis. Misra blamed the Telecom Department for “cherry picking” in adopting those recommendations that suited the department while ignoring other important ones. In that letter, the former chairman had criticised the allotment of spectrum to new players without specifying the availability of the scarce resource. Misra had on several occasions blamed the department for making claims that the 2G spectrum allocation process was conducted as per TRAI recommendations.

“It would be unfair and misleading if any decision and consequent action is initiated without identifying and implementing the linkages elsewhere in the recommendation. It was reiterated that the authority (TRAI) should be formally consulted if there is any deviation from the totality of the recommendation,” Misra pointed out in the letter.

The letter added, “The authority has emphasised that there is need to ensure availability of adequate spectrum, its efficient utilisation and making the process (of spectrum allocation) completely transparent and based on a roadmap and well-researched plan.

It is sincerely hoped that the above suggestions/observations and compliance of legal provisions would receive highest consideration as they have a long-term bearing on the telecom sector.”

Misra’s tenure ended in March and Sharma was appointed the new chairman on May 14. Sharma is a former Secretary of Telecom and, prior to this appointment, was a member of the Telecom Disputes Settlement Appellate Tribunal (TDSAT).

[The writer is Special Correspondent of ‘The Pioneer’]