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On 25^th February DoT published its Notice Inviting Application for 3 G Spectrum and BWA Auction (click here).  While going through the Notice it can be observered that DoT deliberately sought to ignore few issues which have been the part of public discussion regarding allocation of 3 G spectrum.  After being forced by the PMO (Economic Times Click here), an attitude of hurriedness in conducting the auction can be observered through the manner in which the Notice has been drafted, also the existing framework  fails to address the purpose of allocating spectrum through auction. Since the auction might remain a desirable and transparent method of allocation, but the immediate steps after the allocation tends to raise questions regarding bias towards the incumbent licensee.

Though DoT has assured to introduce certain changes in its policies based on TRAI‘s recommendations on ““Overall Spectrum Management and review of license terms and conditions” ( at present TRAI is carrying out a consultation with the stakeholders on this). But despite such assurances DoT through its notice has failed to address the issue adding to the woes of new entrants. Due to the backhaul in granting licenses and start-up spectrum there is already a Delhi HC decision directing DoT to award UAS licenses to the applicants who have applied for licenses before October, 1, 2007 who have not yet been awarded licenses, prior to any potential new entrants. Though DoT is contesting this decision at Sc but despite any such assurances it would expose the new entrants to the risk of running losses. As it will not be feasible for any successful bidder who is also a newly entrant to acquire UASL within specific time period and a condition of compulsory requirement of UASL licenses in the Notice.

Despite such a serious implication on the subsequent allocation of 3 G spectrum due to mismanagement and backhaul of spectrum allocation during 2 G allocation, DoT failed to impose an obligation upon itself to allocate 3 G spectrum by the proposed deadline September 20, 2010.  As reported earlier there was a clause which obliged the Government will refund the bid amount in case the auctioned spectrum was not allocated by the deadline but due to the uncertainty in availability of spectrum from Defense forces and subsequent litigation seeking compensation (Click here) . DoT removed this clause from NIA based on Law Ministry’s recommendation. But removal of this clause might hamper the investor sentiments and many of foreign have decided to opt out owing to this uncertainty.

In a previous post about  TDSAT’s decision where the approach adopted by DoT and TRAI in allocating ISPs 2.5 GHz to 2.69 GHz bandwidth exclusively for ISP usage has been  critiqued as the it differs from the ITU prescribed bandwidth. In NIA similar approach has been adopted where clause 2.4 of the notice “ The Successful Bidder shall provide details of the technology proposed to be deployed for operation of its services prior to launch of commercial operations. The technology should be based on standards approved by ITU/ TEC or any other International Standards Organization/ Body/ Industry”. But despite mentioning the ITU prescribed standard the DoT has ignored a the ITU’s standard, as the prescribe bandwidth of auction ranges from 2.3GHz band.

Also the DoT website has provided a separate page where DoT has tried to address important queries raised by the stakeholders during various discussions with DoT ( Click here). While going through those queries and its answers it seemed that government is biased towards state owned MTNL/BSNL i.e.

In query number 32 a query was raised that worldwide, spectrum in 2.5GHz band has gained larger acceptance and has more evolved ecosystem compared with 2.3Ghz, though both are well suited for BWA services. But given that current auction is limited to 2.3Ghz only, it is unlikely that a fair value would be derived for 2.5 GHz in this auction. What rationale is being used for payment of BWA spectrum by MTNL and BSNL,who happen to already own spectrum in 2.5Ghz by comparing with what may be derived for spectrum in 2.3 GHz? Ideally they should pay more for spectrum obtained in 2.5GHz!

But given that current auction is limited to 2.3 GHz only, it is unlikely that a fair value would be derived for 2.5 GHz in this auction. What rationale is being used for payment of BWA spectrum by MTNL and BSNL, who happen to already own spectrum in 2.5Ghz by comparing with what may be derived for spectrum in 2.3 GHz? Ideally they should pay more for spectrum obtained in 2.5GHz!

