TATA TELESERVICES LTD. v. BHARAT SANCHAR NIGAM LTD. AND ORS.

• A the appellant in its MSC. For levy of ADC, integrity of numbering plan is very important. In the present case, TRAI has detected that the appellant is providing WLL(M) service in the garb of fixed wireless phone service (FWA) which disturbs the integrity of the numbering plan. It is important to note that in the case of B full mobility, the rate is different as compared to the rate in the case of limited mobility as compared to the rate in fixed wireless ,,. service. This difference in the rates is spelt out in IUC Regulation,

2003. It is for this reason that even in the clarification issued by DoT on 23.3.2005 that DoT had warned the access providers c by pointing out that the issue of mobility has implication with respect to the applicability of ADC. It was further clarified that if it is not possible for the access provider to comply with the requirement of PSR then the Walky services shall be treated as WLL(M) service for all purposes including numbering plan, interconnection usage charges, ADC etc. This is because a D separate level with allocated short distance charging area based ... link numbering is to be used for wireline and fixed wireless services. ADC is a levy. It is based on what is called as recognition of services. Mobility is an important service feature. The record indicates that right from 2003 when UAS licence stood issued the classification was contemplated by the licensor-DoT when it categorized wireless service into full mobility, limited mobility and FWA. ADC, interconnection usage charges etc. follow that classification. IUC Regulation, 2003 imposes the statutory charges based on the classification in the licence. What is important in this case is that besides • technological data, even as a matter of policy if there is a contract between DoT and the access provider in terms of UAS licence which provides for three categories then the levy of ADC would depend upon the service which is rendered to the user by the access provider. In the circumstances, apart from technology, this case is more on tax policy which levies ADC on services which fall in the category of WLL(M). ,..

44Copy pinpoint44. Fourthly, wireless systems differ in the amount of mobility that they have to allow for the users. The ability to move H

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NIGAM LTD. AND ORS. [KAPADIA, J.] .... around while communicating is one of the main features of A wireless communication for the user. However, within that requirement of mobility, different grades exist: (i) Fixed Devices: Fixed devices are placed only once. There is no B ~ mobility of the user devices in this grade. The main object for using such devices lies in avoiding the laying of cables. All wired communications fall also in this category (example: PSTN).

(ii) Nomadic Devices: c Nomadic devices are placed at a certain location for a limited duration of time and then moved to a different location. Laptops are typical example of nomadic devices. D ~- (iii) Low Mobility: Cordless phones are typical example of low mobility.

45Copy pinpoint45. The point to be noted is that in the licence we have three types of wirelss services, namely, limited mobility, full mobility and FWA. IUC levies the charge based on this classification. ADC is a part of IUC. ADC is also levied under IUC Regulation, 2003. In the case ofWalky, the instrument can be put in the car, it can be carried throughout SDCA and Walky calls can originate not only from the subscriber's premises but it can also originate from any point in the SDCA. Because of this mobility, it is classifiable in the category of limited mobility. As stated above, in the case of FWA [WLL(F)] there is no mobility of the user device. When there is no such mobility of the user device, it is similar to all wired communications. Therefore, FWA G is categorized as WLL(F). All wired communications can also fall in WLL(F) for the purposes of levy of ADC. However, since ~

~--.... - the user device in the case in hand is mobile throughout SDCA, the services which the instrument Walky offers has to be categorized as WLL(M) service. In the present case, we find H

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,._ A merit in the contention advanced on behalf of BSNL that the appellants were providing WLL(M) services during the above period in the garb of FWA or fixed wireless phone services and thereby they have infringed the integrity of the numbering plan. Therefore, ADC is payable by the appellants for the aforesaid B period, namely, 14.11.2004 to 26.8.2005. _,

