DISPUTES SETTLEMENT MECHANISM IN TELECOM SECTOR IN INDIA & CONSUMER RIGHTS UNDER THE TELECOM REGULATORY AUTHORITY OF INDIA ACT, 1997

Transcription

1 DISPUTES SETTLEMENT MECHANISM IN TELECOM SECTOR IN INDIA & CONSUMER RIGHTS UNDER THE TELECOM REGULATORY AUTHORITY OF INDIA ACT, 1997 BY RAMJI SRINIVASAN Advocate INTRODUCTION The protection of consumer rights is not a new subject of law. The consumers are protected throughout the world under different laws and enactments. With a view to protect the interest of the consumers various legislative steps have been taken in the past dealing with the specific aspects of the consumer interests. The courts have evolved appropriate remedies in common law to suit the needs of the times. The parliamentary legislation and the judicial activism coupled with the role of social reformers and voluntary organizations have in the recent years given consumer protection the shape of a forceful consumer movement. With the rapid growth of the Telecom Industry in India, there is a need to ensure that the interests of the consumers of Telecom Services are also safeguarded. In the recent past telecommunication services have spread their reach in vast parts of the country. Various types of telecommunication services like Voice and Data, Wireline and Wireless, GSM and CDMA, Satellite and VSATs, GMPCS, Radio Paging and Trunking, Internet Services and Cable and Broadcasting, etc. are being made available to millions of users across the country. Since there are now several Service Providers providing each of these various services across the country in each Sector it is necessary to regulate and provide uniform and effective guiding principles that would minimize customer grievances and ensure satisfactory provision of Telecom Services by the Service Providers. The Parliament has, accordingly provided for certain measures in the TRAI Act, 1997 to address these issues and to xxxi

2 protect consumer interest, the highlights of which are extracted hereunder: A. TELECOM REGULATORY AUTHORITY OF INDIA ACT, Preamble It is an Act to provide for the establishment of the Telecom Regulatory Authority of India ("TRAI") and the Telecom Disputes Settlement and Appellate Tribunal ("TDSAT") to regulate the telecommunication services, adjudicate disputes, dispose of appeals and to protect the interests of service providers and consumers of the telecom sector, to promote and ensure orderly growth of the telecom sector and for matters connected therewith or incidental thereto. 2. Section 11 "Functions of Authority.- (1) Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the functions of the Authority shall be to (a) make recommendations, either suo motu or on a request from the licensor, on the following matters, namely: (vii) measures for the development of telecommunication technology and any other matter relatable to telecommunication industry in general; (b) discharge the following functions, namely: (v) lay-down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of each service provided by the service providers so as to protect interest of the consumers of telecommunication service; " xxxii

3 3. Section 14 "Establishment of Appellate Tribunal.- The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to- (a) adjudicate any dispute (iii) between a service provider and a group of consumers; Provided that nothing in this clause shall apply in respect of matters relating to- (A) (B) (C) the monopolistic trade practice, restrictive trade practice and unfair trade practice which are subject to the jurisdiction of the Monopolies and Restrictive Trade Practices Commission established under Sub-section (1) of section 5 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969); the complaint of an individual consumer maintainable before a Consumer Disputes Redressal Forum or a Consumer Disputes Redressal Commission or the National Consumer Redressal Commission established under Section 9 of the Consumer Protection Act, 1986 (68 of 1986); disputes between telegraph authority and any other person referred to in sub-section (1) of section 7B of the Indian Telegraph Act, 1885 (13 of 1885); " 4. Section 14A (1) and (2) and (3) "Application for settlement of disputes and appeals to Appellate Tribunal- (1) The Central Government or a State Government or a local authority or any person may make an application to the Appellate Tribunal for adjudication of any dispute referred to in clause (a) of section 14. xxxiii

4 (2) The Central Government or a State Government or a local authority or any person aggrieved by any direction, decision or order made by the Authority may prefer an appeal to the Appellate Tribunal. (3) Every appeal under sub-section (2) shall be preferred within a period of thirty days from the date on which a copy of the direction or order or decision made by the Authority is received by the Central Government or the State Government or the local authority or the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed: 5. Section 15 Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period." "Civil court not to have jurisdiction.-no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act." 6. Section 18 "Appeal to Supreme Court (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in any other law, an appeal shall be against any order, not being an interlocutory order, of the Appellate Tribunal to the Supreme Court on one or more of the grounds specified in section 100 of that Code. xxxiv

