CCP Ordered DHA-I Islamabad to Provide Right Of Way to Nayatel for Provision of CIT Services

The Competition Law of Pakistan (CCP) has issued an order for DHA-i Islamabad to be managed to restore equal conditions through the granting, in the same terms and conditions to the other operators of its 'righteousness of way' to Nayatel, to deliver its Cable Internet and Communications Technologies (CIT Services).

After the objection and concern received from DHA-I Islamabad residents, the CCP carried out an inquiry stating that the alternative choice of the CIT service provider had been denied, which was limited to only two carriers, i.e., Pakistan Telecommunications Company Limited (PTCL) and DHAI Telem, was not available.

Although the company's enthusiasm in providing its services, DHA did not allow Nayatel to operate in the region.

The Right of Way (ROW) is a CIT service providing a framework for Internet providers. The DHA administration had granted ROW to PTCL and DHAI Teleman in DHA-1 according to the allegations but rejecting Nayatel in similar circumstances.

DHA managers reportedly erected a barrier to Nayatel's entry by giving different conditions and calling for a higher ROW rate than the other Internet service providers.

The inquiry of the CCP decided that, by failing Nayatel to operate in the relevant market, management of DHA prima facie misused their position in breach of Section 4 of the Competition of 2010 and recommended launching proceedings against DHA under section 30 of the Act.

After hearing from the parties, the bench passed the ruling applying 'essential facilitative theory.' It noted that, for citizens, both in terms of personal and commercial usage, the CIT services are an important requirement in the present day.

The order further said that DHA-I inhabitants requested that Common malignant provide CIT services as a CIIT service provider located at Fiber-to-the-Home (FTTH). However, the administration of DHA-I could not award Nayatel a NOC to establish its infrastructure in the DHA-I Phase-I or other sectors because it abuses its dominating position.

According to the contract, DHA-I has had a leading position in the relevant market and has previously awarded ROW for delivering (G-PON) and associated CIT to inhabitants of DHA-I to four companies - i.e., the PTCL, Transworld, Wateen, and its own subsidiary, DHAI Teleman. The licensee was Nayatel, however, looking for the ROW.

The present service providers are not based on revenue sharing but on cost-sharing with DHA-I. The decree notes that DHA-I has failed to explain the reasons for a discrepancy in the charges given to Nayatel and other incumbents, following Section 3(1) with paragraph 3(e) of the Act, which is discriminatory in and apply dissimilar conditions to the same transaction.

This order also finds support in the "Public and Private Rights of Way Policy Directive" (the Policy Directive) issued by the Ministry of Information Technology and Telecommunication in October 2020, stating that "The public authority shall not discriminate against any licensee against the fee of the right way, nor shall differences or preferences be exercised in respect of the right way fee."

To ensure that DHA-I is allowed to remedy its behavior, it had to offer Nayatel no less favorable than the incumbent network operator within 90 days of the date of the ruling to use the ROW on terms and conditions.

For the time being, DHA was not punished by the CCP. However, in addition to the relevant penalties for non-compliance following Section 38 of the Law, DHA-I shall nonetheless be obliged to pay the Rs. 2 million regarding the breach of Section 3 of the Competition Act of 2010.

DHA-I was also instructed not later than 7 days from the day that the offer has been made to Nayatel to file a confirmation letter before the Commission Registrar.