MoITT drafts 'Pakistan Telecommunication Competition Rules, 2017'

Ministry of Information Technology and Telecommunication (MoITT) has drafted 'Pakistan Telecommunication Competition Rules, 2017' to discourage anti-competitive conduct, avoid abuse of dominant position and ensure open and fair competition within the telecommunication sector.
The Competition Commission of Pakistan (CCP) had recommended the MoITT to review telecom policy, where it had been stated that competition rules would be developed for the telecom sector. The CCP had categorically stated that empowering Pakistan Telecommunication Authority (PTA) to regulate competition related matters in the telecom sector will not only create duplication of jurisdiction but will also engender legal uncertainty for the telecom operators and, therefore, it had recommended for reviewing the telecom policy 2015.
However ignoring the CCP recommendations, the ministry has formulated Pakistan Telecommunication Competition Rules, 2017. According to the rules, a licensee shall not agree or arrange with another licensee or person, where the agreement or arrangement prevents or lessens or is likely to prevent or lessen competition substantially in a market.
A licensee shall not merge/ acquire any other licensee without prior approval and/or obtaining no objection certification (NOC) from the Authority with regard to adverse effect on provision of licensed services along with other licensees.
The PTA shall evaluate every request for a merger/ acquisition objectively and issue a written order/determination/NOC on such a request within ninety days from the date of its receipt along with such fee as prescribed in Schedule 1 of these rules.
The Authority shall not unreasonably withhold permission for merger/acquisition and request for merger/acquisition may be denied in following circumstances; (a) if the proposed merger or acquisition is in direct conflict with any law or government policy directive issued under the Act; (b) merger or acquisition is ostensibly motivated towards or can result in elimination or lessening of competition from a relevant market; (c) the merger or acquisition should not allow the change of scope of licensed services defined between the different segments of the industry. The Authority while approving/granting NOC may impose such conditions and remedies as deemed proper to ensure consumer protection, fair use of scarce resources, sharing of essential facilities and fair competition.
Unless prior approval of the PTA is obtained, a licensee shall not agree or arrange with another licensee or person to (a) fix prices or restrict output; (b) coordinate separate bids for assets, resources or rights, or for any input in licensee's services or for the provision of any telecommunication services; (c) restrict competition in relation to the provision of telecommunication service or equipment to specific customers or to competition in specific areas; (d) refuse to do business with a specific licensee, carrier, competition or customer; (e) otherwise prevent or lessen competition substantially in a market.
According to the rules, the Authority shall ensure that open and fair competition is facilitated and encouraged in relevant markets within the telecommunication's sector. The Authority shall regulate tariff or other terms and conditions for provisioning of any telecom service or facility or any other service to the telecom consumers under the licence(s) issued by PTA or under any other licence, or any other service provided to the telecom consumers as per section 26 of the Act and otherwise considered necessary to safeguard the consumers or end-users from any anticompetitive, burdensome, unreasonable or unfair practices. A licensee shall not enter into any agreement or otherwise arrange with another licensee where the agreement or arrangement is likely to prevent or substantially lessen fair competition in a market.
No licensee shall engage in anti-competitive behavior. A licensee shall be deemed to have engaged in anti-competitive behavior if it: (a) intends to defame its competitor through commercial advertisements and or any other manner; (b) activates the services and deducts charges against those services without consent of the user; (c) hides actual prices of the packages; (d) abuses its dominant position in the relevant market; (e) refuses to provide access to essential facilities under its control or interconnection to a competitor on reasonable terms and conditions or, where applicable, on the terms and conditions notified or approved by the Authority; (f) discriminates or reduces interconnection or other facilities to competing licensees; (g) gets involved in vertical price squeeze in a relevant market where no substitutes are available; (h) engages in cross-subsidization; (i) and misuses the information acquired by it for provisioning of services to the competitor including essential facilities or interconnection.
Where the licensee has a share of 40 per cent or above of a relevant market, it shall be presumed to have significant market power (SMP) in that market, unless the Authority determines otherwise. A significant market player shall, upon request, provide other licensed telecom licensees leased circuit services in a reasonable period of time on reasonable terms and conditions at capacity-based, non-discriminatory and cost-oriented prices.
The SMPs in a relevant market will be required to introduce national roaming on a fair and non-discriminatory basis. The Authority shall allow sharing of resources including spectrum between the licensees to improve efficiency, promote competition and ensure that the scarce resources are used product.