The Supreme Court on Friday stayed a tribunal order upholding a hike in 2G telecom spectrum (radio waves) usage charges,but asked telcos Bharti,Vodafone and Idea to deposit with it 50 per cent of the fee they would have otherwise had to pay. Hearing an appeal filed by GSM operators,a Bench comprising Chief Justice S H Kapadia and Justices K S Radhakrishanan and Swatantar Kumar stayed telecom tribunal TDSAT's September 1 order that upheld Telecom Ministry's decision to increase 2G spectrum usage charges. It,however,directed Vodafone,Bharti Airtel,Bharti Hexacom (operating in Rajasthan) and Idea Cellular to deposit 50 per cent of the proposed increase in fees with the Supreme Court registry. The Apex Court further asked the telcos to furnish a bank guarantee,for the rest 50 per cent liability. Telecom service providers have to pay a percentage of their adjusted gross revenue (AGR) to the government as spectrum usage charge. This charge depends on the quantity of spectrum held by the operators. The new charges vary between 3 to 8 per cent depending upon the quantum of airwaves held by the respective operators. According to the new charge,an operator holding spectrum up to 4.4 Mhz will have to pay 3 per cent of the AGR compared to two per cent now. "Looking into the complexity of the matter and the stakes involved. we stay the impugned order passed by the tribunal," the apex court said. Vodafone has to pay Rs 135 crore and the two Bharti firms have a joint liability of Rs 220 crore on account of enhanced spectrum usage charges. "Telecom operators will deposit 50 per cent of the outstanding principal amount in the Supreme Court registry within a period of two weeks. The balance will be secured by bank guarantee within two weeks," the Bench said,while issuing notice to DoT. The apex court further directed: "The managing director of each operator will file an affidavit before the court that in the event of their civil appeal is dismissed their amount would be paid to the government." Warning the operators,the court further said,"We make it clear if there is any breach of the impugned order that the effect of the interim order would cease." On September 1,2010,the Telecom Disputes Settlement and Appellate Tribunal had held that the decision to enhance the spectrum usage charges was taken by DoT after following the proper consultation from sectoral regulator TRAI and mandatory approval from the Telecom Commission and Group of Ministers. Challenging the TDSAT's order,operators submitted the tribunal had ignored that TRAI's recommendation was "without any effective and timely consultation process" and was violative of the TRAI Act. "An expert committee has been set up by DoT themselves to go into all issues relating to spectrum,including its pricing. The expert committee had contradicted the recommendations of Trai," operators submitted questioning the committee and arbitrariness of the DoT. They further submitted TRAI in its recommendation on May 11,2010,had disagreed the enhanced 2G spectrum usage charges fixed by the DoT. "TDSAT upheld the impugned order of February 25,2010,and dismissed the petition filed by operators primarily testing it from the point of view of the procedure followed by the DoT,however,ignoring the vital facts,which clearly demonstrated no application of mind,breach of mandatory procedures an arbitrariness,discriminatory,unilateralism," they said.
