I •

In the matter of: . Centre for Public Interest Litigation & Ors .Versus Union of India & Ors
.. , Pespondents

... Petitioners


I. Sita Ram Meena. aged about 34 years, working ar, Asslsta-it Director

General (AS·I), OEipartme~t otTelecommunlcatlons,


of India,

Sanchar Shawan, Ashoka Road, New Deihl 110001, do hereby solemnly
affirm and declare on oath as



I am working as the Assistant Director General (AS-I), Department of Telecommunlcancns, Government of India and am acquainted with ',. the fucts of the instant case the basis of official records. I am .



competent and authorised to swear this Counter-Affidavit.
At the outset, the contention


Ieponent denies each and every . averment. '

and submission

made by the Petitioners in the Special

Leave Petition as well as in their Applications for bringing on record additional documents. Nothing contained therein should be taken as

admitted unless expressly admitted, in this Counter-Affidavit.
3. This Counter-Affidavit is being filed for the limited purpose of

opposing this Special Leave Petition.

The Answering Respondent



requests that

he may be permitted to file a.further detailed a'<ficiaviLif

so required subsequently. I.


The Answering Respondent submits that FIR No. RC-D. \1.200Q.A0045 dated 21.10.2009 has been registered

by the ~BI under

Section 120-8 of the Indian Penal Cod'e read with Section 13(2) read

with 13(1 )(d) of the Prevention of Corruption
certain u~~nown offi91als

Act 1988 against



of Telecommunication.

unknown private pers9nsl companies and other'S. The prayer of tile Petlti1mers before theiHon'ble DelhlHlgh court was that either the
. ; !

inv~stlgation should be monltore~ ~yi the Court or be handed over to a Speciallnvestiga~ve -r:~am.(at.page 114 of the SLP). 5. The limited question that falls for the consideration of this Hon'ble . Court In this Spec.lal Leave Petition Is whether the Hon'ble Delhi High Court was justified In dl~mlsslng the writ petition filed by the Petitioners. The Hon'ble High Court has followed the judgement of this Hon'ble Court In .Klmga 'Nima Lepcha


v State

of Sikkim, reported

in (2010) 4 SCC '''513. and held that in IIgl,t of. the aforesaid

. judgement.

it was. not in~lIne~ to exercise

its .extraordlnary

jurisdiction f9r directing monitoring of the Investigation of the CBt. 6. It is respectfully submitted that the Hon'ble High Court's judgement declining to exercise Its extraordinary jurisdiction does not call for any interference .from this Hon'ble Court. settled that Courts
TDe I~gal position is well



not Interfere with or monitor investigations

except in rare and extraordlnarv cj~cumstances, where the materials



record would clearly establishtl)at
. 'I

OCfor exarnpls) witnesses are

being threatened, evidence ,is being destroyed or the investigation

not being done In 'a proper manner. That is no: the situation in the
instant case, 7, Even In the Special Leave Petition, the Petitione;'s have been unable to point out any specific deficiency in the investigation and have only

,made ,a vague and' defamatory allegation that "CBI h 3S had a


reputation of being pliant to the, Government at the Centre" (at
page 11 of the SLP). Such an all9gation 'can never form the basis

for this Hon'ble Court to monitor tho investigation of the CBI.
8. It is therefore respectfully submitted that on the above ground alone,

this Special Leave Petition should be dismissed,
9. However, regarding



the Petitioners

have made several



the; policy of the Government

of India in relation to

allotment of 2G spectrum, and 'are trying to mislead this Hon'ble

Court. Hence, this Counter-Affidavit s~ts out the correct position in relation to the said pulicy and sequence of events in Ialation to allotment of 2G spectrum .. 10, There are 'broadly four issues that have been raised in this matter: (a) The decision to riot auction 2G spectrum and to maintain the same entry fee since 2001;
(b) The alleged revenue loss caused by the above decision; ,


i' ~



The alleged preponement of the-cut-of applications; anJ

date for receipt of

(d) The grant of licenses to allegediy Ineligible applicants.

These Issues are dealt with In detail below. I!.

It Is respectfully submitted 'at the outset that the Issue of allotment

and pricing of spectrum falls squarely }n the domain of executive policy making, and In which the ~cope for judlc.lal review Is highly restricted. below. 12. It Is respectfully submitted that the issue relating to allot nent and
pricing of 2G spectrum needs to be considered !n light of the New

Nonelhelese. the Issue Is dealt with on merits in detail

'Telecom Pollcv ("NTP") 1999. the objectives of the telecorn sector
'II .: ••

Identified by the Five Year Plans and the recommendations of, TRAI made from tlmeto tlma,.and se,tual experience, of operations In the sector. 13. It is Sl bmitted that the decision to allow fresh competition in the field



of mobile communlcatlonsand

toe consequent


allotment of spectrum

was as a-result of a 'deliberate policy designed to' serve the greater public good of increased teledenslty and cheaper call rates. After lntroductlon of UAS ~icenslngregime, unlimited competition has been introduced in public interest. Teledenslty also has Increased to a huge .extent. Further,the annual fee receivable by DOT has been Increasing year after year as subscriber base and operator revenues have been increasing.

lnsotar as teledensity is concen;ledi it may be noted that in March

2007, rural tetedenslty was about 6% and tota' te'edenslty was about

18%. After the grant of new UAS licen;~es, rural teledensity has now increased to 28.46% and total 'teledensity increased to about

60.99% as on 30.09.2010•. The toti:ll number of telephones in the
country Is approximately 723 million, It-may be noted that the target of the 11'h Five Year Plan was
201 ~, which' has been achieved

to achieve

600. million phones by

two years In advance because of

more competition Introduced In \he year 2008 by way of new UAS

.lneotar as revenue

to the Government

Is concerned.




In teledenslty an~ overall Increase in revenues. In the
sector, the.

revenue share of the Government

has been

Increas·lng year after year: The ch~rt below gll/es the rEvenue on account ofspectj~m
charges and license fee for !:he last eight years:

'Chart 1.2 Revenue on account of Spectrum charges and license fee
2·1000 22000 20000




18000 .. ,.





.5 , a:

15000· l4000 .12000


. C(.,


& ...


~ .. ~..... ~~









cq C\


10000 SOOO 6000
<1000 /000 0




.."" ~.~ .,,.., ,...,.
..... 0"

" .. :6





~i'JOS·06 Yenf




200'), I (0

·_._--- .._--- -~-.-.,-


.. ,

....~~ -..


..... "



16, From the above, it may be appreclajsc that the revenue share of the government has been increasirig year to year, Till March 2010, the Government has collected about Rs. 77,933 crore under the

revenue s~are regime. Government.

It is the largest, non-tax revenue of the

It is pertinent to state that as a result of Inc:reased competition, calling charges which hovered at an average of Re. 1 per minute (for local calls) have now :'come dow~ to around He. 0.30 per minute. The concept of "per-seeend ta~iffl ~has been Introduced by all ! .. operators. It Is submitted that s~6h tow rates VYQuid not have come ,
, .lnto effect had the new competitors been ma,de to, pay spectrum 'cha'rges far in excess of what the orIginal players il1 the f'eid had

~8. 1 submit that the present policy of grant of r.ew Unifird Access


Service (UUAS") Licences and' 2(3 Spectrum Is a consistent and


transparent policy of the Government since November 20Ll3. There
• > •

has been no devlatlon In the policy approved by the Cabinet on 31st October 2003.
Year Plans

The above decision is based on NTP 1999. Five
and TRAI recommendations from time

to time.

Est~blished policies regarding Issuance of license, allocation of

spectrim and charges thereon have been followed since November
2003 by the successive Governments till date. The complete details

and facts bf Licensing of Cellular Mobile Telephone Service
("CMTS")! Unified ACC,;dSS Services ("UAS") Licences and allocation

of spectrum are submitted in d~ta1l1below. ,


f A. 19.
Background i


The t~lecommunications service sector histork::ally operated in a

environment with the sovereign Government


exclusive privilege to work, malnt~.ln and operate telegraphs. Cons~~quen'!:YI. resources were"also maintained and operate a by all the dl3partments of the. government. This practice had been the

tradition across the, world. With the growth of the world economy, this sector was IIber~lIsed over a period of time In various parts of the world. Each country, depending upon its economic condltlcns.. opted for the expansion of telecommunications service by way of partlclpatlon of private sector so as to provide ~ffordable servlce to Its people. 20. The National Telecom Polley, 1994 for the first time opened up the teleecm service sector for private sector participation. A true copy of , the, relevant extracts. of NTP 1994. Is annexed hereto as
Annexure R1·1. 21. After the llberallzatlon of the t~lec6rn sector for access services, with

the coming of private 'operators, ;the field was broadly divided into fixed line providers (basic services) and mobile operatoi


basic service, operators did not require any ei~rmarking of major chunks of spectrum (except for WLL services in COMA technology in 800 MHz band), CMTS service providers did require specific . ,

earmarl<lng of scectrumln 900 and 1800 MHz bands, also called
GSM spectrum, This spectrum for CDMA and GSM technology


collectively known as "2G spectrum".

