Search
  • Legis Scriptor

Telecommunication: Jurisdictional Issues (National and International)


Authored by - Sania Vinayan

Keywords - Jurisdiction, Telecommunication, National and InternationalDisputes, TRI act of 1997.


Abstract


This article aims to highlight the jurisdictional issues in the telecommunication industry. It also discusses the disputes arising in the telecom industry and its national and international aspects.


Introduction


The scenario of the telecom industry has been interesting, especially in India. There have been entries of new players and the exit of old ones, which have been occurring due to the liberalization of the telecom market. There are ongoing, intense battles between industry players for the collection of market shares. This article will discuss aspects of the different kinds of disputes in the telecom industry, and mainly the jurisdictional issue in the turf war between two regulating bodies of the telecom operators.

Who is the main Regulator of telecommunication in India?

The principal regulator in India is the Telecom Regulatory Authority of India (TRIA), set up under the Telecom Regulatory Authority of India Act,1997. The TRAI is empowered to issue regulations in certain areas and provide recommendations to the Department of Telecommunication in other areas. It is somewhat of a unique arrangement, where two regulators are involved in the regulation of telecoms. Still, TRAI is an independent body that is not controlled by the government, except- the officers are appointed by the government. [1]

What are the issues that telecom operators dispute on (in India)?

The issues are ordinarily related to cartelization and predatory pricing by incumbents or operators who used to have a monopoly in the market before the entry of new competitors. They are also concerning telecom issues such as interconnection. These issues primarily come under India's competition and telecom laws.

International aspects to disputes arising in telecom regulation

The International telecommunication union (ITU) is a UN specialized Agency founded in 1865 to facilitate international connectivity in communication networks. ITU's global Membership includes 193 Member- State, 900 companies, universities, international and regional organizations. [2]

India has been an active member of the ITU since 1869. Currently, India is an elected member of the ITU Council for another 4 years i.e. from 2019 to 2022. The ITU set global standards, practices, and dispute regulation. [3]

Types of Disputes according to ITU

Interconnection Disputes- Operators of all different access networks should be able to connect with another's networks, considering new technology has given rise to many alternatives to telecommunication services. technical, operational, and financial.[4]

Disputes Related to Liberalization- Liberalisation of the telecom market to give rise to competition has frequently resulted in disputes amongst stakeholders that have conflicting interests. On the other hand, incumbent service providers want to protect their dominance in the market, especially if it is wholly or partially state-owned.


Alternatively, the governments and regulators aim to promote healthy competition in the telecom markets. This is not just to promote economic and social growth, but also due to the governments' international trade obligations, under the WTO ad the GATS General Agreement on Trade in services. [5]

Investment and Trade Disputes: Disputes often arise where regulatory reforms diminish the value of private-sector interests. These include grievances of investors, operators, and service providers about early termination of exclusive rights, licensing of new competitors, new rate-setting structures, and changes to licenses. Other claims are contractual or based on alleged breaches of legal or policy commitments.[6]

Consumer Disputes: Consumers often face problems stemming from their absence of bargaining power or the lack of competitive options due to the incumbent operator. Regulators are using a variety of mechanisms to ensure the effective resolution of consumer disputes. Many require the service providers themselves to resolve disputes initially.[7]

Radiofrequency Disputes: Radiofrequency allocation and assignment disputes are dealt with internationally through mechanisms available with the help of ITU. Domestically, disputes may arise from interference, license conditions, and pricing. [8]

Which is the landmark battle concerning jurisdictional overlaps between regulatory bodies?

Parties: Telecom Regularity Authority of India (TRAI) v. the Competition Commission of India (CCI)

In the court of The Supreme Court of India

Telecom operators are not only fighting in the markets but also in the courtrooms. A most curious case related to disputes arising in the telecom industry is of the two regulatory bodies in India; TRIA v. the CCI. These two parties have been in a turf war regarding its jurisdiction in investigating the contentions of anti-competition practice against Airtel, Vodafone, and Idea (IDOs). The central issue before the Supreme Court was the jurisdiction of the CCI to probe allegations of cartelization by IDOs and the Cellular Operators Association of India(COAI). Supreme Court upheld TRAI's jurisdiction in this case. [9]

This jurisdictional issue had arisen due to the clashing in the functions of both the bodies.