5 (2) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties. (3) Every appeal under this section shall be preferred within a period of ninety days from the date of the decision or order appealed against: Provided that the Supreme Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time." 7. The TRAI has also notified a list of registered Consumer Associations / NGOs who could interact with the TRAI and participate in the various Consultative Processes and other proceedings for evolving appropriate recommendations governing the Telecom Industry. The TRAI has considered consumers to be an important stakeholder in the development and regulation of the Telecom Industry. Each of these consumer organisations / NGOs have participated in the various Consultative Processes and have engaged the TRAI in a dialogue. Their comments and suggestions have also been transparently published on the TRAI Website during each such Consultative Processes. The TRAI has also issued regulations requiring the Service Providers to transparently and clearly publish all the Tariffs and alternate packages, and also provide a comparison / financial implications of each of these packages to help the subscriber make a suitable choice. The TRAI is also equally charged with duties and obligations to protect the consumer interest as is evident from its functions, inter alia, under Section 11(a) (iv) and (v). However, the TRAI does not have dispute resolution jurisdiction, which is vested exclusively in the TDSAT by an Amendment to the TRAI Act in January Recent landmark decisions of the TDSAT and several recommendations of the TRAI have been aimed at encouraging development and deployment of new technologies and aimed at encouraging competition and xxxv

6 discouraging anti competition and predatory prices or arbitrary acts of disconnection so that consumers are benefited and are enabled access to the latest technologies and without suffering arbitrary disconnection and disruptions. * TDSAT JUDGMENT Cellular Operators Association of India & Ors. Vs. Union of India & Ors. (Petition No.1 of 2001) reported in (2003) 3 SCC 186. TDSAT REGULATIONS The TDSAT has also framed certain Regulations governing filing of Original Petition and Appeals before it. These mandate payment of certain minimum fees to meet certain costs of notices and other administrative costs and also to discourage frivolous complaints or appeals being filed. B. CONSUMER PROTECTION ACT, Preamble "An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers disputes and for matters connected therewith." 2. Section 2 (b) complainant means- 3. Section 3 (i) a consumer; or " "Act not in derogation of any other law:- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force." 4. Section 12 "Manner in which complaint shall be made.- (2) Every complaint filed under sub-section (1) shall be accompanied with such amount of fee and payable in such manner as may be prescribed. xxxvi

7 5. Section 13 (3) On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected..." "Procedure on admission of complaint.- 2(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum... 3(A) Every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months if it requires analysis or testing of commodities;..." 6. Section 14 "Findings of the District Forum.- (1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely:- (a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (b) (c) (d) to replace the goods with new goods of similar description which shall be free from any defect; to return to the complainant the price, or, as the case may be, the charges paid by the complainant; to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consume due to the negligence of the opposite party; xxxvii

8 (e) to remove the defects of the goods or deficiencies in the services in question; etc... Section 14 is also applicable to the procedures under State and National Commission as provided under section 18 and 22 respectively." 7. Section 15 and 19 Appeal: - Any person aggrieved by an order made by the District Forum or State Commission may prefer an appeal against such order to the state or national commission respectively within a period of 30 days from the date of the order." A recent amendment to the Consumer Protection Act also requires payment of certain filing fees. Section 12 of the Consumer Protection Act, 1886 has been amended as under: " (2) Every complaint filed under sub-section (1) shall be accompanied with such amount of fee and payable in such manner as may be prescribed " A Comparison The Telecom Industry is a specialized industry. It is governed by several Regulations issued by the TRAI and judgment passed by the TDSAT from time to time. Each of these Regulations is complex and involves several regulatory mechanisms. Each of the Service Providers is bound by such Regulations. The Regulations and decisions of the TRAI may be challenged before the TDSAT, which has been established as a Special Tribunal to oversee the Telecom Regulation in the country. The establishment of such a Special Tribunal with dispute resolution jurisdiction is special to India and is not to be found in most jurisdictions having an evolved Telecom Sector. Those jurisdictions permit a challenge to the decision of a Regulator to the Ordinary Civil / Appellate Courts. However, the establishment of the Special Tribunal has its advantage inasmuch as it is well versed with the implications of the complex Telecom Regulations and could ensure faster resolution. Appeals against the decision of the TDSAT lie directly to the Supreme Court under Section 18 of the TRAI Act. Similar provisions have been introduced in the recent Electricity Act, A recommendation of the Hon ble Supreme Court to this effect is to be found in West Bengal Electricity Regulatory Commission vs. CESC Limited [2002 (8) SCC 715 (per Justice Santosh Hegde)], wherein it was observed as under:- xxxviii

