GTPL BROADBAND PVT. LTD vs TELECOM REGULATORY AUTHORITY OF INDIA

Court: Telecom Disputes Settlement and Appellate Tribunal
Case type: TELECOM APPEAL
Decided on: 25-03-2026

<div> TELECOM DISPUTES SETTLEMENT & APPELLATE TRIBUNAL NEW DELHI Pronounced on: 25.03.2026 TELECOM APPEAL 1/2023 GTPL BROADBAND PVT LTD …Appellant Versus TELECOM REGULATORY AUTHORITY OF INDIA …Respondent BEFORE: HON’BLE MR. JUSTICE DHIRUBHAI NARANBHAI PATEL (CHAIRPERSON) HON’BLE DR. SANJEEV BANZAL (MEMBER) For Appellant For Respondent Advocates Advocates Ms Nidhi Mohan Parashar Mr Arjun Natarajan Mr Vikrant Kumar Mr Aayush Kumar Mr Amar Bajpayee Mr Nakul Gupta Ms Anushri Joshi Ms Kavya Singh Page 1 of 37 INDEX </div><table><thead><tr><th>S. No.</th><th>CONTENT</th><th>Page No. s</th></tr></thead><tbody><tr><td>1.</td><td>ABBREVIATIONS INVOLVED</td><td>3</td></tr><tr><td>2.</td><td>FACTUAL MATRIX</td><td>6</td></tr><tr><td>3.</td><td>ARGUMENTS OF THE APPELLANT</td><td>12</td></tr><tr><td>4.</td><td>ARGUMENTS OF THE RESPONDENT</td><td>15</td></tr><tr><td>5.</td><td>REASONS & ANALYSIS</td><td>18</td></tr></tbody></table><div> Page 2 of 37 ABBREVIATIONS INVOLVED </div><table><thead><tr><th>BSNL</th><th>Bharat Sanchar Nigam Limited</th></tr></thead><tbody><tr><td>DoT</td><td>Department of Telecommunications</td></tr><tr><td>FD</td><td>Financial Disincentive</td></tr><tr><td>ISP</td><td>Internet Service Provider</td></tr><tr><td>LSA</td><td>Licensed Service Area</td></tr><tr><td>MA</td><td>Miscellaneous Application</td></tr><tr><td>MTNL</td><td>Mahanagar Telephone Nigam Limited</td></tr><tr><td>Kbps</td><td>Kilo bits per second</td></tr><tr><td>KPI</td><td>Key Performance Indicator</td></tr><tr><td>OM</td><td>Office Memorandum</td></tr><tr><td>SCN</td><td>Show Cause Notice</td></tr><tr><td>QE</td><td>Quarter Ending</td></tr><tr><td>TCBH</td><td>Time Consistent Busy Hour</td></tr><tr><td>TDSAT</td><td>Telecom Disputes Settlement & Appellate Tribunal</td></tr><tr><td>TRAI</td><td>Telecom Regulatory Authority of India</td></tr><tr><td>TSP</td><td>Telecom Service Provider</td></tr><tr><td>QoS</td><td>Quality of Service</td></tr><tr><td>UoI</td><td>Union of India</td></tr></tbody></table><div> Page 3 of 37 JUDGEMENT TELECOM APPEAL NO. 1 OF 2023 Per— Dr Sanjeev Banzal, Member T. A. No. 1 of 2023. 1. The Telecom Appeal number T.A. 1 of 2023 has been preferred by the Appellant GTPL Broadband Pvt Ltd. under Section 14A (2) of the Telecom Regulatory Authority of India Act, 1997 {hereinafter referred to as "TRAI Act"} inter-alia challenging the order issued by the Respondent, the Telecom Regulatory Authority of India (TRAI), on dated 20.06.2023. TRAI vide its order dated 20.06.2023 directed the Appellant to immediately deposit an amount of Rs. 1,00,000/- (Rupees One Lakh only) by way of Financial Disincentive (FD) for the quarter ending December 2020 for alleged violation of the provisions of the "Quality of Service of Broadband Service Regulations, 2006 (11 of 2006)" dated 06.10.2006. The order of TRAI dated 20.06.2023 was a reiteration of its earlier order dated 19.01.2022 on the imposition of FD on the Appellant. 2. The Appellant in its appeal has submitted that despite being Covid-19 situation prevailing in the country including lockdown in several areas during 2020, it achieved 99.70% benchmarked target of number of broadband connections for the quarter ending December, 2020 as against targeted 100% benchmark. The Appellant submitted that the Respondent failed to appreciate the extra-ordinary conditions Page 4 of 37 prevailing during that time which were beyond the control of the Appellant. Due to these challenging conditions including quarantined areas/homes, Appellant's technical teams were restricted from entering the customer premises/building for installation of the necessary equipment. In the prayer of the Appeal, the Appellant has prayed for setting aside and quashing the order dated 20.06.2023 which was a reiteration of its earlier order dated 19.01.2022 along with the letter(s) dated 03.11.2022 and 13.04.2023 issued by the Respondent to the Appellant on this matter. Parties Involved in the Appeal 3. The Appellant, GTPL Broadband Pvt Ltd, is a Company incorporated under the provisions of the Indian Companies Act, 1956 and is an Internet Service Provider, who has been granted a unified license bearing no. DS-11/8/2016/DSIII dated 31.05.2016 with authorization to provide internet service throughout the territory of India. The Appellant holds a Category 'A' ISP License. 4. The Respondent, the Telecom Regulatory Authority of India (TRAI), is the statutory authority established under Section 3 of the TRAI Act. The Respondent has been entrusted with discharge of certain functions inter-alia, to regulate the telecommunication services; ensure compliance of terms and conditions of license; lay down the standards of Quality of Services to be provided by the Telecom Service Providers (TSPs). Page 5 of 37 FACTUAL MATRIX 5. The Respondent on 06.10.2006 notified the "Quality of Service of Broadband Service Regulations, 2006 (11 of 2006)". Copy of the "Quality of Service of Broadband Service Regulations, 2006 (unamended)" along with the explanatory memorandum is available as Annexure P-2 of this Telecom Appeal. 6. The Respondent vide notification dated 24.12.2012 issued an amendment to the Quality of Service of Broadband Service Regulations 2006, whereby it introduced a Clause(regulation) 3A, which introduced provisions of Financial Disincentive (FD) in case a service provider fails to meet the benchmark parameter(s) prescribed by the Respondent in the Regulations. A copy of the Quality of Service of Broadband Service (Amendment) Regulations, 2012 along with the explanatory memorandum has been annexed as Annexure P-3 by the Appellant. The Quality of Service of Broadband Service Regulations, 2006 (as amended) till date are hereinafter referred to as "Regulations". 7. The Clause(regulation)3 of the Regulations provides that the service providers shall meet the prescribed benchmarks for the Quality of Service (QoS) parameters for broadband service. Clause(regulation)4 of the Regulations provides that the service provider shall submit the Performance Monitoring Reports on the QoS benchmarks for all parameters on a quarterly basis ending st th th st 31 March, 30 June, 30 September, and 31 December to the Page 6 of 37 Respondent within 6 weeks from the end of the Quarter. Further, as per the Clause(regulation)3A (introduced vide amendment dated 24.12.2012) of the Regulations, financial disincentive for their failure to meet the QoS benchmark will not exceed Rs 50,000 (Rupees Fifty Thousand) for the first time breach of the benchmark and will not exceed Rs1,00,000 (Rupees one Lakh) for the second and subsequent breach of the prescribed benchmark. 