The public trust doctrine in Spectrum
The Supreme Court judgment of 2012 on the Presidential reference in response to the quashing of the 2008 licenses emphasizes the public trust doctrine that natural resources, including spectrum, must be held in trust by the government in the public interest. These resources meant for public use can be alienated for private use only in those rare cases when the abandonment of the right is consistent with the purposes of public good.
Given the high purpose enjoined upon the government in the management of spectrum, and the complexity of the spectrum management due to the rapid pace of technological advancement, the need to balance competing claims including those of defence, development, and commercial use, our national spectrum manager needs to be accorded a higher place in the government hierarchy.
In India, the Wireless Planning and Coordination (WPC) Wing of the Department of Telecommunications is the National Radio Regulatory Authority responsible for Frequency Spectrum Management, including licensing, and caters to the needs of all wireless users (Government and private) in the country. It was created in 1952, a time pre-dating the telecommunications revolution.
The WPC is headed by a Wireless Adviser, who holds the rank of an Additional Secretary to the government. He reports to the Member (Technology) who in turn reports to the Secretary of the Department of Telecommunications. In effect, the Wireless Adviser to the GoI is buried under the bureaucracy of one department while its function requires coordination across ministries.
In case there are competing claims of two ministries to certain blocks of spectrum, or issues regarding the deployment of alternate networks for ministries vacating blocks of spectrum, the matter usually end up at the Cabinet Secretariat of the Prime Minister’s Office. This has happened in both the major instances of the release of spectrum for commercial use – in 1997 at the time of the migration of licensees to a revenue share regime and 20032008, at the time of the migration of the licensees to a unified access license. The deployment of the alternate net-
work for the vacating ministry, Defense, envisioned in 2003 is still incomplete and is budgeted at Rs 140 billion rupees higher than the original estimate of Rs 10 billion.
Further, all spectrum is either held by ministries of the government, or held in reserve for some ministry by the WPC following an agreement on future use, or is part of the unlicensed spectrum bands, or unassigned at the present time. There is no practice of sharing a spectrum band across ministries. If the institution of private property can be allowed only in the rarest of cases, one should at least be open to the sharing of spectrum across ministries if the common good so demands.
With technological development, there is a possibility that spectrum bands used for broadcasting in the 585-806 MHz band can be used in a non-exclusive manner for commercial mobile services. If commercial users have to cohabit spectrum bands occupied by the government broadcaster, there needs to be a supporting framework under which the ministries of Information & Broadcasting and the Communications & IT can share spec- trum. There appears to be no precedent of two ministries sharing spectrum, particularly when one of the ministries is catering to commercial users, and the other to a government department. Setting into motion the sharing of spectrum between the ministries of I&B and Communications & IT would be in the spirit of the doctrine of public trust, and allow valuable efficiencies to be reaped.
Given the principle of public trust that spectrum should be privatized only in the rarest of cases, one must also re-examine instances of privatization taking place in the absence of scarcity. This is the case in many parts of rural India. The bundling of rural and urban spectrum for private operators cannot be justified on the grounds of crosssubsidization of rural subscribers by urban subscribers, as operators do not have a rural obligation written into the license terms. It would be better to free up spectrum not subject to scarcity for non-exclusive use by creating special licenses for a rural operators, who unlike a national operator, would exclusively focus on generating value from rural markets. The problems of the last mile across various sectors can be mitigated by allowing specialists in the last mile to engage across sectors.
The abandoned Communications Convergence Bill of 2001 sought to establish a Spectrum Management Committee with Cabinet Secretary as its Chairman. It also aimed to establish the Wireless Adviser to GoI as the Spectrum Manager and act as Member-Secretary of the Spectrum Management Committee. It was envisaged that the Spectrum Manager would be empowered to play a coordinating role across international agencies, between Central and State governments and across various users across the Ministries. Given the attendant problems of spectrum management enacting this recommendation is the need of the hour.