9 "... Without meaning any disrespect to the Judges of the High Court, we think neither the High Court nor the Supreme Court would in reality be appropriate appellate forums in dealing with this type of factual and technical matters. Therefore, we recommend that the appellate power against an order of the State Commission under the 1998 Act should be conferred either on the Central Electricity Regulatory Commission or on a similar body. We notice that under the Telecom Regulatory Authority of India Act, 1997 in Chapter IV, a similar provision is made for an appeal to a special Appellate Tribunal and thereafter a further appeal to the Supreme Court on questions of law only. We think a similar appellate provision may be considered to make the relief of appeal more effective..." In a subsequent decision reported in the case COAI & Ors. Vs. Union of India & Ors. [(2003) 3 SCC 186], the Hon ble Supreme Court has observed as under:... The contention that until decision of the Tribunal afresh, the fixed service operators may not be permitted to provide WLL with limited mobility to the consumers cannot be accepted since that would be grossly detrimental to the consumers' interest and also on account of the fact that several fixed service operators have already provided the facility in question... " By virtue of Section 14(a)(iii), disputes that affect a large body of consumers generally can be subject to the jurisdiction of the TDSAT. The exception to this provision is contained in the Proviso which retains the jurisdiction of the MRTP Commission and also the various Fora established under the Consumer Protection Act and the Dispute Settlement Mechanism set up under Section 7(B) of the Indian Telegraph Act, But in each of these exceptions, it is only the individual consumer complaints that can be examined by such bodies / entities. Whenever there is a dispute that involves a group of consumers and is, therefore, a dispute that involves the consumers generally or is otherwise a matter of great importance affecting the Telecom Sector / Telecom Industry and telecom users generally, then these matters ought to be raised before the Hon ble TDSAT, upon which the legislature has vested exclusive jurisdiction by virtue of this special later Act. In the case of Hotel Association of India, the Hon ble TDSAT has allowed the petition to be treated as one filed by or on behalf of a Group of Consumers since it affects the xxxix

10 interest of Consumers as a whole. A recent decision of the TDSAT in the case of Sea TV, relating to the Broadcasting and Cable Industry explains the distinction between an MRTP action and one under the TRAI Act and holds, inter alia that: (MRTP) commission cannot adjudicate a dispute based on violation of a Regulation made under TRAI Act. Even though the Regulation incidentally trenches on subject of monopoly and RTP... any dispute which is not based on rights and liabilities arising out of TRAI Act or the Regulations made there under and pertaining solely to a complaint of monopolistic trade practice, RTP and UTP only cannot be tried by TDSAT The Consumer Courts under the Consumer Protection Act may entertain individual complaints, but matters affecting a large body of Telecom Consumers ought to be referred to the TDSAT by the Consumer Courts in deference to the provisions of Section 14(a)(iii) of the TRAI Act. This is because the TDSAT is well equipped to handle such important matters effectively, since it deals with such issues on day to day basis and is also qualified as an expert body under the TRAI Act. However, the TDSAT is not equipped to deal with thousands of individual complaints that may arise on a day to day basis between the consumer and a service provider. Once the TDSAT lays down the guidelines in respect of larger issues, these could be profitably applied by the Consumer Courts in deciding individual complaints raised before it. Also, as observed by the Hon ble Supreme Court in matters concerning the Telecom Industry as a whole, it would be necessary to defer to the opinion of an expert specialized body like the TDSAT in order that no conflicting opinion arises between different Consumer Courts. Similar instances are to be found in other countries also where, say a Competition Commission would usually defer to the jurisdiction of a Specialized Telecom Regulator in matters involving the Telecom Industry. In conclusion, it would appear that the Dispute Resolution Mechanism and the protection of Consumer interests outlined in the TRAI Act is comprehensive and effective. The consumers would look upto the TRAI and TDSAT to evolve and uniformly follow an approach that ensures that the interests of Consumers are protected and that competition amongst Telecom, Cable Operators & Broadcasters is encouraged so that its beneficial effects are made available to the ultimate consumer.zz xl