Ever since the Comptroller and Auditor General (CAG) blew the lid off the controversial 2G spectrum allocation , everyone wants answers to two questions. First, what should be the fate of former Telecom Minister, Mr A Raja; and secondly, what should be done with the five companies including Unitech Wireless (now known as Uninor), STel, Swan (Etisalat DB), Loop Telecom and Datacom (Videocon), that got licences in 2008 allegedly through irregular means.
While we leave the first question to be answered by investigating and law enforcement agencies, it is the second question which has future ramifications for telecom consumers and the industry.
The findings of the 77-page CAG report essentially boils down to two allegations — that licences were given in 2008 to the five operators even though they did not meet the eligibility criteria; and licences were given at a throwaway price depriving the National Exchequer of an opportunity to earn as much as Rs 1.76 lakh crore.
Terming the entire process as illegal, the CAG has recommended that the Government should cancel the licences.
TRAI recommendations
Within a few days of the CAG report, the Telecom Regulatory Authority of India also came out with its own recommendations suggesting that the Government cancel the 69 licences held by six companies, including Sistema Shyam, because they have not fulfilled their roll-out obligation even after nearly three years of getting the licence.
But despite the recommendations of these two constitutional authorities, the Telecom Ministry now under the charge of Mr Kapil Sibal seems to be looking for a compromise solution i.e. to ask the new operators to pay more and in return, all will be forgiven and they can continue to keep the spectrum.
The raison d'ĂȘtre for this suggestion is that such a move will raise more money, thus compensating the Exchequer for the loss . The Ministry also reckons that cancelling licence is unviable as it could send wrong signals to the investors.
Flaws in proposal
However, there are serious flaws in this proposal. The new operators may agree to pay up and the Government mayget revenues; but the move does not address the basic issue of ineligibility raised by the CAG. Also, this will send out a signal that companies can flout norms and still get away with it.
The other potential bone of contention will be the yardstick to determine how much they have to pay. Even if the decision is left to a Group of Ministers, the entire process of consultation and policy making could take at least a year, if not two.
That's a lot of time given the sheer scale of the charges levied by the CAG. There is an option to link 2G spectrum cost to 3G prices, but that has already been trashed by the industry on grounds that the two cannot be compared.
This uncertainty could once again leave the door open for lobbyists and deal makers to get the Government to accept a lower fee.
As the TRAI report highlights, most of these companies have not even rolled out services, not only depriving the consumers but also blocking the chances of other serious players who could have started services if they had a fair chance to pick up spectrum through an auction process.
Instead of punishing the new operators for their trespasses, the Government is looking to keep them in business.
When a consumer fails to furnish proper identity and residence-proof, his mobile connection is terminated; there is no reason why the Government should be so benevolent to these companies when the CAG has clearly pointed out they gave false certification at the time of taking licences.
Right course
If the Government is really serious about correcting past mistakes in the 2G allocation, it should act upon the advice given by the two constitutional authorities and cancel the licences. Such an action will have several positive outcomes.
Firstly, it will send out the right signals to the industry that the Government will not tolerate excuses in fulfilling roll-out obligations and meeting other licence conditions.
Secondly, the move will free up nearly 200 Mhz of precious 2G spectrum, which can be auctioned. The money generated will certainly offset the presumptive losses to national exchequer due to the earlier decisions. To be fair, even the new players can be allowed to buy back the spectrum through the auction if they meet the eligibility criteria.
Thirdly, the auction would for the first time give the actual value of 2G spectrum which will put an end to all debates in this regard.
The derived value can even be used to ask the incumbent operators, including Bharti Airtel and Vodafone, to pay up for the excess 2G spectrum they have.
On the other hand, if the Government allows the new companies to continue in business by paying some money, it will be a repeat of the mistake committed in 2003 when the NDA Government allowed fixed-line operators to become CDMA-based mobile operators by asking them to pay a one-time entry fee.
That decision has become the genesis of almost 95 per cent of all disputes and controversies in the telecom industry since then.
Those who are not in favour of cancelling the licences argue that customers of these operators will suffer if the Government takes away the spectrum.
It's a valid concern; but with the advent of Mobile Number Portability, subscribers can be given the option to move out . In any case, apart from Uninor and Sistema Shyam, the others have not really operational . The new operators put together will not account for more than 25 million subscribers. Shifting these subscribers to another network will not be a huge task.
Legal hiccup unlikely
Detractors of cancellation also argue that it will send wrong signals to foreign investors who have picked up stake in some of the new companies, which in turn could trigger lawsuits against the Government. In such an eventuality, the Government has enough legal protection.
The licence agreement clearly state that if the information submitted by the company at the time applying for licences is found incorrect at a later stage, the Government can cancel the licence.
The same document also stipulates that if the operator fails to fulfil roll-out obligations, there are provisions under which the Department can take back the spectrum.
According to the CAG and the TRAI, the new operators fail on both counts - hence their lawsuits will not be legally tenable.
In fact if the Government takes a decisive action, it will send the right signals to investors that the Government means business when a public resource such as spectrum is given to them.