3rd YEAR B.A.

LLB - SEMESTER – 6 (2024)

2nd INTERNAL ASSESSMENT

Telecommunication Laws
Analytical Questions

The role & function of TRAI ; The TDSAT mechanism in

India

Submitted by: Aastha Sachdeva | Division: E | Batch 2021-2026

Submitted to: Prof. Amol

[Wordcount excluding ancillary pages and footnotes: 1702]

 INTRODUCTION

“Mr. Watson come here. I want you.”

– Graham Bell.

The aforementioned statement was Alexander's first historic telephone message to his
Secretary, Watson, marking a ground-breaking moment. From the use of smoke signals and
carrier pigeons to modern digital connections, telecommunication has helped humans
overcome obstacles in long-distance communication over centuries of progress. The word
"telecommunication" comes from the Latin word "communicare," which means "to share,"
and the Greek prefix "tele," which means "far off." It has grown at a phenomenal pace with
1,172 million subscribers in July 2022 making Indian Telecom sector one of the fastest
growing the world.

[I.I] History of Telecom Industry in India

Till 1990 Till 2000 Till 2010 2010- 24

State Owned Era Advent of Private Golden Era Re-definition Age

Players

India has experienced a significant change in the telecommunications industry, transitioning

from a monopoly system to one of open competition and the creation of a separate regulatory
body for the sector. The essentiality of liberalizing and deregulating the telecommunications
industry was crucial for the country's overall economic development.
 [I] Discuss the Telecom Dispute Settlement Mechanism in India

|| दू रसंचार िववाद समाधान एवं अपील अिधकरण ||

[I.I] INTRODUCTION: Genesis of Regulation in Telecom

Much ink has been spent on the significance of dispute settlement mechanisms, as they are a
vital part of upholding the law. After 1991, the telecommunications industry experienced
significant growth, which attracted many new competitors and led to various changes in the
market structure. At first, TRAI was responsible for resolving conflicts among telecom service
providers. Nevertheless, it was proposed that to prevent a conflict of interest between the
ministry and the authority, an independent adjudicating body should be established.
The formation of the Telecom Dispute Settlement and Appellate Tribunal (TDSAT) took
place in January 2000. TDSAT is established under Section 14 of the TRAI (Amendment)
Act, 20001. Following TDSAT, TRAI was given regulatory responsibilities and TDSAT was
assigned adjudicatory responsibilities, making it the only entity for resolving disputes in the
communication industry with authority over telecom issues.
The TDSAT is a unique institution, specific to telecom sector for settlement of disputes
between licensor and licensee, between two or more service providers and a service provider
and a group of consumers. The existence of such an institution not only affords an opportunity
to service providers to seek a final settlement of issues involved, but also sanctifies various
decisions taken by the regulator which sets the pace and tone for corporate governance and
contributes to stability in the market.

[I.II] ESTABLISHMENT OF TDSAT: The beginning of a “golden era”

Composition and Qualification

TDSAT consists of a chairman and two members appointed by the Central Govt. in
accordance with Section 14B2 of the Act. The chairman must be a chief justice of a HC or a
judge of the SC, either retired or currently sitting. The two members ought to be experts in

1
Telecom Regulatory Authority of India Act, 1997, § 14.
2
Supra note 1, § 14B.
technology, telecommunications, industry, commerce, or administration, or they should have
served as secretaries to the GoI for a minimum of two years.

Chairperson
(A team of telecom exprets are
sitting and guiding the
chairperson) 2 other members
(Appointed by Central govt. on
recommendation of CJI)

Current Composition of TDSAT3

Hon’ ble Mr Justice D.N Hon’ ble Mr Justice Ram

Mr. Subodh Kumar
Patel Krishna Gautam Gupta

From: 14-03-2022 From: 15-06-2022 From: 13-09-2021

Term of office

For not less than 3 years. Age of Chairperson to not be 70 years and for members not more
than 65.