8. In its order dated 20.06.2023, the Respondent imposed a Financial Disincentive (FD) of Rs1,00,000/- (One Lakh) on the Appellant for its failure to meet benchmarked one parameter by a margin of 0.3% in the Quarter Ending (QE) December,2020. 9. A brief chronology of the facts as submitted by both the parties are as follows: </div><table><thead><tr><th>Date</th><th>Particulars</th></tr></thead><tbody><tr><td>06.10.06</td><td>The Respondent TRAI notified the "Quality of Service of Broadband Service Regulations, 2006 (11 of 2006)" along with the explanatory memorandum</td></tr><tr><td>24.12.12</td><td>The Respondent TRAI issued an amendment to the Regulations, 2006 (11 of 2006), whereby it introduced Clause(regulation)3A to the Regulations which provided for financial disincentive in case a service provider failed to meet the benchmark prescribed by the Respondent in the Regulations</td></tr><tr><td>25.06.14</td><td>Second amendment to the Quality of Service of Broadband Service Regulations, issued by the Respondent vide which the definition of broadband was changed from 256kps to 512Kbps</td></tr><tr><td>24.03.20</td><td>Nationwide Lockdown happened due to Covid-19 Pandemic</td></tr></tbody></table><div> Page 7 of 37 </div><table><thead><tr><th>08.06.21</th><th>Show cause notice issued by the Respondent TRAI, to the Appellant GTPL, for appropriate action under Clause 3A of the Regulations for meeting only 99.70% benchmark as against 100% of Quality of Service (“QoS”) parameter, ‘service provisioning/ activation time’ for the Quarter Ending, December 2020</th></tr></thead><tbody><tr><td>18.06.21</td><td>The Appellant issued its response to show cause notice (SCN), citing the reasons for its inability to meet the prescribed QoS benchmarks. The listed reasons as given by the Appellant were: - Outbreak of Covid-19 pandemic; - Work from home being made the norm, leading to increase in internet connections requests; - Lockdown imposed in various states; - Declaration of several areas/buildings as micro- containment zones; - Customers and/or immediate family member being under quarantine, preventing serviceability; - Continued operations despite lack and constraint of resources; In its response the Appellant clarified that about 80 subscribers were not connected out of about 30,000 subscribers in a month for the reasons beyond its control</td></tr><tr><td>26.07.21</td><td>The Respondent sought a revised performance report for Covid-19 and non-Covid-19 period by 31.07.21</td></tr><tr><td>02.08.21</td><td>Appellant responded to the email of the Respondent, requesting the Respondent to define the dates which are to be considered as Covid-19 period and non-Covid-19 period</td></tr><tr><td>02.08.21</td><td>The Respondent given its response to the Appellant. The Appellant submitted that the response of the Respondent is without clarifying which dates were to be considered as Covid-19 period and non-Covid-19 period</td></tr></tbody></table><div> Page 8 of 37 </div><table><thead><tr><th>03.08.21</th><th>Email written by the Appellant to the Respondent, indicating its inability to prepare such a report for the following reasons: - The Appellant is a PAN India operator; therefore, it was impossible for it to bifurcate regions into Covid and non- Covid; - Covid-19 restrictions had been varied, with local bodies empowered to declare areas into containment, non- containment and or micro- containment zones; - For quarter ending December 2020, there was no non-Covid period.</th></tr></thead><tbody><tr><td>19.01.22</td><td>The Respondent passed an order, rejecting the justification provided by the Appellant, and ordered for imposition of financial disincentive of Rs. 1,00,000/- (Rupees One Lakh) for failing to meet one benchmarked parameter i.e. failure to meet ‘service provisioning/ activation time’ parameter for the quarter ending December 2020.</td></tr><tr><td>27.01.22</td><td>A representation was submitted by the Appellant requesting that 19.01.2022 order of the Respondent TRAI, be set aside on the grounds like: - Unprecedented difficulties due to Covid-19; - Nationwide lockdown effective 24.03.20; - Unlocking implemented in unphased manner; - Spread/impact of covid different from state to state, city to city, zone to zone; - Powers delegated by central government to state government, and further to local bodies and municipalities; - Demarcation of Red, Orange and Green Zones basis parameters imposed by Health Ministry; and further demarcation of containment and buffer zones within Red and Orange Zones;</td></tr></tbody></table><div> Page 9 of 37 </div><table><thead><tr><th></th><th>- Demarcation of micro-containment zones with varying rules and daily code of conduct; - Curbs in operation varying at societal level, irrespective of zones; - Customer or their family members in quarantine preventing installation; the Appellant highlighted that despite the difficult conditions there was a shortfall of mere 0.3% from the 100% benchmarked figure for the reasons explicitly beyond its control</th></tr></thead><tbody><tr><td>22.09.22</td><td>The Respondent TRAI expressed its inclination for a meeting with the Appellant and called upon the Appellant to pay the outstanding financial disincentive amount of Rs 1,00,000/- before the proposed meeting. As the Appellant did not pay the amount, the meeting between the two did not take place</td></tr><tr><td>03.11.22</td><td>After considering the Appellant’s representation dated 27.01.2022, the Respondent issued a letter to the Appellant to deposit financial disincentive amount of Rs. 1,00,000/- stating that there was no express provision for review of its order</td></tr><tr><td>13.04.22</td><td>Reminder issued by the Respondent to the Appellant for payment of financial disincentive immediately, failing which appropriate action shall be initiated against the Appellant.</td></tr><tr><td>02.05.22</td><td>Appellant’s email requesting to meet the Respondent</td></tr></tbody></table><div> Page 10 of 37 </div><table><thead><tr><th>08.05.22</th><th>The Appellant requested the Respondent to reconsider its order dated 19.01.22. The Appellant stated additional grounds in support of its request: - Various statutory bodies and regulators adopting a companionate and lenient approach; - Supreme Court took suo motu cognizance and suspended the period of limitation; - Reserve Bank of India relaxed EMI payments, declaring RBI moratorium period, reduction in repo/reverse repo rates etc.; - Central government directing ministries to refund performance security, bid security and liquidated damages levied during Covid-19 period;</th></tr></thead><tbody><tr><td>19.05.22</td><td>Meeting in-person took place between the Parties where both the parties exchanged their respective positions.