Call drop penalty a populist measure, telcos tell SC

Telecom firms on Thursday told the Supreme Court that the Telecom Regulatory Authority of India's decision to saddle them with a penalty for dropped calls was a "populist" measure.

They further said all drops were happening due to a host of external factors for which they could not be held responsible.

"The object is to penalise me and earn revenues. This is populism," senior counsel Kapil Sibal, appearing for the Cellular Operators Association of India (COAI), told a bench of Justices Kurian Joseph and Rohinton Fali Nariman.

Both the telcos' representative bodies, COAI and the Association of Unified Service Provider of India USPAI, have challenged Trai's 16 October 2015 notification obligating the service providers to credit consumers with Re1 for each dropped call with a limit of three a day.

The call drop penalty was to come in force from 1 January.

COAI and USPAI have challenged the  Delhi High Court order of 29 February upholding the Trai penalty.

Assailing the 2015 notification, Sibal said that under the terms and conditions of licence there is a provision for 2 per cent call drops and it is only when the call drops exceed  2 per cent that operators could attract penalties.

He said that as of date, it is the admitted position of Trai that none of the telecom service providers have breached the cap of 2 per cent of call drops and none of them have been penalised on this count.

As Sibal reiterated this position in the course of his arguments that stretched through the day, the court asked 12 telecom operators, who are before the court challenging the call drop notification, to individually file affidavits stating that that they have not crossed the limit of 2 per cent of call drops and they have never been penalised on this account.

Telling the court that there was no nexus between the call drop penalty and the objective of achieving quality and efficient telecom services, Sibal said the regulation is based on the presumption that all calls should get through.

"You can't have presumption in law to impose penalty (based) on the presumption that every call drop is attributable to me," Sibal said, pointing to host of factors contributing to call drops which were beyond the control of the service providers.

He said that service providers could be saddled with call drop penalty only if they breache some regulations and not otherwise.

"If there is a regulation that enjoins upon me to do certain things, which if I don't do and results in call drop, then only I am liable. Unless you fault me, my network, I am not liable to pay," Sibal said, pointing out that the blame for every call drop could not be put at ''my'' doorstep.

The court was told that the dropped calls could happen on account of electromagnetic radiation which is the lowest in the world, paucity of airwaves (spectrum), large number of service providers, a large base of consumers, high-rise buildings, damage to underground optical fibre lines due to digging by government agencies, inadequate towers or absence of them, poor quality of the consumer's handset, and several other imponderables on which service providers have no control.

Making a comparison with other countries which have large availability of spectrum, fewer competitors, adequate infrastructure and less density of consumer base, Sibal said that telecom service providers in India were operating in strained conditions.

Further hearing will be held on Tuesday.

The Delhi High Court on 29 February upheld the Trai order making it mandatory for cellular operators to compensate subscribers for call drops.