Supreme Court Directs Airtel, Vodafone To Disclose Details About 'Segmented Offers' To TRAI

Telecom Regulatory Authority of India v. M/S Bharti Airtel Ltd. and Ors.

I.A.No.46116 of 2020 in Civil Appeal Nos. 250­252 of 2019

06 November,2020

Counsel for the Applicants/Appellants: Learned Solicitor General Mr. Tushar Mehta

Counsel for the Respondents: Learned senior counsel Mr. Aspi Chinoy,

The Hon’ble Supreme Court comprising of Chief Justice of India S.A.Bobde, Justice A.S.Bopanna and Justice V.Ramasubramanian held in an interim application that information sought by TRAI to ensure adherence to the regulatory principles of transparency, nondiscrimination and non predation, cannot be said, at least prima facie to be either illegal or wholly unjustified.

In exercise of powers conferred by Section 11(1)(b)(i) read with Section 11(2) of the Telecom Regulatory Authority of India Act, 1997 TRAI issued an order namely the Telecommunication Tariff (63rdAmendment) Order, 2018 dated 16.02.2018. Challenging the said Tariff Order, Bharti Airtel Limited, Idea Cellular Limited and Vodafone Mobile Services Limited, filed appeals in Telecom Appeal Nos. 1, 2 and 3 of 2018 before the TDSAT. Primarily, the challenge was to the “Reporting Requirements” and “Significant Market Power”. Yet another grievance was about the insistence of TRAI about the disclosure of segmented discounts/ concessions.

TDSAT heard the appeals finally and allowed them partially by a final order dated 13.12.2018. By this order, TDSAT set aside the Telecom Tariff 63rd Amendment Order in so far as it changes the concepts of SMP, Nonpredation and the related provisions. It is against the said final order of TDSAT that TRAI has come up with the above Civil Appeals; On 21.01.2019 the Appeals were admitted. However, on the prayer for stay, this Court recorded:“ There will be no stay of the impugned judgment except to the extent of remand”. Thereafter the appellant namely TRAI has come up with this application in I.A.No.46116 of 2020 seeking an interim direction to the service providers to disclose information/ details sought by the appellant regarding the segmented offers.

It is contended by the applicant – TRAI, that the details of the segmented offers for the year January, 2019 to December. 2019 are not even disclosed to TRAI and that therefore, despite being a regulator, TRAI is not in a position to analyse whether the plans are transparent and nondiscriminatory and whether predatory pricing is resorted to by TSPs in the garb of segmented offers or not.

(i) It is contended by the respondents, TSPs, that segmented offers, as found by TDSAT in the impugned order, constitute “confidentially designed trade practices”. Therefore, the TDSAT held that there is no need for reporting. (ii) It is also contended by the respondents that TRAI cannot seek such interim directions, especially after having failed to secure a stay of the operation of the impugned order. Grant of interim directions as prayed for, would tantamount to allowing the appeal itself.

Answering the second contention of the respondents, the Court noted the following:

The argument of the respondents that the prayer for stay of operation of the impugned order was granted only to a limited extent, at the time when the appeals were admitted, does not take the respondents anywhere. In fact, the impugned order dealt with several issues such as segmented offers, SMP, non predation etc. The prayer for stay related to all the issues and the order of remand. Therefore, the limited interim order passed on 21.01.2019, at the time of admission of the appeals, does not operate as a fetter for the applicant to seek interim directions, limited to the extent of disclosure of details relating to only one of the several issues. (Para 14)

For the very same reason as aforesaid, the argument of the respondents that the grant of interim directions as prayed for would tantamount to allowing the appeals, does not hold water. There are several issues involved in the appeal. The interim directions now sought are confined to only one of the several issues and what is sought in respect of that issue is also only a limited direction. (Para 15)

The Court then recounted the history of the Telecommunication Tariff Order issued by TRAI from time to time to ensure non discrimination and non predation. In light of the above and after considering the contentions of the parties, the Court observed the following:

In the light of the above historical background, what is now sought by TRAI to ensure adherence to the regulatory principles of transparency, nondiscrimination and non predation, cannot be said, at least prima facie to be either illegal or wholly unjustified. Hence the I.A. is allowed and a direction is issued to the respondents to disclose information/details sought by the applicant/appellant regarding segmented offers. But it is the duty and responsibility of TRAI to ensure that such information is kept confidential and is not made available to the competitors or to any other person. (Para 19)

Accordingly, the appeal was disposed.

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