Subsequently. the Existing

Basic and CMTS operators were permitted to rn;grate to the United



service license (UASL) regime and new access services

licence were to be awarded In the UASL category only under which
both basic a,.d mobile servIce 22.

can be provided.
In the first

The licensing ofceilLlIar services was done in phases. phase, in November 1994,_
("CMTS") licences


Cellular Mobile Telephone Services

were awarded In. each of the four Metro cities of
Llcensoswere awarded to set of criteria.

Dellll, Mumbal, Kolkata and Chennal.
• J


based on tlieir satisfying
. I . .

at,: predetermined


The licence fee payable by each operator was also predetermined that is, there was no bidding precess, Spectru"!' charges and royalty for use of spectrum were t)syable separately .
23. In the second phase.Jn December 1995, two CMTS Licences were


awarded In 18 telecem elrcles based on a bldding process. The bids
were for the I!cenc~ fee amount,

which was 'sp'ead over a 10·year

licence period. The spectrum aHocation was assured and there were

no separate upfront' charges for spectrum. However, a separate
wireless operating licence was' to be obtained and annual spectrum
usages charges were

payable separately at applicable rates. The
was that for

successful operators had a duopoly - the understanding

the duration of their license, there would be n~ otherr-pe. ators in their circles. However, the right of the Government was reserved to

operate the services as third cperator.

22\.. Tenders were also; invited in January '1995 for award of Basic licenses again based on bidding for ilicense fee payable over a period of 15 years. Basic Service
Service Operator






llcenses were granted .to five

companies with an effective. date as t
more company
with effective dale

Se'ptember 1997 and:' toone : March 1998, . 25.

Within a few years, It ~as realised by ail concerned that the service providers had made. very high 'bids and huge Investments
consequently consumers the cost of their operations, was very high. and

being passed on to the

The .hlgh eall charg.es during the Initial


era of ',rlvatlsatlon are well known, As EI result, the business did not
devek p to the expected levels.


for high license fee

could not be honoured because of Inadequate revenue generation.
26.. . Thus the licensing framework of NTp· 1994 failed to achieve its

objectives because ·It·co',;centrated on maximizing . ,

revenue stream


not on lncreased teledenslty,

groWth of the telecom sector and
advances being passed on to the

the adVantage of technological


.large capital resources had been Invested by the


private licensees In the telecom sector and their non-viability was .'
affecting the domestic and for~lgn :~nancialinsMutions projects. This In turn was affecting the viability funding the of the telecorn

service Industry itself. ,It was evident


some policy-level changes

were required. 8,

The creation of TRAI
In 1997, the Telecom Regulatory Authority of India Act was enacted,

which created.

the Telecom' Regulatory. Authority of India ("TRAin).

The functions of TRAI,

speCified by Secti~n 11 of the Act (as

amended In 2000) are as follows:



(1) NotwW)standing anything containea in the Indian . Telegraph Act,1885, the functions of the Authority shall be to


make recommendations, either suo motu or on a .request from the licensor, on the following

matters, name7y:=
(I) (if)

ns(}d arid tlmlng for introduotlon of new sert/oe provider;

I .

terms liInd condltloris of license to







Provided further that the Centra! Government shall seek the recommen'd~tlons of the. iAuthority in respect of matters specified, In sub-c/auses (I) and (II) of clause (a) of .thIs sub.:sectlon In respect of new ileence to be issued' to a service provider and the Authority shall forward Its' recommem:lations within a penoa 01 sixty days from the date on which that Government sought the recommendations. ' 28. On 20.11.1998, a High Level'Group on Telecom' was constituted by
the oovemment (a)



to. make recommendations

on following:

Proposed new teieccm 'polley; Issues relating to existing lleensees of basic and cellular services and suggest appropriate remedial measures within


the frame work of the newtelecorn policy;
(c) .Issues relating to tQe TRA:.

C. . The New Telecom Policr 1999


The recommendations


telecom policy and to resolve the problems of the existing operators were considered

i. !

of the Group ,on Telecom on changes in the

by ~the Union Cabinet who approved the New



Telecom Polley 1999 (NTP 1999) which Is effective from 01,04.1999. The objective of NTP 1999 is to facilitate investments and

11 ,
competitlon In the telecorn sector. I~s thrust Is to create a modern , and, efficient telecot1]m~nications infrastructure taking into account
',!,s" ~,!·",~·t~
• J ;: ,:'.



,.!: ~~t·~'::!I~' ;~:'~.~~~ -'~M,,~~.,~t,. :;.:Ii... the convergence of IT,~media, 'telacom' and consdmer electronics

.and thereby

propel Inella Into becoming


IT superpower,

Resolving the problems of existing ",1censees was also envisaged under-the policy; It was also' 'In the l~rger public interest. NTP 1999

is the bedrock regarding Issuance of llcence and allocatlon of spectrum for achieving the obJect!ve of availability of affordable and effective coml'l'lunicatlons for the citizens which :s at the core o( the vision and goal of th'e teleccrn policy;, A true copy of th~~relevant extracts of NTP 1999 Is annexed hereto as Annexure R1'..2. 30. NTP'1999 at paragraph 3,1.1 provided


as follows:

The entry of mQf'e operators In 6 service ere« shall be based on the recommendatIons of the TRAI who will review this as required, and no fater than every two




(~MSP operatof"$ would bfl required to p~y a one time entry fee. The ibasis (or dfJUJf;mlningthe entry fee and the basis for selection of ~dditional operarors would be recommended by th€! TRAI. Apart from the one time entry fea, CMSP operato(s would also be required to pay licence fee based on a revenue share. If is proposed that/he appropriate level of entry, fee and percentage of i wenu« shpre ,arrangement for different , service erees WOUld,/;le recommended by TRAI in a time-bound ma:nner. keeping in view the objectives of tf7e New Tele·.om Policy.


In 'July 1999, the Central Government also decided in favour of

migration of existing licensees' to the revenue share regime of NTP 1999.. Accordingly, a migration package for migration from fixed license fee to. revenue share regime was offered to existing licensees, effective from 01 ,O~.1999. Under the migration package

-_ .~-- ~.---...- --_



.... "" ...



__ .. ----.- .. ,.. _',,,,,_,

.' r_·._, .' ... __ .,_." ....... "

e ~ __ ..,,.. .,


existing licensees had to forego their duopoly rights ano additional

operator) were inducted In a multi poly regime. 1\11 existing basic the .and cellular operators migrated to the revenue sharing regi116,
32. The Central Government PSUs viz. MTNL and SSNL were also

given CMTS Licences in 1999-2000 asthe third CMTS operator. 33.



It is relevant to note Ithat even B.t that time, the decision of the Government of India ~ttracted som~. adverse comments

from the

Comptroller and AUdlt~rGe~eral ofln'dla (ilCAO"). of.20( 0 - P&T, In the special

In Its Report No.6



finding In respect of licensing of to existing cellular and under NTP 99,

teleeern services on "p,ackage of concessions basic cellular operators"
I • I


In the' ·year 1999-2000


severnladverse audit observations were made. It is worth noting that
the steps referred to in this report were conscious policy decisions of

. . DoT to boost the growth of the telecom sector and' to "bail out" the
operators In the Telecom Sector who were reportedly experiencing ~ . financial distress on account of 'high auction prices and lower demand trajectory. However the CAG ·in·its report severely criticized


the decisions faken then and had made several critical observations
such as:






DoT granted a comprehensive package of"concessions and offer of'migratlon 'rom' fixed licence tee regime to revenue sharing regime uri('ier NTP-99 to the existing licensees of. cellular mobile. arid basic setvices .by accepting their pleas that thefr projections of market .size had gon.a wrong. The above presumption was not correct to' the extent that subscriber base of cellular licensees in metros was- saYlers/. times hig/ler than their projections,' in telecom' cirqles, incorrect comparisons were used to show that actual demand for cellular setvce: was very Jow vis-awis expectGtions of the licsnsees, Further, no detailed study ebou: the finanCial

., .,



~.f ','

viability of the projects

'of ba,sicservice

licensees was

DoT did not charge, any one·time entry fee from the ~xisting licensees,:for migratk?n .to NTP-99. Outstanding licence fee ha~ ~eefl treated as, one time entry fee though NTP~99 provides for charging 0/ one time entry fee In eddltlon to licence fee. This led to J1Uge revenue loss to the government. It Is'dlfficult to assess the loss at thIs stage In the absence of TRAl's guldl~lInes.
G,overnment Issued offers of migration to NTP·99 in EI premature manner w(thout (I) finally. clecfrling thfJ quantum of ~'-evenue share chargeable B.'3 licence ge, (IQ denning the gross revenue and (III) finalising modalities o( verificstlon of gross revenue of licensees and-prescrlblng f9,cords ~o b.e maintaIned by each licensee tor assessment o( government share. The undue haste shown In issu7ngoffers of migration without finalising necessary modalities Is frSU{lht with the serious risk of frauds and may also lead to demand for more concessions to licensees In tutiu» on slmlJar grounds

~ DoT had in response to the said Audit Report. made available to

The decision •for migration of existing licensees from fixed licence fee regime to revenue sharing regime has been taken on the' basis of the adviCe of Attorney General that continuance of these licensees under tn» existing raglme though legally possible, would c/eale serious financial problems. .No such apprehensions were expressed by' expert Group on Telecommunications (Gon headed by Deputy Chairman Planning' Commission, who was in a be,"ter 'position to make such e$sessment. (;10T did 110t recommend switchovet by, existing licensees to NTP,99 after study of financial conditions of the pmjects of the existing licensees prepared by Step. I .




