[EXCLUSIVE] Centre Seeks SC Clarification: “Can Airwaves be Allocated Without Competition to Address ‘Unanticipated’ Priorities?”

Today (April 22nd), the government requested clarification from the Supreme Court regarding the allocation of airwaves administratively. This includes scenarios where competitive auctions are not held, especially in cases of unanticipated state priorities like national security or broader public interest, or when techno-economic factors prevent spectrum sale through bidding processes.

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NEW DELHI: The government today petitioned the Supreme Court for clarification regarding the allocation of airwaves, particularly concerning the possibility of doing so administratively, rather than through competitive auctions. This request arises from the need to address unforeseen state priorities, such as national security concerns, as well as situations where public interest or techno-economic factors make traditional auctioning impractical.

“Issue appropriate clarifications that the government may consider the assignment of spectrum through administrative process if so determined through due process in accordance with law, and if such assignment is in pursuit of governmental functions, or public interest so requires, or auction may not be preferred due to technical or economic reasons,”

-the application stated.

The application presented to the court emphasized the need for clarity on the government’s ability to assign spectrum through an administrative process, provided it follows due legal procedures and serves governmental functions or public interest. It highlighted scenarios where auctions might not be the preferred method due to technical complexities or economic conditions.

In response to the government’s plea, the bench led by Chief Justice D Y Chandrachud has urged the Attorney General to expedite the matter for an urgent hearing, underlining the significance of the issue at hand.

“That, assignment may require to be undertaken administratively due to economic conditions such as demand being lower than supply or due to technical conditions such as spectrum for space communication, where it would be more optimal and efficient for spectrum to be shared by multiple players, rather than being broken up into smaller blocks for sole purpose of exclusive assignment by auction,”

-the government said.

The government’s submission stressed that administrative assignment of spectrum could be warranted in cases where economic factors, such as low demand relative to supply, or technical considerations, such as spectrum allocation for space communication, make it more efficient to share the spectrum among multiple entities rather than fragmenting it through auctions.

This move by the government follows a landmark 2012 Supreme Court judgment and a subsequent Presidential reference that mandated competitive auctions for the distribution of natural resources, including spectrum, owned by the public.

“That, assignment of spectrum is however required not only for commercial telecommunication services, but also for’ non- commercial use for the discharge of sovereign and public interest functions such as security, safety, disaster preparedness, etc. There are also specific sui generis categories of usage owing to the characteristics of the spectrum, or the nature of use, or international practices etc., in respect of which auctions are not technically or economically preferred or optimal (e.g.in the case of captive, backhaul or one time / s

-the government told the SC.

The essence of the government’s argument lies in the recognition that spectrum allocation serves not only commercial telecommunications but also non-commercial purposes vital for the discharge of sovereign and public interest functions, such as security, safety, and disaster preparedness.

Furthermore, there exist specific categories of spectrum usage, characterized by their unique nature or international practices, where auctions may not be the most suitable or optimal approach.

In its communication to the Supreme Court, the government emphasized that the instances it presented were not deliberated upon during the CPIL judgment, underlining the need for nuanced consideration of various factors influencing spectrum allocation beyond commercial telecommunications services.

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