Can Certain Spectrum Allocations Be Undertaken Sans Auctions — Centre Seeks Top Court's View
The plea states that in some instances, spectrum allocation through administrative action is the optimal way forward.
The central government has sought clarification from Supreme Court on whether the spectrum allocations can be undertaken administratively, without competitive auctions, in cases concerning national security, safety, disaster-preparedness, and in cases where auctions are economically not preferred.
The plea, a copy of which has been reviewed by NDTV Profit, states that the assignment of spectrum is not undertaken only for commercial telecommunication services but also for non-commercial use for the discharge of sovereign and public interest functions.
There are also specific sui generis categories of usage owing to the characteristics of the spectrum, or the nature of use, or international practices, etc., in respect of which auctions are not technically or economically preferred or optimal (e.g., in the case of captive use, radio backhaul, or one-time or sporadic use).Centre's Application
The centre has said that with respect to such distinct usages, they have been assigning spectrum administratively, but all these assignments have been on the specific condition that they shall not be treated as final but only interim or provisional.
As a result, the centre has sought appropriate clarification from the top court to firm up an assignment framework including different methods of assignment other than auction in suitable cases.
Additionally, the plea states that when demand is lower than supply or when it is preferable for multiple players to share the spectrum rather than dividing it into smaller blocks for the sole purpose of exclusive assignment for auction, an administrative action may be necessary.
The central government has said that this will be crucial to realise the full potential of telecommunications, and will best subserve the common good.
The central government’s plea comes in the backdrop of a 2012 judgment of the apex court wherein it was held that a duly conducted auction conducted fairly and impartially is the best method for conducting spectrum allocation.
The top court had held the government’s policy of allocating spectrum on a first-come-first-serve basis as illegal as it involves an element of pure chance or accident.
The court had categorically stated that when it comes to the alienation of scarce natural resources like spectrum, etc., it is the burden of the state to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of the public interest.