TDSAT sets aside DoT order on Qualcomm

Telecom tribunal TDSAT today set aside a DoT order penalising Qualcomm by shortening the time limit for rolling out broadband services and reducing the holding period of spectrum allotted to the company.

While issuing spectrum for wireless broadband services, the Department of Telecom (DoT) on May 8 reduced the validity of broadband wireless access (BWA) spectrum to 18 years and six months from 20 years. Besides, Qualcomm's roll-out obligation period was also reduced from five years to three-and-a-half years.

This was pursuant to a legal battle between the company and DoT after the department, in September 2011, rejected the Qualcomm's application for Internet Service Provider licence citing late submission of application and other technical reasons.

DoT had objected to Qualcomm's application which had sought four licences in the name of different entities. Hearing the Qualcomm's plea against DoT order penalising the company, the TDSAT said, "... this petition is allowed and the impugned order dated May 8, 2012, in so for as the period of holding spectrum and the roll out obligation are set aside, with no order as to costs."

Penalty could be imposed only in the event a breach of the conditions of licence, the bench said, adding "there is nothing on record to show, that any breach of conditions of the licence on the part of the Petitioner has been committed". The tribunal was of view that it had already decided on the issue of delay by Qualcomm in one of its earlier order on February 24 this year, when it had asked DoT to grant licence to the US-based firm.

"We are, therefore, of the opinion that the order of this Tribunal dated February 24, 2012 having attained finality, the Respondent (DoT) cannot be permitted to raise the question of the purported delay on the part of the Petitioners once over again," the bench said.

"If DoT was serious to seek determination of the said issue, it could have also imposed the said condition in its LoI dated October 10, 2011. It is not the case of the DoT that the conditions laid down in the said LOI have not been complied with," TDSAT said.

Qualcomm had won the BWA spectrum in four circles -- Delhi, Mumbai, Kerala and Haryana -- for Rs 4,900 crore through bidding in 2010.

The tribunal was also of view that period of roll-out obligation should be counted only after spectrum is alloted to it and not prior to that.

"The roll out obligation on the part of the successful bidder begins only when the spectrum is assigned and not prior thereto ... It is, therefore, evident that what was to be auctioned was the spectrum and not the licence," it said.

TDSAT also said that DoT has no penal power to reduce the period and "if DoT thought that such a power is vested in it or the same could be exercised, it was required to be stipulate the same in the Notice Inviting Application explicitly and in no uncertain terms".