CAG a para-wise r~ply


a complete

perspective on the policy

decisions, justifying the need for such a migration package to enable migration of existing basic and cellular service licensees


cornrnl'ted fixed annual license fee to revenue sharing regime and
bring in rnultlpoly regime under the .migration package under which

the Iic€:1sees gave away their right to operate under a duopoly
regime during the validity of their licenses. It is a well recognized

• --,-,...--






.._-- .. _.- ...

._ •• _-."

'.--'C~-'·~" __ ·"~'"·"'·.·_,,_,.,_., .._ ....... , ...._"

fact that the growth of mobile services started only ther safter and

tariffs started coming down making 2G mobile services affordable by the general public' and not regarded any more as a premium service only for ,the few who could afford It. It Is further relevant to note U;at after the said report was submitted thereon was taken by,the PAC. to Parliament, no decision




In September!

October .2001, based on TRAi's

recommendations were Lsued to ' (one each in ,t

and approval of the Government, private companies

17 new Licenses

as the fourth cellular operators

Metro Cities and rest In 13 Telecom Circles).

These licence's were

aw~'rded ba~ed on bidding for upfront entry fee. The al otment of spectrum was- assured f.under the "?ence and no upfront fee was

charged tor the spectrum. Annual licence fee and spectrum charges

were payable separately at prescribed percentage of Adjusted Gross
Revenue ("AGR"). 35. A comparison ·of Entry Feefor ,1'\ 2n~ and encloi ed at Annexure R1-3. 36. On 25.01.2001, the guidelines for issue of licence for basic services under NTP 1999 was announced based on the recommendations . TRAi, wherein the licensing of basic telephone on continuous basls on receipt of

CMTS licences


service was opened and subject to

of application As

fultilment of eligibility conditions.
• '. j

per paragraph 26 of the said

guidelines, the licensees were to be allocated spectrum for wireless access system in local area on flrst-eome-flrst-eerveo
. , I






on these guidelines, 25 Basic Telephone Service 'licences were



-.. -::..... ~.,.'""""'!-:.;.".,.•.•.•"-~•... ,


, ...

· , ," issued.




A true copy of the relevant extracts of the said 200.1

guidelines Is annexed hereto as An nexure R1·4. D. 37.
Objectives of

the 10th and 11th Five Year Plans,

In 20.0.2, the 10th Five Year Plan (or the p~rjod 2002-07 was announced.

It may be noted 'that the Five YearPlans are prepared

the Planning Commission and apprcvsc

the National

Development Council. headed by the Hon'ble Prime Minister.

contained several lnltlatl~esl action points for the telecom sector. The ImpClrta,ntones among these are

as follows:

.The telecom sector needs to be treated

an Infrastructure

sector for the next decade. (b) Government's' broad polley of taxes and regulation for lhe telecom sector has: to be 'promotional In nature.

Revenue generation should not be a major determinant of the macro policy governing the-sector. ,


The Guiding' Principles of Spectrum Policy under 10lh plan are that "Spectrll~' pollcy needs to be promotional in nature; revenue considerations playing a secondary role."


Keeping' in line wit,,' the policy adopted by most of the progressive administrations,in the world, the llcence fee needs to be aligned to the cost of regulation and administration of Universal Service Obligslion ("USOD).





Specific planning would be required to prepare the grounds for . a multi~opera~or system

to develop

and the subscriber base to

expand without Impediments,

The Incidence of licen~e fees In the form revenue share and
spectrum charges has to be gult;led by this prlnclple. As part of the promotional policy, there Is need ff.1r the TR/,I to work

out afresh the rev~nue shsnUlndUSO regime.

true copy of the relevant extraqts 9f the 101t Five Year Plan is

annexed hereto as Annexure R1·&. 38. In the' 11lh Five Year Plan (released on 251h Government

2008) also the

continues to treat Telecom as infrastructure ..


Some of the promotional policies of the Governrrsnt

Sector over a period of time as acknowledged ill -the Ele renth Plan document for, giving a boost to the sector, include the following:


in the Telecom


National Frequency Allocation Policy 2002 .was evolved. .
Guidelines for Unified Access Service licence regime were

Issued on 11"' November 2003.
(c) FDI ceiling has been raised to 74% {elr various services. (d) Access service telecom






Internet servlcest and broadband services. They can use the network of NLD/llD service,

.-J .'




Prior experience in telecom sector is no more a prerequisite for grant of telecom service licenses.


Annual license fee .for NLD. ILD licences has been reduced from 15% to 6% of Adjusted Gross Revenue (AGR) with effect from 1 January 2006.


of· ~.40-2.4835 GHz frequency band for indoor

arid outdoor use and 5.15-5.13 GHZ frequency band for
Indoor use. ""';';~"'~l:'~i~~~<;'~~;' '" >'.,.'

.~f'h'~'...;,;tH,:,~:;U.:;_;, , '

A true copy-of the relevant extracts of the 11th Five Year Plan is

annexed hereto as Annexure R1·6. 1::. 39. Unified License Reglme~ It may be noted that Initially, two kinds of licenses were being awarded :- basic (Including COMA) and cellular licenses (with GSM

T:lis led to several ~Isputes Inter se between licensees





and also disputes between',the licehse~s and the licensor on various
issues as to whether a, particular act was within the terms of the

license or not. 40. In 2003, a Group' of Ministers (GoM)on constituted under the chainn'anship
I. • ._

telecom matters was Minister with the

of the Finance

approval of the Hort'ble Prime Minister vide Cabinet Secretariat Memo dated 10.09.2003. The Terms of Reference of GaM included the Issue lito chart the course 41.

to a 'universal


TRAI in its recommendation dated 27.10.2003 en 'Unified Licensing Regime' recommended that considering the vision of Government of



India through various policies (e.g" NTP 1994, NTP 1999, market trends.


Bill), t~;hnologlcal


International·trends, density,

the need to accelerategl'owth


telephone of the

public' interest and for the proper conduct

Service/telegraphs, "Unified Licenslng regime should be initiated for all services covering all geographical within 'slx months. areas using any technology
.' :


a .:breparatory

step, Unified Access Service


License ("UASL") wlll be'lmp!ement~d for access services In each circle. 42. With regards to entry fee for UASL regime, TRAI deliberated
,.,1.- .• -11';,,,,\.;,1...


: ..


varlo~s ~~tions 1M . •

the r~f.Om~~nd~ti~~S·d~ted27.10.2003.
. i

.:.v;"~.$ " -, .."Hi";~:llr·!;;jt.~,.




various. options Inch:ldlnd.the



'Auctioning' for entry fee of

UAS licence were discussed In Its report. TRAI recornme rded that for fixing the 'entry fee for mIgrating to UASLReglme, the entry fee for fourth cellular operators shall be the entry" fee for migration to UASL Regime. A true copy of the relevant exfracts of the TRAI reccmrnenoancna dated '27.10.2003 are annexed hereto as .Annexure R1·7. 43. Paragraphs 7.15 to 7.19 of the TRAI recommendation 27.10.2003 are extremely relevant and are reproc'uced beloW. 7.15 To decide the benchmark for the sntry fee for Unified Access L,.Icensing Regime three alternatives could be considered which are discussed in the subsequent parswaphs., 7.16 The first altern,ative 'cpll/~. bfJ inv.iting bids (10m existing operators as well a~f~m the nev: prospective Unified Access LicensIng Oper~tors. This is possible Sino2 additional spectrum is', now being mC3de available by lv1inistry of. Defence. arid the existing contractual commnmente to existing cellular and WLL players c.an . dated


'1 D
easily be met, leaving out a balance for more plajiHs. The benchmarks fixed through this process will be upto-date based upo'n the current market sifl.,'a(ion and will be dO?13 through ,a tra(Jsparent. process, The problems assocIated with the bidding process are as follows:


The fixIng of the benchmarks through a bloc ing process could be tripre time c01l!wm;ng and hence delay the Implementation of Un/.Jed



!. ..


operators will not be able 10 rol/ out their wireless services in the abse.nce of spectrum. If the separate bids are Invited for Unified Licensing and spectrum, the. bidding process will become even more time consuming· and complicated. In case additional spectrum· Is given for Unified LIcensing qperators, the eXisting operators, while . mlpretlne to.. tJnlfled Aooes$ Lloenslng Regime, . may also ;emand additIonal spectrum w,hlch may not be available Immediately. This will stall migration to the Unified Access Licensing Regim~. . . Unless . the revised Ispectrum pricing and allocations guldelin·es .are finalised, there is no guarantee. that the tsp~ctrom would be made avafJable (0 existing opelators willing to migrate to the Uflified Ucensinq· Re·gime. .

should be done wIth spectrum or without any spectrum, I.e. only for migration to Unified Licensing Regime. If the bids are Invited without spectrum, the now prospective Unified Licensing

While inviting· pic;Jsthe question will be whether it

Cons!dering a/l ,these problems, the Authority is of the opinion that thf! bidding process for fixi/1g up of the benchmarks for..migration -to. Vnified Licensing Regime may not be preferable. . ..