The Government instead justifying its decision or explaining rationale behind such decision, described the determination price issue as its sole discretion. Now the purpose of allocation is meant for discriminating between private and Public sector companies and even if there are certain kind of benefits accrued to BSNL/MTNL in pursuance of their objective of serving rural population there should be certain justification associated with it.

In another query, number 244 DoT was asked to confirm that the amount paid by BSNL/MTNL for 3G & BWA spectrum will not be funded from the USO fund? In reply to this DoT emphasized that this decision is within the purview of BSNL/MTNL. Now USO ( Universal Service Obligation) is a fund dedicated to devlop infrastructure for rural communications therefore it is unjustified on the part of BSNL/MTNL to use those for profit purpose. The DoT cannot determine the mode of funding for BSNL/MTNLS but at least it has a role to play and dissuade BSNL/MTNL from any such attempts.

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TRAI will be holding Open House Discussion on the Amendments required in the Telecom Consumers’ Protection and Redressal of Grievances Regulations, 2007 and Foreign Investment in Broadcasting Sector on 24^th and 25^th February at Delhi. Interested Stakeholders/industry representatives are invited to participate. For more details please click here and here.

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Yet another spectrum issue… but this time both DoT and TDSAT has to share the blame on an equal basis…!!

Last year ISPAI ( a lobbying organization of ISP similar to COAI) sued DoT for making them surrender 2.5 GHz Wimax spectrum and ‘discriminating’ against ISPs. The spectrum was already allotted to ISPs in 2003, which DoT had asked all ISPs to surrender, to be put to auction. On 20th January, 2010 TDSAT delivered its decision on this issue (a copy of the judgment is provided here). There are certain issues which have been raised in this case and which requires our due attention.

The issues in this case were-

• Whether DoT has any obligation to follow TRAI’s 2007 recommendations on Spectrum Auction and Broad band policy 2004 in letter and spirit.
• That the prescribed Spectrum Auction guidelines fails to distinguish between an ISP license holder and UASL license holder thereby giving unfair advantage to  UASL license holder over ISP license holder.
• That MTNL/BSNL has been given unfair privileges under the prescribed guidelines.
• That the guidelines failed to protect the interest of small players like ISPs.

Though ISPs because of their plight and owing to their hardship in acquiring spectrum has my entire sympathy and support for their cause but the approach adopted by their counsels seems to influence the course of this case rather than the point of law or issues raised in this case, which I think if argued in a more systematic manner could have led to a different outcome. Also there are certain fallacies associated within the approach adopted by TDSAT.

The primary contention raised by the counsel for the petitioner was that DoT has largely ignored TRAI’s recommendations on spectrum auction and Broad Policy 2004. Though DoT refuted the petitioner’s contention by referring that “TRAI recommendations for allotment of spectrum to the ISP license holder is being confined to 3.4 to 3.6 GHz band, which is not the subject matter of auction”.  As the proposed guidelines are suppose to deal with the auction of spectrum bandwidth ranging from 2.3 to 2.4 GHz band and 2.5 to 2.69 GHz band respectively.

If we refer to Section 11 of the TRAI Act, the recommendation of TRAI is not binding on the DoT while drafting any policy. While DoT also cannot completely ignore TRAI’s recommendations as it has been acknowledged by TDSAT in this case. TRAI recommendation has more or less a persuasive while framing any policy.

Despite acknowledging TRAI’s influential role in policy making the TRAI’s recommendations are not much of a help for the contention raised by ISPAI. Since  TRAI in its recommendation suggested 3.4 to 3.6 GHz band as the suitable bandwidth for ISPs and the ISPs  2.5 GHz to 2.69 GHz band for usage as the suggested 3.4 to 3.6 GHz bandwidth is economically inefficient due to the high-cost equipments and infrastructure required for its usage.

Apart from this primary contention another contention which seemed to be more rationale in its approach and which TDSAT failed to appreciate is related to ITU (International Telecommunications Union) suggested bandwidth for ISP and BWA usage.

