Rajeev Rajeev Chandrasekhar's letter to the CBI on illegalities in the issuance of new UASL licenses

8/6/2019 Rajeev Rajeev Chandrasekhar's letter to the CBI on illegalities in the issuance of new UASL licenses

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R A JE E V C H A N D R A S E K H A RM EM BE R O F PA RU Afv \E NT

R AlY A S AB HAMember of Standing Committee on Information Technology

Member of Consultative Committee on FinanceMember of Parliamentary Forum on Youth

Co-Chairman, Vigilance & Monitoring Committee, Bongolore Urban District

20 June, 2011

Dear Shri Priyadorshi,

Sub: Evidence of Illegd acts and conspiracy for issuance of new UASL licenseswithout bidding in 2003-2004, in violofion of the TRAI Act and Cabinetdecision. Additional evidence also cited from the CAG Report of16.11.201 0 and the Justice Shivrc] V. Patil One Man Committee (OMC)Report of 31.01.2011

This is fu rther to my letters dated 22.12 . .201 0 and 10 ,01 ,20 1 1, and my meeting with youon 14,06,2011.There is conclusive and undeniable evidence that there were big beneficiaries of illegalacts by TRAI/DoT which caused a corresponding loss to the Exchequer in violotion ofCabinet decision of 31.10.2003, UASL guidelines of 11.11..2003, NTP'99 as amendedon 11.11.2003, established procedure of multi-stage auctions, extant policy and the TRAIAct, Section 11 (1)[a)(i), Second Proviso and Sec tio n 1 1 ( 1)(0) (il, Fifth Proviso.The events and actions leading to these issuance of licenses/spectrum in Telecom areoften complex and it is easy for even the most informed to be mislead and confused. Thisletter attempts to clarify the real situation, in as simple a way as possible, to allow theprocess of investigation and justice to be pursued and ALL the illegal actions and wrong-doers to be identified.

211 North Avenue, New Delhi- 110001 IndioTel: + 91-1123094044 Fax: + 91-11-23094042E-mail: [email protected]
mailto:[email protected]:[email protected]


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200304 (26 NewUAS Licenses Gran~d illegally to 4 companies).:

It seems that the prevailing view with regard to the issuance of new UAS licenses (notmigration) to private companies during this period is sought to be [ustified by the potentialaccused/involved parties by citing the 'Note for Cabinet' - F.No.808-26/2003NAS,Sedion 2.4.6(i) and (ii), which state:H2.4.6 Based on the above the G aM has recommended the follow ing COU fYeof ad ion:(I I The scope of NTP99 may be enhanced to provide for licensing of Unified AccessService for basic and cellular license services and Unified Licensing comprising alltelecom services. Deportment of Telecommunications may be authorized fo issue

necessary addendum to NTP99 to this effect.{ii} The recommendations of TRAIwith regard to implementation of the Unified Access

Licensing Regime for basic and cellular services may be accepted.DoT may be authorised to finalize the details of the implementation with theapproval of the Minister of Communications & IT in this regard includingcalculafion of entry fee depending on the dote of paymen tr hosed on the principlesgiven by the TRAIin its recommendations. "

The reality is this: The contention that there was a Cabinet decision which approved thegrant of NEW UAS licenses is uHerly, completely fa.lseand is an aHempt to divert oHentionfrom the real perpetrators of this iIlegol oct.To understand the seams in 2003- 2004, it is most erueia I to distinguish, in clear terms,between (a) an existing SSO/Ilmited mobility operator and (b) a new UASL operator,specifically:i) An existing SSO/Iimited mobility operator has to be viewed on a circle-wise basis

only. An existing SSG/limited mobility operator operating in, say 6 circles (e.g.Tatas) as on 11.11.2003, does not qualify as an existing operator for theremaining circles where it did not hove a SSO license..The status of existing versusnew has to be evaluated on a circle-wise basis only,

ii) TRAI recommendations of 27.10.2003, GoM approval of 30.10.2003, Cabinetdecision of 31 ..10.2003 end UASL gu idelines of 11.1 1.2003 - only pertain tomigration for existing SSOs/iimited mobility operators to the UASL regime. There isnot a single word about new UASL operators in any of these four saiddocuments/a pprova Is.

