B.S.N.L vs Reliance Communication Ltd

2. On 18th March, 1997, Reliance had entered into BSO Interconnect Agreement with Department of Telecommunications (DoT) for interconnection of their networks within their respective circles. In October, 2000, 2 with its establishment, the BSNL took over from DoT the aforementioned BSO Agreement. In November, 2003, the BSO regime was replaced by Unified Access Services regime which granted the licence to service providers for both basic and mobile telephony services as part of a single unified licence. Reliance was allowed to operate as a Unified Access Service provider from November 14, 2003 though it was formally granted the Unified Access Service Licence on 21st September, 2004 with effect from 14th November, 2003. By an addenda dated 28th February, 2006, the agreement was formally amended with retrospective effect from 14th November, 2003. The Agreement deals with local calls, national long distance calls (NLDC) and international long distance calls (ILD). Calls of each trunk group are connected through dedicated ports and are chargeable at rates different from other trunk groups. Hence, depending on the number of calls handled by a particular port, charges are levied by BSNL on Reliance, at the rate of the existing call charges payable for that particular trunk group.

4. In September, 2004, BSNL received several complaints from its subscribers in Gujarat that they were receiving ILD calls with local CLI Numbers. On the basis of these reports, BSNL made its own enquiries by calling the local CLI number, i.e., 0281-3041000. This was on 5th October, 2004, 6th October, 2004 and 7th October, 2004. Each time the number was called the response from the other end was that the number did not exist. Therefore, on 8th October, 2004, BSNL reported the matter to Reliance at which time Reliance had sent its report to DoT regarding the same. In the said report to DoT, Reliance stated that the wrong routing of ILD calls was being done by one of its subscribers, viz., M/s. Raj Enterprises 4 (who was given 60 calls circuits). The series of numbers allotted to Raj Enterprises was from 2813041000 - 2813041199, i.e., 200 numbers.

5. On 13th October, 2004, BSNL gave notice to Reliance saying that Reliance is having POIs at various Exchanges in Vadodra; that on monitoring incoming traffic to BSNL as indicated in CDRs at the above POIs, it was found that there were numerous calls with CLI as 281 3041000; that, such calls have been received from 4th September, 2004 and, therefore, BSNL will charge at Rs. 5.65 per minute for all incoming calls at POI of Reliance from July, 2004. It may be noted that Rs. 5.65 per minute is the rate of incoming ISD calls at TAX POI of Reliance (the word `TAX' stands for Trunk Automatic Exchange).

6. On 25th October, 2004, BSNL issues its circular to all its officers by which continuation of unauthorized diversion in routing of ILD calls is brought to their notice with specific reference to the case of Reliance. In the circular, it is highlighted that although Reliance claims that tampering of CLI has been stopped w.e.f. 16th September, 2004, it is found 5 that international calls have been delivered on the local POI of Reliance, at trunk group meant for intra circle terminating traffic, at various SDCC tandem exchanges, with CLI of Reliance network of other SDCAs which is different from STD Code and 3039xxxx.

7. On 21st March, 2005, BSNL raised its bill on Reliance (RIL) levying "penalty" of Rs. 9,17,27,746 with interest from 15th October, 2004 to 15th April, 2005 at 21% p.a. for months of July, 2004 to October, 2004 in all amounting to Rs. 9,89,68,892/- for illegal routing of calls. This bill dated 21st March, 2005 superseded the provisional bill dated 15th October, 2004 raised by the Vadodra Unit of BSNL for Rs. 6.89 cr. for the said period July, 2004 to September, 2004. In the said bill, the rate applied was Rs. 5.65 per minute. This demand was made on the basis that numerous calls have been detected in the POI with CLI as 281 3041000 which pertained to ISDNB PRI connection given to M/s. Raj Enterprises of Rajkot. According to Reliance, the calls received in its POIs were "grey market" calls. That, they were neither wrongly routed nor their CLIs were tampered. Ultimately, after 6 detailed correspondence between BSNL and Reliance, petition No. 275 of 2009 was filed by Reliance against the above impugned demand.

