New Delhi, Sep 1 : The Supreme Court on Tuesday said shared operator telecom service providers (TSPs) cannot be saddled with the liability to pay the past AGR dues of licensees that have shared the spectrum.
The decision exempts Reliance Jio and Bharti Airtel from paying past AGR dues of RCom, Aircel and Videocon on account of using their shared spectrum.
A bench comprising Justices Arun Mishra, S. Abdul Nazeer and M.R. Shah said: “The past dues of sharing operator/licensee covers AGR for the spectrum used by holder of licence…. certain TSPs such as Reliance came into existence later on, and as observed hereinabove, the liability of such operator of the AGR, would only be to the extent it has used the said spectrum.”
“Shared operator TSPs cannot be saddled with the liability to pay the past dues of AGR of licensee, that have shared the spectrum with the original licensees.”
The bench noted that in the present case, only part of the spectrum of the licensee has been shared with the case of some TSPs, as approved by the DoT under the Sharing Guidelines, 2015, and there is no provision for the liability of the past dues on the shared operator.
The bench noted the counsel appearing on behalf of the Reliance Jio (shared operator), which has entered into the sharing between RCom/RTL, has stated that Reliance Jio has paid the AGR post sharing, including the difference of AGR as per the decision of this Court on their own and based on self-assessment.
“It is stated at the Bar that still anything is further held to be due and payable and AGR for the period post sharing of the said spectrum originally allotted to RCom on the assessment being done, they will make the said payment. Similar is the ground of counsel for other TSPs as to sharing arrangement,” it said.
The bench noted that according to DoT, both the TSPs (sharers) are required to pay the spectrum usage charge (SUC) on their respective AGRs, as AGR is not calculated bandwise, but from the total revenue earned by the TSP using the entire spectrum (both shared and not shared).
“Even in the case of sharing spectrum, the liability of the said operator would be to the extent of using the said spectrum only, and the liability of the sharing operator would be to the extent of the remaining spectrum used by it. Therefore, there shall not be any liability of the said operator with respect to payment of the past dues (post shared) of the sharing operator-licensee,” the court said.