Delhi High Court Stays TDSAT's Order Restraining TRAI From Taking Action Against Vodafone Idea Ltd. On Mobile Number Portability

The Delhi High Court on Wednesday stayed an order passed by the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) restraining the Telecom Regulatory Authority of India (TRAI) from taking any precipitative action against the Vodafone Idea Limited on mobile number portability.

The impugned order dated December 24, 2021 had stayed a direction passed by TRAI dated December 7, 2021 directing all service providers to enable with immediate effect, for all mobile subscribers, the facility to send SMS on short code 1900, in order to exercise their right to avail porting out facility. The said portability facility is in accordance with the MNP Regulations, 2009.

"…I am of the prima facie view that the direction of TRAI of December 7 in no way take away the freedom granted to Vodafone to fix the tarrif plans. In fact any stay of the December 7 order will cause irreparable loss to the general public. The impugned order of December 24 is stayed Till the next date. Petitioner has made out a prima facie case. This will however not stop the tribunal from deciding the appeal of Voda in merits," Justice Rekha Palli ordered.

It is the case of the TRAI that Vodafone Idea Limited had introduced some tariff offers or vouchers which did not provide SMS facility to the subscribers, therefore not being compliant from MNP Regulations, 2009 perspective.

"It follows as a logical corollary that the Respondent herein has failed to facilitate in its entire network, Mobile Number Portability to all subscribers and it has failed to provide, upon request, Mobile Number Portability on a non-discriminatory basis. In doing so, the Respondent herein has acted in breach of Regulation 4 of MNP Regulations, 2009. Thus, these tariff offers/vouchers offered by the Respondent herein are non-compliant from the perspective of MNP Regulations, 2009," the plea reads.

The petition states that TRAI had received various complaints from mobile subscribers for not being able to send SMS on short code 1900 for availing Mobile Number Portability facility. On examination, it was noticed by the authority that the telecom service providers were not providing outgoing SMS facility in certain prepaid vouchers.

"This practice of non-provision of the facility of sending Mobile Number Portability related SMS in certain prepaid vouchers/plans is in contravention of the provisions of MNP Regulations, 2009, as it takes away the consumer's right, provided for in MNP Regulations, 2009, to avail mobile number portability facility," the plea adds.

TRAI had then issued a directive stating that irrespective of the value of the tariff offers or vouchers, all access service providers will provide the facility to send SMS on short code 1900.

In this backdrop, the plea states that other service providers like Bharti Airtel Limited and Reliance Jio Infocomm Limited had already complied with the said Direction and submitted their respective compliance to TRAI.

However, vide the impugned order, the TDSAT restrained TRAI from taking any precipitate action against Vodafone during the pendency of the appeal, thereby virtually staying the operation of Regulation 4 of MNP Regulations, 2009 qua Vodafone.

During the course of hearing today, SGI Tushar Mehta appearing for TRAI submitted that the said action would nullify the very object of direction issued dated December 7 which was passed in public interest, in order to ensure that every consumer has the option of mobile number portability.

He further submitted that merely because Vodafone Idea Limited had come up with tarrif plans which do not include SMS facility could not be a ground not to provide the specific facility to the consumer.

On the other hand, Senior Advocate Maninder Singh appearing forVodafone Idea Limited vehemently opposed the grant of interim relief. He argued that they were fully compliant of the all the regulations and once the freedom to fix it's tarrif plans was given to them, no conditions can be imposed.

He also submitted that once some consumer had opted for the plan with the full knowledge that they would not be permitted to send SMS sought to take the benefits of the special tarrif plan, nothing of this sort could be permitted.

Having considered the submissions, the Court issued notice on the plea and granted two weeks time for filing of counter affidavit and further two weeks time for Rejoinder.

"Needless to state that if the Tribunal decides the appeal before the next date, this order will be merged in the order passed by the Tribunal ," the Court added.

Title: TELECOM REGULATORY AUTHORITY OF INDIA v. VODAFONE IDEA LIMITED (FORMERLY KNOWN AS IDEA CELLULAR LIMITED)