BHARTI AIRTEL LIMITED Vs DEPARTMENT OF TELECOMMUNICATIONS

An order passed by the first respondent imposing a penalty for a sum of Rs. 50.00 crores for alleged violations of Conditions no. 41. 19 (iv)and 9.1 of the conditions of licence is in question in this petition.

2. The petitioner is a licensee under the Indian Telegraph Act, 1885. It has one call centre in the town of Indore in the State of Madhya Pradesh. On or about 19.01.2011, the first respondent received a complaint that the petitioner herein has camouflaged CLlwhile making business promotion calls to non-Airtel Mobilecustomers.

3. Taking a serious view of the matter, the Director of the TERM Cell requested the petitioner to supply the relevant CDRs. On the premise that furnishing of the CDRs for all the calls may take a long time, the requirement was staggered and the petitioner was requested to provide the three hours' CDRas an interim solution and provide the rest data at the earliest possible time.

4. One Mr. Mandeep intimated that he would be going to access Mediation Server located at Noida to get the desired CDRs and transfer the same to Bhopal. However, the CDRs provided did not serve any purpose as the same did not contain the calls in respect whereof the complaint was made. One of the officers of the respondent No.2 was sent to Noida to expedite 'the pulling ofdata'. It was further informed that the CDRs have been formed out to the Mediation Server at Pune and not to one located at Noida, which defeated the purpose and caused loss of time, money and manpower, etc.

5. On 20.01.2011, the investigating team visited the call centre at Indore and CLIcalls were traced to the call centre in question.

6. Ameeting between the parties was arranged on 21.01.2011 so as to enable them to discuss the matter but nobody attended the same from the side of the petitioner, in spite of the personal calls made by the Director, TERM Cell to Shri Naresh Chander.

7. On the aforementioned premise, a notice was issued on 21.1.2011,inter alia, stating:- "Beinq a technical person, you can appreciate the security concerns of CLl camouflaged call and reasons for continuous investigation in sleepless nights. You are very well aware that CLl camouflaging is not permitted in any circumstances as it mislead to LEA and other intelligence aqencies.

Though M/s Bharti Airtel extended its cooperation during the investigation, certain acts on your end could not be understood. 1. Why the wrong location of mediation server was informed? 2. Why the CLl camouflaged calls did not appear in the 3-hour CDRprovided to us. 3. Why the CLl camouflaged calls did not appear in even in whole day CDR of 17.1.2011 provided to us.

4. Why the meeting was not attended by any of your office?

These aspects need to be answered. So far, CLI has been found camouflaged in more than 8000 calls, which is the straight violation of License agreement. You are hereby asked to explain that why the suitable action not is taken against your company? Kindly submit your compliance within 7days to this office."

8. Our attention has also been drawn to various e-mails exchanged between the parties. The petitioner by its letter dated 27.1.2011 accepted that it had not attended the meeting. According to it only after the investigation was carried out by the respondent No.2, the petitioner came to know that some data had been missing from CDR, stating:-

«We then tried to pull the data of whole day and handed over whatever we could pull out till 6 AM on 20.1.2011 as per your instructions. When we came to know about the called number, we have cross checked the same at our call center and taken out some sample numbers to find out the reason for the wrong CLI issue with BSNL numbers, we found all these raw CDRS in our MSC. However while processing the raw data by our mediation server, we are not getting non rated/ non chargeable i.e. PRI calls in the CDRfetched from our data warehouse."

9. It was furthermore stated:- «If the third party provides any CLI than without making any changes we forward this CLI to subscriber, which happened in our case. In EPBAX machine of tele caller, they had set the default value of CLIinstead of given CLIto them (9893047450). Hence the Cl.I of calling number displayed to the subscriber's number (Same number for A & B party)."

10. It furthermore appears that a personal hearing was given by the respondent No.2 on or about 19.8.2011. The petitioner acknowledges that such hearing had been given to it by its letter dated 25.8.2011.

11. Thereafter, the impugned order dated 5.10.2011 has been issued inter-alia on the premise that violation of the aforementioned conditions of licence i.e. 'camouflaging of CLI' posed a 'high potential security threat to the nation'.