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ii i) As the CBI has cited in its charge sheet of 02.04.201 1 (Page 16/1 7), under theTRAI' Act, Section 11 (1 )(a) (i) and (ii), Second Proviso. the Central Governmentneeds to mandatorily seek recommendations before "new license 10 be issued to aservice prcvi der". This statu tory prov isio n co n not be ove rru n by any deci sio n ofGoM, Cabinet or MoCiT /Do T officials.

With the above background as a basis of evaluating the contention of the potentialaccused/involved parties, kindly evaluate the following evidence:

i) The Cabinet approved the TRAI recommendations and TRAI recommendationsapproved migration of existing BSO/limited mobility operators to UASL ONLY inCIRCLESwhere they were already licensed as 8S0s ..Cabinet note refers to "dateof payment based on principles given by TRAI i n its recommendations". This onlyrefers to existing BSOs and consequently excludes new UASLapplicants:The authorization provided by the Cabinet is not unfettered. It can go neitherbeyond the subject of the TRAI recommendations (bound by TRAI Act, Section1 1(1) (a)(i), Second Proviso) nor co n it be in violation of the TRAI Act. If thisauthorization was meant for NEW UA5 licenses, then there would be noneed/meaning to the phrase" calculation of entry fee depending upon the date ofpayment based on the principles given by TRAf'. The concept of date of paymentonly arises with regard to existing licensees who migrate on a circle-wise basis, andnot to new UAS licensees.A plain reading of the TRAI recommendations o f 27.10.2003, Page 42, AnnexureIII shows that the date of payment is critical. and linked to the calculation of entryfee, but relates only to BSO operators with limited mobility pertaining to the circleswhere they seek mig ration, i. e. Relia nee (1 8 ci rcles), Tatas (6 circles), Bha rti (6cirdes), and Shyam and HFCL (1 circle each). NEW UAS licenses (i.e .. UASlicenses for NEW circles), on the other hand, have no relevance to the phrase 'doteof payment'. Nor co n this be co Iculoted by the TRAI in its recommendations sincethe TRAI would not have known on 27.10.2003 when which new entrant will payfor which circle or enter through which process - First Come, First serve (FCFS) ormulti-stage biddinq etc.In conclusion, this section is entirely restricted to mig.rating licensees in thosespecific circles, and in case of Tctcs. it is specifical'ly limited to the 6 circles ofGujarot, Maharashtra, Karnatako, Andhro Pradesh, Tamil Nadu and Delhi only.The 12 NEW UAS licenses which they received in January/February 2004 are notcovered by this authorization.

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ii) TRAI recommendations only refer to 'migration'or 'existing B50s'. No mention ofnew UASL licenses for operators:A plain reading of the TRAI recommendations, which is the basis of the GoM andCabinet approvals of 30.10.2003 and 31.10.2003 respectively, shows that therecommendations only use the words 'migration' or 'migrating' or 'existing BSOs'in 0 1 . 1 the relevant sections, including but not limited to Sections 7.4, 7.5, 7.7, 7.8,7.12,.7.13,7.14,7.16,7.17,7.18,7.19,7.20,721, 7.22, 7.23, 7.24,726,7.29, 7.30, 7.31 and 7.37. There is no use of the phrase 'new unified accesslicense' anywhere and surely the GaM/Cabinet could not have approved(consequent upon the statutory restrictions) beyond what the TRAI hadrecommended for existing BSOs/CMSPs migrating to UASL.

i i i ) UASL guidelines dated 11.11.2003 issued by DoT make no mention of 'new UASlicenses'. They neither provide the application format nor the process to grant newUAS licenses:The entire UASl guidelines of 11.11 ..2003 relate to migration for existingBSOs/limited mobility operators (which can only be on a circle-wise basis). Itneither speaks about new UASlicenses nor does it prescribe a format for applyingfor such licenses. Most importantly, UASL guidelines of 11.11.2003 do notmention FCFS anywhere as a process for grant of new UASlicenses. That isbecause the guidelines were not meant to address new UAS licenses. It merelymentions that future applications will be received under the UASl regime withoutany hint of the format or the process/timing of allocation.