</td></tr><tr><td>20.06.23</td><td>Impugned Order passed by the Respondent, reiterating its earlier order dated 19.01.2022 and of 03.11.2022 about imposition of financial disincentive of Rs1,00,000/-</td></tr><tr><td>16.08.23</td><td>Aggrieved by the order dated 20.06.2023, the Appellant appealed before this Tribunal to Set-aside and quash the order dated 20.06.2023 which was a reiteration of the order dated 19.01.2022 passed by the Respondent. Besides the Appellant requested to quash letter(s) dated 03.11.2022 and 13.04.2023 issued by the Respondent to the Appellant.</td></tr><tr><td>04.10.23</td><td>Interim relief was granted which continued further</td></tr></tbody></table><div> Page 11 of 37 ARGUMENTS OF THE APPELLANT 10. It is submitted by Learned Counsel Ms Nidhi Mohan Parashar, on behalf of the Appellant, that the Respondent passed the impugned order dated 20.06.2023, for the Quarter Dec 2020, which was the period when the entire country was grappling with Covid-19 pandemic and the Central and the State governments had imposed varying restrictions including work from home and restricted movement in containment zones, which continued till February, 2022. It is further submitted by the Appellant that Respondent’s only justification for levying the financial disincentive is that the Appellant was not unable to “submit revised performance for both Covid-19 and non-Covid-19 period”. For the Appellant it was not feasible to bifurcate the areas between Covid- 19 affected and non-affected as there was no non-Covid area in the country during that period. 11. In support of its arguments, the Appellant has submitted that: a. The Respondent has failed to consider the effect of restrictions imposed by the Government to curb the spread of Covid-19 pandemic; b. The Government had imposed lockdown restrictions such as work from home, restricted movement in containment zones, etc. These restrictions continued till February 2022 in a phased manner; c. The State and Central Government imposed various restrictions Page 12 of 37 on the movement of the propel to stop the spread of the Covid- 19 pandemic. As a result, employees of the Appellant were not allowed to serve customers in the containment zones/other areas in which restrictions had been imposed by the District Authority/State Government/ Central Government; d. The imposition of the lockdown related restrictions by the Central Government/ State Government/ Local Authorities/ Societies made it impossible for the Appellant to comply with its obligations under the Regulations. e. In the Quarter ending December 2020 there could be no segregation into Covid-19 and non-Covid-19 period since in the period in question there was never any non-Covid-19 period. f. The Respondent failed to appreciate that the Appellant had been unable to achieve the required 100% parameter for the reasons beyond its control i.e., lockdown being imposed in various states, declaration of several areas/buildings as micro- containment zones consequence of which the Appellant’s technical team was restricted from entering the customer premises/building for installation of the necessary equipment, or due to the customer or immediate family member being in quarantine. Such unprecedent situation in the country made it really hard to maintain and continue the provisioning of broadband and internet connectivity operations for the Appellant. g. The Respondent failed to consider that due to work from home being introduced by most companies, there had been a Page 13 of 37 considerable increase in the requests for internet connection. Due to the prevailing Covid situation in the country the Appellant had to operate with a severe lack and constraint of resources for the large part of the year. h. The Appellant has placed on record newspaper cuttings from various newspapers indicating severity of the Covid-19 situation during the Quarter December,2020. i. It is also submitted by the Appellant that during the Covid-19 pandemic, various statutory bodies and regulators had adopted a lenient and compassionate approach towards various stakeholders at the time of the pandemic, however the Respondent had failed to consider the same with the Appellant. 12. In its rejoinder affidavit, the Appellant has stated that the Respondent, being an instrumentality of the ‘state’, should have been guided by the touchstone of non-arbitrariness, reasonableness, rationality and public interest. However, the Respondent’s insistence to penalise the Appellant over the impossibility on its part to provide a revised performance report, thereby segregating performance over the quarter ending December, 2020 to covid-19 and non-covid-19 period reeks of its arbitrariness. 13. In view of these submissions the Appellant appealed this Tribunal for setting aside Order dated 20.06.2023, which was a reiteration of its Order dated 19.01.2022 along with letters dated 03.11.2022 and 13.04.2023 issued by the Respondent. Page 14 of 37 ARGUMENTS OF THE RESPONDENT 14. It is submitted by Learned Counsel Mr. Arjun Natarajan , on behalf of the Respondent TRAI, that the Appellant has filed the Appeal after the expiry of a period of thirty days from the date on which a copy of the documents under challenge is received by the Appellant. If the Tribunal is satisfied that there was sufficient cause for not filing it within the defined period, then the Condonation of Delay(CoD) was applicable only application prayed for condonation of the delay to the TRAI’s letter dated 20.06.2023 and not to the TRAI’s order dated 19.01.2022 and its letters dated 03.11.2022 and 13.04.2023. 