TATA TELESERVICE LTD Vs MINISTRY OF COMMUNICATIONS & IT

S.B. Sinha The pe oner is a licensee; the license having been granted by the First Respondent in terms of the provisions contained in Sec on 4 of the Indian Telegraph Act, 1885 (the Act).

It, in terms of the licenses granted in its favour, is engaged in the business of telecommunica on by providing both GSM and CDMA services to its customers.

Inter alia, on the premise that the cable service operators, be it mul -service operators and/or the cable service operators while laying down the overhead cables while using the electric and telephone polls cause spectrum interference, this pe on has been filed.

In this pe on, apart from the Ministry of Communica on & Informa on Technology, Department of Telecommunica on, the Ministry of Informa on & Broadcas ng have been impleaded as par es. They are said to have failed/neglected to control the opera on of mul -system operators or the cable operators opera ng out of the areas wherein such spectrum interference has been no ced.

In this pe on inter alia the following reliefs have been prayed for:- “(a) Direct the Respondent No.1 to 4 and other concerned authori es to take all necessary steps to ensure that the Spectrum allocated to the Pe oner and its beneficial enjoyments/u liza on thereof is unrestricted, unconstrained, uninterrupted and interference-free from any manner whatsoever. (b) Direct Respondent No.1 to 4 to take immediate steps as per the applicable laws and take immediate remedial ac ons with regard to the problem of spectrum interference faced by the Pe oner. (c) Direct Respondent No.1 and Respondent No.3 to forthwith cancel the licenses/cash registra on of Respondent No.5-16 on account of their failure to comply with Regula on 10 of The Cable Television Networks (Regula on) Act 1995. (d) Direct DOT to disclose what steps it has taken pursuant to the complaints (Re: Spectrum Interference) made by the pe oner and what future steps it proposes to ensure interference free spectrum. (e) Declare that the pe oner would not be held responsible in breach of License (Re: Condi on 28 – Quality of Performance) and Clause 4 of the Regula on on quality of service of Basic and Cellular Mobile Services, 2005. (f) Direct the Respondent No.1 to create a mechanism as illustrated in Para 21 to ensure that such spectrum interference in future is inves gated and remedial ac on is taken in a me bound manner (within 4 weeks) from making a complaint including prosecu on of such offenders under Sec on 16 of The Cable Television Networks (Regula on) Act, 1995. (g) Direct the Respondent No.5 to 16 to abide by Sec on 10 of Cable Television Networks (Regula on) Act, 1995 and ensure that their amplifiers do not interfere in the telecommunica on spectrum allo ed to the pe oner.”

In support of its statement in the pe on, the pe oner has placed the CATV alloca on in Band-5 overlapping with CDMA frequency band of 824-844/869-889 MHz vis-à-vis the CATV frequency band-5, which reads as under:

“CATV Frequency

2. CATV frequency allocated in Band V overlaps with the CDMA frequency band of 824-844/869-889 MHz. The CATV frequency Band V is given in the Table below:

Channel Bandwidth Video Sound 38 606-614 607.25 607.25 39 614-622 615.25 615.25 40 622-630 623.25 623.25 41 630-638 631.25 631.25 42 638-646 639.25 639.25 43 646-654 647.25 647.25 44 654-662 655.25 655.25 45 662-670 663.25 663.25 46 670-678 671.25 671.25 47 678-686 679.25 679.25 48 686-694 687.25 687.25 49 694-702 695.25 695.25 50 702-710 703.25 703.25

51 710-718 711.25 711.25 52 718-726 719.25 719.25 53 726-734 727.25 727.25 54 734-742 735.25 735.25 55 742-750 743.25 743.25 56 750-758 751.25 751.25 57 758-766 759.25 759.25 58 766-774 767.25 767.25 59 774-782 775.25 775.25 60 782-790 783.25 783.25 61 790-798 791.25 791.25 62 798-806 799.25 799.25 63 806-814 807.25 807.25 64 814-822 815.25 815.25 65 822-830 823.25 823.25 66 830-838 831.25 831.25 67 838-846 839.25 839.25 68 846-854 847.25 847.25 69 854-862 855.25 855.25”

The respondent Nos.5 to 16, according to the pe oner, use poor quality amplifiers which is said to be viola ve of Sec on 10 of the Cable Television Networks (Regula on) Act, 1995.

The pe oner in this pe on has inter alia contended as under: “3. The TV signal, modulated on carriers falling in the CDMA band, are carried through the co-axial cable and amplified at regular interval. The major cause of leakage of CATV signal is the poor quality/worn out amplifiers normally improperly installed on the poles or roo ops. The leaking signal from such amplifiers causes interference in the CDMA network as these signals can be picked-up by nearby BTS Towers used for CDMA network.

