Trai recommends new M&A norms for faster merger approvals

New Delhi, Trai on Friday recommended that while both subscriber base and revenue are considered in determining marketshare for mobile and internet service providers, revenue should be taken into account in marketshare calculation for other services like national and international long distance telephony.

It also suggested that the one-year timeline currently allowed for transfer/merger of licences in different service areas after the National Company Law Tribunal’s nod should exclude time spent by companies in pursuing any litigation.

Trai recommended that the guidelines on transfer/merger of licences should not “hard-code” the spectrum caps and be linked with the relevant clause of the licence.

The telecom regulator on Friday released its recommendations on reforming the guidelines for transfer and merger of telecom licences.

“For calculation of one year, that is time period allowed for transfer/merger of various licenses in different service areas subsequent to the approval of the Tribunal/Company Judge, the time spent in pursuing any litigation on account of which the final approval of a merger is delayed, should be excluded. This would protect the rights of a telecom operators to pursue remedies in court and also ensure that the period of one year does not become redundant for no fault of companies on account of pendency of an issue before a court,” one of the stakeholders cited by Trai had submitted, it said.

Another provision of the acquisition guidelines which provides an exemption from substantial equity/cross holding clause for a period of one year or more should be modified such that the said exemption is provided only for a period till transfer/merger of licence is taken on record by the licensor (DoT), Trai recommended.

It also suggested that both the number of subscribers as well as Adjusted Gross Revenue (AGR) should be considered for determining the marketshare in case of services like access, internet and VSAT. And that only AGR should be considered for determining the marketshare for rest of the services like national and international long distance, and resale of international private leased circuits.

Trai also recommended that guidelines should explicitly mention that upon payment of market-determined price for spectrum, such spectrum would be treated as liberalised, that is technology-neutral.

It also reiterated its earlier recommendation that if a transferor company holds a part of spectrum which has been assigned against entry fee, the resultant entity should be liable to pay differential amount for the spectrum assigned against the entry fee paid by the transferor company, from the date that the Department of Telecommunications (DoT) approves the transfer/merger.

“However, while raising the demand for payment of differential amount, DoT shall calculate tentative demand from the date of NCLT approval, and upon grant of merger approval, the actual demand of differential amount shall be re-calculated based upon the date of grant of approval. Excess amount paid…if any, shall be refunded back to the transferee company/resultant entity or set off against other dues,” it said.