ISLAMABAD: The Competition Commission of Pakistan (CCP) ordered the management of DHA-I Islamabad to provide a Right of Way (ROW) to Nayatel. The order would allow Nayatel to provide its Cable Internet and Telephony Services (CIT Services) on the same terms and condition as are being offered to other existing operators.
The CCP conducted an inquiry after noticing the complaints and concerns received from the residents of DHA-I Islamabad. The complaints stated that the residents had been deprived of an alternate choice of CIT services provider, restricted to only two operators, i.e. Pakistan Telecommunication Company Limited (PTCL) and DHAI Teleman. They alleged that DHA was not letting Nayatel operate in the area despite its interest in providing its services.
The Right of Way (ROW) is a platform for internet service providers for the provision of CIT services. According to complaints, DHA management had given ROW to PTCL and DHAI Teleman in DHA-1 while denying the same to Nayatel on equal terms and conditions. It was alleged that DHA’s management had created a barrier to entry for Nayatel by offering dissimilar conditions and demanding a higher price of ROW than the already existing internet service providers.
The CCP’s enquiry concluded that DHA management, prima facie, abused its position in violation of Section 3 of the Competition Act, 2010 by not allowing Nayatel to operate in the relevant market and recommended initiating proceedings against DHA under Section 30 of the Act.
After hearing the parties, the bench passed the order. It applied the ‘essential facility doctrine’ to the matter and observed that in the current era, the CIT services are an essential need for the citizens, both for personal and commercial purposes use. The order further stated that the residents of DHA-I were demanding CIT services from Nayatel, being a Fiber-to-the-Home (‘FTTH’) based CIT service provider. However, DHA-I’s management, abusing its dominant position, refused to issue a NOC to Nayatel to install its infrastructure within DHA-I Phase-I and other sectors.
As per the order, DHA-I held a dominant position in the relevant market and had already granted ROW to four parties, i.e. PTCL, Transworld, Wateen and its very own subsidiary DHAI Teleman for providing (G-PON) and allied CIT service to the residents of DHA-I, the licensee seeking the ROW was Nayatel. The already existing service providers are on a cost-sharing basis with DHA-I rather than on a revenue-sharing basis. The order observes that DHA-I has failed to explain any logic as to why there has been a disparity between the charges offered to Nayatel and other incumbents, which amounts to discrimination and application of dissimilar conditions to the same transaction, under Section 3 (1), read with subsection 3(e) of the Act.
The order also finds support from the Ministry of Information Technology and Telecommunication directive in October 2020, called the “Public and Private Right of Way Policy Directive” (‘the Policy Directive’). The directive stated that “the Public Authority shall not discriminate any licensee towards charging right way fee and there shall not be any differential or preferential treatment in right of way fee for any type of licensees including other utility service providers and those wholly or partially owned by the Federal or Provincial Government or the Pubic Authority.”
Keeping in view all circumstances and with a view to give a chance to DHA-I to correct its behaviour and to offer Nayatel within 90 days from the date of the order to use the ROW on terms and conditions no less favourable than the incumbent service providers. The CCP has not imposed any penalty on DHA for now. But in case of non-compliance, DHA-I shall be liable to pay PKR 2 Million for violating Section 3 of the Competition Act, 2010, in addition to appropriate penalties for non-compliance under Section 38 of the Act. DHA-I has been further directed to file a compliance report before the Registrar of the Commission no later than seven days from the date such offer is made to Nayatel.