15. It is argued by the Respondent that in response to the TRAI’s Show cause Notice (SCN) and subsequently to its email seeking revised performance for Covid-19 and Non-Covid-19 areas, the Appellant neither submitted details of specific areas where lockdown was imposed nor submitted performance after excluding affected areas/ days. It is further argued by Mr. Arjun Natarajan, on behalf of the Respondent TRAI, that revised performance for both Covid-19 and non-Covid-19 period was relevant to enable the Respondent TRAI to take a decision regarding imposition of financial disincentive, because subsequent to first wave of Covid- 19, the impact of Covid-19 was not equal throughout the country i.e. at some places the impact of Covid-19 was more severe than it was at other places. However, the Appellant submitted to the Page 15 of 37 Respondent that it was not possible for the Appellant to bifurcate regions into Covid-19 and non-Covid-19. Therefore, in view of the stand taken by the Appellant, the Respondent TRAI went ahead and imposed Financial Disincentive of Rs1,00,000/- for failing in benchmark of one of the QoS parameter by 0.3% i.e. the Petitioner achieved 99.7% of the benchmarked target and not 100% as was required. It is further argued by the Counsel for the Respondent that even after reminders the Appellant, it did not pay the financial disincentive amount. Later on, the Respondent decided not to accept the Appellant's request to withdraw its order dated 19.01.2022 and conveyed inter alia the same vide its letter dated 03.11.2022. It directed the Appellant to pay the amount immediately. The Respondent vide its letter dated 13.04.2023 once again directed the Appellant to deposit the financial disincentive amount immediately, failing which appropriate action shall be initiated against the Appellant. It is further submitted by the Respondent that the Appellant chose to challenge the Respondent’s letter dated 13.04.2023 after a delay period of 40 days but chose not to challenge the Respondent’s letters including of dated 19.01.2022, & 03.11.2023, which were issued earlier on this matter. 16. Mr. Arjun Natarajan, on behalf of the Respondent, submitted that before declaration of Covid-19 pandemic, financial disincentive of Rs.2,10,000/- and Rs. 20,000/- were imposed on the Appellant for the delay in its submission of the Performance Monitoring Report Page 16 of 37 (PMR) of Broadband service for the QE December 2018 and March 2019 vide the Respondent’s orders dated 21.10.2019 and 04.11.2019 respectively. 17. After Covid-19 lockdown conditions, considering the situation of Covid-19 pandemic, the Respondent TRAI has taken a decision to not impose any financial disincentives for all non-compliances of Basic, Cellular and Broad band Services for the Quarter Ending (QE) June 2020, September 2020 and June 2021 as these quarters had severe impact of Covid-19. For the QE March 2020 and December 2020, the Respondent decided that financial disincentives would be decided on a case-to-case basis based on the submissions made by service providers. In the case of the Appellant, despite giving several opportunities, the Appellant failed to provide the requisite information within the prescribed time to the Respondent. 18. It is also stated by the Respondent that the Appellant had not met the benchmark of at least one QoS parameter of broadband service in all the five quarters from QE March 2020 to QE March 2021. However, except in QE Dec 2020, no financial disincentive was imposed on the Appellant. 19. Financial disincentive of Rs. 1,00,000/- was imposed on Appellant for non-compliance during QE December 2020 as despite giving several opportunities, the Appellant failed to provide the requisite information within the prescribed time. Page 17 of 37 REASONS & ANALYSIS 20. The Respondent TRAI, vide its Gazette Notification dated 06.10.2006 issued Quality of Service of Broadband Service Regulations, 2006 (herein after ‘Regulations’) with Explanatory Memorandum. These Regulations were made effective from 01.01.2007. These Regulations were applicable to All ISPs, Basic Service Providers, Unified Access Service Providers, Cellular Mobile Telecom Service Providers (including MTNL & BSNL). 21. The Clause(regulation)3 of the Regulations mandates the following Quality of Service (QoS) Benchmarks through a table. There are 9 main benchmark parameters prescriber in the Regulations (averaged over a period of one month). A gist of the prescriber QoS parameters is given as under: (i) Service Provisioning/Activation Time: o 100% cases in ≤15 working days (subject to technical feasibility) o Credit of Rs.10/day to be given to the customer at the time of issue of first bill in case if there is a delay beyond 15 working days. (ii) Fault Repair/Restoration Time: o >90% by next working day and 99% within 3 working days o Rebates for fault pending delays (equivalent in terms of minimum monthly charges or equivalent usage allowance): ▪ Between >3 and <7 days: rebate of 7 days Page 18 of 37 ▪ >7 and <15 days: rebate of 15 days ▪ >15 days: rebate of 1 month (iii) Billing Performance: o Billing complaints per 100 bills issued: <2% o % billing complaints resolved: 100% within 4 weeks o Time for refund of deposits after closure:100% within 60 days (iv) Response Time to Customer for Assistance: o Voice to Voice: >60% within 60 seconds, >80% within 90 seconds (v) Bandwidth Utilization/Throughput: o a) Bandwidth Utilization: ▪ i) POP to ISP Gateway Node (Intra-network): <80% link(s)/route bandwidth during peak hours (TCBH) ▪ ii) ISP Gateway to IGSP/NIXI Node for international connectivity: Additional provisioning of Bandwidth if >90% for one month o b) Broadband Connection Speed (download): to be met >80% subscribed speed from ISP Node to User (vi) Service Availability/Uptime: o >90% quarter ending June 2007 o >98% from quarter ending September 2007 and onwards (vii) Packet Loss (wired broadband): <1% (viii) Network Latency (wired broadband): o User to POP/ISP Gateway to IGSP/NIXI: <120 msec o User to International nearest NAP (Terrestrial): <350 msec o User to International nearest NAP (Satellite): <800 msec Page 19 of 37 (ix) Customer Perception of Services (for one Quarter): o (a) Satisfied with service provision: >90% o (b) Satisfied with billing performance: >90% o (c) Satisfied with help services: >90% o (d) Satisfied with network performance, reliability and availability: >85% o (e) Satisfied with maintainability: >85% o (f) Overall satisfaction: >85% o (g) Satisfied with offered supplementary services (static/fixed IP, e-mail IDs etc): >85% 22. There are some clauses(regulations) which mandate the following: (a) Clause(regulation)4 mandates the Reporting Requirement like: • Submit Performance Monitoring Reports quarterly in the format prescribed by TRAI • Deadlines for submissions: within 6 weeks after quarter st th th st ending 31 March, 30 June, 30 September, 31 December (b) Clause(regulation) 5 states about - Registration of Demands: • Service providers must advertise and publish broadband availability plan (at least once in 6 months) • Register all demands without discrimination • Provide registration number • If technically feasible: provide connection within timeframes • If not feasible: maintain waiting list and release connections in a non-discriminatorily manner Page 20 of 37 (c) Clause(regulation)6 is about - Auditing: • Maintain complete and accurate records of given QoS parameters • Network parameters (bandwidth utilization, packet loss, latency) to be measured on sample basis by TRAI or through an independent agency • TRAI shall audit/inspect records directly or through independent agency at service provider's cost (d) Clause(regulation)7, is about measure of Customer Perception, which will be: • Measured through customer surveys by TRAI via independent agencies; and • Results may be made public to generate healthy competition (e) Clause(regulation)8 is about- Broadband Connection Speed (download): • Service providers to install software for broadband speed measurement at ISP Node within 3 months (f) Clause (regulation)9 is about Review of the Regulations by TRAI and it may modify Regulations. (g) Clause(regulation)10 is about – Interpretation of the Regulations by TRAI (h) Clause(regulation)11 is about Explanatory Memorandum, Annexed with the Regulations, to provide the background and reasons for the issuance of the regulations, detailed meaning Page 21 of 37 of the various parameters and their measurement methods. 23. On 24.12.2012, TRAI issued an amendment to the above Regulations titled “the Quality of Service of Broadband Service (Amendment) Regulations, 2012” effective from 01.01.2013. Through this amendment, TRAI introduced Financial Disincentives for failure to meet Quality of service benchmarks by service provider(s). 24. The amendment introduced two new clauses(regulations) namely regulation 3A and 4A after the Clauses(regulations) 3&4 respectively. These clauses(regulation) are read as under: “ 3A. Consequences for failure of the service provider to meet Quality of Service benchmarks .- (1) If a service provider providing broadband service fails to meet the benchmark of QoS parameter specified under serial number i to viii of regulation (3), it shall, without prejudice to the terms and conditions of its licence, or the Act or rules or regulations or orders made, or direction issued, thereunder, be liable to pay an amount, by way of financial disincentive, not exceeding rupees fifty thousand per parameter and in case of second or subsequent such contravention, to pay an amount not exceeding rupees one lakh per parameter for each contravention, as the Authority may, by order direct: Provided that no order for payment of any amount by way of financial disincentive shall be made by the Authority unless the service provider providing broadband service has been given a reasonable opportunity of representing against the contravention of the regulation observed by the Authority. (2) If the compliance report furnished by a service provider providing broadband service for QoS parameter specified under serial number i to viii under regulation 3 is false and which such service provider knows or believes to be false or does not believe to be true, it shall, without prejudice to the terms and conditions of its license, or the Act or rules or regulations or order made, or, direction issued thereunder, be liable to pay an amount, by way of Page 22 of 37 financial disincentive, not exceeding rupees ten lakh per parameter for which such false report has been furnished. Provided that no order for payment of any amount by way of financial disincentive shall be made by the Authority unless the service provider providing broadband service has been given a reasonable opportunity of representing against the contravention of the regulation observed by the Authority. (3) The amount payable by way of financial disincentive under these regulations shall be remitted to such head of account as may be specified by the Authority.” “4A. Consequences for failure of the service providers to submit compliance report. - (1) If a service provider providing broadband service contravenes the provisions of regulation 4, it shall, without prejudice to the terms and conditions of its licence, or the provisions of the Act or rules of regulations or order made, or direction issued, thereunder, be liable to pay an amount, by way of financial disincentive, not exceeding rupees five thousand for every day during which the default continues. Provided that no order for payment of any amount by way of financial disincentive shall be made by the Authority unless the service provider providing broadband service has been given a reasonable opportunity of representing against the contravention of the regulation observed by the Authority. (2) The amount payable by way of financial disincentive under these regulations shall be remitted to such head of account as may be specified by the Authority.” 25. It is pertinent to note that in the explanatory memorandum to the amendment as above, the Respondent TRAI stated that some of the stakeholders have raised the issue of exclusions for events beyond the control of service providers should also be taken into consideration for calculation of KPIs, like force majeure & natural calamities, impact due to law & order issues like curfews, bandhs etc. to which the TRAI responded that KPIs are sufficiently lenient and a reasonable opportunity Page 23 of 37 of representing against the contravention of the regulation shall be given to the service provider before levying a Financial Disincentive. The relevant para 4 from the explanatory memorandum is reproduced as below: “ 4. Some of the stakeholders have stated that the broadband industry itself is still at a very nascent stage and it needs lesser regulatory framework and hence the QoS KPIs should be revised. Further, exclusions for events beyond the control of service providers should also be taken into consideration for calculation of KPIs, like force majeure & natural calamities, impact due to law & order issues like curfews, bandhs etc., infrastructure issues in security sensitive areas, site access issues due to limited availability of road network, installation time and restoration time delay due to customer unavailability or reasons related with customer premises, failures caused by major power grid failures, unreliable electricity supply, impact due to fibre cuts and other disruptions caused by ongoing- infrastructure improvement projects, repeated theft at sites even after logging complaints with law enforcement agencies like Police, Right of Way (ROW) issues, building access issues, field related permission issues, customer own CPE & wiring issues, laying of aerial network which is prone to external factors and customers who voluntarily accept the lower QoS. In this context, it is stated that the benchmarks for the QoS parameters as laid down in the Quality of Service of Broadband Service Regulations 2006 (11 of 2006) are sufficiently lenient keeping in view the growth of broadband services and customer interests. Further, it has been provisioned in the regulations that a reasonable opportunity of representing against the contravention of the regulation observed by the Authority shall be given to the service provider before an order for payment of any amount by way of financial disincentive is made.” 26. In the above background the Respondent TRAI has been levying FDs to the service providers for not meeting the benchmarked parameters for the QoS. It is interesting to note that the stakeholders raised the issue of force-majeure & natural calamity during the consultation to the Page 24 of 37 amendment to the regulation process which came true in the instant matter during the Covid-19 pandemic situation which was a natural calamity. 