Nothing wrong with TRAI seeking information to ensure transparency; SC directs Airtel, Vodafone Idea to disclose segmented offers details to TRAI

Supreme Court: The 3-judge bench of SA, Bobde, CJ* and AS Bopanna and V. Ramasubramanian, JJ has directed telecom giants Bharti Airtel and Vodafone-Idea to disclose information/details regarding segmented offers to TRAI. It asked TRAI to ensure that such information is kept confidential and is not made available to the competitors or to any other person.

Facts leading to this order

  • The Telecommunication Tariff (63rdAmendment) Order, 2018 issued by TRAI on 16.02.2018 was challenged by Bharti Airtel Limited, Idea Cellular Limited and Vodafone Mobile Services Limited. Apart from “Reporting Requirements”   and   “Significant   Market   Power”(SMP), a grievance was also raised against insistence of TRAI about the disclosure of segmented discounts/concessions.
  • TDSAT issued an interim arrangement on 24.04.2018 staying the relevant clauses relating to the Reporting Requirements and the definition of SMP. However, the Tribunal permitted TRAI to ask for details of segmented discounts/concessions for analysis but exempted the Telecom Service Providers (TSPs) from disclosing the names of their customers and other sensitive information.
  • After the High Court refused to interfere with the aforementioned order, the TDSAT heard the appeals finally and allowed them partially by a final order dated 13.12.2018, setting aside the Telecom Tariff 63rd Amendment Order in so far as it changes the concepts of SMP, Non-predation and the related provisions;
  • TRAI hence moved the Supreme Court against TDSAT’s order and sought an interim direction to the service providers to disclose information/ details sought by the appellant regarding the segmented offers.

The TSPs argued before the Court that segmented offers constitute “confidentially designed trade practices” and the same has been recognised by TDSAT in it’s order. However, at the same time TDSAT allowed TRAI to seek the number of segmented offers made available to their existing customers, along with a declaration that the principles of non-discrimination were being followed. According to the TSPs, they are complying with the said direction.

TRAI, on the other hand, submitted before the Court considering the number of segmented offers provided by TSPs from January, 2019 to December, 2019 in various states, the details of these offers 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 non-discriminatory and whether predatory pricing is resorted to by TSPs in the garb of segmented offers or not. It was contended that the TSPs are under a statutory obligation to offer tariffs in a transparent and non-discriminatory manner and to report all tariffs to the authority.

Considering the facts and circumstances, the Court said that that the information being sought by TRAI to ensure adherence to the regulatory principles of transparency, non-discrimination and non-predation, cannot be said, at least prima facie to be either illegal or wholly unjustified.

[Telecom Regulatory Authority of India v. Bharti Airtel Ltd., 2020 SCC OnLine SC 910, order dated 06.11.2020]

*Justice SA Bobde, Chief Justice of India has penned this order

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