Case BriefsTribunals/Commissions/Regulatory Bodies

Telecom Disputes Settlement & Appellate Tribunal (TDSAT): A Division Member Bench of Shiva Kirti Singh (Chairperson), J., A.K. Bhargava, Member, partly allowed a telecom petition filed against the manner in which penalties are imposed by the respondent (Department of Telecom) in case of non-compliance of radiation norms on EMF exposure by Base Transceiver Stations (BTSs).

The main issue that arose before the Tribunal was whether the method of imposing penalties in case of non-compliance of radiation norms on EMF exposure by Base Transceiver Stations (BTSs), legally valid.

The Tribunal observed that the main point of dispute in the present matter were those sites where the telecom service providers (TSP) were operating jointly. In case of non-compliance of EMF norms at a shared site, DoT levies same penalty of Rs. 10 Lakh on each and every BTS even though individually they may be radiating within the prescribed norms. The Tribunal further observed that there can be options where penalty can be imposed solely upon the erring TSP or it can also be imposed incidence-wise instead of distributing the entire penalty between all the TSPs irrespective of their liabilities. Imposing penalty upon TSPs who are well compliant with the norms laid down by the DoT is unjust and unfair as puts the defaulters and the non-defaulter on the same footing. Not considering options or alternatives by which the defaulters can be effectively penalized, at the same time saving the innocent TSPs, is totally unjust and arbitrary on the part of respondent.

The Tribunal held that with testing and due diligence, it is possible to rationalize the manner in which penalty was levied and DoT should undertake such exercise in right spirit. There can be no excuse to penalize innocent (when proven) arbitrarily in the name of collective responsibility, there can also be no excuse for ignoring the principle of proportionality to the extent that the result appears to be unjust and arbitrary. Resultantly, the respondent was directed to revise and fix penalty as it deems fit, keeping in mind that in case of a shared site, penalty be imposed on a per ‘site’ and ‘per incidence’ basis for non-compliance of EMF radiation norms. The petition was partly allowed and the circulars issued by respondent were partly modified.[Cellular Operators Assn. of India v. Union of India,2018 SCC OnLine TDSAT 353, order dated 15-11-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Competition Commission of India (CCI): The Bench comprising of Sudhir Mital (Chairperson), Augustine Peter and U.C. Nahta, Members, gave an order in a case filed by Bharat Sanchar Nigam Limited (BSNL) against a company providing passive infrastructure to Telecom Service Providers (TSPs), BPOs, etc. regarding primarily to denial of access to telecom sites sought by BSNL.

In the present case, BSNL (Informant) and Indus Towers Limited (OP) were the parties involved said to have entered into an Infrastructure Sharing Agreement, through which OP agreed to provide access to the Informants on its passive infrastructure.

The allegations and submissions placed on record by the Informant were that it had been asking OP to provide feasible sites since 2016 but was denied with the same. OP is a dominant infrastructure provider with around 2588 sites in Kolkata to which only 6 sites were shared with the Informant. On bringing up the issues before the OP including payment, acceptance of fixed hourly consumption methodology and acquiring of new sites by the Informant, reluctance to resolve the same by the OP was shown.

Commission on a careful consideration to the information and submission placed on record stated in regard to the dominant position of the OP that the Commission notes the underlying principle for assessing dominance of an enterprise is linked to the market power enjoyed by it. Though market share is not a conclusive indicator, it acts as potent screening criteria. The commission was prima facie satisfied that the OP held a dominant position in the relevant market.

Further, coming onto the primary allegation of denial of access to sites by OP, it was noted that the Informant had earlier placed a request for 6 operational towers which implies that Informant was aware of the process for site requests. The access pending for some sites was because there were certain ongoing issues with the procedure. Therefore, Commission found that there were unresolved issues between the parties, which were germane for provision of services sought by BSNL.

Thus, no case within provisions of Section 4 of the act was made out and allegation of denial of access to sites remained unsubstantiated. [BSNL v. Indus Towers Limited,2018 SCC OnLine CCI 85, Order dated 09-11-2018]