I V ) The letter by 5h ri Prod; p Ba i [o I, former TRAI C hai rma n, dated 14.11.2003, whichis the basis for 26 new UAS licenses -including 12 to the Tatas - granted betweenJanuary and April 2004, is patently i llegal:Under the TRAI Act, the Chairman has no authority whatsoever to clarify statutoryrecommendations through a personal letter - that too based on a telephonicconversation - written after GoM approval" Cabinet decision and issuance of UASLguidelines of 11.11.2003, The letter by itself is potently illegol.lf it is treated as afresh recommendation, theni! violotes Section 11(4) (Transparency) since neithercan such recommendations be generated without public consultation nor can theybe given without being placed in the public domain. In the current instance, therewas no consultation for new UAS licenses or even UAS licenses in the first place.Moreover, the letter of 14.11.2003 has never been placed on the TRAI websiteand is in fact missing from the TRAl's files - as per their reply to on RTI enquiry.This was a surreptitious move by the Chairman to benefit companies such as Totes

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who had already applied for 7 new UAS licenses on 12.11. .2003 in the SSOformat. I am sure you are aware that the then TRAI Chairman went on to work withand consult for some of the beneficiaries of these licenses - this fact is already inthe public domain.For collaborative evidence, please see CAG Report of 16.11.201.0, Sections 3.1.6and 3.1.7 and the Justice Shivraj V. Patil OMC Report, Sections 2.51 ~ 2 ..55 andSection 3 .2 (iv).

v) The DoT accepts that Chairman TRAi's letter is over and beyond the TRAIRecommendations approved by the Cabinet on 31.10,2003:A reading of the file notings within the DoT beginning 20.11.2003 till 24.1 1 .2 003dearly shows that senior-most members of the Telecom Commission and officialsof the DoT, including legaI advisors, do not agree with the contention that theCabinet had authorized the grant of new UAS licenses with the approval of thethen MoCiT. The handwritten note on file dated 21. 1 1 . 20 03 by D(LF) (whichremains uncontested on files till date) states:"The matter was discussed in a meeting with M(P),M(F), LA(T)and DDG(LF)in thechamber of M(F) today. It emerged in that:In view of the letter doted 1 4 t h November 2003 from TRAl it is to be presumed thatthe entry fee for new applicants would be equal to the entry fee paid by the Iourthcellular operator and the entry fee of the existing 850 fixed by the Government(based on TRAIrecommendations) where there is no cellular operator.Further the new applications would submit P8G equivalent to tourth celluloroperator (however the quantum of PBG may need to he decided where there areno fourth cellular operator). The above is over and above the recommendations ofTRAIon unified /;censing which was approved by the Cabinet as the same wasabout migration of only exisfing/ cellular and basic service licensees to the unifiedaccess service license.2) It is presumed that such new licenses in the category of UASLwould be on a firstcome/ first served basis on basis of applications submitted for consideration. 1/

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Important notes:

All the highlighted sections above show that the UASL quidelines did notprescribe even basic information such as PSG etc., and therefore, could nothave been applied to new UASL operators.

The basis o f this note is the letter of 14.11.2003 and that leads to thepresumption of entry fee.

It dearly states that this is over and above the TRAI recommendations whichwere approved by the Cabinet os. the same was about migration of existingCMSPs, BSOs to UASLonly (not new UAS licensees),

Even the process for grant of such licenses i.e. FCFS has to be presumed sincenothing is stated in the UASLguidelines of 11,11 ..2003.This note is based on the meeting of member of the Telecom Commission andis signed by DOG (LF), senior DOG (VAS), Director AS (II), Member (P),Member (F), Cha irman - Telecom Commission and eventually by the thenMoCiT - between 21.1.2003 and 24.11.2003. Not one sinqle signatory hascontradicted the handwritten note which is the basis of originating the approvalfor grant of new UAS licenses.

V i) The decision to grant new UAS licenses in 2004 violates the TRAI Act, Section11(l)(a}(i), Second Proviso:The TRAI,Act, as cited by the CBI in its charge sheet of 02.04.2011, recognizes theneed for mandatory recommendations to .be sought by the Central Governmentfrom the TRAI while issuing licenses to new service providers, By exornple, sinceTatas would be considered 'new service providers' in the 12 circles, as wouldothers who received licenses in January/Februa ry 2004, a specifico nd separate setof recommendations would have to be received as per the statute - which in turnwill have to follow a process of public consultation compliant with Section 4 of theTRAI Act. Since no such consultation ever took place and no such consequentrecommendations were made/placed in the public domain, any grant of licenses to'new service providers' or 'new UASl operators' is a blatant violation of the TRAIAd. This compliance should have been followed for all: 26 licenses granted,

vii) Substantial evidence in the CAG Report which shows that the TRAI Chairman'sletter was unauthorized, including that the TRAI recommendations of 2003rega rd ing bldd ing of fo urthlflfth cellulor operator were violated:As it is well known that the fourth/fifth cellular operator, as per the TRAIrecommendotions of 27.10.2003, was to enter through a process of multi-stageb.idding (Section 7.37 and 7..39). As per the DoT's own odmission (Justice ShivrajPatil OMC Report - Annexure 27, Page 313, Section 7), grant of new UAS licensewas nothing but the grant of new CMSP licenses.

