BSNL vs Reliance: TRAI says we did all we could, law shows it could have done more

Both BSNL and MTNL had complained that Reliance was tampering with calling line identification (CLI) to pass off incoming international calls as domestic traffic and, thereby, evading access charges.

All that the TRAI did, on receipt of these complaints, was to forward them to the Department of Telecommunications (DoT).

Baijal’s defence of this decision runs counter to the scheme of the TRAI Act, 1997 and the regulator’s approach in other cases. Consider this:

• Baijal: TRAI forwarded the complaints to DoT because it ‘‘does not have the organisational structure to carry out the investigations of this nature which involve tracing calls, etc and DoT has a well established Vigilance Wing which carries out such investigations as a normal practice.’’

This explanation flies in the face of Section 11(1)(b)(i) of the Act which mandates that it is the duty of TRAI to ‘‘ensure compliance of terms and conditions of licence.’’

Even otherwise, since the complainants are BSNL and MTNL, TRAI could have anyway not outsourced the regulatory job to DoT because of an obvious conflict of interest. DoT is the 100 per cent owner of BSNL and is a majority shareholder in MTNL.

It is also misleading to say, as Baijal does, that DoT’s Vigilance Wing carries out ‘‘such investigations as a normal practice.’’ In reality, the Vigilance Wing is meant to deal with corruption allegations against officials of BSNL and MTNL. It has little to do with the enforcement of licence conditions, which is the statutory domain of TRAI.

As for his claim that he is too under-equipped to investigate such complaints, Baijal does not actually need any additional infrastructure to use Section 12 of the TRAI Act empowering him to ‘‘call upon any service provider at any time to furnish in writing such information or explanation relating to its affairs as the Authority may require.’’

Yet, TRAI failed to seek any explanation from Reliance Infocomm. Much less did TRAI exercise its wide power under Section 13 to issue ‘‘such directions … as it may consider necessary’’ to fulfil its regulatory duty.

These omissions are in the teeth of Clause 41.19(iv) of Unified Access Service Licence issued just two months ago to Reliance Infocomm: ‘‘CLI (calling line identification) shall never be tampered as the same is also required for security purposes and any violation of this amounts to breach of security.’’

• Baijal: TRAI’s hands were tied given an April 2004 ruling of Telecom Disputes Settlement and Appellate Tribunal. This ruling, on another petition filed by BSNL, specified that rather than TRAI, ‘‘disputes on a complaint are to be handled by TDSAT to see that the service provider conforms to the terms and conditions imposed by the licensor in its licence.’’

Baijal is right in saying that the regulator has no jurisdiction to decide ‘‘disputes’’ on any issue but he has glossed over the fact that the TDSAT judgment does not prohibit TRAI from discharging its regulatory function of enforcing terms and conditions of the licence.

When BSNL first lodged a complaint with TRAI against Reliance Infocomm on September 20, there was no issue to be adjudicated. All that was needed to be done was for TRAI to enforce the licence condition prohibiting service providers from changing CLI.

Ironically, even before any investigation has been done by any agency, Reliance Infocomm has already admitted before DoT and the Delhi High Court that it had been changing the CLI of its incoming international calls. On its own petition against BSNL’s threat to disconnect its network, Reliance Infocomm has been directed by the High Court to file an affidavit stating that it has stopped routing international calls ‘‘with wrong CLI.’’

Reliance Infocomm today filed a filed a similar petition against MTNL for threatening to disconnect its network on the charge of tampering with CLI. While MTNL has slapped a demand of Rs 309 crore, BSNL has demanded over Rs 250 crore out of which Reliance Infocomm has, on the court’s order, paid Rs 98 crore.