12. Mr. Kapur, learned senior counsel appearing on behalf of petitioner would contend:- (a)Hearing having been grven by respondent No.2 but the impugned order having been passed by respondent No.1, the same cannot be sustained. (b)In a case of this nature, the principles of natural justice having not been complied with, the impugned order is liable to be set aside. (c)The petitioner having clearly pointed out only a technical error had taken place in support whereof a certificate issued by Nokia Seimen Networks had been annexed by the petitioner along with its letter dated 07.02.2011, no case has been made out for arnvmg at a decision that aforementioned alleged acts of ormssion and comrmssion on the part of the petitioner, was a deliberate one.

13. Mr. K.P.S. Kohli, learned counsel appearmg on behalf of respondent, on the other hand, would submit that the petitioner had been granted full opportunity to explain its case and not only a notice was issued but even a personal hearing was granted.

14. Clauses 9.1 and 41.19 (iv) of the Conditions of Licence read thusr- "Clause 9.1: the Licensee shall furnish to the Licensor/TRAI, on demand in the manner and as per the time frames such documents, accounts, estimates, returns, reports or other information in accordance with the rules/ orders as may be prescribed from time to time. The Licensee shall also submit information to TRAl as per any order or direction or regulation issued from time to time under the provisions of TRAl Act, 1997 or an amended or modified statute. JJ "Clause 41.19 (iv): Calling Line identification (CLl) shall never be tampered as the same is also required for security purposes and any violation of this amounts to breach of security. CLl Restriction should not be normally provided to the customers. Due verification for the reason of demanding the CLlR must be done before provision of the facility. It shall be the responsibility of the service provider to work out appropriate guidelines to be followed by their staff members to prevent misuse of this facility. The subscribers having CLIR should be listed in a password protected website with their complete address and details so that authorized Government agencies can vzew or download for detection and investigation of misuse. However, CLIR must not be provided in case of bulk connections, call centres, telemarketing services. "

15. Prima-facie, we are satisfied that it was the primary duty of the petitioner to furnish all requisite informations and to take adequate measures for the purpose of detecting the Non-CLl calls and ought to have rendered all co-operations with the respondent.

16. We are furthermore of the opinion that the petitioner has been given an opportunity to explain its case. The respondent No.2 is mainly a designated authority of the respondent No.l. Detection of camouflaged CLl calls and making investigations in relation thereto are within its province. It is not a statutory authority. The impugned order is not one passed under a statute.

17. Keeping in VIew the fact that an allegation of violation of : conditions of licence of such nature had been made, the petitioner not only should have handed over the correct CDR but should not also have given wrong information to the respondent that the Mediation Server is located at Noida.

18. The question is not as to whether there has been revenue loss to the respondent as at this juncture, but is as to whether there has been violation of conditions of license which were mandatorily required to be complied with. We have noticed heretobefore that the petitioner did not even attend a meeting call for by the respondent No.2. Even no advance intimation about the non-participation ofits officers had been given. It was necessary keeping in view the request made by the respondent to attend the said meeting with the petitioner's COO/CEO and technical team.

19. Prima-facie again we fail to understand as to why the initial CD did contain the requisite informations having regard to the e-rnail dated 19.1.2011 sent by Shri R. Shakya to Shri Naresh Chandra.

20. The petitioner, as would appear from the respondent No.2's letter dated 21.01.2011 and the consequent cause shown by the petitioner by its letter dated 27.01.2011, was also granted an opportunity of being heard and making a presentation.

21. We, therefore, are of the opmion that the prima-facie the petitioner has violated the conditions oflicense.

We however, keeping in VIew the fact that there IS nothing on record to show as to why the maximum amount of penalty of Rs.50.00 crores has been imposed, and furthermore having regard to the nature of defence raised by the petitioners that the violation occurred owing to a technical error, are of the opinion that interest of justice would be sub-served, if the petitioner is directed to deposit 25 per cent of the said amount, namely, a sum of Rs.12.50 crores without prejudice to it is rights and contentions of the petition and subject to adjustment of equity at the time of final hearing. The petitioner may deposits the aforementioned amount with the respondent within two weeks from date.

(S.B. Sinha) Chairperson, '~. ~. ~> (P.K. Rastogi) Member

HKC/