3. Due to non-availability of CDR based billing plateform, IUC applicable for the calls handed-over to BSNL at the PoI (Point of Interconnect) have been converted into different pulse rates as per Appendix B. The pulse rates have been calculated at a per MCU (Metered Call Unit) rate of Rs 0.10 for all calls except outgoing ISD calls which shall be measured at a rate of Rs 1.20 per MCU. The bills for IUC shall be raised by BSNL to the interconnecting operator based on the bulk billing of MCUs on the incoming trunk groups. The pulse duration with an accuracy of 10 milli seconds shall be applied at the POIs of all UASL with BSNL as prescribed in Appendix B (in brackets) wherever technically feasible in BSNL switches. At present the implementation of 10 milli seconds accuracy in pulse duration is possible in new technology switches of BSNL i.e. EWSD, AXE-10, OCB-283 and 5ESS.

2.4.5 Separate exchange codes or number ranges shall be allocated to the DoT and the LICENSEE's exchanges by the TELECOM AUTHORITY. Utilisation of unused exchange codes or number ranges out of those allocated to the DoT and the LICENSEE's exchanges shall be reviewed by TELECOM AUTHORITY from time to time for optimum utilisation. 2.5 Calling Line Presentation 2.5.1 LICENSEE's network shall be capable of transmitting and receiving calling line identification which shall include Access code, Area code and Subscriber number.

(b) the CLI based barring facility shall be activated at the POIs wherever technically feasible to ensure that the traffic handed over by BSNL is in the appropriate trunk groups only. Wherever it is technically not feasible to activate CLI based barring, periodic monitoring of the incoming trunk group shall be done by BSNL to ensure this objective. The calls received by BSNL without CLI or modified/tampered CLI from UASL shall be charged at the highest slab i.e. as for ISD Calls. In case such calls are received by BSNL on any trunk group, then all the calls recorded 37 on this trunk group shall be charged at the rates applicable for IUC of incoming ISD calls from the date of provisioning of that POI or for the preceding two months, whichever is less.

(c) When CDR based billing is introduced in BSNL's network some of the trunk groups shall be merged. In such cases also, in case unauthorised or Incoming International Call, without CLI call, call with tampered CLI is handed over to BSNL at the merged trunk group, then BSNL shall charge the UASL the highest applicable IUC, as prescribed in clauses 6.4.6(a) above for unauthorised calls & 6.4.6(b) above for incoming International call, without CLI call, call with tampered CLI, for all calls recorded on this merged trunk group from the date of provisioning of that POI or for the preceding two months whichever is less.

withdraw the services if the other party misuses or indulges in any act which will constitute misuse of POI or will result in violation of instructions issued by Licensor/ Regulator.

The notice period for (a) and (b) above, if any, shall be as specified in the respective clause of the agreement.

SCHEDULE I 41 Interconnection Usage Charge (IUC)

Chapter 2 Technical Issues Pertaining to Interconnection 2.1 Interconnectivity to BSNL Network 2.1.5 RIL shall terminate its traffic on to the network of BSNL as mandated by TRAI from time to time. RIL and BSNL shall deliver all calls on each other's network with CLI in the terminating SDCA. Both parties reserve the right to reject calls without CLI.

2.4 Numbering Plan 2.4.1 RIL shall be allocated carrier selection code by the LICENSOR for dynamic selection of carrier for long distance calls. All calls for which dynamic carrier selection code has been dialed shall be routed accordingly subject to technical feasibility.

6.4 Access Charges 6.4.6 If BSNL detects that Incoming International calls are being handed over or 47 have been made over to BSNL at any other port which is not meant for carrying such calls, BSNL shall be free to charge RIL minimum access charge for Incoming International calls as at clause 6.4.2 above for all the calls recorded on these ports from the date of provisioning of that POI or for the preceding two months whichever is less apart from taking other legal actions including disconnection of POIs or temporary suspension of the Interconnection Agreements. No terminating calls other than International calls shall be accepted from RIL without CLI. In case of calls without CLI, termination charge as per clause 6.4.2 above shall be charged from RIL.

6.6.1 Access charges shall be billed by BSNL based on bulk billing of traffic recorded by BSNL at the point of interconnection. For every STD/ ISD call carried by RIL and accepted by BSNL at POI, a detailed billing record wherever possible or bulk billing record will be generated in the SDCC Tandem. The RIL shall supply calling subscriber's identity for detailed billing purpose.

(ii) Relevant technical terms used in the Interconnect Agreement r/w the addenda

(i) National Long Distance Service Operator (NLDO):

13. For the sake of easy understanding, we need to discuss the above terms in the Agreement in the light of international call(s) coming to India and not vice-versa.

(iv) Whether clause 6.4.6 represents penalty or pre-

estimate of reasonable compensation for the loss?

Conclusion

21. Accordingly, the civil appeal is allowed with no order as to costs.

November 29, 2010