For the first time, the government is seeking public opinion whether it should allot spectrum for commercial use without auction. A Supreme Court order of February 2012 in the 2G scam case makes it mandatory for the government to give spectrum only through auction. Interestingly, the arguments of the government are exactly the same as were given by former telecom minister A Raja while allotting spectrum without bidding that resulted in Rs 1.76 lakh crore 2G scam.
Recently, the department of telecommunications (DoT) released a draft National Digital Communications Policy, 2018, inviting comments from the public.
At the centre of the controversy is highly valuable spectrum (Rs 11 lakh crore as performer CAG Vinod Rai’s calculations that valued the 2G spectrum at Rs 1.76 lakh crore) in e-band and v-band that the government has been trying to allot without auction to a few companies on first-come-first-served (FCFS) basis.
Under Section 1.2 of the draft Policy, the government has sought public comments on “Enabling light touch licensing/de-licensing for broadband proliferation” for allotting spectrum.
De-licensing means allotting spectrum without auction. It also implies that spectrum has to be issued only through first-come-first-served (FCFS) basis as network installed by first operator has to be protected in case of interference.
It is a settled principle of law that what cannot be done directly cannot be done indirectly. Just by de-licensing spectrum, the government cannot allot spectrum without auction violating the Supreme Court February 2012 order.
Similarity between arguments of Raja (during 2G scam of Rs 1.76 lakh crore) and of the Modi government in allotting spectrum without auction
Raja’s arguments during 2G scam
The arguments put forth by the former communications minister A Raja while allotting spectrum without auction on FCFS basis, in 2008, were:
One, it will increase telecom proliferation (as number of players increased);
Two, it will bring down tariff as spectrum is priced low; and
Three, Socio-economic benefit of society as high telecom penetration will provide many facilities and services to people and increase their income.
Four, Raja also constituted special committees comprising outside experts, mainly professors from IIT (Chennai) and IIT (Kanpur) to decide on various spectrum pricing-related issues. These special committees justified government views.
Five, during the 2G scam, lobbyists of different groups quoted international best practices to justify their viewpoint. (Interestingly, some of them are also active now).
Modi government’s arguments
To justify its move to allot spectrum without auction, the Narendra Modi government’s arguments are:
One, it will increase ‘broadband proliferation’. There is a need for “optimal pricing of spectrum to ensure sustainable and affordable access to Digital Communications”.
Two, the government has to meet its goal of “Provisioning of broadband for all” by 2020.
Three, it is needed “for public benefit to achieve India’s socio-economic goals.”
Four, following Raja’s practice, the Telecom Ministry has been seeking views of IIT professors and other outside agencies on issues related to spectrum allocation and pricing to justify its viewpoint. It is expected that they will also comment in the policy document favouring the government move.
Five, the government has also quoted “best international practices’ to justify allotting spectrum without auction in e-band and v-band. Now the role of IIT professors, lobbyists and outside agencies would become important.
Value of e-band and v-band spectrum by Vinod Rai formula
It becomes difficult to quantify the real loss to the exchequer if spectrum in V-band and E-band is given on FCFS basis, as the real value can be realised only through an auction. However, if we go by the methodology adopted by former CAG Vinod Rai under whom the national auditor had calculated notional loss, the size of potential revenue loss could be at least Rs 4,77,225 crore from V-band and another Rs 7,00,000 crore from E-band.
In October 2016, the government sold 965 MHz of spectrum in various bands ranging from 800 MHz to 2,500 MHz for Rs 65,789 crore. The price achieved through auction for 1 MHz of spectrum was Rs 68 crore. In the V-band, 7,000 MHz of spectrum is available. Hence, loss to the exchequer could be to the tune of Rs 4,77,225 crore. Similarly, loss in E-band would be about Rs 7,00,000 crore.
Supreme Court judgment on spectrum allocation
In its February 2, 2012 judgment in the 2G case (Centre for Public Interest Litigation, (2012) 3 SCC 1) the Supreme Court verdict states:
96. In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden, and the methods like first-come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty-bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.
The constitution bench affirmed this order when the government sought presidential reference. Presidential order by the constitution bench clearly says:
83. …… we are convinced that the observations in Paras 94 to 96 could not apply beyond the specific case of spectrum, which according to the law declared in the 2G case, is to be alienated only by auction and no other method
Pranav Sachdeva, who was a lawyer for the petitioner Centre for Public Interest Litigation in the 2G case and in the subsequent presidential reference, said: “In the 2G judgment, the Supreme Court has made it mandatory that spectrum, which is a scarce natural resource, would be allocated by the government only through a transparent auction process. This would achieve both fair competition and maximising revenue for the state.”
“This was affirmed by a Constitution bench judgment related to allocation of natural resources in which the Constitution bench said that as far as Spectrum is concerned, it can be allotted only by auction,” Sachdeva added.
Some DoT officials, however, are misguiding decision makers by citing the non-spectrum natural resource allocation part of the judgment with spectrum allocation (which can be done only through auction).
It may be noted that when DoT sought TRAI’s opinion on this issue, the regulator didn’t give its opinion. It simply stated:
“From letter dated 08.06.2015 it emerges that the main issue is that in view of the judgement dated 02.02.2012, whether spectrum can be allotted by a means other than auction… It is for DoT to take a policy decision as to whether it is legally tenable to allocate spectrum by any other mechanism (viz. administrative) than auction in consultation with the Ministry of Law.”
It appears that the draft Policy that has all figures in USD, million and billion instead of Rupee, Lakh and Crore has only one objective of giving spectrum without auction to a few selected business houses.
Spectrum in V-band and E-band is important in view of the explosion of broadband services. It has high potential for providing both the high speed access services at data transfer speed of up to 7 Gbps and for backhaul spectrum.