3
https://tdsat.gov.in/writereaddata/Delhi/docs/organize_auth1.php
Appellate Jurisdiction:

TDSAT may only be accessed by groups of two or more customers, while individual consumer
disputes and complaints are resolved via venues such as the Consumer Forum. CCI v. Bharati
Airtel Limited4 found that it is at the discretion of the TRAI to examine any suspected anti-
competitive activities further.

The TDSAT now has jurisdiction over outstanding issues before the Airport Economic
Regulatory Authority Appellate Tribunal and the Cyber Appellate Tribunal, as per the
Finance Act 2017. The TDSAT is the authorised appeal tribunal for Aadhaar issues under
Section 33C of the Aadhaar Act, 20165. The tribunal serves as the first instance court and has
the authority to control its own procedures. TDSAT has appellate authority to hear and judge
appeals against TRAI decisions, instructions, and directives. Within thirty days of the
challenged order, the appeal must be filed. This dual function has been affirmed by the

4
AIR 2019 SC 113
5
Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits, and Services) Act, 2016, § 33C.
Court in Hotel & Restaurant Assn. v. Star India (P) Ltd6 wherein it held that regardless of
whether the orders issued by TRAI are adjudicatory in nature or not, the TDSAT has original
jurisdiction to make judgments and acts as an appellate body for appeals against those
decisions.
Neither civil or High court has jurisdiction to entertain any suit w.r.t any matter which
Appellate Tribunal is empowered by or under this act to determine and no injunction shall be
granted by any court or other authority in respect of any action taken or to be taken in pursuance
of any power conferred by or under this act”. The judgment of TDSAT is to “appealed to
Supreme Court”.

Exceptions to Jurisdiction

Matters relating to Competition Act, 2002

Disputes between Telegraph Authority and any other person under Indian Telegraph Act.

Individual consumer complaints maintainable before consumer

[I.IV] PROCEDURE
Section 167 details the method and authority of the TDSAT, which is formed in the CPC and
does not extend to Tribunals, but is only relevant to Traditional Courts in India and may be
appealed to the SC under Section 188. Cases may be allowed even if they are submitted as
emails or written petitions by individuals qualified to litigate before the TDSAT. In ITPL,
Whitefield, Banglore v. Cable9, an email is treated as a letter, allowing for a more efficient
procedure.
Grahak Hritvardhani Sarvakanik Sansth v. TRAI10, a member of the consumer organisation,

6
2006 (13) SCC 753.
7
Telecom Regulatory Authority of India Act, 1997, § 16
8
Id at section 18
9
Petition 107 (c) 2006
10
Appeal 12 ( c) 2005
expressed concerns about the TRAI Notification, which approved a 4% rise in yearly
membership rates without public participation or transparency. TDSAST stopped the Order's
countrywide implementation while its hearing was ongoing.
Manner of operation and justifications for appeal outlines in Section 14A11, providing clear
guidelines for process.
“Tribunal can be approached by “Central Government, state government, local authorities,
or any individual” to settle contention involving “licensor-licensee”, or between “two or more
service provider” and “between service provider and group of consumers” since “tribunal not
bound by procedure laid down by CPC”, 1908 and can regulate its own procedure following
principles of natural justice.”

12

11
Telecom Regulatory Authority of India Act, 1997, § 14A
12
Annual Report of the Department of Telecommunications, 2014-15 p. 96, available at accessed on
06.05.2024.
[I.VI] FUNCTIONS AND ROLES OF TDSAT

Dispute Resolution:
Appeals Handling: Policy Recommendations:

TDSAT'S primary role is

the adjudication of While TDSAT primarily
Handles appeals against focuses on dispute
disputes arising in the deisions rendered by TRAI, resolutions and adjudicatory
teleconm sector. These Department of functions, it may also provide
disputes could range from Telecommunications and recommendations on policy
intyerconnection issues Ministry of Information and matters related to the telecm
between telecom operators Broadcasting. sector.
to disputes relating tarrifs.

