The Telecom Disputes Settlement and Appellate Tribunal (TDSAT) pronouncing its order in Vodafone Idea Limited’s telecom petition against the Union of India seeking relief for grant of import license set aside DoT’s letter to VIL denying rant of Import License without renewal of MicroWave (MW) spectrum assignment.
VIL had requested TDSAT to direct DoT to grant necessary instructions to respective RLOs to grant Import Licenses to VIL for importing Microwave equipment in all pending Import License applications and any other such applications in the future without demanding reassignment of Microwave Frequencies.
The telco also requested TDSAT to set aside DoT’s refusal to make an adjustment of the Bank Guarantee of Rs 864.32 crores towards the differential amount between the MW charges out of the excess Bank Guarantees lying with DoT. DoT had asked VIL to first get its Microwave Frequency Spectrum re-assignment from the WPC wing of DoT as a condition precedent for consideration of VIL’s applications for import licenses.
VIL was also told by DoT to provide an undertaking about the validity of the frequency assignment and obtain confirmation of the validity of the earmarking letters from the WPC Wing. The above response from DoT was in reply to VIL’s request for the issue of WPC for importing material that will be operated in the allocated frequency range. VIL was later informed that a valid frequency earmarking letter for the allocated frequency band issued to VIL in the Telangana service area should be submitted.
TDSAT noted that DoT’s letters related to import license merely asked for certain clarifications and documents without denying the validity of frequency authorization letter in respect of MicroWave (MW) frequency. DoT stated that VIL had not followed the due process for MW frequency reassignment rather than it not holding a valid MW frequency authorization. Telecom service providers or any wireless user licensee need a valid frequency assignment letter for the purpose of being granted any import permissions for the equipment to use the authorized frequency.
DoT admitted in TDSAT that the matter was presently under judicial intervention at Hon’ble Supreme Court of India and therefore permissions had not been granted. It further added that TDSAT’s earlier order interfering with the terms and conditions of renewal of authorization had been stayed by the Supreme Court and since VIL did not submit BG for the differential amount, DoT was not in a position to treat the earlier frequency authorization letter of MW spectrum as valid because the term has expired and for grant of import license it is important that frequency authorization letter should not have expired.
VIL brought on record grant of import licenses at several places and for different service areas where the earlier Access Service Licenses had expired and migration to Unified License was carried out in the year 2015. The telco showed that such a similar situation had seen import licenses issued till 07.11.2019. DoT stated that when the judgment of TDSAT stayed in 2019, the Department took the present stand was taken that MW spectrum assignments unless renewed, should not be treated as valid.
VIL in response brought on record another import license issued from RLO, Chennai on 22.10.2020. DoT blamed VIL for the same by stating that it did not have a valid authentication/license for the MW spectrum and it has misled the authority by claiming otherwise.
TDSAT noted that an issue is raised before the Apex Court where the Tribunal’s decision in deciding against VIL that it was liable to pay the enhanced charges at 2006 rates in place of 2002 rates and further whether the tribunal had erred in deciding against DoT by holding that the guidelines of 16.10.2015 cannot be applied to the VIL and similarly situated licenses. TDSAT had also decided to entitle the petitioners to revalidation/reassignment of such frequency carriers in view of the policy and assurance already noticed.
VIL even after the interim order of the Apex Court has been allowed to operate its license including the MW spectrum. The Apex Court hasn’t yet decided the means for renewal for a further period since the terms for renewal determined by the tribunal stayed the Apex Court.
“In such a situation if the respondent had issues relating to validity of earlier authorization of MW spectrum, it would have either taken a precipitate action by appropriate orders or would have approached the Apex Court for further interim conditions or interim renewal. But when that course is not open, the respondent is not at all justified in refusing to issue the import licence for items the petitioner will operate in allocated frequency range. Till the decision by the Apex Court, under the existing interim arrangement respondent cannot treat the authorization/allocation of MW spectrum to be invalid. Petitioner’s telecom operations are being carried out with full knowledge and information of the respondent under the interim conditions as ordered by the Apex Court. Not permitting import of required equipments is illogical and against public interest.”
DoT said that TDSAT had no jurisdiction to consider the prayers because of the Apex Court interim order. The tribunal said that the present issue relating to import license for certain essential equipment which will only improve the services has arisen only after 08.11.2019 and to the issues decided by the Tribunal in the judgment and order dated 13.03.2019 which is the subject matter of appeal pending in the Apex Court wherein interim order was passed on 08.11.2019.
The tribunal set aside DoT’s letter to Vodafone Idea Limited and allowed VIL’s prayer for instructions to DoT for grant of Import Licenses to the telco for import of Microwave equipment in all pending Import License applications without demanding reassignment of Microwave Frequencies. TDSAT remarked that the same should be done urgently.