This article is written by Charul Mishra, a student pursuing B.A.LLB from Symbiosis Law School, Hyderabad.. In this article, the author has dealt with the introduction of Telecom Regulatory Authority and Telecom dispute settlement and Appellate Tribunal and procedure of dispute settlement by the Tribunal.
Table of Contents
The Telecom Regulatory Authority of India Act which is also known as the TRAI Act was sanctioned on 20th February 1997. The creation of the Telecom Regulatory Authority of India had begun from the grant of the first set of cellular licenses under the Telecom Policy, 1994. Various Contentions were given against the Telecom policy stating that this policy neither provided for the formation of any separate Telecom Regulatory Authority nor did it provide for the delegation of power by the Central Government. This is when the Telecom Regulatory Authority Act, 1997 of India came into the picture.
With this Act, the Government of India established a statutory body named as the Telecom Regulatory Authority under Section 3 of the Telecom Regulatory Authority of India Act, 1997. This Body was established to regulate the telecommunication sector in India and adjudicate disputes, dispose of appeals, and protect the interests of both service providers and their clients. The Act also promotes the orderly growth of the telecommunication sector. The body of TRAI consists of a Chairperson and not more than 4 members half of which work full time and part-time respectively. The Chairman should be a sitting or retired judge of a High Court and the Members should be well-known to, and have experience in the telecommunication industry, finance, accountancy, law, management, and consumer affairs.
Functions of TRAI
The TRAI has various roles to perform in the telecommunication sector, also covered under Section 11 of the Act. The TRAI is empowered to adjudicate upon disputes occurring amongst service providers or between the service providers and the consumers. These disputes are mainly concerning technical compatibility and interconnection between the Service providers, revenue sharing arrangement between the Service Providers, and the quality of telecommunication services and interests of consumers. Under the act, TRAI is also empowered with the right to issue directions to the service provider. Further, if the parties to the dispute find the award of the tribunal to be irrational, they can appeal to the High Court from there to the Supreme Court.
Although, afterward, the adjudicatory powers of the TRAI were challenged before the Delhi High Court by contending that the TRAI did not have the Jurisdiction to issue directions to the Department of Telecom in the latter’s capacity as a Licensor. The Delhi High Court held that TRAI did not have the right to possess such adjudicatory powers and issue directions to the Department of Telecom in the latter’s capacity as Licensor. But this posed a huge problem as for a long time there was no separate dispute settlement mechanism available to adjudicate upon disputes between the licensor and the licensee. This led to the amendment of the Telecom Regulatory Authority of India Act, 1997 in 2000 which divided the function of Telecom Regulatory Authority of India into two separate bodies i.e. the Telecom Regulatory Authority of India and the Telecom Dispute Settlement and Appellate tribunal. These bodies were vested with recommendatory and regulatory functions and dispute settlement functions respectively.
Duties of TRAI
The TRAI also has to make recommendations to the Central Government apart from discharging various functions as given under Section 14A of the Act. Those recommendations can be related to the following heads:
- Ensure compliance with the terms and conditions of the license.
- Set interconnectivity terms and conditions among service providers.
- Ensuring compatibility between different services and effective interconnection.
- Regulate certain revenue-share agreements for the delivery of telephone service between service providers. Set quality of service standards and also ensure that periodic surveys are conducted as to the implementation of quality of service standards.
- Lay down and guarantee capacity for local and long-distance connections between various telecommunications companies.
- Set interconnectivity terms and conditions among service providers.
- Any member of the public should be made available for inspection for payment of a fee to maintain a register of interconnection agreements among service providers and such a register.
- Ensure effective compliance with universal service obligations.
- Levy charges at such rate and for services as determined by regulations.
Although these recommendations are not binding upon the Central Government, it should be considered for the benefit of the consumer and service providers. It is made mandatory for the Central Government to ask for the recommendations from the TRAI concerning the need and timing of new service providers and conditions of the license to be granted to the service provider. After such an approach by the Central Government, the TRAI is obligated to put forward the recommendations within 60 days from the date of request of recommendation. Also, for making any recommendations, the TRAI can ask for necessary documents or information for which the Central Government should reply within 7 days of any such request.
The Central Government can also send the recommendations back to the TRAI if they don’t find the recommendation acceptable or find them in need of modification. The TRAI is also given the power to provide the rates at which telecommunication services are being provided in and outside India to the official gazette. The Act also provides that the TRAI should ensure the utmost transparency when it exercises its power and functions. With this, Section 12 provides that the TRAI can call for information and conduct information regarding working of authorities in telecom sectors and further,it can issue directions under Section 13 of the Act.
