Regulators

Empower TDSAT more, with specialized members to deal with broadcasting: Vidhi

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NEW DELHI: As a majority of the cases that come up before the Telecom Disputes Settlement and Appellate Tribunal relate to broadcasting, specialised members in the field of broadcasting can be given the power to hear these broadcasting disputes.

Furthermore, a separate bench may be formed (with due administrative support) which deals with the smaller recovery matters in the Tribunal or the matters may be diverted to consumer forums.

This has been recommended by the Vidhi Centre for Legal Policy which noted in its study of the working of TDSAT that a marked characteristic of the Tribunal?s changing mandate has been that recent times have seen an acute rise in the number of original broadcasting petitions coming before the TDSAT.

In fact, the study said ?it can be seen that the mandate of the TDSAT has undergone many changes since the time of its inception.? It noted that TDSAT was set up to adjudicate upon telecom matters.

Need for Greater Administrative Autonomy

The Vidhi report also says that the experience of the working of the TDSAT points to the need for greater administrative autonomy as well as structural changes in the budget allocated to the Tribunal to ensure that it continues to function with the same efficiency. ?The powers of the Tribunal and Chairman, therefore, may need some re-thinking. One of the ways that this can be done is an amendment to the Sections of the TRAI Act dealing with the powers and functions of the TDSAT.?

In any event the conclusion is inescapable that the functioning of the TDSAT now needs government attention, considering the rapidly changing mandate and growth of disputes in the telecom and broadcasting sectors.

The TDSAT has commonly been regarded as one of the most efficient tribunals in the country. To ensure that this distinction is maintained, the TDSAT along with the government must ensure that it continues to function in an efficient and healthy fashion, offering adequate remedies to disputing parties, in a speedy and effective manner.

The two studies of TDSAT done by us offer some indicators of the present functioning of the tribunal, and possible ways in which it may evolve in the future.

Strengthen TDSAT with more benches

The study said nearly half of all petitions filed before the TDSAT are for recovery. In addition, the appellate jurisdiction of the TDSAT remains practically unused, with an insignificant number of appeals coming before the body. The Tribunal is staffed with highly experienced members (headed by a retired judge of the Supreme Court or a former Chief Justice of a High Court, as well as members with technical expertise).

In such a scenario, it becomes important to introspect about the mismatch between the current mandate and functioning and the expertise of the members of the Tribunal.

The government can either decide to continue with the extant jurisdiction of the TDSAT, in which case it needs to change the composition and resources spent on such a body; on the contrary, if it decides to restore the TDSAT to the role that was envisaged in operating as an independent and specialised tribunal dealing with weighty telecom matters, legal and administrative changes are required.

Need for more broadcast experts

Drawing from a study of the jurisdiction and powers of the TDSAT as well an analysis of the data regarding appeals, and case institution, the study said it was evident that the TDSAT has to deal with a disproportionately large volume of broadcasting disputes. This may have implications on the ability of the TDSAT to function optimally. This is exacerbated by two factors. The first is that even though the mandate of the TDSAT was amended to include broadcasting disputes, the qualifications to become a member of the Tribunal do not anticipate broadcasting as a relevant area of expertise (Section 14C requires that a member should be, among other things, a person who is well versed in the field of technology, telecommunication, industry, commerce or administration). The absence of technical expertise required to understand broadcasting disputes may affect the ability of the TDSAT to adjudicate upon such matters. Secondly, the changed mandate has resulted in an exponential increase in the number of cases that are being handled by the TDSAT, but the staffing of the body remains the same as it was when it was first created in 2000.

Vidhi said there is bound to be an impact of the efficiency of the functioning of a body where limited resources are expected to cater to an ever-expanding volume of responsibilities.

It noted that there is no impact on the efficiency of the TDSAT at present owing to such cases because a large number of matters are recovery matters and these are decided at a faster rate than matters whose merits have to be gone into and have technical aspects. But if the number of cases being filed increase however, efficiency is bound to be affected. If the TDSAT is expected to continue hearing broadcasting disputes, its functioning can be addressed in multiple ways.

To begin with, the government could require that technical members well-versed in broadcasting as an industry and a discipline be appointed to the Tribunal. Section 14B of the TRAI Act allows the Chairperson to constitute multiple Benches, comprising one or two members of the Tribunal, which power could be exercised to deal especially with broadcasting disputes, or disputes of a particular nature. A full bench of the tribunal may be required to sit in session only with respect to certain types of cases, which could be identified in advance.

Constitute benches in other cities

Further, if a large number of cases appear to emerge from particular parts of the country, ad hoc benches could be constituted in relevant cities other than Delhi, to deal with such cases. This reassignment of cases to various benches of the tribunal, however, is not likely to be successful without adequate administrative support, for which government approval would be required.

There was also need to clarify the distinction in the jurisdiction of the TDSAT and Consumer Forums. With reference to the 2014 judgment of the Meghalaya Consumer Commission, it is evident that there has been acceptance of the jurisdiction of the consumer forums over telecom and broadcasting disputes.

In a scenario where the TDSAT is burdened with broadcasting disputes from all parts of the country, particularly disputes with smaller recovery amounts, it would be prudent to divert these matters to the consumer courts. This would be particularly beneficial for the litigants as they would be spared of the travel and litigation costs of coming to New Delhi, which may not be a practical option for smaller players in the telecom and broadcasting sector.

Greater institutional autonomy

There was also a case for increasing the institutional autonomy of the TDSAT, the Report said. An issue plaguing the administration of the TDSAT is the fact that the Tribunal is understaffed. An exponential increase in litigation in the TDSAT has not been met by a proportional increase in the staff strength of the Tribunal. To rectify the same, the powers of the Tribunal may be broadened in their scope. The Tribunal, acting through the Chairperson can be given the power to increase the staff strength through an order in consultation with the central government.

