Govt Urged To Devise Uniform Policy For Deployment Of Right Of Way

Pesco was dominant in the market for ROW through electric poles availed by various types of cable service providers in Peshawar’s geographic boundary.

Govt Urged To Devise Uniform Policy For Deployment Of Right Of WayThe Pakistan Competition Commission (CCP) has recommended that the government should develop a uniform policy for the deployment of broadband technology and Right of Way (ROW), as well as take steps to remove any entry barriers in the market for cable, internet, and telephone services.

“It is a fact that access to broadband technology has significant economic and social benefits and is consistent with the Government of Pakistan’s objectives to promote digital inclusion,” stated a new order issued by the CCP.

The order found Peshawar Electric Supply Company (Pesco) to be abusing its dominant position in violation of Section 3 of the Competition Act.

Pesco was dominant in the market for Right of Way (ROW) through electric poles availed by various types of cable service providers in Peshawar’s geographic boundary because it solely owned and managed the poles and there were no substitutes.

The complainants (Nayatel Pvt Ltd and Cyber Internet Services Pvt Ltd) were charged an increased fee from Rs 10 per pole to Rs 100 per pole for the same Right of Way (ROW)  provided to all cable operators, despite no legitimate objective justifications.

The terms were found to be discriminatory, in violation of Section 3(3)(b) of the Act. In violation of Section, Pesco abused its superior bargaining position and imposed additional unfair trading conditions on the complainants in contravention of Section 3(3)(a) of the Act, i.e., that they must provide 10-minute advertisements and free internet connection facilities to all Pesco offices.

Pesco had cancelled its pole-renting policy following the initiation of the show-cause proceedings, ostensibly for safety reasons. However, because the same involved an essential public utility ROW and there were no other substitutable means available for the complainants to provide cable, internet, and telephony services to end consumers, negatively impacting consumers and other stakeholders alike, the Pesco was found to have abused its dominant position in violation of Section 3 of the Act.

The Pesco/Conduct respondent’s was also discriminatory, as decommissioning notices for cable removal were only sent to the complainants. In this regard, the Bench found support from the applicable telecommunication regulatory regime, specifically Section 27A of the Pakistan Telecommunication Act (Re-organization) Act, 1996, and the 2020 Public and Private Right of Way Policy Directive, which provides that the licensees can use the poles of Goisco for aerial installation of optical fibre cables.

Furthermore, it states broadly that any fee imposed by a public authority for a public right of way shall be on a no profit, no loss basis, shall not be used for commercial gain, and shall not discriminate against any licensee in terms of the fee charged.

In terms of the safety grounds raised by Pesco, it was unable to satisfy the bench. According to the investigation’s findings, the number of accidents and incidents decreased between 2017-2018 and 2020-2021.

There was no additional evidence provided to back up these claims. Furthermore, because other DISCOs are already providing ROW at comparable rates to fibre optic cable operators, no denial on safety grounds has been reported or witnessed, and the contentions were not acceded to.

Due to the unique nature of the case, the Commission has directed the respondent to restore access to the ROW and/or provide the Right of Way (ROW) to Nayatel and Cybernet on fair, reasonable, and non-discriminatory terms no later than 21 days from the date of receipt of the Order.

Otherwise, the respondent will be liable to pay a fixed penalty of Rs 75 million plus an additional penalty of Rs 0.5 million for each day following the first of such violations or the subject abuse.

The Commission emphasised that access to broadband technology has significant economic and social benefits and is consistent with the Government of Pakistan’s goals of promoting digital inclusion.

According to the order, the Commission has also recommended that all private and government stakeholders, including the respondent, develop a uniform policy for the deployment of broadband technology and ROW that addresses any and all space and safety issues, including considering any shared infrastructure possibilities to achieve the overall public policy objectives.