Two judgments by the telecom dispute settlement panel, the TDSAT, on the WiLL-mobile controversy within the space of seven weeks, and it's natural to want to know who's the bad guy.
Actually, it's difficult to say, because apart from TDSAT chief D P Wadhwa who's delivered a minority judgment each time saying WiLL-mobile services and now Mobile Switching Centres are illegal, the other two members of the TDSAT (RU S Prasad and P R Dasgupta) seem to have changed their minds about who the bad guy is.
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Because, according to the judgment, the Trai had no business concluding that MSCs were not part of a WiLL-mobile system, and that its functioning, on this matter at least, was not transparent. Don't believe me? Read on, but first, a word about what an MSC is.
Mobile Switching Centres: Signals from calls made to/from a mobile phone are transmitted to a base transmitting station, the signals of several of these BTS's (in different colonies of a city, for instance) are then captured by a base station controller, and the BSC in turn routes these signals to a MSC, and it is this MSC that allows users to use their handsets in any part of the country/world.
If, instead of a MSC, you have only a PSTN exchange, your mobile phone cannot function outside of a very small range, generally referred to as the SDCA.
Trai's fall from grace: In their August 8 judgment, Prasad/Dasgupta lavished praise on the Trai, and said its recommendations were based on 'wide-ranging consultations', were 'well-considered', that the Trai was an 'expert body', and so on.
Yet, last Saturday, the Trai was castigated by the same duo whose judgment says, "it is statutorily incumbent on the Trai to ensure transparency while exercising its powers and discharging its functions and this applies equally to the recommendations to be made by the Trai." Why the change of heart? The MSC, that's what.
As is obvious from all the cases being filed, the MSC is the crux of the fight -- the WiLL-mobile firms want to have MSCs and the cellular ones don't want them to have the MSCs.
On August 8, the majority judgment cites the Trai's original recommendation (January 8, 2001) to point out that the essential difference between a cellular mobile phone and a WiLL-mobile phone was the MSC.
Having said this, and therefore shown that cellular mobiles and WiLL-mobiles are not substitutable services, the majority judgment said WiLL-services were legal if their mobility was limited.
In the second judgment on whether WiLL-services should be allowed to use MSCs, on Saturday, Prasad/Dasgupta, however, gave an entirely new spin to the case, dexterously getting around their August 8 judgment. First, the duo cite the para from the TRAI's January 8 recommendations.
Then, since the government appeared confused on the matter, several letters were sent by the Trai, asking very explicitly that the government include this point in the licences, which, till then, had not been issued.
Apart from the letters, the Trai even issued a tariff order (May 24, 2001) for WiLL-mobile services, again clarifying that MSCs could not be used. All these are cited in Prasad/Dasgupta's judgment. And then comes the spin.
But, say the two TDSAT members whose judgment is the majority one, "the (MSC) protocol did not form a part of the issues posed by the Trai in its Consultation Paper on Limited Mobility It seems that since technology protocol to be used was not posed as an issue for discussion at all there was no occasion for anyone to offer any views in this respect to Trai."
So, since the question about whether MSCs can be used was never posed, what business did the Trai have to say that MSCs could not form part of a WiLL-network! It is after this that the quote (cited above) comes in, about how the Trai needs to be transparent in its recommendations.
It gets better. Under the Trai Act, once the regulator makes its recommendations, the government has to accept them, or send them back to the Trai if they need to be changed.
It is on this point, in fact, that the cellular industry's entire case rests -- they've argued the government did not follow the Trai's recommendations, but did not refer the changes back to the Trai, and therefore its actions are illegal.
The Saturday judgment, again very curiously, suddenly starts making a distinction between various Trai recommendations and classifies them as 'reports' and 'observations' -- clearly, the point being that if the government didn't follow a mere 'observation' as opposed to a 'recommendation', this was not illegal.
So, while the August 8 judgment of Prasad/Dasgupta refers to everything the Trai said on January 8 as 'recommendations' (indeed, the Trai itself called it 'recommendations'), the Saturday judgment suddenly starts making distinctions and calls these a 'report'.
The entire paragraph, which explains that WiLL-systems don't have MSCs is now called an 'observation and not a categorical assertion/recommendation'!
But if MSCs are to be permitted, how is the mobility of WiLL-phones to be kept limited, in order to distinguish them from cellular phones? Through software, say Prasad/Dasgupta, while pointing out that the government has not taken any action to ensure no WiLL firm offers full mobility by misusing the MSCs -- by the way, on May 24, 2001, in its tariff order, the Trai had categorically ruled out the software option for controlling mobility for WiLL phones.
And since the government has no real solution to prevent this, what the judgment proposes is that a Task Force of IIT and CSIR experts be formed to figure out how to stop misuse of MSCs!
All this roundabout mechanism to allow WiLL-mobiles to use MSCs, and even the TDSAT admits there's no way as yet to prevent its abuse -- Telecom Minister Arun Shourie, in fact, told the group of ministers last week that Reliance Infocomm was caught misusing its MSC facilities. And you wondered why the law's called an ass.