27. The present matter is arising out of the failure to meet regulation 3(i) of the Regulations by the Appellant for the second and subsequent contravention and the Respondent TRAI has imposed a Financial Disincentive of Rs1,00,000/- on the Appellant for the quarter ending December 2020 wherein as per the Respondent, the Appellant could meet 99.7% of the benchmark out of prescribed 100% as targeted benchmark even during the natural calamity conditions. Show Cause Notice(SCN) by the Respondent to the Appellant: 28. As mentioned in the factual matrix table that vide its Show Cause Notice dated 08.06.2021, the Respondent TRAI sought the explanation of the Appellant GTPL for failing to meet one of the QoS parameters as specified in its regulations 3A of the main Regulations. The Annexure of the SCN reads as below: “Details of non-compliance to meet the benchmark of the Quality of Service parameters by M/s. GTPL Broadband Pvt. Ltd. for quarter ending December, 2020. </div><table><thead><tr><th>Service Provider</th><th>QoS Parameters</th><th>Service Area</th><th>Benchmark</th><th>Performance in Quarter Ending December, 2020</th></tr></thead><tbody><tr><td>M/s. GTPL Broadband Pvt. Ltd.</td><td>Service Provisioning - %age of connections provided within 15 days of registration of demand</td><td>All India</td><td>100%</td><td>99.70%</td></tr></tbody></table><div> Page 25 of 37 29. There were replies and counter replies after issuance of the SCN and the correspondence happened between the Appellant and the Respondent has been given in the table at the para 9 above. The same is not repeated here. 30. So far as the Respondent’s issue regarding late filing of the Appeal by the Appellant is concerned, the Tribunal had condoned the delay vide its order dated 10.07.2024 allowing the MA 219 of 2023 filed by the Appellant. 31. Based on the written and oral submissions made by the parties, the Tribunal has decided that the main issues for deliberation are: (i) In the prevailing circumstances of Covid-19 across the country during 2020–2021, whether it was technically feasible for the Appellant, GTPL Broadband Pvt. Ltd., to achieve a benchmark with a 100% threshold? (ii) Whether it is practicable to prescribe benchmark parameters such as 100% in the Regulations? (iii) When the Respondent did not levy any financial disincentives for the preceding quarters to the December 2020 quarter i.e. for the quarters ending June 2020, September 2020, and then the subsequent quarter to the December 2020 quarter i.e. for the quarter March 2021 due to prevailing Covid-19 conditions, was it justified in not extending the same treatment to the intermediate quarter, i.e. for the quarter December 2020? (iv) Whether the imposition of a financial disincentive of Rs. 1,00,000/- was proportionate to a shortfall of merely 0.3% in meeting the Page 26 of 37 benchmark, particularly in the context of the Covid-19 Pandemic? 32. The analysis of each of the issue, mentioned above, is as under: Issue (i): In the prevailing circumstances of Covid-19 across the country during 2020–2021, whether it was technically feasible for the Appellant, GTPL Broadband Pvt. Ltd., to achieve a benchmark with a 100% threshold? 33. It is well known that Covid-19 pandemic had disrupted the daily lives of the citizens across the world for almost 3 years from March 2020 to December 2022. During this time, lockdowns were imposed almost worldwide thus adversely affecting all the activities be it commercial, business, manufacturing, services or social etc., resulting in disrupting the economic activities significantly. India was not an exception to this Global crisis. During these testing times, the timely measures taken by the telecom service providers helped in overcoming several challenges posed by the Pandemic so that economic activities may continue to the best possible manners. Education, healthcare, vaccination program etc could also run because of the effective and obliquitous broadband and internet services provided by the telecom service providers across the country. With social distancing and travel restrictions in place, most of the daily activities including business and commercial moved to the available digital platforms. 34. The Respondent TRAI has also recognised the efforts of the telecom service providers during the Covid-19 time. In its activity report of 2020 published for the period 01.01.2020 to 31.12.2020(available on TRAI Page 27 of 37 website www.trai.gov.in), the Respondent stated that during Covid-19 Pandemic there was a sudden boom in digital activities which had put tremendous pressure on the telecom and ICT infrastructure in the country and the telecom, ICT, and broadcasting sectors in India rose to the occasion with considerable support and cooperation from all the stakeholders such as Governments, Regulators, Service providers, etc., and provided seamless connectivity to the digital ecosystem during the lockdown period. 35. It is evident that the Respondent TRAI, as the Regulator of the sector, recognized the challenging conditions prevailing across the country, with significant strain on telecom/ICT infrastructure due to the sudden surge in digital activity. In such circumstances, it is plausible that the Appellant, GTPL Broadband Pvt. Ltd., may have encountered practical difficulties, including constraints faced by its technical teams in accessing customer premises for broadband installations. Accordingly, the challenges articulated by the Appellant cannot be dismissed outright as unconvincing. 36. The regulation 3 of the ‘Quality of Service of Broadband Service Regulations 2006’ (11 of 2006)’ dated 06.10.2006 contains the relevant QoS in a table as below: </div><table><thead><tr><th>Sl No.