46Copy pinpoint46. Lastly, as stated above, classification of services stood effected under UAS Licence 2003. Under the terms and conditions of that licence, the access providers were required to maintain the integrity of the numbering plan. This was one of c the conditions of the licence. Similarly, classification/ categorization of wireless services was done under the licence. The categorization constituted the term of the licence. As a matter of follow-up for the purposes of levy of certain charges, including AOC, !UC Regulation 2003 stood enacted. Under Section D 11(1)(b) of the 1997 Act, the TRAI is empowered to ensure compliance of terms and conditions of licence and to fix the .., terms and conditions of inter-connectivity between the service providers [see: section 11 (1 )(b)(i) and (ii)] Similarly, under Section 11(1)(c), TRAI is also authorized to levy fees and other E charges at such rates and in respect of such services as may be determined by regulations. In the present case, the IUC Regulation, 2003 indicates by way of schedule the rate chargeable for a call originating from mobile to fixed, fixed to fixed, fixed to mobile etc. Under Section 13 of the 1997 Act, F TRAI is empowered to issue directions from time to time to the service providers for the discharge of its functions under Section 11 (1) of the 1997 Act. As stated above, the classification of the three wireless services was done under the licence. The clarification issued by TRAI on 4.3.2005 was under Section 13 of the 1997 Act. In the circumstances, the said clarification dated G 4.3.2005 was issued by TRAI in accordance with law.

47Copy pinpoint47. In our judgment, we have examined the nature of the services, the status of the circulars issued by TRAI and the status of the directive issued by Do T. The reasons given in our judgment H are in addition to the reasons given in the impugned order dated

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NIGAM LTD. AND ORS. [KAPADIA, J.] A 9 9.2005 by TDSAT. We find no infirmity in the judgment of A TDSAT.

48Copy pinpoint48. Mr. Arun Jaitley, learned senior counsel for the appellant, on the issue of Unilateralism submitted that when the question - whether portable WLL(F) Phones should be _,. . treated alike as WLL(M) phones was pending before TRAI pursuant to complaints from BSNL dated 4.1.2005, was it B

open to TRAI to issue a directive as is done in this case on 4.3.2005 without waiting for a Determination by the Competent Authority. In this connection reliance was placed on paras 2.26 and 2.27 of the Consultation Paper. We find c no merit in this argument. As stated above, directive dated 4.3.2005 is clarificatory and not amendatory. The context in which the Consultation Paper emanated has been explained by us in our Judgment in the Civil Appeal of Reliance lnfocomm Ltd .. We do not wish to repeat the reasons herein once again. In any D -1-" event, we have looked into technology aspect and policy framework for levy of ADC hence there is no unilateralism as alleged by the appellant.

49Copy pinpoint49. Before concluding, one aspect needs to be mentioned. It is alleged by the appellants and also by E Reliance lnfocomm Ltd. in the conjoint appeal which we will separately deal with in the subsequent judgment that BSNL have also not disclosed their numbering levels for their fixed wireless service and for their WLL(M) services which they \, have been providing during the relevant period in the name F of "Tarang", which according to the appellants, would now constitutes WLL(M) service. According to the appellants, BSNL has also been providing fixed wireless phone services which has limited mobility. This is a matter of quantification. That stage has not yet arrived. However, Mr. Gopal Subramanium, · G learned senior counsel appearing on behalf of BSNL, has fairly stated that BSNL would abide by the parameters laid down in our judgment and whatever adjustments required to be made in that regard in the context of claims and counter claims, the same shall be worked out in near future. Be that as it may, we express H

364 SUPREME COURT F<EPOR1 S

A no opinion on the point of quam1flcat1on which question did not arise even before TDSAT in this case. Suffice 11 to state tt1at the services of the appellants v1de the instrument Walky falls 1n the category of WLL(M) service and, accordingly, the appellants would be liable to pay ADC in that regard during the relevant s period 14.11 2004 to 26.8 2005.

50Copy pinpoint50. Accordingly, civil appeals stand dismissed with no " order as to costs.

K.K.T Appeal dimissed