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The factual details leading to the aforesaid allegations are averred in the petition which can be summated in the following manner:

On 25.02.2010, the respondent No. 1 issued Notice Inviting Applications (NIA) for the auction of:
(i) 3G: Three or 4 blocks each of 5+5 MHz spectrum for 3G services in

2.1 GHz band at a reserve price of Rs. 3,500 crore for a Pan-India license, and

(ii) BWA (4G): Two blocks each of 20 MHz spectrum for BWA services in 2.3 GHz band at a reserve price of Rs. 1,750 crore for a Pan-India license.

In respect of BWA (4G), as per the NIA conditions, a bidder could be an existing ISP-A licensee or UAS licensee (or obtain any of these licenses later if successful in the bid), but it can provide only such services which are allowed under the license it chooses. For example, an ISP-A licensee cannot provide voice telephony. In this regard, reliance is placed on the following clause of the NIA:

Clause 3.1.2: “Services can only be offered subject to the terms and conditions of the license obtained by the operator. Award of spectrum does not confer a right to provide any telecom services, and these are governed by the terms and conditions of the license obtained by the operator.” During May-June 2010 the auctions for 3G and BWA were concluded. The 3G auction fetched Rs. 16,750.58 crore for 5+5 MHz spectrum in 2100 MHz (or 2.1 GHz) band. Thus, per MHz price worked out to be Rs. 1,675 crore. This spectrum price bequeathed the rights to provide both data and voice.

On going through the records, we find that the decision, namely, SUC be fixed at 1% AGR was based on relevant considerations. Not only TRAI had recommended the aforesaid charge to be fixed, there was an in depth examination of this recommendation of the TRAI by Government before accepting the same. Furthermore, it is also pertinent to note that on the basis of aforesaid decision, specific provisions were incorporated in the NIA for SUC for BWA spectrum. Clause 3.5 of the NIA, in this behalf, is as under:

Apart from the above, there is one more reason not to interfere with the aforesaid stipulation of SUC. The Government has taken the position that the conditions in the license granted to respondent No. 2 empower the licenser/Government to change the terms of license and, therefore, whenever it is felt necessary and expedient in pubic interest, the percentage of SUC can be increased. However, the matter, for increase of SUC, was even examined after the recommendation of TRAI in the year 2013 that SUC be charged at an average rate instead of slab rate for various spectrum holdings as given in NIA of 2010 and subsequent NIAs of 2012 and January, 2013. The Telecom Commission considered this aspect and debated three options which could be considered for holders of BWA auction in the year 2010, namely: