AIRCEL LTD vs IDEA CELLULAR LTD. on 19 December 2012

ORDER

This petition has been filed by the Petitioner against the demand raised upon it by the Respondent on account of SMS termination

charges and also against the threat of withdrawal of interconnection of SMS services of the Petitioner network by the Respondent.

2. The Respondent vide its letter dated 9th November, 2012 has raised a demand of Rs. 13,07,19,671/- for SMS termination charges w.e.f. 1st July, 2012 to 31st October, 2012. The Respondent asked the Petitioner to pay the same amount by 6th December, 2012 and further asked the Petitioner to execute an agreement for SMS termination @10 paisa per SMS in terms of the decision of TDSAT in Petition No. 430/2011 and 130/2012. The Petitioner was further threatened that the SMS services will be terminated w.e.f 7th December, 2012 if the Petitioner failed to pay the said amount and execute an agreement for SMS termination services.

3. Mr. Meet Malhotra appearing on behalf of the Petitioner has brought to our notice that an agreement effective from 20th February, 2009 was executed between the Petitioner and the Respondent wherein it was provided that there would be no termination charges for

SMS originating from either party’s network and terminated on other party’s network. This particular agreement pertains to Chennai circle.

4. Mr. Malhotra further stated that the agreement can be terminated only under circumstances laid under Clause 20 of the agreement by either party and not otherwise. The agreement continues between the parties.

5. It is seen from the record that the Respondent had issued a letter to the Petitioner on 27th September, 2010, wherein it was mentioned that in order to curb the unsolicited SMS related cases, Idea signed IC agreement on SMS termination charges with most of the operators, it proposed to sign SMS termination IC agreement with the Petitioner on similar rates. However, the Respondent did not take any action for a period of two years. It is only on 9th November, 2012, that the Respondent initiated a process of raising a demand for 4 months on the basis of the judgement issued by TRAI in Petition No. 430/2011 and 130/2012.

6. Mr. Gopal Jain, appearing on behalf of the Respondent stated that the Petitioner has already agreed to pay SMS termination charges @10 paisa per SMS to Bharti and agreed to pay arrears also in the Supreme Court in appeal filed by it in Petition No. 130 of 2012. The Supreme Court has dismissed the prayer of the Petitioner for grant of stay against the judgement of TDSAT in Petition No. 130/2012.

7. The Petition No. 130/2012 was between the Petitioner and Bharati Airtel and the final judgement depends on the facts and circumstances of particular case. The findings in one petition cannot be applied automatically without examining the peculiar facts of each case.

8. It is seen that the parties are having written agreement for not charging any termination charges for SMS from each other. The agreement has been signed as late as 20th February, 2009. The Respondent cannot change the terms and conditions of the said agreement unilaterally. We may also read Clause 3 of the

Interconnection Agreement between the parties “3.1 This agreement shall be valid and effective as long as the Licences granted to both the Parties are valid, unless terminated in accordance with the provisions of clause 20 of this Agreement. Provided however, this agreement shall be terminated, if, either party ceases to hold a Licence under Section 4 of the Indian Telegraph Act. Any amendments to this Agreement shall be based on mutual agreements in writing and shall be registered with TRAI”.

Therefore, any amendment to the agreement has to be on mutual agreement in writing.

9. I have considered similar issue while issuing interim order in Petition No. 939 of 2012 and 940 of 2012 on 10-12-2012, wherein it was ordered not to disconnect the SMS services of the Petitioner and no termination charges will be payable by any party to other party in the circles wherever the agreement in writing exist for non-payment of SMS charges.

10. In the present petition, the Petitioner has submitted that

somewhat similar provision exist in all the circle although executed at various point of time. The interconnection agreement date and circles covered are shown below S.No Parties Interconnection Agreement date Circles covered

1. Spice Communication Ltd. & DWL and Aircel Ltd. 20.02.2009 Punjab & Karnataka

2. Idea Cellular Ltd. Aircel Ltd. and DWL 03.11.2008 Harayana, Kerala, M.P., U.P(East), U.P.(West), Delhi, Andhra Pradesh, Gujarat, Maharashtra, Rajasthan & Mumbai

3. Idea Cellular Ltd. Aircel Ltd. and DWL & Aircel Cellular Ltd. 07.10.2008 and 07.02.2008 Assam, N.E., J & K, Orissa, West Bengal, Kolkata, Tamilnadu, Chennai and Bihar

11. Accordingly, it is directed that the Respondent shall not disconnect the signals of the Petitioner no termination charge will be payable by any party to other party during pendency of these petitions.

12. This order is without prejudice to the rights and contentions of the parties and subject to any other or further order passed by this Tribunal.

13. Reply may be filed within three weeks. Rejoinder thereto, if any, may be filed within two weeks thereafter.

14. Put up the matter for framing of issues on 5-2-2013

………………………… (P.K. Rastogi) Member

K.D.