The Telecom Dispute Settlement and Appellate Tribunal
Background and History
The former Prime Minister of India was the first person to heed importance to the need for the policy of liberalization in India which would help the Indian Telecom sector to grow promptly. Due to this, the government steadily allowed the entry of various private sectors into the telecom equipment manufacturing, radio paging, Value-added services, and cellular mobile services. The entry of private telecommunication bodies needed a regulatory body to orderly control their services. This is the reason why the Telecom Regulatory Authority of India Act was established in India. Afterward, the Vajpayee government constituted the Telecommunication Dispute Settlement Appellate Tribunal which was established after the amendment of the Telecom Regulatory Authority of India Act in 2000.
The Telecom Dispute Settlement and Appellate Tribunal (TDSAT) was established under Section 14 of the Act to adjudicate the disputes and dispose of the appeals to protect the welfare of the service providers and consumers of the telecom segments. Further, the Government of India included broadcasting and cable services within the purview of the TRAI Act in January 2004. Later, after the relevant provisions of the Finance Act, 2017 came into force in the telecom sector, the jurisdiction of the Telecom Dispute Settlement and Appellate Tribunal were inclusive of the matters which were already presented to the Cyber Appellate Tribunal and Airport Economic Regulatory Authority Appellate Tribunal.
The Telecom Dispute Settlement and Appellate Tribunal consists of a Chairman and two members which are appointed by the Central Government as given under Section 14B of the Act. The qualification for the Chairman is that he or she should be or have been a judge in the Supreme Court or the Chief Justice of any High Court. For the members, the qualification is that they should have held the post of secretary to the Government of India or any equivalent post of Secretary to the Government for not less than two years or a well-versed and experienced in the field of technology, telecommunication, industry, commerce or administration. Currently, the Chairman for TDSAT is Justice Shiva Kirti Singh and the Members are A K Bhargava and Musharraf Husain as registrar. The Chairperson can hold office till the time he attains the age of 75 or completes 3 years, whichever time is earlier. Similarly, the members of the Tribunal can hold office till they attain the age of 65 years or complete 3 years, whichever time is earlier.
The Tribunal has the power to exercise its jurisdiction over Telecom, Broadcasting, Information Technology, and Airport tariff matters under the Telecom Regulatory Authority Act, 1997, Information Technology Act, 2000, and the Airport Economic Regulatory Authority of India Act, 2008. The Tribunal exercises original as well as appellate jurisdiction regarding Telecom, Broadcasting, and Airport tariff matters. Concerning Cyber matters, the Tribunal exercises only the appellate jurisdiction. However, the Tribunal cannot try any matter which deals with anti-competitive trade practices or any other consumer complaint.
Process of registering a dispute
Section 16 of the TRAI Act lays down the procedure and power of the Telecom Dispute Settlement and Appellate Tribunal and whatever procedure laid down in the Civil Procedure Court does not apply to the Tribunals and only apply to the Conventional Court in India. In addition, the appeal of the final order of the Tribunal in a case can be appealed directly to the Supreme Court pursuant to Section 18 of the TRAI Act. However, where if an order has been passed by the Tribunal with the agreement of the parties to the conflict by mediation or general settlement, no appeal may be made to any court or tribunal. Under five years of its establishment, the Tribunal has made the decision on 400 cases involving multi-faceted issues of law.
Process for appeals
The procedure and grounds for appeal in the Tribunal are provided under Section 14A of the TRAI Act. It states that the Central Government, state government, any other local authority, or any other person can approach the Tribunal for the adjudication of disputes between the licensor and licensee, two or more service providers, or between the service provider and group of consumers. A person can approach the Tribunal for appeal when he is aggrieved by the decision of the TRAI. This appeal has to be made within 30 days from the date when the aggrieved party received a copy of the decision or whenever the Tribunal directs to do so. However, like any other court process, the Tribunal can condone the delay if reasonable justification is provided by the aggrieved party for the delay which was held in the case of Bharati Telnet v. Union of India, (2005) 4 SCC 72. Further, the Tribunal hears the parties and their contentions and passes the orders accordingly. After passing the order, the Tribunal must send a copy of the order to the TRAI. The Tribunal also must dispose of the appeal within 90 days of receiving the application of appeal.
Apart from this, the following are the matters on which the Central Government, state government, any other local authority, or any other person can approach the Tribunal for the adjudication of disputes between the licensor and licensee, two or more service providers, or between the service provider and group of consumers:
- Need and timing of a new service provider.
- Terms and conditions of the license may be granted to the service provider.
- Revocation of license for not following the term and conditions of the license.
- Measures to enable competition in the market and encourage efficiency and growth in the telecom sector.
- Category of instruments to be used by the service provider.
- Technological improvements in the services.
- Measure for development of telecommunication technology.
- Spectrum management.
The telecom Regulatory Authority of India has become very important in regulation of telecommunication in India. With the increase in private service providers, it has become necessary for the authority to work efficiently and according to the interests of the consumers as well as the service providers. The Act is completely sufficient to tackle all the problems concerning the telecommunication sector. Although, in various cases, the Court has insisted on the efficient use and better implementation of the Act. Thus, with the competing times, the authorities should proficiently work and govern all the given entities in accordance with interests of the Country.
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