Licensing Regime sho!Jld pay th,e differencl~ in entry fee of average of 1st and 2nd cellular operators and entry fee paid by Basic Service Operators. This argument is not sastainable due to the followIng reasons:

service operators wilting ·tomigrate

7.17 TtlG second alternative


to Ur1ified Access

be that basic


CMSPs in pre NTP'99 era before migration did not pay an; licen.se fee (revenue share).
1st and


to the

'J:cJ CMSPs got the advant.3ge of early .
market in aduopo!y regime.



~< \""" ~ ~
I'-\...J"-.;j '-~¢'

4\Q_ . ~~~ ~~'"? ~! ~~II~~~rm~g~~a~~;h:~:f,~~:s:h~g :n~~ 8fd~~~

Some of tile operators have said that they are incurring losses. In thi$ business losses Bre incurred initiaJly, e.g., Or~nge, one of the largest mobile operators in UK., took almosf' seven years to break even. even in India some of the Service.' pro~'iders have started making profits. A number of studiES have shown that even at present tariff levels the ad,jition of new subscribers is ,profitable. ::: ~~ the new Ur.Jfled:Access Licensing Regime. asps would pay the di~rence o( ~he fourth CMSP's existing entry fee and the entry' fee perf! by them. . It may be recalled thC'!t,even In the past,: entry to cellular and basic services has been orj fixed fee basis, e.g., for metros In the tase of eetlu/srand for the second 830.



~r~ a
'? '\


I "I



(J /".,~ \y e ~

:;f'- /~

~. ...


;~. ~~'',.c.f'' x.. v.




7. 19 It is recommended that the 3rd alternative as ..".,., mentioned in par,a-i".'18 ~bove may be accepted for ~.-c.JI fixing the entry fee for migration to Unified Access t.s(~V"1. Licensing regime l(or Bas/cana eellular services at ffleG~._\j circle level. ' : ,, \ \' ~0.~

,,,,,\~ \)--


Thus, TRAIconsld;,ed ·;nd recommended "galnslille aucllonlng 01

The TRAI recommendations were placed before GoM ~

(Gro,up of Ministers) on 30.10.2003. The recommendations of GoM



r_ ?) a.~


were considere'd bY' the Cabi~et on As per the Cabinet /" decision 'dated 31.10.:200.3,the recommendations of Group of '" . Ministers (GaM) on Telecom matters chaired by the then Hon'ble Finance 'Minister, inter-alia, on issues' as quoted below were acprcvec: ," The scope of NTp·99' may be enhancl:d to provide for licensing of Unifie,d Access Services .for basic and cellular . licence services a'nd unified Licensing comprising afl' tefscom services. De,oartment' of Telecommunications may be' authoris€'d to issue necessary adden'dum to NTP·99to thi~ ette ct. The recommendations TRA! with regard to implementation of tile' Un1fie'dA'r;cess Licensing Regime for basic and cellular services may be accepted.
00 T may oe autborised to finalise til:; details of implementation with the approval of the Minister or





Commu~icatlons & IT in this. regard Including the calculation of the entry fee depending 0,1 the date of payment based on the prinCiple given 'by TRAI in its recommandatlon~. If new services' are introduced as 8 resun of teohno/ogical advancems'nt, which require additional spectrum over and .above the spectrum already allotted I contra.ctad, al/oeatlon' of 'such spec/rum will be considered on payment of additIonal fefl charges; these will be ·determlned as per guidelines to be evo/w'd in consultation wIth TRAI. .


A true copy of the communication' of the cablnet Secretariat dated

03.11.2003 communicating the Cabinet decision dated 31.10.2003
along with the Note for the Cabinet are snnexed hereto as

Annexure R1·8 (Colly),

. was notified on 11.11.2'003.

Based on the above Cabinet decision, an addendum to NTP 1999

. Also



. , 1.11.2003, "Guidelines. for


Unified Access (Basic & Cellular) Services Licence" was Issued wherein Government had. dec1ded to move towards a Unified Access , . Services Licensing regl;"e. The gulde;'nnes, Inter-alia, others stipulate
that "With the issue. of these . Guid~Jirlesj all applications



Access Services Licence shall.be in.the category of Unified Access Services Licence~i' It rj1ay bencted thann keeping with the objective

of increasing comp"tit!on and teledensity, there was no requirement

of prior experience In ,the telecom sector, to apply for a UAS license, .. .. . This is recognised in the ·1 Five Year Plan also, which has already ,th

been "extracted above. True copies of the addendum to NTP 1999 and tile UASL guidelines dated 11.11,2003 are annexed hereto, as Annexure R\·9 Annexure R1·1 0 respecnvely, and

.,... ,

On 17.11.~003, DoT decided to ~ccept and process t.le UASL applications similar to the manner adopted for Basic. Service License. On 24.11.2003, then Hnn'ble MOC&IT approved tile

approach of ·grantlng .of UAS IIcenoes on F'lrst·Come.Flrst.Served
basis as the announced

guidelines had made it open for new


licences to be Iseued on ;contlnuous basis at any time and spectrum

was to' be allotted subJec~to avallablJlty.~ This In effect Implied that an

appllcnnt who comes first wHl be gr~nted the spectrum first so it had

resulted In grant of 'licence on Flrst·Come-Flrst·Served basis.
• I. •



It is

respectfully submhted that once It had been decided to accept applications on a contl~uoUS basis, there was In fact no other .fair
method other than Flrst-Come-Flrst-Serve. 47.

Thereafter, two Important sets of recommendations were made by TRAI on 13.01,2005 and 13.05.2005, which are explained below.



In Its recommendations

on. 'Unlfied



13!01.2005 envisaged convergence of licences for various Telecom
services and, 8r9adcastirig

services an~ .progres.'iively moving away to a registration' regime. The

from . licensing


of TRAI on Spectrum Pricing l~ LIcense fee were

as follows: 9.0 Spectrum pricing:

9.1 In the exls(ing policy, spectrum charpes have two ccmponenis (i) ~bne time speclr~m chBrg.3s which are . paid as part of one time: entry fee by the setvice providers and (ii} annual spec(rurrr chargEJS which are . paid in the form' of p'e:rcentage'of AGR. The spectrum relate~ issues lnclualng .spectrum ~ricing and its al/ocatlon are already under a consultation process end depending upon the comments received dur:ng consultation pro~cess and TRAI's own .9nalysis the



.. :'




spectrum recommenda.tions will be finalized. In the interim period till spectrum guidelines are issued by the Government 07 India' based on TRAl's recommendations, the existing spectrum plicing .and allocation procedures will continue.' 10. O. License Fee: ~.
10.1 TRAI is of the view that the tetecom services should not be treated as a source of revenue for the Government. Imposing lower license fee on the service .providers would encourage higher growth. further tariff reduction and Increased: service provider revenues. With increased growth, it would be a win-'win situation , for the industry and,the Government.

A true copy ,of the relevant extracts of the TRAl recommendations dated 13.01.2005 is annexed hereto as Annexure R1-11.
49. Again the TRA! in its recommendations dated 13.0!).20050n

'Spectrum Related Issues' gave following recommendations on the


issue of spectrum prlclog: (a) As In the existing frame'llork ~the spectrum charqes should

, continue to have two cempcnents: one time spectrum charge and annual spectrum charge. (Para 4.1)
, (b) In UASl, the 9ne time spectrum charges and entry fee for ;

license have net been separated. In other words, the entry fee
, I '

inCiudes one time spectrum charge also. (Para 4,3.3), (c), Existing method of .annual spectrum
• I

charge in terms of

percentage of revenue.share should continue (Para 4.5.1). I(eepl,lg In view the objectives of growth, affordability,


penetration of mobile services' In semi-urban and rural areas and also the aspect of spectrul11 charges. Authority further recommends that eXisting ceiling on annual spectrum charges

of 6% AGR should be brought down to 4% of AGR. (Para

A true copy of the relevant extracts of the TRAI recommer dations



dated 13.05.2005 Is annexed hereto as Annexure R1·12.. It is relevant to' note that In neither of these recommendations
did the TR~I suggest auenon of 2G epeetrum. 50. In the meantime, the foreign direct lnvestment

of 2005,


ceiling was increased

to 74%

for various telecom servlces.