As the Tribunal mildly rebuked the petitioner’s counsel for not raising the issue of  ITU suggested bandwidth for ISP and BWA usage during consultation with TRAI.  Since TRAI   recommendation suggested 3.4 to 3.6 GHz band as the suitable bandwidth for ISPs and if petitioner could raised this their concerned regarding proposed bandwidth TRAI would recommended ISPs  2.5 GHz to 2.69 GHz bandwidth exclusively for ISP usage. ITU suggested the bandwidth only in 2006 and by 2007 few ISP acquired the ITU suggested bandwidth for usage. But the TRAI recommendation on spectrum auction was released on 2006 which suggested the proposed 3.4 to 3.6 GHz bandwidth and during and during the year 2007 there is TRAI recommendation on Growth of Broadband which is based on the spectrum bandwidth suggested by the previous 2006 recommendation. Therefore during the year 2007 there was neither any consultation or any recommendation regarding any bandwidth which TDSAT has failed to notice while addressing the contention regarding ITU suggested bandwidth.

Moreover TRAI has a mere recommendatory power and these recommendations cannot be challenged in court as they are not binding in nature. But DoT’s guidelines are binding therefore when DoT proposed these guidelines then only petitioner approached this court and TDSAT cannot reject this issue as non-justiciable or on a ground for not raising this issue before TRAI.

Though owing to the present circumstances regarding 3 G ruckus caused due to DoT lacunae in policy framing it might not be plausible for DoT to address this issue on a priority basis or to cancel BSNL/MTNL’s 3 G licenses but at least TDSAT should have asked DoT to reserve certain spectrum within the ITU proposed bandwidth during proposed spectrum auction.

The dynamics of this entire case would have been different if the counsels for the petitioner instead of relying entirely on TRAI’ recommendation could have argued that DoT has acted arbitrarily and against the public interest while destroying the level playing field….

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Summer Internship Program 2010……

For 10 weeks each summer The Berkman Center for Internet & Society at Harvard University swings opens the doors of its big yellow house to welcome a group of talented, curious, and energetic full-time interns who are passionate about the promise of the Internet and issues related to media and journalism, civic engagement, policy, identity and privacy, education, technology, the developing world, law, and more. The interns team up with Berkman projects like Herdict, Cooperation, Digital Natives, Law Lab, Internet & Democracy, or the OpenNet Initiative, where they have an opportunity for deep and substantive involvement in project operation.  Performing topic-based research; drafting and editing blog posts, papers and other written outputs; conducting outreach, developing partnerships, and maintaining relationships; exploring project and research design; and undertaking academic responsibilities of all kinds both independently and collaboratively are part of the Berkman summer intern experience.  Specific tasks and experiences vary depending on interns’ skills and project needs.

In addition to contributing to project based work, summer interns participate in special events and lectures with Berkman faculty and fellows, engage each other through community experiences like the weekly interns discussion hours, and each year innovate for themselves new opportunities for fun and learning, like organizing debates, producing podcasts and other media outputs, and hosting book clubs and cookoffs (!).

The word “awesome” has been thrown around to describe our internships, but don’t take our word for it. Zack McCune, a summer intern from 2008, had this to say: “it has been an enchanting summer working at the berkman center for internet & society.  everyday, i get to hang out with some of the most brilliant people on the planet. we talk, we write (emails), we blog, we laugh, we play rock band. and when things need to get done, we stay late hyped on free coffee and leftover food. it is a distinct honor to be considered a peer among such excellent people. and i am not just talking about the fellows, staff, and faculty, though they are all outstanding. no, i mean my peers as in my fellow interns, who are almost definitely the ripening next generation of changemakers.”