Background of the Case

Reliance Jio Infocomm Limited (Reliance Jio) and two others filed a complaint with the Competition Commission of India (CCI) alleging cartelisation and abuse of dominance by the IDOs and the industry association COAI in violation of Sections 3 and 4 of the Competition Act, 2002 (Competition Act). The CCI found a prima facie case of cartelisation by the IDOs and the COAI, and directed the Director General (DG) to cause an investigation into the matter. Thereafter, investigation commenced, and the DG issued notices to the parties.


The IDOs and the COAI filed writ petitions before the Bombay High Court, praying for quashing of the Prima Facie order and the DG notices because the CCI did not have jurisdiction considering that the Telecom Regulatory Authority of India (TRAI) was already seized of the matter. The Bombay High Court set aside the Prima Facie Order and the DG notices vide its judgment dated 21 September 2017 (Impugned Order) observing that the TRAI, being the sectoral regulator, has the technical expertise to deal with and decide the issues in the telecom sector. It was also held that the Prima Facie Order is not an administrative order, and the CCI ought to have waited for the final decision of the TRAI, before arriving at prima facie finding of anti-competitive conduct.


The Impugned Order was challenged by way of a special leave petition before the Supreme Court, by the CCI and Reliance Jio. The Supreme Court has now dismissed these appeals while largely affirming the findings of the Impugned Order. [10]


Conclusion


In conclusion, there are several kinds of disputes that arise in the telecom industry due to the liberalization of markets and opening the market up for more competition. According to the case law, these disputes are to be addressed by the TRAI which will then give CCI the ‘go-to’ for the investigation of anti-competition practices.


[1] https://www.dlapiperintelligence.com/telecoms/index.html?t=interconnection&c=IN [2] https://www.itu.int/en/about/Pages/default.aspx [3] https://economictimes.indiatimes.com/industry/telecom/telecom-news/india-re-elected-as-member-of-itu-council-till-2022/articleshow/66527101.cms?from=mdr#:~:text=India%20has%20been%20elected%20as,2022%2C%20the%20government%20said%20Tuesday.&text=The%20ITU%20has%20193%20member%20states%20who%20elect%20representatives%20to%20the%20council. [4]Dispute Resolution in the Telecommunications Sector: Current Practices and Future Directions by Robert R. Bruce [5] Supra5 [6] Supra note 5 [7] Supra note 5 [8] Supra note 5 [9]https://www.mondaq.com/india/antitrust-eu-competition-/763410/supreme-court-upholds-trai39s-jurisdiction-in-telecom-operators-case#:~:text=India%3A%20Supreme%20Court%20Upholds%20Trai's%20Jurisdiction%20In%20Telecom%20Operators%20Case&text=The%20central%20issue%20before%20the,Association%20of%20India%20(COAI). [10]https://www.mondaq.com/india/antitrust-eu-competition-/763410/supreme-court-upholds-trai39s-jurisdiction-in-telecom-operators-case#:~:text=India%3A%20Supreme%20Court%20Upholds%20Trai's%20Jurisdiction%20In%20Telecom%20Operators%20Case&text=The%20central%20issue%20before%20the,Association%20of%20India%20(COAI).

References


1.https://www.mondaq.com/india/antitrust-eu-competition-/763410/supreme-court-upholds-trai39s-jurisdiction-in-telecom-operators-case#:~:text=India%3A%20Supreme%20Court%20Upholds%20Trai's%20Jurisdiction%20In%20Telecom%20Operators%20Case&text=The%20central%20issue%20before%20the,Association%20of%20India%20(COAI).

2. SCC Online Blog: https://www.scconline.com/blog/post/2018/08/14/trai-v-cci-whose-jurisdiction-is-it-anyway/#_ftn1

3. https://www.itu.int/ITU-D/treg/publications/ITU_WB_Dispute_Res-E.pdf

4. https://www.dlapiperintelligence.com/telecoms/index.html?t=interconnection&c=IN

5. https://www.itu.int/en/about/Pages/default.aspx

6. https://economictimes.indiatimes.com/industry/telecom/telecom-news/india-re-elected-as-member-of-itu-council-till-2022/articleshow/66527101.cms?from=mdr#:~:text=India%20has%20been%20elected%20as,2022%2C%20the%20government%20said%20Tuesday.&text=The%20ITU%20has%20193%20member%20states%20who%20elect%20representatives%20to%20the%20council.

CONTACT US

Website:-          www.Legisscriptor.com

E-mail:-            Info.legisscriptor@gmail.com

For Internship:- Legisscriptor.internship@gmail.com

Contact info:-    8851264387 (WhatsApp Only)

© 2020 by Legis Scriptor. 

  • LinkedIn
  • Instagram