Copy of Press Note No.5 of
and Policy vide No.

2005 Issued "",/ the Department

of Promotion

9(1 )/2002~FC dated 3 t"ov,ember 2005 regarding



the. Foreign. Direct Investment celling from 49 per cent to 74 per cent in the Telecom sector' Is annexed hereto as Annexure R1-13.
51. After enhancement of FOlln. telecom sector from 49% to 74%, DoT



revlaed Gl.:lldelinea for Unified

Services (UAS) licences. The~e gUidelines, Inter-alia stipulate that: (a) .licences




shall be Issued wlthClut any restriction on the. number


of entrants for provision Service Area.

of 'Unified Access


in a

The applicant wll! be required to pay one time non-refundable Entry, annual Licence fee @ 10/8/6% of Adjusted


.Revenue (AGR) :for categorY AlBIC service areas respectively and spectrum ch.arges on revenue share basis as specified by

WPC wing.

A true copy of the 2005 UASL Guidelines Is annexed

Annexure R1.14.



hereto as

The. guidelines -Issued for UAS Lleenceson


are the

extant guidelines for grant of new UAS licence. All UAS licences
Issued In year 2008 were also governed by these detailed


It may be called that these guidelines were In turn based limd the NTP 1999.

on TRAI recommendations F.. 53.

TRAI Recommendations of 2007
Change ~appens at 'a rapid pace In the telecornmunlcatlen In , erder . to ensure' 'changes/developments

sector. with the

that the

pollel~s keep


In ,th~. telecommunication



contemplate'a to r~vlew certain terms and conditions

license. Since Introduction of UAS licensing regime In 2003, 51 new

licenses had been issued till March 2007 ba sed on the policy of

continuous award on First·Come~Flrst .. Served (FeFS) and spectrum was also allocated based on FCFS ~asls under a separate Wireless
'. {

Operating License, s~bjecno_ availability.

The number of UASl


has been increasIng and there were already about 5 to in each service area. The

8 licensed Access Service Providers

increase in number of applications had increased the demand of
GSM spectrum in a substanUal manner, 54. Accordingly


on 13.4.2007 a reference was made to TRA! stating that
servlce Licensing
was finalized in

the policy on Uni~ed Access

November 2003 based on its 'earlier recommendations.
158 licenses had been issued for pro'/iding

As on date,


~ ",


(CMTS/UASL/Baslc) In the country with 5-8 Access


providers In each servl~e area. The Access Service providers were mostly provl?'ng servIces, using
the wireless technology

(CDMNGSM). As per the' 'present policy, any Indian company fulfilling the ellglbl,llty ~rlter/a can 'apply for UAS license. This was : . ""Increasing ,.I'Ie demand on spe,ctrUm In a substantial manner,

Thei afore, TRAI was r~quested terms

of clause


to fU~lsh their recommendations


1,1(1)(a) of TRAI Act 1997a5 amended by TRAI

, Amendment Act 2000, on the Issue ,of limiting thiS number of access providers In each $el1v'lce area , I review of certain terms and and,

conditions in the acc$s's,provtder license mentioned thereof. 55. Thereafter, on 28.0a.20Q7, the TRAllssued its recornrnendatlons on "Review of license terms and conditions and capping of r .urnber of access prcvlders" and recommended that there should not be any cap on the number of access provIders in a servlce area. recommendation was accepted by the Government.
56. In these recommendaflons, This

:th~ TRAIagain

revislted the issue of

priCing of 2G spectrum, and Its recommendations In this regard are reproduced below:

2.71 Spectrum pricing alms to ensure that the value of
the speatrum is ref/ected' 'In the fees that licensees1pay for its access. There are generally three way.s In which ~hlsls done:

Adininistrative, ! Incentive Pricing wlich . t' , afie,mpts to ca/c:ulate the value of the spec/rum by a~sesslng the cost associated eitner with the user employing an altern a tivf;1,solution, or its oppot1unity cost fore.gone by denying access to an a/t~rnative user.



BeautY Parades 'or 'Comparalive Se/eclion whl"h! fixes the' price, of the speotrum to enS("$ optimum utilizatIon by awarding ,spect1;Urrtto the user($) who score highest ag~/nst a group of pre-set criteria (such as rural coverage or the fulfilm(mt of roll~oLlt
i .



Spectrum Auction Is fully market-ba sed technique. whereby spectrum Is all(srded to the Nghest bIdder (or som« o~mbinatlon of highest priced bids). . . 2,72 In each case,: th, aim is' to chaflge spectrum users' behaviour towares the use of lhe spectrum. to ensure that the maximum (social, economic or present context, noneo( these above techniqu.es of spectfum priCing are being considered for reasons stated In the en_sulngparagraphs. 2.73

technical) ,benefit Is accrued. However, in the

The allocat/on of spectrum Is aftar me payment of entry fee. a'ld grant of license. The ~ntry fee as it exists today' Is, In fact, a f(Jsult of the ")ric e , .: dIscovered ihrOugh a markets based mechanism applicable for the giant 'J of licens« to the 4th cellular operator.' Ih t~day's dynamism and unprecedented growth Qf te/ecom sector, the entry fee' datsrmined then 18 e/so. mIt the real,stio price for obtainIng a license; Pemaps, It need, to bRreassessed through a market meohanism. On the other' hand spectrum usage chi~rge Is in the form of a royalty. which i.s linked to tht: revenue earned by~the. opefflto~ and to !hat extent it . captures tile economic value of the spectrum that is used. "Some stakeho/I.jers havl~ viewed the .
economic rent for the acquIsition and also meet thf1 criteriqn of effiCIency in the utmzation of 'this scarce resource. The Authority In the context of 8001 900 and 1800 MHz Is conscious of the overridIng conplderatlon of le'vel playing field. Though the dual charge In present form does . not reflect the present value of spectrum it needed to be continued for treating already specifJe.d bands for 2G services I.e. 800, 900 and 1801' MHz. It Is In this background that the Authority Is not .recommendlng the standard options pricing of spectrum, howev sr, It, has elsewhere ln the .recommend~tion made a strqng case for aqopting auction procedure in the afioqation
legacy f.e. prevailing practice and the.

charges/fe'e as a hybrid 'model of extracting


jl ,I \

........ ,

• ,', ",



of all other spectrum and 1800 MHz.

bands except 800, 900


2.78 A.s far as 8 new entrant Is concerned, the cl'''"(lo,, arises whether there Is any need for change ln ·the pricing method%gyfor Illol';~tlon of:~fpectrum In the 800, fiOO and 1800 . MHi bands. Keeping In view the obJective' of growth, affordablllty, penetration of wireless ·,elYlces In ,.ml-urban and rural areas, the Authority Is·· not In favour of changing the .pectrum f" reglm, for a new entrant. Opportun,ity fOf equal competition has a/wilY' been one of, the prime principles of the Authority In surigestlng a rogulatory frame.work In te/ecom services. Any differential treatment to a new entrant vis-avis incumbents in ,the wireless sector will go against th~ principle of level playing fie/d. This Is 'Pffclflc andl restricted to 2G bands . only I.e. 80b, ~9.,oand 1800 MHz. This approach assumes more s!gnlf!cance particularly in the context where subscriber acquisition cost for a new entrant.Js, likely to be much higher than for the incumbent wireless operatol'$. 2,79 In the case of speotrum In bands olher than 800, 900 and ., aoo. MHz I.e. bands that ere yet to be allocated, the Authority exammed various possJb/e'approach~s for pricing and has come to the conclusion that It would be appropriate in future for 8 market based pric:e discovery systems .. IR response to the consultation paper, a number 01 stakeholders have ~ ii/sostrol 19ly recommended that -the allocation of spec! 'Urn should be immediafely de-linked from the Jice'1se and the future allocation should tie based on euak». The Authority in its recommendation on lIAllocation and pricing of spectrum for 3G and broadband wireless access servic'3s~.has also favored auction. methodology for allocation of spectrum I (or 3G and BWA services. It is
therefore' .recommended that in future all

spectrum excluding th~ spectrum in 800, 900 and 1800 bands should.be auctioned so as to ensure efficient utilization of this scarce resource. In the ;2G~bands (800 MHzl900 MHzJ180d MHz)! the _allocation through auction .f1!ay not be possible as the service providers were allocated ~nectrum' af different times of their license and ttie amount of spectr(Jm with them varies frdm 2X4.4 MHz to 2X10 MHz for ·GSM technology and 2X2.~ MHz to 2X5 MHz in COMA


... -".,


---'--"-_""".~''''''''''--'''.-~.. -,--,~

'-.-. -'""-""".".-~~'''>'~''~'-'''"''''',..,.

. ,.~ ......

~ -~.,. ..-. ...