4. It is seen from the above Table that CATV channel 66 & 67 (830 – 846 MHz) falls in the Up-Link band of CDMA (824-844 MHz). These two channels are the main source of interference for the CDMA cellular service. CATV operators modulate the TV channel on these two carriers and transmit it through the cable network. The power content of these two channels is very high and when they leak through the poor quality amplifier they cause severe interference in the CDMA Up-Link channels. Other than these two main channels, there are harmonics and spurious emission from the CATV system which also causes interference in the CDAM cellular service.

Impact of Interference

5. The major effect of CATV interference is in call drops and failure in call setup. It is per nent to men on that interference in our CDMA carriers seriously impacts the load on all the network elements, thus deteriora ng network performance. This in turn impacts QoS and increase customer dissa sfac on/complaints. The details of some of the cable operators which are interfering the frequency of TTSL which is resul ng in average call drop rate and average call set up failure rate are depicted in a tabular chart herein below:-

Circle City Name Name of Cable TTSL frequency Areas affected Average Average Name Operator which is being due to Drop Call Set interfered interference Call up from cable Rate for Failures operators affected [%] areas [%] Delhi Delhi Si Cable, Ch 492 [839.274 Karol Bagh, 12% to 2.7% to Indusland MHz] most effected, Patel Nagar, 35% 6.3% Media & 836.77 MHz, Jahangirpuri, Communica on 835.683 MHz Ashok Vihar, Ltd., Karol Sector-17, Bagh Network Gurgaon Private Limited, The Pooja Cable, M/s Den Ltd., M/s Jay Amba Cable Network, M/s Nelson Communica on Ltd. & The Yadav Cable & other local cable operators West Kolkata Prakash Cable Ch. 228 [833.03 Terity Bazar, Salt 3.4% to 6% to Bengal Centre MHz – 834.26 MHz] Lake Area, Bagri 11% 21% &Kolkata Cable Marker, Bara Network Bazar, MG Road

Gujarat Ahmedabad Gujarat Telelink Ch. 42[825.64 MHz- Shahibaug, 1% to 1.12% Pvt. Ltd. (GTPIL) 826.87 Mhz], Isanpur, Anjali 2.69% to & In Cable Cross Rd., 2.16% Ch.226 [831.16 Ghodasar, CG MHz-832.39MHz], Rd. Narol, Ch.1[824.41MHz– Maninagar, 825.64 MHz] Sabarma, Naroda-nr. Airport area, Sola Rd., Thaltej etc. Punjab Amritsar Unknown Ch.512[839.745MHz Fatehgarh 7% to 3.4% to to 840.975 MHz] Churian, 23% 4.18% Dhanipur,Ajnala, Majitha, Dera Baba Nanak

Status of CATV Interference 6. TTSL had started experiencing CATV interference in its Delhi Network since October 2007. Therea er, it had spread to other places like Ahmedabad, Kolkata, Bangalore, Kerala, Hyderabad etc. TTSL in mated all concerned through various le ers including Wireless Monitoring Organiza on (WMO), a wing of DOT responsible for resolving interference issues, WPC and TRAI regarding impact of degrada on of quality of service due to CATV interference. WMO has carried out interference measurement at number of places on several occasions and confirmed the source of interference as CATV signals. WMO has asked these CATV operators to switch off the interfering channels. Therea er, the interference level has gone down. However, the approach followed by WMO, by asking CATV operator to switch off the channel transmi ng at CDMA carrier allo ed to TTSL, is not yielding the desired result in controlling the interference. On direc on from WMO officials; local CATV operators switch off the culprit channel only for a short dura on of 1-2 hours and therea er, when these officials leave the site, they again switch on the channel. Thus, the effort put in by WMO result in respite from interference only for 1-2 hours. One of the permanent remedial measures could be to stop transmission of CATV signal from the Head End at CDMA carrier allo ed to TTSL in the affected areas.”

The respondents Nos.1 and 2 in their affidavit have, inter alia, contended that the Department of Telecommunica ons, Ministry of Communica ons and Informa on Technology had requested the Ministry of Informa on & Broadcas ng to amend the relevant rules framed under Cable TV Networks Regula on Act, 1995, so as to incorporate “penal ac on may be taken by Wireless Planning & Coordina on Wing, Department of Telecommunica ons, Ministry of Communica ons and IT under Indian Telegraph Act, 1885 in case interference is observed to wireless licensed telecom service.”

