The Supreme Court issued notices to Bharti Telecom on a petition filed by Aircel against what it described as Bharti's 'unilateral' and 'unjustified' increase of SMS termination charge from 0 paisa to 10 paise.
Bharti Telecom has to place its views before the court within seven days, as per the directions of a two-judge bench, comprising Justices G S Singhvi and Gyansudha Mishra. Senior lawyer Harish N Salve appeared for Aircel along with lawyer Meet Malhotra.
He urged the top court to direct Bharti Telecom to reconnect SMS services, but the court did not grant this interim relief. Salve said that Aircel was a new player and its subscribers could not receive SMSes after the service was unilaterally terminated.
The issue of claims could always be decided later, he argued. Aircel has challenged a September 24, 2012, order of TDSAT, which had dismissed its pleas against Bharti Telecom.
Aircel in its application said that it has interconnection agreements with all mobile telecom service providers, including Bharti Telecom, on a bill and keep basis. Historically, since the charge for SMS termination was negligible, operators did not charge each other.
But Bharti Telecom being a dominant incumbent persuaded new players in 2008 to pay 10 paise per SMS termination, Aircel claimed. This worked out in favour of new players as more SMSes terminated in their network.
Bharti subsequently signed inter-connection arrangements with 80% of the players, but Aircel never agreed to it saying it was perverse, unfair and anti-consumer. Bharti then made a claim of Rs 56.39 crore on Aircel and disconnected the service just before Diwali. In a related development, the TDSAT on Friday ruled in favour of Aircel in the SMS termination row with Vodafone, lawyer Meet Malhotra said.
TDSAT asked Vodafone to restore SMS services immediately and asked Aircel to pay to 5 paise per SMS termination pending further adjudication. Vodafone had asked Aircel to pay Rs 40 crore by way of SMS termination charges plus service tax within 15 days by November 9, 2012, and withdrawn the facility when it wasn't. "If disconnection of SMSes... are allowed the subscribers will suffer.
Therefore... pending final hearing, it is directed that SMS services of (Aircel) shall not be disconnected and wherever disconnection has taken place, the same will be restored immediately subject to the condition that it will start paying 50% of the amount demanded @ 10 paise per SMS on net inflow of traffic basis," TDSAT said.
SMS termination charges have been a contentious issue between new players and established players. Tata Teleservices has also appealed against Bharti Telecom's decision to charge 10 paise per SMS termination, through lawyer Ramesh Pukrambam. TDSAT had on August 31, 2012, ruled against Teleservices, upholding a claim of Rs 287.34 crore made by Bharti against it.