</th><th>QoS parameter</th><th>Benchmark</th></tr></thead><tbody><tr><td>i</td><td>Service Provisioning /Activation</td><td>Time Averaged over a period of 100% cases in =<15 working days (subject to technical feasibility). In all cases where</td></tr></tbody></table><div> Page 28 of 37 </div><table><thead><tr><th></th><th></th><th>payment towards installation charge & security deposit is taken and the Broadband connection is not provided within 15 working days, a credit at the rate of Rs.10/ per day, subject to a maximum of installation charge or equivalent usage allowance shall be given to the customer, at the time of issue of first bill.</th></tr></thead><tbody></tbody></table><div> In the regulation, the Respondent TRAI used the term ‘Subject to technical feasibility’. This term ‘Subject to Feasibility’ has been discussed in para 7 of the explanatory memorandum Annexed with the QoS Regulation Dated 06.10.2006. “7. Technically Non Feasible(TNF) cases such as unavailability of Broadband infrastructure/ equipment in the Area or Spare Capacity i.e. Broadband Ports including equipment to be installed at the customer premises for activating Broadband connection shall be excluded from the calculation of this parameter. Also, problems relating to customer owned equipment such as PC, LAN Card/ USB Port and internal wiring or non-availability of such equipment shall be excluded from the calculation of this parameter.” 37. However, technical non-feasibility on account of factors such as natural calamities or force-majeure events does not find explicit recognition in the Regulations. As noted earlier, during the consultation process leading to the amendment of the Quality of Service of Broadband Service Regulations, 2006, vide notification dated 24.12.2012, stakeholders had raised concerns that technical non-feasibility could arise due to factors beyond the control of service providers, including natural calamities. The Page 29 of 37 Respondent TRAI, had responded that the benchmarks prescribed under the said Regulations were sufficiently lenient, keeping in view the growth of broadband services and consumer interests. 38. Further, the Regulations provide that a reasonable opportunity must be afforded to the service provider to represent against any alleged contravention before an order imposing financial disincentive is passed. However, by no stretch of imagination can a benchmark requiring 100% achievement of a target parameter be regarded as “sufficiently lenient” in the instant types of cases. 39. Moreover, when an extraordinary situation in the nature of force majeure arose, the Appellant service provider duly represented against the imposition of financial disincentive, despite having achieved 99.7% of the prescribed benchmark during an exceptionally challenging period and for reasons beyond its control, The Respondent TRAI, however, rejected these bona fide submissions in a mechanical manner, requiring the Appellant to segregate areas into Covid-19 and non-Covid-19 categories—an exercise that was impracticable when the entire country was uniformly impacted by the pandemic. 40. This Tribunal finds that, during the said challenging period, it is highly probable that certain broadband connections could not be provided by the technical teams of GTPL due to entry restrictions imposed either by customers or their Resident Welfare Associations (RWAs) etc. There may also have been other valid reasons, as enumerated by the Appellant in its responses to the show cause notices issued by the Respondent TRAI. 41. The Tribunal is of the considered view that all such instances ought to Page 30 of 37 be classified as ‘technically non-feasible,’ and the Appellant should be accorded the benefit thereof while determining the financial disincentive. Issue(ii): Whether it is practicable to prescribe benchmark parameters such as 100% in the Regulations? 42. In case of critical infrastructure maintenance, the Service Level Agreements (SLAs) prescribe benchmark parameters which are normally less than 100%. For example, in cases of: </div><table><thead><tr><th>Service Type(examples)</th><th>Typical SLA prescribed</th></tr></thead><tbody><tr><td>Cloud Services</td><td>99.9-99.99%</td></tr><tr><td>Emergency Services</td><td>99.9%</td></tr><tr><td>Power Grid</td><td>99.97%</td></tr><tr><td>Water Supply</td><td>99.5%</td></tr></tbody></table><div> in the provisioning of services involving human intervention, it is practically infeasible to mandate absolute adherence to. There may be numerous variables—such as natural or man-made disasters, incorrect addresses provided by customers, or customers vacating premises prior to installation—which may affect the service delivery. All such situations ought to be assessed on their merits, with due application of mind, rather than disposing them in a mechanical manner. 44. A 100% Service Level Agreement (SLA), without accommodating force majeure exceptions, is inherently impracticable and unreasonable. In the instant case prescribing 100% benchmark for provisioning broadband connections within 15 working days leaves no margin for even a single Page 31 of 37 instance of failure, except for the limited exceptions defined in the Regulations; consequently, even one instance of non-provisioning of broadband would amount to a violation of the relevant regulation. 45. In view of the above, the Tribunal finds that prescribing a benchmark target of 100% compliance within 15 working days, with narrowly defined categories of “technically non-feasible” cases and without adequately considering other legitimate factors—including force majeure and natural calamities—is not practicable under the QoS Regulations. Issue(iii): When the Respondent did not levy any financial disincentives for the preceding quarters to the December 2020 quarter i.e. for the quarters ending June 2020, September 2020, and then the subsequent quarter to the December 2020 quarter i.e. for the quarter March 2021 due to prevailing Covid-19 conditions, was it justified in not extending the same treatment to the intermediate quarter, i.e. for the quarter December 2020? 46. The Respondent in its submissions mentioned that the Appellant had not met the benchmark of at least one QoS parameter of broadband service in all the five quarters from QE March 2020 to QE March 2021. However, except in QE Dec 2020, no financial disincentive was imposed on the Appellant. Page 32 of 37 47. The details of the five quarters as given submitted by the Respondent are as below: </div><table><thead><tr><th>S No</th><th>Quarter Ending</th><th></th><th>Details of non-complied QoS parameter</th><th>FD Imposed</th></tr></thead><tbody><tr><td>1.