The Respondent No.3 has also filed an affidavit affirmed by one Mr.Navil Kapur. In the said reply it had been contended: th “1. That the Ministry is in receipt of sugges on dated 10 may, 2010 of the Wireless Planning and Coordina on Wing in the Ministry of Communica on & IT to amend ‘The Cable TV Network Regula on Act, 1995, to incorporate penal ac on under Indian Telegraph Act, 1885 for causing interference to licensed telecom services’. 2. That the respondent herein has been considering the recommenda ons of the Telecom Regulatory Authority of India on restructuring of cable services and considering comprehensive amendments in the Cable TV Act. The sugges on of the respondent Department of Telecommunica on rela ng to amendment in the Act is being considered along with other amendments in the Cable TV Act. 3. That since amending the provisions of the Cable Act are likely to take some me in the interim and as has been suggested in the Affidavit filed by this Respondent earlier, the Wireless Monitoring Organisa on can furnish evidence with regard to viola ons of Sec on 10 of the Cable Act to the authorized officers under the Cable Act so that complaint can be lodged by them in a competent Court for criminal ac on.”

The private respondents, however, while denying and dispu ng that any interference is being caused in the CATV frequency bands, contend that the provisions of the 1995 Act are sufficient to deal with a situa on of this nature.

Cable television is one of the systems to provide television to the consumers. The signals of the broadcasters put up through satellite or otherwise are transmi ed to the headends except in the case of direct-to-home consumers. While effec ng re-transmission, the MSOs or big LCOs are required to do so through fixed op cal fibres or coaxial cables for transmission of radio frequency signals as opposed to digital methods used in television broadcas ng wherefor a television antenna is required.

The centrally placed headend amplifiers necessary for opera ng CATV systems, are to be connected with very long cables for reaching the television sets of the subscribers. For mee ng the technical requirement, namely, to boost the signals headend, amplifiers at regular intervals are installed for the purpose of boos ng the strength of signal and make them acceptable to the television sets. For the said purpose, it is possible that signals are amplified by using 30 to 40 amplifiers before it reaches the subscribers’ premises. The cable television headend is a master facility for receiving television signals for processing and distribu on over a cable television system. The signals are therea er mixed in accordance with the cable system channels numbering scheme using a series of cable modulators. They in turn are fed into a mul plier or signal combiner. The mixed signals are then sent into a broadband mul plier and then sent into the cable system by the trunk line and con nuously applied in stages as per the system requirement. The modulator input signals and modula on to a specific radio frequency which fall in CDMA frequency band 824-844 MHz/869-889 MHz.

The Parliament enacted Cable Television Act, 1995 (1995 Act).

While the Ministry of Telecommunica on deals with the ma ers rela ng to grant of licenses to the licensees in terms of the provisions of the Act, the ma ers rela ng to grant of permissions to the mul -system operators, broadcasters and other distributors are governed by the 1995 Act.

The 1995 Act also provides for the ma ers which are required to be dealt with for viola on of the provisions of the said Act.

We may no ce Sec on 10 thereof, which reads as under: “10. Cable television network not to interfere with any telecommunication system.—Every cable operator shall ensure that the cable television network being operated by him does not interfere, in any way, with the functioning of the authorised telecommunication systems.”

Sec on 16 of the said Act provides for a penal provision. However, Sec on 18 thereof provides that a court may take cognizance of an offence under Sec on 16 of the Act, if a complaint is filed by the authorized officers.

The term ‘authorized officers’ is defined in Sec on 2(a) of the Act which reads as under: “2. Definitions.—In this Act, unless the context otherwise requires,—

[1] [(a) ‘authorised officer’ means, within his local limits of jurisdic on;- (i) a District Magistrate, or (ii) a Sub-divisional Magistrate, or (iii) a Commissioner of Police, and includes any other officer no fied in the Official Gaze e, by the Central Government or the State Government, to be an authorised officer for such local limits of jurisdic on as may be determined by that Government;]”

The private operators like the pe oners, therefore, have no independent right to make a complaint although viola ons of the provisions of the said Act may be no ced by them. It invariably is required to approach the authorized officers who by the nature of the office they hold may not be expert persons. Be that as it may, in terms of the provisions of the 1995 Act, therefore, only the authorized officers are empowered to file a complaint pe on so as to enable a Magistrate to take cognizance of an offence.

When a criminal complaint is filed, successful comple on thereof may not only require examina on of the complainant but also examina on of the witnesses who would be able to prove the commission of an offence.

Indisputably, no immediate ac on can be taken. There if no me-limit within which a criminal complaint can be dealt with or for allowing a criminal case to reach to its logical conclusion one way or the other. Till such me viola ons of the Act may con nue. On the other hand, an innocent person may also be prosecuted although he may not have any hand in commission of the alleged offence.

