Additional frequency spectrum: SC gives government, PTA a day for resolution of issue

The Supreme Court on Thursday granted one day to the federal government, Pakistan Telecommunication Authority (PTA), to resolve the issue of additional frequency spectrum given to CM-Pak Limited (Zong Mobile) for two years.

CM-Pak Ltd counsel Muhammad Ali Raza informed a two-judge bench comprising Justice Maqbool Baqir and Justice Mansoor Ali Shah that in 2014 Spectrum 3G & 4G was auctioned on the direction of the Ministry of Information Technology. The federal government fixed the price and the auction was held by Pakistan Telecommunication Authority (PTA), the regulatory body, on 25th April, 2014.

CM Pak was awarded 10 Mhz Spectrum as it was the highest bidder. The spectrum was sold to the company at $306 million for 15 years starting from 25-04-2014. Raza contended that thereafter the company installed the equipment. It informed the PTA on 9th June 2014 that there was interruption in the frequency. In March 2016 the Frequency Allocation Board (FAB) offered additional frequency of 5Mhz as compensation for two years with this condition that either they will clear the interruption or will give alternate spectrum.

The CM-Pak lawyer said that in 2018 the FAB admitted that the interruption could not be cleared. Therefore his client approached the PTA, which declined the petition, saying that an additional 5Mhz frequency can't be granted to the company, Raza added.

The counsel submitted they filed a statutory appeal against the PTA verdict in Islamabad High Court (IHC), which was also dismissed. However, the IHC directed the federal government to decide the matter.

PTA counsel Munawar Iqbal Duggal stated that they have no issue with the IHC judgement, but have serious reservation on paras 8, 9 & 12. He requested the bench to decide the matter.

The case was adjourned until today (Friday).

The para 8 of IHC says that there is no denial by the PTA authorities that additional spectrum was allocated to the appellant as compensation for a period of two years without any fee or charges on the direction of FAB after acknowledging interference in the spectrum. It noted that the said solution is astonishingly beyond the mandate of FAB under Chapter VI, Section 43 read with Section 5(2)(r) and Section 6(e) of Pakistan Telecommunication Re-organization Act, 1996 as additional assignment of spectrum by the FAB, which was extended to the appellant by the PTA, and has been given without any competitive process.

"This aspect opened a backdoor allocation/assignment of additional spectrum through illegal method despite the fact that the FAB is under obligation to allocate and assign the radio spectrum frequency without any interference."

The para 9 of the IHC judgment said the technical function of FAB is to create and establish all those measures for non-interfered radio frequency spectrum in all manners, and such exercise has to be done before every auction and allocation of radio frequency subject to testing. The technical experts of FAB are responsible to deal with the problems highlighted by the appellant and failing which PTA being regulator has to decide such kind of issues after due deliberation and consultation. No record has been placed before the IHC that PTA has performed its functions with due deliberation in a proper manner, while granting the additional spectrum on the request of FAB without adhering to the procedure of auction. The para 12 says that the technical experts of FAB and PTA shall also calculate the effect and usage of additional spectrum by the appellant in terms of costs and may also confirm the interference in spectrum available to the appellant in order to calculate the losses.