India: Recommendations Issued By TRAI For Establishment Of Office Of Telecom Ombudsman

The Telecom Regulatory Authority of India (TRAI), on 10 March 2017, issued recommendations to the government for establishment of office of telecom ombudsman in India for redressal of consumer grievances (Recommendations).

Background

The main statutory bodies governing and regulating the telecom sector in India are the TRAI and the Department of Telecom (DoT), while the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) is the adjudicatory body for certain types of telecom disputes. However, none of these bodies have been vested with the power to redress grievances of 'individual' telecom consumers.

TRAI lays down the standards of quality of service to be provided by telecom service providers (TSPs) and may also issue directions and recommendations for protection of consumer interest, among other functions. However, it cannot exercise judicial functions or resolve consumer grievances. At the same time, the TDSAT may adjudicate over disputes only between (i) a licensee and a licensor, (ii) two or more licensees, or (iii) licensee and a 'group of consumers'. Further, the DoT mainly performs the role of a licensor and policy maker for enforcement of licensing conditions against TSPs.

The process for redressal of individual grievances is laid under the Telecom Consumers Complaint Redressal Regulations 2012, under which TSPs are required to set up a two-tier mechanism. The consumer must first approach the relevant TSP for resolution of the issue, and if not satisfied, he or she may approach an appellate authority, which is appointed by the TSP. If the consumer is not satisfied with the decision of the appellate authority or if there is a delay in redressal of the grievance, the consumer may to pursue arbitration or approach a court of law, including consumer courts.

Since the appellate authority is appointed by the TSP, it is not seen as independent or fair. Therefore, a need has been felt for an office of telecom ombudsman which shall act as an independent and exclusive body for redressal of telecom consumer grievances. This issue has also been raised in the currently ongoing public interest litigation before the Bombay High Court where the Petitioners have urged for an office of telecom ombudsman in India and the Hon'ble High Court has ordered DoT and TRAI to file replies (Gansham J. Ramchandani v Loop Mobile and Others).

Initiatives taken by TRAI

TRAI had first made a recommendation for the office of telecom ombudsman in its consultation paper on 'Establishment of the Office of Ombudsman in the Telecommunication Sector' dated 7 January 2004. TRAI had proposed that that the ombudsman would resolve disputes through mediation and a certain portion of the TSPs' revenues would be collected to fund such offices. The Government did not accept these recommendations owing to objections by TSPs against collection of a portion of their revenues.

In 2016, TRAI issued another consultation paper on 'Complaints/ Grievance Redressal in the Telecom Sector' dated 28 July 2016 and yet again stressed on the need for telecom ombudsman in view of increasing number of consumer complaints in the telecom industry. After consultation with stakeholders and holding open house discussions, it issued the below mentioned Recommendations.

Recommendations

In the Recommendations, TRAI has proposed establishing offices of telecom ombudsman (at state and national levels) pursuant to the rules framed by the Central Government under the Redress of Public Grievances Rules 1998 (RPG Rules). Few important Recommendations proposed are as follows:

  • Three tier mechanism: The primary responsibility to resolve a complaint shall lie with the TSP (within timelines to be stipulated). If the issue remains unresolved or if there is a delay, the consumer may approach Consumer Grievance Redressal Forums (CGRFs), which shall be established. If still unsatisfied, the consumer may approach the telecom ombudsman. However, TRAI has proposed that only such complaints that related to clearly identifiable and measurable rights of a consumer under the contract with the TSPs, or rules, regulations or requirements laid down by TRAI or DoT which have a bearing on the consumer's relationship with the TSP, shall be eligible for redressal by CGRF and ombudsman.
  • Role of CGRF: CGRFs are proposed to be set up at state level or licensed service area wise and will be responsible for finalizing facts, facilitating mediation and offering resolution in case parties are unable to arrive at settlement. Based on complexity of issues, CGRF may seek assistance and guidance of central and state governments or independent experts identified by the Government.
  • Adjudication by telecom ombudsman: Once a complaint reaches the ombudsman, he/she will be required to act in accordance with the principles of natural justice. The ombudsman may award compensation to consumers, and award costs and issue directions to TSPs for the performance of specific obligations. The decision of ombudsman shall be final and binding. Further, ombudsman shall have powers to levy penalties on the TSPs.
  • Use of digital means for consumer's convenience and to track complaints: The Recommendations put emphasis on the use of technology and will require TSPs to maintain video calling or similar technology at their locations in order to facilitate consumer's interaction with CGRF or ombudsman. A centralized web based system will allow flow of information at each stage of grievance to the ombudsman.
  • Funding: Unlike in the 2004 consultation paper, TRAI has now proposed that certain portion of TSPs' existing license fee (and not in addition) shall be used for funding of CGRF and ombudsman. Each TSP, however, will have to pay a variable component based on the number of cases filed against such TSP and admitted before ombudsman's office.

Khaitan Comment

TRAI has been emphasising the need for telecom ombudsman for over a decade now. Considering that there are over one billion telecom consumers in India, it is high time that an independent dispute resolution body, like the office of telecom ombudsman, is established.

If the Recommendations are accepted, it will not only provide an independent forum to consumers to address their concerns, but also reduce burden on consumer courts. However, awareness will need to be created amongst the public regarding the three-tier system.

Importantly, the TSPs will most likely make best endeavours to resolve issues at the first instance because a variable component will be payable by TSPs based on the number of cases filed against it and admitted before ombudsman's office.

However, the grounds on which CGRF or ombudsman may be approached need to be clarified further, because the TSPs, consumers, CGRF and ombudsman may interpret 'clearly identifiable and measurable rights' differently. Moreover, clarity is required whether jurisdiction of courts would be barred while a matter is pending before CGRF or ombudsman.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

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