[I.VII] TDSAT TODAY: Deciphering the Tapestry of Telecom Matters

TDSAT has established itself as a dependable organisation that fosters trust among
stakeholders despite its short history. Based on our experience, communication challenges
seem to be more regularly handled13.
In various cases, the Supreme Court has decided on the TDSAT's jurisdiction. In UOI v.
Association of Unified Telecom Service Providers of India14, the court ruled that the TDSAT
did not have the authority to determine the legitimacy of the licence agreement's definition of
"adjusted gross revenue". The court confirmed that once a licensee accepts terms and
conditions, they cannot challenge their legality in court. The Kerala High Court has ruled that
conflicts covered under the Arbitration and Conciliation Act of 1996 are not eligible for
arbitration under the TDSAT's jurisdiction.
Moreover in Vodafone India Cellular Ltd. Vs. Ajay Aggarwal15, the court reiterated that
dispute resolution process is supplemented, not replaced by the mechanisms given by the

13
Burce, R. Macmillan, R. “Dispute Resolution in the Telecommunications Sector: Current practices and future
directions”, International Telecommunication Union, October 2004.
14
2020 SCC OnLine SC 703
15
REVISION PETITION NO. 1430 OF 2016
Telegraph Act and the TRAI Act for complaints involving service providers and consumers.
As a customer, who is dissatisfied with the services they received from a telecom provider may
file a complaint with the consumer forum.
 [II] Roles and Functions of Telecom Regulatory Authority of India

[II.I] BACKGROUND: A brief taxonomy

The Telecom Regulatory Authority of India (TRAI) was established as the regulatory body for
the telecommunications sector in India under the Telecom Regulatory Authority of India
Act, 199716. The Apex Court in the case of Delhi Science Forum vs Union of India17 opined
that “The existence of a Telecom Regulatory Authority is essential for introduction of plurality
in the Telecom Sector”. As a consequence, TRAI was established in response to the pressing
need for a regulating organisation in the telecom industry. It has directed the industry's
transition from a state-controlled monopoly to a thriving and competitive market. The TRAI is
a diligent watchdog over the industry, guaranteeing equal access, fostering innovation, and
protecting the interests of both customers and service providers.

Fig.- Growth of telecom sector post 1991 Liberalization reforms necessitating need of a regulatory authority
(Source18- TRAI, Telecom sector in India: A decadal profile, 2012)

16
Telecom Regulatory Authority of India Act, Acts of Parliament, No. 24 of 1997 (India).
17
1996 SCC (2) 405
18
Publication on 'Telecom Sector in India: A Decadal Profile', TRAI, 03/05/2012
 Organizational Structure of TRAI

The Chairperson, who is currently Shri. Anil Kumar Lahoti, has overall authority for
supervision and direction. The TRAI (Amendment) Act, 2000 amended the 1997 Act to
include the requirement in Section 3 that the Authority have a minimum of two full-time
members and a maximum of two part-time members19.

[II.II] ROLE & FUNCTIONS OF TRAI

Navigating the Rules and Regulations

In order to establish India as a major actor in the developing global information society, the
main function of TRAI is to protect consumer interests and promote the expansion of cable,
broadcasting, and telecommunications services. Functions of TRAI:

Recommendary Regulatory Other Functions

19
The Telecom Regulatory Authority of India (Amendment) Act, § 4, No. 2, Acts of Parliament (2000).
 Recommendary Role of TRAI

The Telecom Regulatory Authority of India (TRAI) is authorised by Section 11 of the TRAI
Act, 199720 to provide recommendations on the following topics, either by Suo moto
cognizance or at the licensor's request.

The seven functional divisions listed below are responsible for producing these
recommendations:

Network, Spectrum Broadcasting and Consumer Affairs

and Licensing (NSL) Cable Services (CA)
(B&CS)

Financial and Quality of Technology

Economic Analysis Service(QS) Development (TD)
(F&EA)

Legal Division

20
The Telecom Regulatory Authority of India (Amendment) Act, § 11, No. 2, Acts of Parliament (2000).
TRAI’S Recent Recommendations:

1. TRAI's "Network, Spectrum, and Licensing Division" has issued three recommendation
notes for the year 2024. The Division’s latest recommendation21, dated 24.04.2024,
suggested leasing of access spectrum, sharing of interbond spectrum, and sharing of active
and passive telecom infrastructure for optimal spectrum utilisation.