'._.- ,'_ .....,._,.- "...~.

teG'hno/ogY'iThe~fore,; to 'declde th9 cut off after which the spectrum Is auctioned will be difficult and mIght raise the Issue of level plvying field,
(Empha·sls supplied.)
A true copy of the above reccmmencatlons dated 28,08,2007 is

annexed hereto as Annexure R1.15.
57, It is evJdentfrom the nbove extracts that insofar as 2G spectru.n is was to continue the existing TRAI also

concerned, the TRAl'srecommendation

practice of allotment of spectrum rather than auction,

spe~lflcally considered whether spectrum. sh?uld be auctioned for new entrants and recommended against such auction on the basis of the principle of level playing field.


The above reccmrriendailcns 29.8,2007.

of TRAI were received by DOT on

On 10.10.2007, the Telecom Commission approved the
and the file was submitted to the competent The Competen t Authority took a

s~ld recornrnendatlcns


for final decision.

considered final policy decision on the recommendation Release was issued i In this regard on


and a Press inter-alia


mentioning that "Given the central aim of NTP 99 to ensure rapid expansion of 'teledensity and the objective to transform in a time bound manner,



to a· greater

competitive ·environment in both urban and rural areas providing eqtlal opportunities recommendations and level playing field tot a/l players, the

of TRAI that there should be no cap on the

number of access provider in any setvk» area has been considered
by the Government and has been accepted." A true copy of the

i ""

press release dated 19.10.2007 Is annexed hereto as Annexure 'R'!.

59. In a further I~tter dated 26 .. 5.2008, the TRAI I~gain informed DoT 0

that keeping In view the obJellctlve of growth, affol'dabillty, penetration


services In semi-urban

and rural arflss and principle


level playing field and opportunity for equal competition . , Incumbents and new entrants, the TRAI rseemmended

between the the same

entry ree as was take'''! from the fourth ,cellular operator for grant of


CMSPf UAS license In the year 200t.

A true copy of the said letter

dated 26.05.200815 annexed hereto as Annexure'R1·17,


Summary of Submlsilons'",
In light of the above~ the i\nswering ~espondent respectfully submits as under: (a) The decision .to 'not auction 2G spectrum was taken on the

basis of NTP 1999, 10lh "and 11th Five Year Plans and the
recommendations decision of TRA', under which a conscious objectives policy were to

was taken that the overriding

Increase teledenslty (b)


than maxlrnlslnq revenue,

Receipt of applications on 'a continuous basis and allotment of

spectrum on a flrst-come-flret-serve
• I

basis was happening ever

since the introduction of the UASL regime' in 2003.




TRAJ specifically


that the entry fe;

for the

operator should' be kept the same as what the order

fourth operator! paid" in 2001,in playing field,

to maintain a level




_'- ._-_._ .._....._ ..... _ _

, ......-~ .. -."..... ............,,~-,-.• .,.•...,'.-- ..,_.,····"-=... -"'~ " .





(d) As a res,ultof allowi119 free competition and a level playing

field, teledenslty Increased to a' huge extent.

Call charqes

came dC!wn drastically and India today has perhaps the lowest . call charges '·in the whole world. Government revenue also

Increased because of the revenue sharing regime,
61. It may be noted that certaln service providers had increased the

rates, of certaln calls, arid SMSs .In year 2006-07. Aggrieved

by the

sltu;:Uon, a consumer grou·p"vlz. Telecom Users Group of India has filed Petition no. 206 of 2006 before the Hon'ble -~L)SAT and the 'petitipn was finally disposed off on 15.07.2008' (after grant of new .UAS licences In year '2008), where TOSAT had cbserved that" The .

grievance of the·petitioner In this petition was that certain service providers! respondents had Increased the rates of certain calls [lnci

SMSs. rode V, the 'aetuel position is that sue!" rates an"l rates of
other tl~/ecom seriices have' drastically comE' clown. 'rhus, this petition has become infructuous and is accordingly disposed of." A


true copy 6(the said Order Is annexed hereto





The Answering

Respondent therefore submits that the contention of

the Petitioners regarding non-auction of 2G spectrum has no merit whatsoever,


The Petitioners

have contended that there has b-een a huge revenue as a result of the non-auction of 2G

loss to the Government spectrum. 140,000 crore





70,000 crore


have been suggested

and it is 'being calleo

..... _




biggest scam of the country.

It is respectfully submitted that this

entire argument Is misconceived.
64. There are different theories on which this ails£led revenue loss is being caleuiated: (a) The amount

allegedly received, by some



,"seiling spectrum" which they 'obtained frcrn the Government; and (b) The amount received by the Government spectrum. All these theories are dealt w!th below.

In the auction for 3G

A. 65.

. "Sale of spectrum" Mis Swan Telecom Pvt. Ltd. and MIs Unitech Wireless were

awaraed Licenses for Unified Access Services for 13 and 22 service

areas respectively

In February-March


The allegation of the

Petitioners is that the promoters c.f these companies then sold their stake to other Joreign companies
for huge amounts. which the


the real value pf the spectrum,

and consequently by an auction.

amount that the Government could have garnerej 66. It is respectfully misconceived. submitted that

the said ,argument is entirely such sale began to circulate,
They have in

After news reports ·of

the DoT sought clarifications from the said companies,

turn clarified that no sale o'f promoters' equity has taken place in 8~Y

of the companies.

.r: "


What has in fact happ~ned: Is that the companies' have inducted strategic partners as Investors in the companies I,y issuing additional

equity shares 'to them as per the provisions of the Companies Act
1956 and other a'ppllcable laws. 'Thus, Etisalat and Telenor
and Unltech by

respectlve~y, picked up equity' shares In SWM

infusion of eCiuity capital int~ the company for rolling out the telecorn network In the licensed service areas. Both' these companies have categorically menthned that the Investment brought In by their strategic foreIgn partners would be used for roiling out the services and this could enhance their capital base keeping the absolute shareholdlng of the promoters Intact.
6a. It Is respectfully submittes:! that It Is evident that telecom operations

require a huge upfront inv~str;nent t~ establish
, I

the physical

Infrastructure, to employ personnel ari,d other lnltla! costs. In order to fund these costs', op~rators. res.~rt to either debt or equity or some

comblnatlon of both.
69. As per Foreign Direct ;Investment (FDI) policy applicable in Telecom



sector, FDI' (both direct' and' Indirect) ,allowed for Unified Access Service License Is 74%. FDI up to 49 % is under the automatic route. FDI In the licensee company/Indian promoters/investment


companies including their holding cornpanles shall require approval of the Foreign lnvestment Promotton Soard (FiPf3) if it has a bearing on the overall ceiling of 74 percent. 70. MIs Swan Telecom Pvt. Ltd., MIs Unitech Wireless Companies and MIs S Tel were- awarded Licenses for Unified Access Services for'

_-_. -

. --_ •._.

- -- ..~~.



.... ,~~.-'"". ·>:~',u ...,..... _ .....


~ _.,

13, 22 and 5 service areas respectively In Feoruary.March

These companles have made strategic partnership (or investment in . the company as per the Company Act and have entered agreement into

with foreign companies


Etisala~ Mauritius

Limited, Telenor Asia Private limited, Singapore and 8MIC Limited,
Maurl~ius respectively for Infuslon'of~qulty capital Into the company
network in the

by issuing fresh equity for rolling out the Telecom
licensed service areas,


The valuation of a company Is a complex exercise and depends on a number of factors ·Includlng the business case- over the period of
license and thls is evident from ,valuation .

of shares of MIs Tata brought in


and MIs. Unlte'ch Wireless.

The Investment

by strategic foreign partners of t:,ese companles would be utilised for roiling out the services and even this would enhance their capital base keeping the absolute sha~e holding 01 the promoters Intact. In
all th(' above cases, the licensee companies have Issued additional

eq~ity for bringing 'In foreign Investment

and as they have not
equity has not been

transferred promoters' equity shares, promoters'

diluted. Foreign lnvesment brings in. capital as well as technology_ It . is a normal practice ln the corporate world to bring investment into . . the company for rolling out ori expansion of business, On earlier
occaslons also, FDI has besn.lnfused in licensee companies as per has been encouraging

FDI policy of the Government.


in the

country since begltmlngand any narrow view will result in

Government oblecnve to be losCA tabular statement of FDI inducted

in the telecom service providing companies from time to time is

enclosed as Annexure R1.19, 72, 'The Foreign, Direct. Investmen,t In Mis Sistema Shyam and Tala Teleservices upto 74% has been approved by FIF'S. The FDI in MIs.
Unltech Wireless , Economic has been ecnsldered by Cabinet Committee on 2009 and

Affairs in their meeting dated ,19th October

approved subject to license and security condition as well as lock In

period guidelines of this department.

