ISLAMABAD: The Competition Commission of Pakistan (CCP) has ruled that the Peshawar Electric Supply Company (PESCO) had acted unfairly against two prominent internet service providers by charging them an enhanced fee for using their electricity poles, and said it would slap millions in fines if it did not stop the practice.
The commission has directed PESCO to restore access to Right of Way (ROW) to the complainants — Nayatel and Cybernet — on fair, reasonable and non-discriminatory terms 21 days from the date of receipt of the order.
A failure to do so would result in PESCO having to cough up a fixed penalty of Rs 75 million and an additional penalty of Rs 0.5 million for every day after the first of such violations.
The CCP found PESCO acting in violation of Section 3 of the Competition Act, 2010, by charging the complainants Rs 100 per pole as opposed to a Rs 10 rate given to basic TV cable operators, and not providing any reason for the enhanced charges.
PESCO was found to have abused its monopoly over critical public infrastructure in violation of Section 3 of the Act.
PESCO owns and manages the electric poles in the market which are available to different types of cable service providers within Peshawar.
The utility’s actions were further discriminatory because only the complainants received decommissioning notifications regarding the removal of wires.
However, since there are no alternative means available for the complainants to provide cable, internet, and telephone services to consumers, it negatively affected both consumers and other stakeholders.
In this connection, the Bench found support from the applicable telecommunication regulatory regime, particularly, in terms of Section 27A of the Pakistan Telecommunication (Re-organization) Act, 1996 and the 2020 Public and Private Right of Way Policy Directive, which states that the licensees can use the poles of government and privately owned electricity distribution and supply companies (DISCOs) for aerial installation of optical fibre cables.
Moreover, it broadly states that the fee imposed by a public authority for a public right of way shall be on a no profit no loss basis, should not be a means of commercial benefit and there shall be no discrimination against any licensee in terms of the fee charged.
As for the safety grounds arguments raised by PESCO, it could not satisfy the Bench. In the order it is observed that, as per the findings, the accidents and incidents had decreased from the year 2017-2018 till the year 2020-2021. No further evidence was provided to substantiate these assertions.
Moreover, since other DISCOs are already providing ROW on similar rates to fibre optic cable operators and, as such, no denial on safety grounds has been reported or witnessed.
The Commission emphasised that access to broadband technology has significant beneficial economic and social impacts and is in line with the objectives of the Government of Pakistan to promote digital inclusion.
The Commission has also recommended that all private and government stakeholders, including PESCO, create a uniform policy for the deployment of broadband technology and ROW that may address any space or safety issues, including considering any shared infrastructure possibilities to fulfil the overall public policy objectives.
