The Delhi High Court on Wednesday stayed the execution of a government order that barred Bharti Airtel from providing intra-circle roaming services in circles where it does not have 3G spectrum.
Disposing of the matter, the court said the earlier stay order of the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) would remain in force. Since the July verdict was a split one, it cannot be construed as a judgment.
This effectively means the department of telecommunications (DoT) will have to issue fresh notices to Bharti as well as Vodafone and Idea to stop the services and give them 60 days to respond. During this period, operators can continue to provide intra-circle roaming services. Operators can approach TDSAT afresh if DoT issues notices now.
For DoT, stopping the services will be a tedious process because at least till next February, TDSAT will not have its full strength of three members. The government is in the process of appointing a third member, but chairman SB Sinha retires next month, while member PK Rastogi retires in February, making a majority verdict unlikely anytime soon.
Bharti had moved the court after receiving a DoT notice on Friday to stop services with immediate effect and report compliance within three days.
Bharti Airtel was also given 60 days to respond. Sources said Vodafone and Idea have not received notices so far, but Wednesday’s court’s order would apply to them as well.
The DoT had issued the notices on the excuse that since the TDSAT had not given any binding order to the government and the tribunal’s interim stay order had ceased in effect with the split verdict, it had all rights to seek compliance with its direction sent in December to stop the services which it called illegal.
?We have a legal opinion from the law ministry and are acting according to it,? a DoT official had told FE.
In intra-circle roaming, operators ? through roaming pacts ? provide 3G services to their home customers even in circles where they do not have 3G spectrum. This is distinct from inter-circle roaming which allows the services while travelling from the home circle to any other circle. The need for intra-circle roaming arose as no mobile operator won 3G spectrum on a pan-India level. Therefore, by entering into such pacts, they were able to provide services on a pan-India level. The operators claim that the DoT had permitted intra-circle roaming as part of the bidding conditions and had provided written clarifications also to this effect. However, the government maintains that operators cannot provide the services where they do not have the spectrum.
In December 2011, DoT sent notices to three operators to stop the services, but the operators obtained an interim stay order from TDSAT. Thereafter, hearings commenced with the TDSAT giving a split verdict in July with chairman Sinha stating that the services were legal while member Rastogi categorised them as illegal. The slot of the third member was vacant; so there was no majority verdict. The operators continued the services as they did not see any binding direction to them from the tribunal.
