Telcos held the common man's inclination to buy mobile phones for a bargain price in the grey market largely responsible for call drops.
They listed this propensity of consumers as one of the several “imponderables” over which service providers have no control over and due to which they should not be made liable for call drops.
The maiden hearing in the 'calls drops' case before a Supreme Court Bench of Justices Kurian Joseph and Rohinton Nariman on Thursday saw senior advocate Kapil Sibal lead the attack for the Cellular Operators Association of India (COAI) against the Telecom Regulatory Authority of India's (TRAI) controversial Telecom Consumers Protection (9th Amendment) Regulations, 2015.
The regulations make telcos liable to compensate consumers for call drops.
Mr. Sibal, who was the Telecom Minister in UPA-II Government, said a TRAI study itself showed that 36 percent call drops were “consumer-related.”
“Mobiles are purchased from grey market... then calls will drop,” Mr. Sibal said.
“It [call drops] is not my fault. I am not in control. It [regulations] is just populism. Now you have a wonderful function for 35 lakh people on the banks of river Yamuna... there may be no calls coming or going... even then it's my fault?” he asked.
Mr. Sibal said the regulations, which gives a presumption that 100 per cent drop-free network is possible, is sheer “populism” on the Government's part.
He said their licences still gave a two per cent margin for errors, including call drops. “This shows TRAI accepts call drops to the extent of two per cent. It means they accept the fact of inevitability of call drops... so now how can they push us with these regulations?” Mr. Sibal asked.
At this point, Justice Kurian asked whether telcos were willing to be penalised at Re. 1 per call drop if their errors exceed the permitted two per cent. But Mr. Sibal side-stepped the query, saying there was no mechanism to show that call drops were due to the service provider's fault.
Justice Nariman then asked Mr. Sibal to name a circumstance where a telco is responsible for call drops. “Let us say, are you responsible if calls drop because your network is overloaded?” Justice Nariman asked.
“No. Why should I be penalised? We are dealing with radio waves and not electricity. Because of constant interaction and mobility of consumers, it is impossible to put the entire blame on me for call drops,” he submitted.
Justice Nariman then asked whether the TRAI study had said anything about the telcos' percentage of fault for call drops?
Mr. Sibal replied that the study hardly blames service providers with just about seven per cent liability for “abnormal network response”, whereas over 50 per cent faults are pinned on radio waves' failure.
“This is a sector which has invested 40 billion dollars in this country. We don't have a problem installing few more towers for a billion or 500 million. But that's not the issue here. Issue is there is a presumption here that I am responsible for all call drops whatever the problem be. There is no need for this,” Mr. Sibal submitted.
Telecom majors, in their petition, have maintained that “100 per cent call drop free network” is impossible under the Law of Physics and will cost them hundreds of crores in compensation payable to customers every month.
TRAI, on the other hand, maintained that the 2015 regulations upheld by the Delhi High Court last month, were framed purely in the interest of the common man.