Eligibility:
* Internships are open to students enrolled across the spectrum of disciplines;
* Internships are open to students at different levels of academic study including undergraduate, graduate and PhD. programs;
* Summer interns do not have to be affiliated with Harvard University;
* We welcome summer interns from universities across the world, however we can not pay international students who have not yet received an undergraduate degree.

Time Commitment: Summer internship positions are full time (35 hours/week), and the summer program runs for 10 weeks from June 1 to August 15.

Payment: Interns are paid $11.50 an hour.  Please be forewarned that stipends may not be sufficient to cover living expenses in the Boston area. No other benefits are provided, therefore interns must make their own housing, insurance, and transportation arrangements.

For additional info please refer to… http://cyber.law.harvard.edu/getinvolved/internships#summer

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Legal concerns have been the primary reason behind this delay as the law ministry has made it clear that there might be “serious legal challenges” in the bidding process if spectrum cannot be made available till September.  Reason behind this legal concern is the availability of spectrum as there has not been any commitment from the defense forces on vacation of spectrum within a particular time frame and in case of delay the operators have raised demands to compensate them for that delay.

Also the cherished ideals of “Technological Neutrality” have been ignored while framing policies. The concept of “Technological Neutrality” came into forefront during “Dual-Technology” case before TDSAT. Though the TDSAT judgment in this case has not been endorsed by the large section of media, stakeholders and practitioners as it further demarcated the divisions between CDMA and GSM technologies and the facilities available to them as there has been  allegation against DOT for introducing the “Dual Technology” principles for the benefit of companies like Reliance Communications and Tata Tele.

The TDSAT Judgment is based on certain assumptions that there is no difference between “Technological neutrality” and “Dual Technology” and the Government should further promote “Technological Neutrality” in the form of Dual Technology regulations. The concept of “Dual Technology” further facilitates the removal of technological and policy barrier between GSM and CDMA operators. Despite the presence of such cardinal principle, the cherished ideals of that principle have largely been ignored by DoT while framing polices regarding 3G Auction.  If the policy framework and institutional approach are analyzed thoroughly it can be alleged that the CDMA operators are favored over GSM operator as both 2G and 3G services are offered using the same airwaves or spectrum to the CDMA operators. While DoT has been clear in its approach that it will not give any favor to GSM operators during the proposed successive 2 G auctions as an incentive.

Then only   5 MHz… as all the stake holders have raised this question that the amount of spectrum allocated will not provide a viable business proposition. Moreover it will be too cumbersome for new entrant GSM operator to operate within the limit of 5 MHz. In a way DoT itself is flouting the principles of “Technological Neutrality” which it meticulous argued before TDSAt in Dual Spectrum case, which further challenges its legitimacy as an institution of governance.  Also the Government seems too eager to invite international participation but despite all its eagerness it has limited the participation for GSM space only.

Therefore despite Telecom Minister’s over willingness to engage in auction of spectrum as soon as possible it is still not clear what he wants. It is desirable not to have spectrum auction without revising the present framework.

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From now I will be contributing at this blog and I hope you all will enjoy my posts and other contributions.

My first post seeks to address few issues related to the newly introduced TRAI regulations regarding Mobile Number Portability (hereinafter referred as MNP). Number portability, is a kind of service which allows a telephone subscriber to retain his/her number despite moving from one access provider to another. The reason behind such a move by the Telecom Regulators is to enhance the freedom of subscribers, and to increase competition amongst access providers, with an objective to further encourage improvement in the quality of services. After a detailed discussion and consultation with the stakeholders, TRAI issued the Telecommunication Mobile Number Portability Regulations, 2009 on 23-9-2009 (available at http://www.trai.gov.in/WriteReadData/trai/upload/Regulations/89/Regulation23sep09.pdf). There are certain new concepts introduced through these regulations.