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Consequently, the then TRAI Chairman, Shri Pradip Baijal, in conspiracy with thethen DoT, allowed a backdoar entry into cellular mobile telephony (under the garbof UASL)to certain operators, bypassing the process of tendering and bidding thatwas the norm for new cellular licenses till that point. This was in violation of theTRAI Act and while deliberately delaying implementation of the bidding for thefourth and fifth cellular mobile operator or UASL operator. So in eHect, thenomenclature was changed to grant spectrum without the auction process inblatant violation of TRAI's own recommendations and the Cabinet approval. of27.10.2003 and 31.10.2003 respectively.Further collaborative evidence is available in the CAG Report, Chapter 3.

viii) The OMC Report provides collaborative evidence of the violation of the TRAI Act inthe grant of new UAS licenses and the benefits that accrued to these privatecompanies:Relevant sections of the Justice Shivraj Patil OMC Report indude Sections 3.2(i)-(iv), Sections 2.51 - 2.55, and most importantly Section 6.1 (i), which state:"This apart, the decision 50 taken was not notified fa public for the benefit of allprospective applicants. Without there being any notified procedure to be followedfor the grant of UASLs and without applications having been invited from all; theprocedure thus formulated was applied to facilitate consideration of applicationsmode by Tata Tele Services limited in the forms prescribed for grant of BSLs.1/N said officials appear to be responsible for deviation brought out in formulationof the procedure. /I .

Conclusion:The only set of licensees who could have legally received UAS licenses as a consequenceof the TRAI Recommendations of 27.10.2003, Cabinet decision of 31 .10.2003 and UASLGu idelines of 11.1 1.2003, are the 31 migration licenses (7 Iicensees) that have beenidentified in Annexure III of TRAI Recommendations of 27.10.2003 and Annexure I ofUASLGuidelines of 11.11.2003.All other new UAS licenses (not migrotion) granted since January 2004 till theonnouncemenf of the new UASL Guidelines of 14.12.2005 (being investigatedindependently) are blotantlyillegal, and explicitly violate TRAI Act, Section 11(1)(aHi),Second and fifth Proviso. If this was not the case/there was no need whatsoever for boththe TRAI Recommendations and the UASL Guidelines to attach such deta.iled annexuresidentifying the dote of payments and the additional entry fee that will need to be paid formigration to UASL in each of these 31 circles only.

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In fact, the "date of payment" and resultant "calculation of entry fee" indicated in theseannexures for migrating licenses directly identifies itself with the language used in theCabinet approval of 31.10.2003, Section 2.4.6(ii) - which is being falsely cited by thepotential accused to masquerade as a Cabinet approval for grant of new UAS licenses.With all the evidence above, it is clear that in 2003-04, serious illegalities were committedto ensure UASL licenses were issued in 2004/2005 at 2001 prices - to benefit privatecompanies, cause loss to exchequer and i-n contravention to the Cabinet approvals,Existing policy and TRAI Act.Copy of all relevant annexures is being attached herewith for your ready reference.I hope that the above-mentioned evidence and facts will loy to rest any impression thatnew UAS licenses in 2003-2004 were in accordance with Cabinet approval. Rather, theywere issued in violation of Cabinet approval and law.Yours Sincerely,

~~RAJEEVCHANDRASEKHAR

Shri Vivek PriyodorshiSuperintendent of PoliceCentral Bureau of investigationCGO ComplexLodi RoodNew Delhi

Encl. : List of Annexures and Actual Annexures

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Rajeev Rajeev Chandrasekhar's letter to the CBI on illegalities in the issuance of new UASL licenses

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Transcript of Rajeev Rajeev Chandrasekhar's letter to the CBI on illegalities in the issuance of new UASL licenses