The Delhi High Court has quashed the Mobile Number Portability Per Port Transaction Charge and Dipping Charge [Amendment] Regulations, 2018, holding that it is ultra vires the powers of the Telecom Regulatory Authority of India under the TRAI Act, and also contrary to Article 14 of the Constitution.
Syniverse Technologies and MNP Interconnection Telecom Solutions India Private Limited, the only two licensed MNP service providers in India had approached the High Court challenging the amendment. Prior to the amendment, they were entitled to "Per Port Transaction Charge of ₹19 for each request processed by them. Vide this amendment, it got reduced to ₹4 and has been made payable only if the porting is "successful", i.e. if subscriber successfully transfers his connection from his original TSP.
Agreeing with the submissions made by the MNP operators, the bench comprising Justice Ravindra Bhat and Justice Prateek Jalan observed that MNP service providers ought to have been consulted prior to making this new amendment during the consultative process. The court said:
"However, in our view, if TRAI was minded to accept a proposal of such a fundamental nature, some further consultation was required. It may be that such further consultation is not called for in every case where draft regulations are modified in response to stakeholder comments, but changes which have a drastic impact on the scheme of the regulations such as the one under consideration, do require a further opportunity to be given to the affected stakeholders. As in the present case, it is quite evident that there may be many situations where the interests of all stakeholders are not identical. The MNP service providers [the petitioners herein] are the ones most adversely affected by the restriction placed on their entitlement. They ought to have been consulted prior to making this new amendment during the consultative process.t"
The court further observed: "Even where a porting request is ultimately unsuccessful, the MNP service provider would necessarily have expended resources in processing it. There is, therefore, neither a statutory basis, nor any other reasonable explanation, for the limitation placed by impugned Amendment."
It struck down the amendment for the following reasons
Lack of transparency, inasmuch as, the consultation paper issued by TRAI did not indicate that porting charges would be payable only for successful transactions. The Explanatory Memorandum to the impugned Amendment Regulations does not reveal adequate consideration of the comments submitted by the MNP service providers in response to the consultation paper. Limiting the entitlement of the MNP service providers to situations of successful porting is not only contrary to the statutory scheme, but also penalizes them for failures which may not be attributable to them at all. The impugned Amendment is also ex facie arbitrary and unreasonable as the per-port transaction charge of ₹4/- has been computed on the basis of the number of porting requests received but the same charge has ultimately been granted only for "each successful porting".