The DoT had sought the Attorney General’s (AG) opinion on the matter, after framing guidelines for private networks, in which direct or administrative allocation – or allotment without auction — of airwaves to enterprises was also listed out as one of the options.
“The AG has said that keeping in mind the principle that any community resource, in all circumstances, should be allocated in a manner that may fetch best return possible and the allocation of the resource through the auction process is found desirable,” one of the officials said, elaborating on the view of the government’s senior-most legal officer.
Questions can be raised later
Even though the DoT had already framed guidelines which clearly differentiated between commercial and non-commercial spectrum, the AG was of the view that questions could still be raised around the ‘assessment or evaluation criteria’ in case of administrative allocation.
“This (assessing if a spectrum is for commercial or non-commercial use) could be subject to interpretation. The top legal officer has referred to the 2G controversy, which arose because of questionable criteria of first-come-first-serve basis for allocation of spectrum,” another official said.
The AG’s view is that while the government can take a stand on the classification of spectrum and that a particular bandwidth does not need to be auctioned, some could still raise questions at a later stage, like it happened in the 2G case, the officials said.The department has been advised to come out with a tighter set of guidelines for the purpose of administrative assignment which should be ‘watertight’ and insulate the process from any legal challenge. “The DoT needs to go back to the AG with the revised guidelines. The AG will then decide if there is a need to go to the Supreme Court for seeking further clarity on the allocation process,” the first official said.
ET’s emailed queries to the AG’s office went unanswered as of press time.
The issue of direct allocation of spectrum to enterprises has been a contentious one, pitching technology firms against telecom operators. Telcos have opposed any direct allocation alleging that it would distort the level playing field and give technology players a backdoor entry to provide 5G services to enterprises. Tech companies want spectrum directly from the government for setting up captive networks, saying enterprises should not need to depend on telcos.
The DoT has been taking an ultra-cautious route in this matter.
ET had reported in its January 12 edition about DoT’s move to seek legal opinion regarding allocation of spectrum to enterprises for rolling out private captive networks and if it can be done through auction or administrative allocation. While the Cabinet in June 2022 had approved direct allocation to enterprises, it had not spelled out the specifics around the methodology.
According to the initial guidelines on private networks released by the DoT, enterprises that want to set up their own captive networks can lease spectrum from telecom operators or get it directly from DoT. They can also ask telecom operators to roll out their private networks.
Companies such as Infosys, Capgemini, GMR, Larsen & Toubro, Tata Communications, Tata Power and Tejas Networks had applied to the DoT seeking direct allocation of spectrum in the regulator-identified bands, including in the mid-band (3,300-3,670 MHz), for private networks.
As reported by ET, DoT had received 20 applications for direct spectrum allocation, though there was more than one application from the same group of companies. These applications were filed in response to an exercise launched by DoT to test the demand for spectrum to set up captive private networks.
