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Thomas K Thomas

New Delhi , Sept 16

WHEN it comes to establishing the legality of its orders, the Telecom Regulatory Authority of India (TRAI) seems to be finding a problem convincing the telecom tribunal.

Of the 10 major cases filed against the telecom regulator in the last four years, the Telecom Dispute Settlement Appellate Tribunal (TDSAT) has ruled in favour of the TRAI only twice.

However, considering that the TRAI has issued over 40 tariff orders and 60 directives during this period, the number of disputed regulations seems to be miniscule.

One of the biggest blows that the telecom tribunal handed down to the TRAI was on April 21, 2004 when it ordered that the telecom regulator did not have any powers to intervene in disputes between operators.

The TDSAT had said: "When dispute arises if there has been any breach of the licence agreement or of the terms of the interconnectivity between the service providers, it is the Appellate Tribunal (TDSAT) which is the sole judicial authority to decide the dispute."

When the TRAI approached the tribunal seeking a review of the order in August 2004, the TDSAT reiterated its earlier order. Since then, the two have been fighting over the issue in the Supreme Court.

The TDSAT has also hauled up the telecom regulator for not following the procedures while announcing orders on a number of occasions.

For instance, in a dispute between BSNL and the TRAI on providing direct connectivity to private operators, the tribunal ruled that the regulator had erred in withholding data from the incumbent.

"We reject the claim of TRAI to withhold data on the ground of its being of confidential in nature and we direct that data be disclosed to BSNL," the TDSAT said in an order on December 12, 2004.

In April this year, the TDSAT quashed the TRAI 's order on reducing international bandwidth tariff by 70 per cent on the grounds that the telecom regulator had not followed appropriate process in fixing the tariffs.

"It is difficult to appreciate the argument that the TRAI is not required to comply with the principles of natural justice and therefore, not required to disclose the material relied upon or methodology. In this view of the matter we are of the opinion that in the absence of non-disclosure of information to the appellant principles of natural justice have been violated and so also, the TRAI has breached the mandatory requirement of transparency in its functioning."

The telecom regulator has had its share of success. In January this year, the tribunal refused to stay the order on access deficit charge as appealed by MTNL. In February 2002, the TDSAT held up the TRAI order against Bharti for offering discriminatory tariffs.

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