Telecommunica on services on the one hand, and Broadcas ng and Cable Services on the other, although are governed by the same Act, are looked a er by two different Ministries. There are different hierarchies of officers, their viewpoints may be different.

The respondent No.1 as also the respondent No.3 feels that the 1995 Act should be amended. What should be the nature of the amendment is not a ma er which comes within the domain of this Tribunal.

It is not competent or even otherwise has any hand for asking the Parliament to amend the Act one way or the other.

However, as in some countries, it is possible for this Tribunal to enter into a dialogue of the nature as has been done in the instant case. In our opinion, the concerned departments have taken a right approach but we are not very sure when the Parliament would be able to amend the Act and/or what would be the contours of such amendment.

We may, however, no ce that according to the pe oner a provision should be made which is akin to the provision governing “the of electrical energy” under Electricity Act, 2003 being Sec on 135 in terms whereof the Government can authorize some of the officers of the private telecom operators above a par cular rank to act as authorized officers and to monitor the interference and lodge complaints before the appropriate forum.

The pe oner may be jus fied in contending that even the power of search and seizure should be given to the above officers with suitable checks and balances. It is not for us to endorse such sugges ons nor any comment in respect thereof.

The ques on which arises for considera on, moreover, involves technologies.

Despite the fact that the Government of India and/or the authorized officers are required to constantly monitor the system so as to find out as to whether interference is being caused to CDMA frequency resul ng in disturbance in carrying out the telecommunica on services by the licensees is a ma er which requires an empirical study.

The Central Government in exercise of its power conferred upon it under the proviso appended to Sec on 2(k) of the Indian Telegraph Act has issued a no fica on on or about 07.01.2000 in lieu whereof, the ‘Broadcas ng and Cable Services’ have been brought within the purview of the ‘Telecommunica on Services’.

The Telecom Regulatory Authority of India (TRAI) in exercise of its powers conferred upon it under Sec on 11(1)(b) of the TRAI Act, 1997 is en tled to make regula ons both in respect of ‘Telecommunica on Services’ which is stricto sensu are covered by the Indian Telegraph Act as also the ‘Broadcas ng and Cable Services’ which are deemed to be ‘Telecommunica on Services’ by reason of the aforemen oned no fica on.

Although, TRAI had made various regula ons regula ng both ‘Telecommunica on Services’ as also ‘Broadcas ng and Cable Services’, it is yet to make any regula on which covers both the services.

Convergence of the services although is a known phenomenon in the industry in other countries, neither the Parliament nor TRAI had made any Act or any regula ons in this behalf.

The Central Government made Convergence Bill as far as back in the year 2000. For one reason or the other the Convergence Bill had not been placed before the Parliament.

This Tribunal by reason of interpreta ve process has tried to do something in this behalf (Pe on No.172 of 2009 [Star (India) Pvt. Ltd. Vs. Bharat Sanchar Nigam Ltd.] disposed of on 22.01.2010)

Keeping in view the fact that the technological aspects of the ma er cannot be ignored being its crux, we would request TRAI to frame regula ons in this behalf upon obtaining comments/sugges ons from all the stakeholders during the consulta on process. This, however, shall not mean that the authorized officers under the 1995 Act need not proceed against the offenders for viola on of Sec on 10 thereof and appropriate ac ons may not be taken in this behalf.

We may only place on record that the sugges ons have also been made by the pe oner that WMO should be authorized to levy penalty on the cable TV operators if radio frequency leakage beyond specified limits is detected. This aspect may also be studied.

We hope and trust that not only the Ministry of Informa on and Broadcas ng, the Ministry of Law and Ministry of Telecommunica on and Informa on Technology, TRAI as also the authorized officers shall apply their mind and take appropriate ac on in this behalf.

For the aforemen oned purpose, TRAI may also hold a mee ng between the concerned officers of the Ministry of Informa on & Broadcas ng as also the Department of Telecom, some big MSOs like the respondents No.5 to 16 as also the well known CDMA operators. It certainly can invite in the said mee ng, if not of the individual operators and licensees, at least their associa ons.

We hope and trust that apart from the concerned Ministries, all concerned shall take appropriate steps in this behalf at least to know the viewpoints of all the stake holders.

This pe on is disposed of with the aforemen oned observa ons.

Let the Registry send a copy of this order to the respondents herein as also TRAI.

…………….....J (S.B. Sinha) Chairperson

……………..... (G. D. Gaiha) Member

……………..... (P.K. Rastogi) Member rkc/sks

[1] Inserted by the Cable Tekevision Networks (Regulation) Amendment Act, 2000, with effect from 1.9.2000.