</td><td>March 2020</td><td>Response Time to the Customer for assistance- %age of calls answered by operator (Voice to voice) within 90 sec (>80%)- 77%</td><td></td><td>After seeking clarification, service provider submitted the separate performance for Covid and non-Covid period and considering that service provider was meeting the benchmark in non-Covid period, the Authority decided to not impose any FD.</td></tr><tr><td>2.</td><td>June 2020</td><td>1. Service Provisioning- % age of connections, the provided within 15 days of registration of demand (100%)- 99.7% 2. Fault Repair- % of faults repaired within 3 working day (=>99%)-97.11%</td><td></td><td>Considering the grave situation of Covid Authority decided to not impose any FD</td></tr><tr><td>3.</td><td>Sept 2020</td><td>Service Provisioning-%age of connections provided within 15 days of registration of demand (100%)- 99.7%</td><td></td><td>Considering the grave situation of Covid, the Authority decided to not impose any FD</td></tr><tr><td>4.</td><td>Dec 2020</td><td>Service Provisioning-%age of connections provided within 15 days of registration of demand (100%)- 99.7%</td><td></td><td>Despite giving several opportunities, service provider did not submit revised performance for Covid and non- Covid period and accordingly, the Authority decided to impose FD of Rs1,00,000 vide order dated 19.01.2022.</td></tr><tr><td>5.</td><td>March 2021</td><td>Service Provisioning-%age of connections provided within 15 days of registration of demand (100%)- 99.7%</td><td></td><td>After seeking clarification, service provider submitted the separate performance for Covid and non-Covid period and considering that service provider was meeting the benchmark in non-Covid period, the Authority decided to not impose any FD.</td></tr></tbody></table><div> Page 33 of 37 48. It is pertinent to note that, following the outbreak of the Covid-19 Pandemic, it was not practically feasible to distinctly classify any period as “Covid-19” or “non-Covid-19.” The entire duration from March 2020 to December 2022 may reasonably be regarded as a Covid-19 period, given the pervasive and uncertain nature of the situation. 49. Accordingly, on the same footing as the quarters ending June 2020, September 2020, and March 2021, the quarter ending December 2020 ought also to have been considered for exemption from the imposition of financial disincentives. In fact, the efforts of the Appellant’s teams, who continued to perform diligently under such challenging circumstances, merit due recognition. Field personnel engaged in provisioning broadband services should be encouraged for their commitment, rather than discouraged through the imposition of financial disincentives, particularly when the Appellant had achieved 99.7% compliance against an impracticable benchmark of 100%. 50. Therefore, Tribunal finds that the Respondent was not justified in giving the same treatment/benefit for the intermediate Quarter i.e. QE December,2020 which was given to the previous and subsequent quarter. Issue (iv): Whether the imposition of a financial disincentive of Rs. 1,00,000/- was proportionate to a shortfall of merely 0.3% in meeting the benchmark, particularly in the context of the Covid-19 Pandemic? 51. As mentioned earlier that on 24.12.2012, the Respondent TRAI brought Page 34 of 37 out the first amendment to the main QoS Regulation,2006. The clause(regulation)3A reads as under: “3A. Consequences for failure of service provider to meet Quality of Service benchmarks: (1) First or Subsequent Contraventions: If service provider fails to meet benchmark of QoS parameter specified under serial number i to viii of Regulation (3), it shall be liable to pay: • First contravention: Not exceeding Rs. 50,000/- per parameter • Second or subsequent contravention: Not exceeding Rs. 1 lakh per parameter • Payment by way of financial disincentive as Authority may direct by order Proviso: No order for payment of financial disincentive unless service provider given reasonable opportunity of representing against the contravention observed by the Authority [ Emphasis supplied ] .” 52. In the present matter, the financial disincentive has been imposed under Regulation 3(1)(i), under the head “Service Provisioning/ Activation” for a ‘second or subsequent contravention .’ As per this regulation, the prescribed financial disincentive is “not exceeding Rs. 1 lakh per parameter.” This clearly implies that, for any contravention under the regulation3A, the Respondent TRAI has the discretion to impose an amount ranging from Rs. 1 to Rs. 1,00,000. However, TRAI, has mechanically imposed the maximum prescribed amount of Rs.1,00,000, despite the Appellant having achieved 99.7% of the benchmark target of 100%. By way of an illustration, supposedly if the Page 35 of 37 Appellant had achieved only 1% of the benchmarked target, the Respondent could not have imposed a financial disincentive for an amount exceeding to Rs. 1,00,000 as per the Regulations. This would effectively mean that, irrespective of whether the service provider achieves 1% or 99.9% of the prescriber benchmark figure, the financial disincentive remains the same—an outcome that runs contrary to the intent of the phrase “not exceeding Rs. 1 lakh per parameter .” 53. The expression “not exceeding” necessarily implies that the Respondent TRAI must exercise discretion by evaluating the merits of each case, including the extent of compliance achieved, before determining the appropriate quantum of financial disincentive within the permissible range of Rs. 1 to Rs. 1,00,000. In the present case, however, the ceiling amount has been imposed on the Appellant despite substantial compliance (99.7%) during an exceptionally challenging period. Therefore, in Tribunal’s considered view, such an approach defeats the very rationale underlying the introduction of graded financial disincentives with an upper ceiling under the amended Regulations. 54. In view of the foregoing reasons, the orders issued by the Respondent TRAI, imposing a financial disincentive of Rs. 1,00,000/- on the Appellant GTPL Broadband Pvt Ltd, are hereby set aside, and this Telecom Appeal filed by the Appellant is allowed. 55. We also place on record our appreciation to the entire technical team of the Appellant GTPL Broadband Pvt Ltd for their untiring work during the Covid-19 time and achieving 99.7% of the benchmarked target for Page 36 of 37 provision of Broadband services during one of the most difficult periods of our country. 56. Accordingly, the TA No. 1 of 2023 is hereby allowed and disposed of. (JUSTICE D.N. PATEL) CHAIRPERSON (Dr SANJEEV BANZAL) MEMBER Page 37 of 37 </div>