In the case of MIs Swan, since

the total' FDI was less than 49%, It was permitted under automatic
ro~te and no FIPB approval was neces~ary.
, "I


Virtually most of the t~lecom operators (for Instance MIs Bhartl, MIs. ',.. Tata "releservices, MIs Idea gellular" ste.) has some amount of FDI.
t ,



That is same thlngt~at hashapperied

in the case

of MIs Swan and

MIs unltech. Th~s~ companies could have, for instance, chosen the IPO route and raised money: from the' general public. Merely

because they chcee-to get the funds, through the FDI route does not
chanqe the essential character of the 'transaction, which is equity

Infusion Into the company. It Is respe'ct.fully submitted that treating this as "sale of spectrum" is simply absurd:

Auction of 3G spectrum The second theory ~as been to compare the process by 'which 3G spectrum was auctioned anti US~ It to determine the value of 2G spectrum. It Is milleadl,ng to do such a comparison, The


comparison Would not be a comparison of equal commodities but a

cCFnparison of unequa's,



~-.-.- ---.. ....







While 2G services are a basic necessity mobile telephone service for
the general public. 3<3servlcee

are. value addedl premium services .

. There was iii legacy methodology for ail~cation o'{2G spectrum while the 3G spectrum Is being allocated ., !. time. Accordingly, TRAI, In flret .

Its recommendations

dated 28.08.2007, recommended that "As far

as a new entran~ is concerns.eI, the question ertse« whether there is

any need for change In the pricing methodology for al/lication of spectrum In the 800, 900 and 1800 MHz bands. Keeping hi view the objective of growth. affardablllty,penetratlan of wireless services in

semi-urban and rural areas, the Autharity Is nat in favour of changing
the spectrum fee regIme for

a new entrant; Opportunity

for equal

.competition has always been one af the prime principles of the
• "'0

Authority in suggesting a regulatof)l framework


teiecom services.

Any differential treatment to a new entr~nt vis-s-vts incumbents in
the wireless


will go agB/~st

the prim;lple (.If level p ayitlg tietc:
ba(1ds only i.e. 800, 900 and

This is specific and (estrlcted

to 2G

1800 MHz. This approach assumes mor« significiance particularly in

the context where ·subscriber acqui~ition cost for a new 9ntranl is



likely to be muon higher than for the incumbent wireless cpersiots' . .Therefore, it is not be appropr'iate: to .compare· the pricing of 2G
spectrum with the 3G spectrum ..


Tf~AI, f:.lrther recommended "that In future all spectrum excluding
the spectrum In BOO/900 and 1800 bands should be auctioned so.

as to ensure efficieflt utilization of tliis scarce resource. In the 2G
bands (300 MHz/gOO MH2I1800' MHz), the allocation throug.~ auction may' nc: be possible as the service provide"s I;',ere allocated

- ...

_ --


_.,_._ .. -._-..... ....

spectrum at different times of tllelr license l1nd the c mount of

spectrum with them varies ttom 2X4.4 'MHz to :?X10 MH2 for GSM technology and 2X2.~ MHz to 2XS MHz In CDMA technology

,ThfJr8fo~j to decIde the cut off after which the ~pe(;trum Is auctioned will be difficult and mIght 'raise the Issue of. level playing field," Therefore, the auctioning of 2G spectrum was not resorted to .


Recently, also, TRAI. in its recommendations

dated 11.05.2010 on

recommended (presently Spectrum auction






that Spectrum In the 800,900 ar·d 1800 MHz bands

used as 2G; specnum) should not be: sllbject to auction.
in 800 and 900 MHz


may however be subjec] to for 3(;; and 'other future

as and VYhen,.Jt Is' refra~~d

technologies. ' 78. A thIrd theory has ~Iso been attempted to compute the alleged revenue loss on the basls of
• '. I

an alleged

offer made by MIs S Tel Ltd,

This company had vide Its letter dated 27.12.2007 made an offer of

• Rs. 13,752 crore payable over ten years, after allotment of 6,2 MHz of GSM spectrum in 900 MHt band in all 22 telecom circles and sharing 9f active networks and Infrastructure, This offer ex facie .could not even be considered for a simple reason: no such spectrum was .,!Vailable! and S Tel was in fact aware of that situation, In any

event, subsequeF1tly in the proceedings before this Hon'ble Court S Tel Ltd. filed an affidavit th~t they had already withdrawn their said offer qurlng the pleading before the Division Bench of the Hon'ble High Court of Delhi. Hence, this theory to computerevenue also wholly incorrect and misleading.
, I

loss is




the contentions regarding alleged



revenue to I;he Government are based on conjectures and surmises and are bereft of merit .



As stated




gra~t granted



licenses. were continuous .

beIng received Between.


on a



and . April


IIc~nce~ were granted


a regular

wltho'ut any cap.rill 2007 when a reference was made to the TRAIt 51 new UAS licenses had been issued for


provld,ing Access services

In the country



lntroductton in 2003. As stated earlier, these had been processec on a first, come, first serve basis. A list of the 'UASL licenses granted tll! 2007 is annexed hereto
I •

as Annexure;fll-20.


After the recelpt of recommendations

from the TRAI

. on 28.08.2007 (extracted above) it was observed that a large . number . of UAS appllcatlons were beinqa Press


by cer,

Therefore, on 24.09.2007,

release was issued .stating that the new a ipllcatlons


- .- -- ---.- "-- ... .,...,.,~....


for UAS Li.cences wlH not 01.10.2007 tfll further


accepted by DOT after

orders. The Press release

appeareq in Newspapers on 25.09.2007. A true copy
·of the said press release Is annexed hereto


Annexure Rl-21.


There were 232 eppllcetlcns and

pendi.1g till 25.09.2007

343 new applications wer.;! received

25.09.2007 a -total

and up to 0-1.10.2007. Thus DOT receiveo spread over 22

of 57:5 UASL eppltcettons, ,

service areas-tIlL01.10.;20p7. A date-wlse break-up of

the 575 applt93tlons received are as follows:

Up tc reference

to T.~I
. i

(l.e, 13.0(2007) 53

Before TRAI's recommendadon
(I.e. 14.04.2007


2? .08.2007)

After TRAI's recommendation to date of press

release (l.e, 28.08.2007 to 25.09.2007)
After publication of press release (t.e, 26.09.2007


to 01.10.2007)




In the background of the large number of applications

and the limited- -availability of spectrum, the issue of

, _...t '\



granting dtscussed

licence to all the eligible 575 ,applications




the Department. It was found that If DOT



to alJ the applicants' and 1f all apptlcants
,t , . ':

requested for GSM spe'ctrum, then' It would require more spectrum for new" entrants alone than what was available with Government. The total GSM spectrum ., ., . , i :', . earmarked In the coun~ry Is 100 MHz out of which

, of"


about 30-35 MHz was- ,already. allotted to existing operators till 2007. ""
I .•

.. .


65-70 MHz a

large chunk was used ~Y security agencies. Therefore, It , all of



ihe apPi\Ca'lts

not even theoretli:aJly




If·all of them requested for allocatIon.


GSM spectrum






"Therefore It was felt that -It would not ba advisable to i .' . . process UAS licence applications for all 575 applicants simultaneously without adequate amount of spectrum.


In the absence of a PdSs~bjlrty of lssulnq a licence and spectrum to all



the issue of the number (LOI) in first

of applicants to be gran~ed Letter of Intent phase' was






and It was


, ,

that It would be

most appropriate
j ;e'l

to cateqorlse the apphcents into two
under' the

those who had been applyhg



extant polley guidelines (continuing since 2005) and those who applied after the Issuance 01 the Press Release announcing the off ijate.

It. W8$ therefore decided' to Initially grant LOI to the

applicants who had applied up to 25.09.2007. 85, It Is submitted that there has not been any preponernent of the CutOff date of 01..10.2007 for receiving. the applications for grant of UAS licences. All the appiicaucne, which were applie':l up to 01.10.2007, . . were received by DoT. The date 25.09.2007 was fixed for initial processing of the·applicatlons and not for receiving the' ap )Iications . . The balance 343 applications' have not been rejected and are . pending with the Departrnent. for consideration.


An express

statement to this effect was als'!) made In the proceedings before the ~. 86, Hon'ble Deihl High COJ,Jrt this Hon'bls Court. and Accordingly a press release was Issued in this respect on 10-012008. In the Press Release It was also Informed that "In the light of
Unified Access Services Licence (UASL) guidelines issi. sd on 14th ~
1 .
, I •



. December 2005 by the department regarding 'number of Licences ill

a Service Area, a reference was made to TRAI on 13-4 ..'1007. The
TRAI 'on 28-8-2007 recommended that no cap be placud on the

number of access service providers in any service urea. The Government accepted ~his recommendation
of TRAI. Accordingly,

DOT has decided to issue LOI to all the eligiblgapplicants

on the

date of application who applied upto 25-9~2007. /. A true. copy of the said press release dated 10.01.2008 Is annexed hereto as

Anne.ture ~1·22. The satdcress release was issued after obtaining

le;sl advice.



.... '.- ..,- .... -.,~.-. .

--.--.,- ...




87. The·· Department on

10.12.2007 squghl clarlflcatlon

from all the All

applicants who applied till 25,9',2007
the applicants

em their

UASL applications. by

. •




Therefore, all the applicants who ap'plled till 25.9.2007 were in know that tllelr applications are being p~ocessed for UAS licence. .


