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Former Supreme Court judge Justice KSP Radhakrishnan has given a legal opinion that auctioning of specrum is the only permissible mode of assigning spectrum for satellite-based communication services.
Radhakrishnan held that there is no discernable difference between satellite and terrestrial spectrum; therefore it would be incorrect to seek a distinct policy for satellite airwaves.
Reliance Jio has submitted Radhakrishnan’s views to the telecom regulator, which is holding a consultation on the matter. Many satellite companies are seeking entry into the Indian market and they want the government to allocate satellite spectrum; Reliance Jio, on the other hand, wants the Centre to auction the spectrum instead.
In 2012, the Supreme Court delivered a landmark judgement related to the 2G spectrum allotment scandal, cancelling over 122 2G licences. It held that auction was the only way to assign spectrum. Radhakrishnan was part of a two-member SC bench that examined petitions from seven telecom companies, the central government, and former minister A Raja that sought a review of the 2G verdict. The second member, GS Singhvi, had also been part of the bench that delivered the 2G judgement.
In his 16-page legal opinion, Radhakrishnan held that while the Supreme Court left open the possibility that natural resources can, at certain times, be alienated (allocated) by different means (besides auctions), in cases where allocation of resources is for commercial pursuits by private companies, any method other than auction may be arbitrary and in violation of Article 14 of the Constitution of India.
Arguing that the 2G judgement does not apply to satellite spectrum, Radhakrishnan states that it needs to be established that the allocation of spectrum to private parties is not for commercial pursuits or profit maximisation.
Radhakrishnan also argues that there is no discernible difference between satellite spectrum and terrestrial spectrum, as they inhabit the same spectral wavelengths; and satellite spectrum is being used to supplement or expand an operator’s terrestrial network.
Radhakrishnan also countered the most common argument against auction of satellite spectrum — namely that the exclusive allocation of satellite spectrum will lead to inefficient utilisation. He added that TRAI supports exclusive allocation of satellite spectrum on lower bands, namely L band and S band. In the case of higher bands such as the C band, Ku band and Ka band, TRAI’s suggestion for intra-band spectrum sharing can be incorporated.
“To rule out the modality of auction in its entirety of satellite spectrum, seems premature and misplaced Given that TRAI has taken cognisance of the peculiarities of satellite spectrum and sought to accommodate them within a constitutionally approved set-up,” Radhakrishnan concluded.
“There is no discernible principle based on which spectrum can be assigned,” he added.
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