SC directs Vodafone India and Airtel to disclose details of segmented offers to TRAI

However, the Supreme Court said it is the duty and responsibility of the telecom regulator to ensure that such information is kept confidential.
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The Supreme Court on Friday directed Bharti Airtel and Vodafone Idea to disclose details sought by the Telecom Regulatory Authority of India (TRAI) in connection with segmented offers.

A bench headed by Chief Justice S.A. Bobde and comprising Justices A.S. Bopanna and V. Ramasubramanian said: "In the light of the above historical background, what is now sought by TRAI to ensure adherence to the regulatory principles of transparency, non-discrimination and non-predation, cannot be said, at least prima facie to be either illegal or wholly unjustified."

"Hence the I.A. (intervention application) is allowed and a direction is issued to the respondents to disclose information/details sought by the appellant regarding segmented offers."

However, the top court said it is the duty and responsibility of the TRAI to ensure that such information is kept confidential and is not made available to the competitors or any other person.

In exercise of powers conferred by Section 11(1)(b)(i), read with Section 11(2) of the Telecom Regulatory Authority of India Act, the TRAI issued the Telecommunication Tariff (63rd Amendment) Order, 2018 dated February 16, 2018. Bharti Airtel and Vodafone Idea challenged it before the TDSAT.

Primarily, the challenge was to the "Reporting Requirements" and "Significant Market Power" (SMP). Another grievance was about the insistence of the TRAI about the disclosure of segmented discounts.

The TDSAT set aside the Telecom Tariff 63rd Amendment Order in so far as it changes the concepts of SMP, non-predation and the related provisions.

The TRAI filed civil appeals against this order and also filed an intervention application seeking interim direction to the service providers to disclose information sought by it regarding the segmented offers.

In the number of segmented offers provided by telecom service providers (TSPs) during a period of 12 calendar months from January 2019 to December 2019 in various states, the TRAI contended that the details of these offers are not even disclosed to it.

"Therefore, despite being a regulator, TRAI is not in a position to analyse whether the plans are transparent and non-discriminatory and whether predatory pricing is resorted to by TSPs in the garb of segmented offers or not," it contended.

The TSPs argued that segmented offers, as found by the TDSAT, constitute "confidentially designed trade practices". Therefore, the TDSAT held that there is no need for reporting.

The TSPs also contended that whenever the TRAI wanted to call for details of segmented offers about which it received complaints, they are ready and willing to furnish the same. However, so far, the TRAI has not received any complaint.

The top court noted that the TDSAT said segmented offers and discounts offered in the ordinary course of business to existing customers without any discrimination within the target segment, do not amount to a tariff plan and that therefore, there is no need for reporting.

"Eventually, the impugned order namely the 63rd amendment order February 16, 2018, was issued. The amended definition of Reporting Requirement makes it clear that the Reporting Requirement is for the information and record of the TRAI," said the top court.

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