Despite all their efforts to continue functioning in the Indian telecom space, operators facing licence cancellation as per the Supreme Court?s verdict in the 2G spectrum case have suffered a serious setback.

The Supreme Court took a stand on the issue in February this year and revoked 122 licenses issued under A Raja’s tenure. This includes 21 licences of Videocon, 22 licences of Uninor, 9 of Idea Cellular, 3 of Tata Teleservices Limited, 21 of Loop, 6 of S-Tel, 21 of SSTL, 15 of Etisalat and 4 of Spice.

These licences were granted after January 2008 and were cancelled for being outside the eligibility criteria for allocation of 2G spectrum.

Licence cancellation apart, these operators were also required to pay heavy penalties. The Supreme Court imposed a penalty of Rs 50 million each on Unitech Wireless (Uninor), Swan Telecom and TTSL, while Loop, STel, Allianz and Sistema Shyam Teleservices Limited has been fined Rs 5 million each.

Post the verdict, all operators swung into action.

To safeguard their interests, Uninor, SSTL, Idea Cellular, Etisalat DB, S Tel, Tata Teleservices Limited and Videocon filed a review petition in this context.

Thereafter, the Department of Telecommunications (DoT) had identified a three-pronged game plan in this regard.

As part of the proposed strategy, DoT had said that the government ought to file a review petition; a presidential reference should be taken to gain clarity on the legal implications of the judgment and a clarification petition covering operational issues should be filed.

DoT?s proposal to file a review petition broadly entailed the government requesting the Court to reconsider its decision pertaining to the first come, first served policy. The Court had said that the policy was invalid under the Constitution.

In this context, DoT had argued that the Court?s findings encroached upon the executive?s jurisdiction to frame policies.

Its suggestion to file a review petition stemmed from its opinion that the Supreme Court?s judgment overlapped with the area of policy-making. So, the Court contradicted the principles of separation of powers and extended beyond the limits of judicial review defined in several of its own judgments.

Regarding its recommendation that the government opt for a presidential reference, DoT had argued that the court had considered only the 122 licences issued on or after January 10, 2008 and had not mentioned the other licences granted under a similar policy. In this context, therefore, the legality of the licences issued earlier came into question.

DoT added that it was unclear whether, as per the judgment, the dual technology licences issued in 2008 were illegal or not.

Also, it said that in view of the judgment, it should be clarified whether any priority could be given to the Telecom Regulatory Authority of India?s (TRAI) recommendations pertaining to spectrum, even at a price determined at the auctions.

Thirdly, DoT said that an opinion ought to be taken on whether a ceiling on spectrum acquisition, as recommended by the regulator, is required.

DoT also said the four-month time limit stipulated by the Court for auctions to take place was very short and it would take 400 days at a minimum. In this regard, it recommended that the government file an appropriate application to the Supreme Court.

Now, as per news reports, the Supreme Court has taken a decision on the petitions filed by the operators facing licence cancellation and DoT.

The Court has reportedly rejected the petition of these companies to review the verdict, on grounds that the same did not have any errors in it.

Further, it is believed that DoT?s petition will be heard on April 13, 2012.

Operator reactions

Meanwhile, the Court?s decision seems to have made Uninor and SSTL more determined to stay in the sector.

According to a statement issued by Unitech Wireless, the company will now file a curative petition in the court.

The statement said, ?By entertaining the review petition and hearing the case again, the Supreme Court would have been able to appreciate arguments and evidence that challenged the very basis of its order. We are disappointed that the court has declined to do so. We will now move a curative petition and again urge the Supreme Court to keep its order in abeyance until these arguments are seen and appreciated by the new bench. The court must ensure that no one has any reason to hold grievance that their evidence was ignored, especially when considering it would only strengthen the sanctity of any order.?

Meanwhile, SSTL said that it would continue to tackle the issue from a legal aspect. It issued a statement as well, which said, ?SSTL has maintained that being a pure play CDMA operator, its legal case is significantly different compared to other mobile operators. It is extremely disappointing to know that SSTL?s review petition has not been accepted. To protect its interests further, SSTL currently is in the process of deliberating its future course of legal actions.?