Mobile Numbers Portability- Regulation 2 (i) defines MNP as “the facility which allows a subscriber to retain his mobile telephone number even  when he moves from one access provider to another irrespective of the mobile technology or from one cellular mobile technology to another of the same access provider.”  Now as per this definition a subscriber will be able to shift from (1) one access provider to another (2) CDMA to GSM or from GSM to CDMA of different access providers (3) one technology to another technology of the same access provider. This service is highly beneficial for the subscribers as it gives ample choice to choose from various access providers. But it is also important to know the process and how this whole system of MNP works.

Porting- The process initiates with the subscribers request for a new connection. The subscriber is suppose to submit a “porting request form” to the recipient operator (access provider who will be providing mobile telecommunication service to the subscriber after porting) with all documents required for a new connection i.e. photo id, address proof, etc. along with a copy of the last bill of the donor operator (to whose network the mobile number belongs at the time the subscriber makes a request for porting). The recipient operator then verifies all the documents and after verification the recipient operator has to inform the subscriber. The subscriber has to send a request to the donor operator to initiate porting process and the donor operator in return will forward an SMS with a unique porting code to the recipient operator. After receiving the porting code the recipient operator has to send all the documents with porting code to the MNP operator within next 24 hours.

The MNP operator’s task is to facilitate porting process between two operators. After receiving all the details from recipient operator including porting code the MNP operator forwards all the documents to the donor operator for clearance. But before forwarding the documents MNP operator has to verify few details i.e. the number has been previously ported in the immediately preceding 90 days (as ninety days is compulsory for a subscriber to stick to one access provider) or if there is any other request for porting the same number is pending. After receiving all the details the donor operator within 24 hours and has to report back to MNP operator after verifying all the details and the porting code.

Thereafter MNP operator has to complete the porting within next 36 hours and is supposed to communicate the date and time of porting to both the operators. The MNP operator at the specified time instructs the donor operator to disconnect the subscriber’s number from its service and report compliance within one hour of such instructions. Thereafter, the MNP operator informs the recipient operator to activate the number on its network within one hour thereof.

Also the subscriber is supposed to pay a porting charge and he is also entitled to cancel his porting request but his porting charge will be non- refundable.

Till this date the MNP regulations remains unopposed as it was drafted after a prolonged and detailed discussion with the concerned stakeholders. Though at a preliminary stage there was little opposition but even that was also addressed by the authorities. Most of the regulations was supposed to be effective from 31^st December, 2009 in respect of Metro and Category ‘A’ licensed service areas; and the 20th March, 2010 in respect of other licensed service areas. Though Number Portability got further delayed due to disagreement between the operators with respect to the prescribed Tariff distribution (details available at Govt puts off mobile number portability by three months http://www.livemint.com/2009/12/31142858/Govt-puts-off-mobile-number-po.html).

But there remains certain issues which both the industry and the policymaker should address.

• There are problems with the institutional framework envisage by the MNP regulations as the MNP operator is left without any recourse if the porting charges are not paid, as the Regulations prohibit suspension of porting facility despite non-payment of porting charges.

• Though the onus of this whole procedure of porting more or less lies with the recipient operator which is beneficial for the subscribers up to a certain extent. But few important subscriber rights are also ignored like the pre-paid subscribers are not entitled to a refund of the balance talk-time and the post-paid subscribers also has to do a lot of time consuming paper work for a refund of any deposits, etc. It would have been much viable if balance talk time could have been transferred with the subscriber’s number to the recipient operator.

• Another major lacuna which this regulation fails to address is the problem associated with repeated incorrect billing and/or overcharging by the access providers. Since the onus lies with the subscriber to prove that all the dues of the donor operator has been paid, then in that case if the  bills are incorrect, the subscriber is left without any remedy while the donor operator could, without justification, prevent the porting. I would like to suggest for a creation of ombudsman or similar kind of mechanism to deal with this problem. As we are all aware that if the subscriber proceeds under Consumer Protection Act how much cumbersome and time consuming the process is. In the meanwhile the subscriber cannot switch over to a new access provider with the same number. Therefore it negates the whole vision of Consumer benefit which these regulations envisage to promote.

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