It is

therefore clear that all the applicants who applied for UAS licence till

1.10.2007 'and particularly those who applied till 25.9.2007 knew by 10,12.2007 about the statu~ of processing of their applications.
8S. It is therefore subrr.ltted that there was no preponernent of any cutoff·. date.

It was rather a case of batch-wise



after 89.

No' ~ppncatlon was rejected because It was received

25.09.2007 -Its processing was merely postponed.

On 10.01.2008, In the .2nd Press Release, the applicant companies who have submitted applications to DOT for grant of UAS licences in various service areas on or before 25.9.2007 were requested to

depute their AutQorised representative Similarly, technology response .. 90. .AII were Committee requested


SE1cretaryi authorised
of DOT. of dual

with authority

letter to collect responsets) for usage

the companies spectrum

who' have applied

'are also requested

to collect

the DOT's

to assemble

at 3:30 pm 'on 10:' .2008 at It was

Room, 2nd Floor, senchar Shawan, New Dell'i.

also mentioned that the companies which fail to report before 4.30 P.M. on 10.0'1.2008, the responses 'of DOT will be dispatched


All eligible LOI holders for UASL were to submit compliance to

-- -. - ..----"

.. --- ...,-.~ ..



•. ,--



-.T- .. ". ...... ~""' ... _._._


_ ~""'_"


""_>_~" ,,'.

{ ,


DoT to the terms of LOis within trie prescribed 'Jeriod (15 days from the date of lssue.of Lei) during the orfice hours
P,M. on working days.






has 'been wrongly


by the

Petltlon~rs ·that 10.01.2008


the deadline to deposit Ihe entry fee

of Rs. 1658 erore within 'such deadline.

one hour.

It Is submitted that there was no was only to coltect the
A pe-rlod of fifteen days

The date or 10.01;200.8

of DoT on the -appllcatlo.ns.

thereafter ~as available to make the payment. 91. .


In any event,

even assuml1g ,that the decision to only. process



up to 25,09.2007

was erroneous,

its only

. consequence Is that ~ppllcatlt;ms: received after that date and up to 01.1 0.2007 must ,Iso be processed. . ....... It has




either the first-come, first-serve .pollcy or the poli9Y decision to not auction spectrum .. The DoT has ccnslstenuy
maintained that the

remaining applications have not been rejected-and will be dealt with
'In terms 'of extant policy. Thus •. Its decision has not prejudiced applicant. 92. The Petitioners have contended that the ad~ice of the Ministry of Law and Justice has beerr1disregarded. Ministry of It is SUbmitted that the any

law and Justice has' not given any advice regardin~ the

policy in forceon grant of UAS licenses or the first-come first-serve issue .. The sole qW1stlon referred to the Ministry was rega;ding
possible options to deal with the large numt sr of applications in a

fair manner, l.e., a purely procedural Issue. ThE! M:nistry of Law and Justice had suggested that the matter be reterred to an Empowereci

Group of Mi:1isters. However, It was felt that it was not necessary to


coryst1tute a Group of Ministers on such a' procedural Issue. since no pollc I Issue was to b~ examined,' In any event, It is submitted that

within different branches of Government, some-times different views
are expressed and eventually a particular course of action is adopted, This Is part of the normal fu~c~lonlng of Government and no, action Is que~~lonable s.lmply beeause It was not -as per the suggestion of a particular department.
( "

The Petitioners have further,contended that the views of the Finance Secretary and Member (Flii~nce) have been disr.:>garded, In this regard, 'ft.'ls submitted that on 27,11.2007. tha Finance Secretary had raised certain querles'regardlng the entry fee. This was replied to by the Secretary. (Tel~com) on' 29.11.2007. Thereafter, no further ref( renee or communication was received and there was no difference

of opinion

betWeen the two Ministrias. It may be noted

that a note was also sent by the Member (Finance) on 30.11.2007, but the, same 'Issue "ned already been answered by the Secretary
(Telecom) in his letter dated 29.11.2007 and hence the subsequent

note was lrrelevant..

It may further be noted that the Member vhlch had

(Finance) is a Member of the Telecom comrnlsslon,

approved the recommendation of the ),RAI reg,1rdfng non-auction of



.2G spectrum. 94. It has further been contended that the advice of the Hon'ble Prime Minister has been disregard~d .. This Is again wholly incorrect. The Hon'ble Prime Minister on C2·11·2007 sent a letter to Hon'ble
MoC&IT. On the same day,' the Hon'ble McCS.IT in

hi;; letter dated

02, .:1,2007 reolled to the Hon'ble Prime Minister clarifyinJ all the

1.. issues raised by the Hon'ble Prime Minister, also wrote The

Secretary DoT to the

a letter on' 06.11,2007 to Principal


Hon'ble Prime Minister intimating that "Department
taken decisions allocation to work out. revised subscriber


based spectrum etc, for

criteria and processing

of pendi~g


grant of Unified Access Rele'ase dated

Servl::es licenses", was enolosed

A copy of Press with the said letter


li,tlmatlng that uPending applloatlons for grant o( New Unilrad Access
Services Licenses will be processed as per ine existing polic}/''.

Thus, not only was there no difference of opinion with the Hon'nle Prime Minister, his 'office was decisions, Hon'ble without also fully kapt Informed



On 26,12.2007', Hon~ble;'MoC'T again wrote a .letter to I

PM Informing that I,t Is prcposed to implement the decision ,





delay' and without

any departure

from existing


True copies of the. ! .letters dated 02.11.2007 of the Hon'ble -two
MoCIT, letter dated' 06.11.2007 the Hon'ble of the Secretary MoCIT

DoT and letter

dated 26.1~.2007of

are annexed hereto as

Annexures R1·23 to R1·26 respectively.
95, Insofar as the letter dated 15.09.2010 of the Director General of Audit, Post & Telecommunications is concerneo, it is submitted that

the Issue regarding grant of licenses to allegedly ineligible applicants
has been dealt with in this Affidavit. Insofar as the issue reg<;1rding

an alleged "bail out plan" for certain licemees

IS concerned,

it is

sl,.i;J,nitted that no such declslcn has been tacen by the Department.


Th§!refore, it is respectfully submitted that the allotment process in 2007·08 was correct a!3per law and In keeping with the e.tant policy

and procedures.

ALLOTMENT TO ALLeGEDLY INELIGIBLE AI.)PLlCANTS The UAS licences. are granted In terms of the LIAS guidelines dated
14.12.2005 and based on the Informatlonl documents/certlflcates

submitted by the applicant· companies . duly certified

by their

Com )any Secretary as mentioned In the Guidelines! Application Form. Moreover, as a matter of abundant precaution, DoT takes an undertakIng from the applicant company that "if at ·any time. any . 'avennents made or information. furnished for obtaining the licence Was foqnd Incorrert, then their application and the licence if granted ~. ... thereto on the basis of such application, shall be cercete«. Any misrepresentation by an applicant cannot be construed as indicative of mala fide on the, part of DoT. If any misrepresentation of facts is brought to notice at B. later date necessary action can be taken as per due procedure under th~ relevant rules .' The above stand of DoT was also clarified vide a Press Note dated
27.09.2010 {Annexure R1-27) claiifying certaln issues raised in


media. 98, Insofar as MIs Swan is concerned, the contention appears ,to be that it was ineligible since MIs Rellance Communication
<$', •


held some

shares In the said company. ,It Is submitted that the allegation is without any basis. As per the UASL guidelines, no legalperson may

hold more than ten percent equity in more than one aces ss service


licensee company in the same'service area. On the date of til(:

application, 'MIs Reliance Communications haid 9,9% a'llJily shares

In Mis Swan Telecom. MIs Reliance CommlJnlcations
certaln preference

also hG!d

shares. In MIs
are not the to






counted of

towar Js MIs




Communications was

was within the pre;crlbed

limit and hence there

no Ineligibility of MIs Swan Telecom and legal opinion was also

obtained on the 99.


In view of the aforesaid circumstances, It is re!spectfully submitted , .
that tne application
. with all the

of MIs Swan Teleecm Private Limited complied

terms "and.~"condItions. of :the said UAS guidelines and

there Is no vlolatio,.,of



the policy and lor any condition of the said

UAS guidelines Including that of substantial equity clause l.e. clause

8 of the said UAS ~uldeilnes and all allegations made in this behalf
, I

are lnccrrect.and are made with ulterior motive only with a view to prejudice and misleaa this Hon'ble Gourt..

100. In light of the above, it is respectfully submitted that the DoT has throughout acted in public interest on the basis of the policy determined by the Govemment of India. There is no case made out by the Petitioners for monitoring the Investigation by CBI or an SIi.
The spectat Leave Petition should be dismissed



Verifled at New Deihl this 11" day of November 2610 th,I Ihe Con Ien Is 01

my above affidavit are true and correct, no part of It I. material Is concealed therefrom,


and nothing


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