In the Draft Broadcasting Services Regulation Bill of 2006 (which never got cleared), the Chairperson of the Broadcast Regulatory Authority of India was given certain administrative powers to regulate the conditions of service etc. of the Authority. Although the Bill did not become law, some provisions of the Draft Bill would be useful as a reference point to make amendments to the existing provisions relating to the administrative autonomy of the TDSAT.

Fee can cut frivolous cases

Measures were also needed to reduce frivolous litigation in the TDSAT, the study says. The Tribunal briefly imposed ad valorem fees on the cases being instituted before the Tribunal. However, the order imposing the same was overturned subsequently. The possibility of reviving the provisions for imposition of ad-valorem fees, subject to appropriate scrutiny, could be considered in order to address the problem of frivolous litigation, for instance, parties filing matters in the TDSAT simply to obtain an interim order before withdrawing their petition(s). This can be done through legislative amendment in the TRAI Act empowering the TDSAT to notify the same.

Encourage mediation to resolve cases

Mediation has to be encouraged as a dispute settlement mechanism, the report says. As seen from the data pertaining to, and the working of the mediation centre, alternate dispute resolution mechanisms are an increasingly popular way of resolving telecom and broadcasting disputes. This trend must continue, as a large number of matters that come before the Tribunal are recovery matters and the litigants are usually small and medium-sized players in the broadcasting industry and likely to benefit from the speed and economic viability of such procedures.

Encouraging dispute resolution through mediation will go a long way in reducing the burden on the tribunal of smaller matters; as well as ensure more amicable and less time consuming techniques of dispute resolution for the litigants.  

The provision that establishes the TDSAT - Section 14 of the TRAI Act, entrusts the tribunal with two types of functions. The first is to adjudicate disputes by way of original jurisdiction, and the second is by way of an appellate jurisdiction. Indeed, the appellate powers of the TDSAT are evident from the name of the body itself, which was envisioned as a telecom dispute settlement and appellate tribunal. This dual function has been acknowledged by the Supreme Court as well, which observed that the exercise of original jurisdiction by the TDSAT is an original adjudicatory function, whereas its appellate function is to hear appeal(s) against an order of TRAI which may or may not essentially be an adjudicatory one.

Supreme Court has curtailed powers of Tribunal

But the Vidhi study quoted several judgments to say that the Supreme Court had over time gradually curtailed the jurisdiction of the TDSAT by placing restrictions on its functioning.

In one case relating to cellular operators in 2003, the Supreme Court said the jurisdiction of the TDSAT under the TRAI (Amendment) Act 2000 empowered the Tribunal with both original and appellate jurisdiction. The Court observed that because the only appeal that lay from the order of the TDSAT was to the Supreme Court, it would be reasonable to hold that the Tribunal had unfettered jurisdiction to adjudicate the dispute raised, as well as decide the legality of an order of the central government or even an opinion of the TRAI or any other expert body. In this regard, the Court noted that the jurisdiction of the Tribunal is quite wide.

The Court held that the decisions of the Supreme Court dealing with the powers of a court exercising appellate power or original power would have no application in limiting the jurisdiction of the appellate tribunal under the Act. The Court further observed that the Tribunal had committed an error in holding that its jurisdiction could not be wider than that of the Supreme Court; and stated that a reading of Sections 14 and 18 of the TRAI Act also goes to illustrate that this was not the case.

This judgment thus held that the jurisdiction of the Tribunal was very wide, and stated that the Tribunal was an expert body that had powers wider than that of the Supreme Court. The dispute before the Supreme Court was, as a consequence, remitted back to the Tribunal for reconsideration of the materials. The Court also held that it had limited power under Section 18 of the TRAI Act, and as such it could not interfere with the findings of the Tribunal (particularly because the Tribunal had reached these conclusions after due consideration of all the relevant facts and technical materials).

But in another case in 2013 relating to BSNL ?with pervasive practical impact?, the Supreme Court limited the jurisdiction of the TDSAT, holding that it had no authority to rule on the validity of the Regulations made by the TRAI. The Court?s judgment focused on the scope of the jurisdiction of the TDSAT in the context of examining the TRAI regulations. The Court pointed out that the issue of whether the words ?direction?, ?decision? and ?order? under Section 14(b) of the TRAI Act, as amended in 2000, included regulations, had not been previously examined.

While the judgment seems to merely clarify a position of law that was placed before the Court, its consequences run deeper. By limiting the jurisdiction of the TDSAT, the Supreme Court also directly impacted the mandate of the Tribunal. What was originally meant to be a tribunal that exercised original as well as appellate jurisdiction, after this judgment, took on the role of a court mainly of original jurisdiction, hearing mostly disputes between licensors and licensees in the first instance. Weighty telecom matters instead were challenged in the High Court and subject to systemic delays and expected lack of specialisation.

This judgment also sought to limit the power of judicial review of the TDSAT. In doing so, the Supreme Court also relied on the principles enunciated in another matter  where the question of law pertained to the power of judicial review of the Appellate Tribunal of Electricity to examine the validity of the regulations framed by the Central Electricity Regulatory Commission.

The issue of whether tribunals, in general, ought to have the power of judicial review is a question that begs a much larger canvas, and has been debated on more than one occasion. It remains an open question as to whether tribunals ought to have such power, or whether writ courts are an effective check and balance on regulatory actions.

As the TDSAT is empowered to examine disputes between telecom service providers and consumers, the issue of jurisdiction of these consumer forums over the same matters also assumes significance.

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