2. In the case of Idea Cellular v. UoI22, the Supreme Court confirmed TRAI's
recommendatory authority. The significance of this role has been emphasized multiple
times, with TRAI releasing suggestions to enhance fairness in the telecom sector by
publishing notes on enhancing infrastructure in remote region Himachal Pradesh23,
improving services in North-East24, and broadening coverage in Ladakh25.

3. TRAI has released notable guidelines on a number of subjects, from using artificial
intelligence26 and big data to launching the CNAP Service in India27 and using embedded
SIMs for M2M communication28.

Author’s Original Critical Analysis of the Recommendations:

The Artificial Intelligence and Data Authority of India, or AlDAl, should be established right
away as an independent statutory body for the purpose of developing responsible Al and
overseeing use cases in India, according to TRAI's recommendation.
According to the author, TRAI should let market participants handle the development,

21
Recommendations on Telecommunication Infrastructure Sharing, Spectrum Sharing and Spectrum Leasing,
Telecom Regulatory Authority of India, 24th April, 2024
22
Civil Writ Petition No. 28512 of 2013.
23
Recommendations on Improving Backhaul Telecom Infrastructure in far-flung areas of Himachal Pradesh,
Telecom Regulatory Authority of India, September 29, 2023
24
Recommendations on Improving Telecom Infrastructure in Northeastern States of India, Telecom Regulatory
Authority of India, September 22, 2023.
25
Recommendations on Improving Telecom Coverage and Backhaul Infrastructure in far-flung areas of Ladakh,
Telecom Regulatory Authority of India, April 24, 2024.
26
Recommendations on Leveraging Artificial Intelligence and Big Data in Telecommunication Sector, Telecom
Regulatory Authority of India, July 20, 2023.
27
Recommendations on Introduction of Calling Name Presentation (CNAP) Service in Indian Telecommunication
Network, Telecom Regulatory Authority of India, February 23, 2024
28
Recommendations on Usage of Embedded SIM for Machine-to-Machine (M2M) Communications, Telecom
Regulatory Authority of India, 21.03.2024
deployment, and acceptance of Al in the telecom industry at this point since each would have
unique techno-commercial considerations based on their own networks and service
requirements. Any regulations pertaining to its implementation in telecom networks or services
would impede innovation, since its exploration is still in its early stages in our nation.
The implementation of the CNAP function in India gives rise to serious privacy issues. Under
the control of operating system providers and device manufacturers over CNAP data,
subscriber privacy may be jeopardised.

Regulatory Role of TRAI

TRAI is in responsible of establishing terms and conditions, coordinating revenue distribution

among network providers, and keeping an eye on licence compliance. Additionally, TRAI is
able to suggest that an operator's licence be revoked in the event that its conditions are broken.29
In Reliance Jio Infocomm Ltd. v. Bharti Airtel Ltd. & Ors,30 the Supreme Court looked into
telecom service provider interconnectivity and emphasised TRAI's regulatory role in
monitoring interconnection agreements. In TRAI v. Bharti Airtel31, it was decided that TRAI
may enforce the non-discrimination, non-predation, and transparency principles under
Section 11(1)(b)(i) and Section 11(2)32.

29
Avishek Goneka V UOI 2011 6 SCC 361
30
(2020) SCC OnLine SC 801
31
TRAI v. Bharti Airtel Ltd., (2020) 10 SCC 719
32
TRAI Act, supra note 1, § Section 11(1)(b)(i) and Section 11(2)
 Investigatory Role of TRAI

TRAI is authorised to provide directions to service providers so that they may comply with its
duties. Additionally, the Authority may order service providers to submit necessary
information. Aside from the need that service providers keep correct books of accounts, the
Authority also has the authority to designate individuals to review submitted papers. Section
12 of the Act33 places restrictions on the Authority's powers. The authority to decide what extra
responsibilities are considered necessary rests with the central government.

[II.III] DELVING DEEP INTO THE INTRICACIES: Critical Analysis

33
TRAI Act, supra note 1, § 12
[II.IV] COMPARITIVE ANALYSIS
REFERENCES