The reason for DoT's discomfiture is because so far the department has had a lenient approach to the issue of outstandings and in most cases do not have even the minimum bank guarantees of the companies leave alone post- dated cheques, both of which are condition precedents as per the licence agreement.

DoT is sending out letters to all operators to cough all their dues by February 15. DoT cannot legallyask for only 20 per cent as it may lead them to forego the rest of the amount as companies may say that the department had only asked for 20 per cent. The 20 per cent option has been given along the lines recommended by the Attorney General Soli Sorabjee, to prove their ``bona fide''.

Amongst the state cellular operators, only Tatas, Reliance, Birla -- AT& T, Escotel and Cellular Airtouch have furnished full bank guarantees to the department with only two of these giving post-dated cheques. This leaves Aircell Digilink, BPL-US West. Facsel, Hexocom, JT Mobile, Koshika and Modicom who have only partial guarantees with the department.

In the case of metro cellular operators, no company has given any bank guarantees for the Rs 314 crore defaults that they have run. The metro operators, as per the licence conditions, had a nominal fee in the first three years of their operations. It was only from the fourth year onwards that they were supposed to pay licence fees as the rate of Rs 6.023 per subscribers thatthey had run up. However, as the third year drew to a close the metro operators began complaining about the high licence fee especially in the face of a sluggish market. It may be recalled that the Comptroller and Auditor General (CAG) has already hauled up the Government for giving the metro licences cheap and causing loss of revenue to the national exchequer.

In the case of basic operators too, only Shyam Telelink has valid bank guarantees with DoT while the other five operators -- Bharati Telenet, Essar CommVision, Hughes Ispat, Reliance and Tata Teleservices -- have no bank guarantees with DoT.

This differential treatment being carried out by DoT which is the licensing authority, may create legal problems for the department. On the one hand, it has queered the pitch for the operators in state circles who have paid up all their licence fees while their competitor in the same state has not paid, vitiating the level playing field for them. ``Under the licence conditions of duopoly, both operators shouldhave the same conditions in which to operate,'' says a telecom consultant. ``In some cases, if one operator in a circle does not pay, he may have an advantage of say Rs 150 to 200 crore which he can use in the market place against the other operator to gain customers through price discounts and rolling out networks in new cities with the same money putting the competitor at a disadvantage'', he adds.

Legal experts feel that companies which have largely paid all their licence fee obligations, cannot be made to fall under the same 20 per cent formula proposed by the Communications Minister. They say that they should be asked for their fourth year licence fees only after the others have cleared their dues till the earmarked period.