Two’s Company : TDSAT’s Dual Spectrum Judgment

On 31st March, 2009 the Telecom Disputes Settlement & Appellate Tribunal (TDSAT) pronounced judgment in the case of the Cellular Operators Association of India & Others v. Union of India and Others (Petition №286/2007). This case was popularly known as the dual spectrum allocation case and involved the allocation of spectrum to CDMA operators (principally Reliance Telecommunications) who opted to also offer cellular services under GSM technology. Though the decision is presently impugned before the Supreme Court, the decision provides a deep insight into the direction in which the TDSAT is steering telecommunications law for next 5–10 years.

The findings of the court suggest that technology neutrality has always been part of the deregulatory process. The implications of the findings are that telecommunications companies will not be bound by legacy contracts or provisions and be tied to one particular technology. This will result in a market based adoption of technology, which is most efficient and economical for companies.

Another thing which I find interesting is the reliance which has been placed by the TDSAT on the obiter of the Delhi High Court. When the case was initially filed before the TDSAT, the TDSAT refused to grant stay on the allocation of spectrum, impugning this order the petitioners filed a writ petition before the High Court. The High Court declining to interfere with the order, made certain remarks in the text of its judgment though it cautiously added the caveat that the obiter was restricted to the impugned stay application and was not a finding as to the merits of the case. However, whenever the TDSAT could utilize the obiter of the court to buttress its own findings it has done so and has quoted the obiter to some extent. This shows that the TDSAT though acknowledging that it is not controlled by the obiter still looks to support and guidance from it.

Readers who are interested in more information and background into the Dual Spectrum Allocation Case may refer to a case brief which I have made for the judgment.